Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Parliamentary Secretary for Immigration and Shadow Parliamentary Secretary Assisting the Leader in the Senate) Share this | Hansard source

I move:

That the Migration Amendment Regulations 2009 (No. 6), as contained in Select Legislative Instrument 2009 No. 143 and made under the Migration Act 1958, be disallowed.

These migration regulation amendments issued by the Minister for Immigration and Citizenship remove the requirement for onshore protection visa applicants to lodge their application within 45 days of arrival in Australia in order to be eligible for a right to work and Medicare benefits. Onshore protection visa applicants are generally granted a bridging visa while their claims are being assessed or reviewed. However, no work rights or Medicare benefits are currently available to people who are applying for a protection visa and who have been in Australia for 45 days or more in the 12 months before their application is made.

The 45-day rule will be replaced with a new test that provides that the minister must be satisfied that the applicant has a compelling need to work and the reasons for the delay in making the application for a protection visa are acceptable to the minister. The amendments will essentially allow all onshore protection visa applicants—at all stages of the application and lengthy appeal process, and regardless of whether they were lawful or unlawful at various stages of their time in Australia—to apply for permission to work, which presumably will be likely to be granted in all but the most exceptional of circumstances.

Amid the increase of boatloads of illegal arrivals, the minister’s silence on this issue is deafening. One has to delve deeply into the minister’s website to find any reference to these changes. These changes were announced as part of the 2009-10 budget in May this year, and at the time the only reference to these planned changes was buried deep within the portfolio budget statement. In fact, we had to wait until the minister’s press release of 1 July 2009 to find out more details of the Labor government’s proposed changes. Even then he only devoted a paragraph worth of explanation.

To understand Minister Evans’s silence, we need to be aware of the context in which these changes are being made. Australia is currently facing a drastic rise in the number of illegal arrivals through the criminal activity of people-smuggling. It seems to be a regular occurrence now, almost every week a new boatload of asylum seekers are intercepted by the Royal Australian Navy or the Australian Customs Service patrols.

Since the Rudd government abolished the temporary protection visa and further watered down the strong immigration policies of the coalition, there has been a steady stream of smuggler boats carrying a total of 1,293 asylum seekers, with an unknown number drowned at sea or intercepted and held in detention in Indonesia. In addition, and following the debate earlier in relation to the detention debt bill, it is very clear that we have approximately 48,000 overstayers in Australia at any given time.

Minister Evans knows that the policies of his government have directly led to an increase in the instances of people-smuggling to Australia. Despite these simple facts, the minister’s departmental website is littered with media spin falsely promoting his government as being tough on the issue of people-smuggling. It is no surprise that amid the spin we find only one minor reference to the government’s changes allowing greater work and Medicare rights to asylum seekers. This, of course, comes at a time when the Australian people expect the government to be directing their attention to deterring the criminal activity of people-smuggling. If the government feels so strongly about these changes, then clearly it should be actively promoting them to the Australian people. Indeed, it has been Labor Party policy for some time to change the system of access to work rights and Medicare benefits for refugees.

The Australian Labor Party National Platform and Constitution 2007 states in chapter 13:

Labor recognises that the arbitrary 45-day-rule results in legitimate asylum seekers on bridging visas being unnecessarily denied the right to work while their claim is being processed.

It is worth remembering that the statement was made in 2007, at a time when the Howard government’s tough stance on people-smuggling had reduced the flood of illegal boats to just a trickle. It is no wonder that, amid a surge in the number of boats, the Labor government is being noticeably silent over these changes.

The government earlier today debated the amendments which abolished immigration detention debt obligations, except for people-smugglers and illegal fishers. It is important to note that during that debate the key point raised by the coalition was that asylum seekers found to be refugees have their detention debts waived or written off. Other illegals who were subsequently granted visas can have their detention debt waived or written off. In relation to overstayers who have breached their visa conditions and are placed in detention, it is entirely appropriate that they meet their detention debts. If they depart Australia without paying their detention debt, the coalition argued that they should meet those obligations before they are granted a visa to return to Australia in the future. Overstayers who depart voluntarily or are deported are still required to meet their removal costs. This debt is registered on the movement alert list and will be taken into account should that person choose to return to Australia at a future date.

If this program is poorly administered, then administrative arrangements should be improved rather than the government abandoning another deterrent mechanism. Rather than dismantling the system and abolishing the framework for detention debt, the waiver and the writing-off procedures should have been retained for consideration on merit. Further changes such as these act only to weaken our well-established and effective system of deterrence. The coalition has always been committed to an orderly and humanely managed immigration and refugee program, and we will continue to ensure that Australia remains one of the most generous providers of humanitarian settlement in the world. However, we will do this in a way that does not encourage unauthorised arrivals.

