Nick Xenophon (SA, Independent) Share this | Hansard source

I support the second reading of the Migration Amendment (Protection and Other Measures) Bill 2014. However, I want to put that support in context because I do have concerns about a number of aspects of the bill. As a preface: at the end of last year I did support the government's bill, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, to reduce the legacy case load and to reintroduce temporary protection visas. I have previously set out my reasons for doing so and I will not re-canvass that