The Rudd Labor government has systematically unravelled the measures which previously kept our borders secure and have ensured a properly managed immigration system. This includes abolishing temporary protection visas, the proposed creation of a protection visa for those who are not eligible for refugee protection under the rules of the United Nations High Commissioner for Refugees, and now these changes to the 45-day rule. People-smugglers clearly have a well-established pipeline to Australia and are using the Rudd government’s softer policies to recruit more. Instead of sending out the right messages with policies to end this trade, the Labor government is instead proceeding with its program of deliberately softening border protection and immigration measures. We have seen a raft of changes in the department since July last year, all geared towards softening border protection and immigration measures and sending the wrong message. The shadow minister for immigration and the Leader of the Opposition have consistently called for an inquiry into the linkage between softening of policy and the surge of illegal arrivals. Such an inquiry is now long overdue and it is time this Labor government looked at the evidence, toughened up and took decisive action.

I would like to remind the Senate about the history of the 45-day rule. The coalition introduced the 45-day rule in July 1997. The rationale for this and other measures introduced at about the same time, such as the $1,000 charge for review by the Refugee Review Tribunal if applicants were unsuccessful, was to discourage bogus claims. In a speech to the National Administrative Law Forum in May 1997, then immigration minister, Philip Ruddock, explained his rationale for the new rule:

I have particular concerns in relation to those who travel to Australia on a visitor visa, with the necessary documents issued by their own government to travel here, and who seek to claim refugee status in Australia.

I am gravely concerned by reports I have received that people are using the onshore protection system to obtain work rights and access to Medicare. There are people who apply to my Department asking for the $30 work visa who appear not to be bona fide asylum seekers. These applicants seek to delay their departure as long as possible knowing full well they are not refugees.

This abuse costs tax payers millions of dollars, undermines public confidence in the system and causes processing delays, disadvantaging genuine applicants.

There is no reason to expect that the number of potentially bogus claims would be fewer in the future after these changes, given other recent softenings of the Labor government’s migration policy. In fact, with the dropping of the 45-day rule, one would expect that the number of vexatious claims would rise.

Indeed, one only has to consider the words of Minister Ruddock and the circumstances in Australia at the moment, given the number of overstayers that we have in this country—about 48,500—to easily see that, for example, international visitors and students may come to this country for a particular purpose and suddenly decide at the end of their time here, now that we no longer having that 45-day-rule barrier, to claim refugee status in Australia, irrespective of the documentation they had when they originally arrived. Therefore, I am very concerned that the abolition of this rule will result in quite a number of vexatious claims.

It must be remembered that income support is currently provided to asylum seekers who are unable to meet their basic needs for food, accommodation and health care while their applications for protection visas are being assessed. The assistance is provided through the Asylum Seeker Assistance Scheme, which provides 89 per cent of Centrelink benefits. It is run by the Australian Red Cross. After an asylum seeker has received a decision from the Refugee Review Tribunal, they are no longer eligible for this assistance. Under article 24 of the refugee convention, governments are required to provide state support for refugees equivalent to that provided for resident citizens. However, this requirement does not cover asylum seekers.

The 45-day rule has been effective in limiting abuse of the system. Vexatious claims occur mostly when international students and visitors exploit the chance to extend their time to earn wages in Australia. As we well know, and as I certainly saw in my many years of experience dealing in immigration law with the Australian Government Solicitor, appeals in this area can take a long time. Given the processes that are available, this can mean a highly extended period of time during which unsuccessful applicants will potentially receive unemployment benefits and Medicare assistance.

The arguments in support of retaining the 45-day rule for asylum seekers include the fact that most asylum seekers in the community have entered on visitor visas, which include no work rights or Medicare assistance. Nevertheless, they are given work rights and access to Medicare until their applications for protection visas are refused at the merit review stage if they apply within 45 days of entry. Secondly, so far as past governments have been concerned, asylum seekers whose claims for protection are rejected by the department and rejected again following merit review by the Refugee Review Tribunal are failed asylum seekers. The fact that they are able to pursue claims through the court should not entitle them to access the job market and other benefits and support. This creates a situation where, if one looks at the media reports, one sees some students doing courses for years, in areas in which they will never practice or undertake work, for the specific purpose of remaining here in Australia. At this time, given the economic circumstances, it is legitimate that Australia and Australians would question whether such persons should be also entitled to Medicare and unemployment benefits, especially given the levels of unemployment and, in particular, the very high levels of underemployment currently in our economy.

Thirdly, if the asylum seeker process is seen to be abused by people who have already been in Australia for months or years, it may indeed create a backlash against all asylum seekers in the community. Fourthly, the removal of the 45-day rule will further soften Australia’s border security and immigration policy, which is designed to provide all Australians with strong border security and an effective immigration system.

In conclusion, the opposition supports this motion for the reasons that I have outlined, given the very legitimate concerns about the potential problems, relating to abuse in particular, that removal of the 45-day rule may cause, especially in circumstances in Australia at the moment where we do have high unemployment and other real issues to deal with. I think this is a legitimate concern that Australians would want examined.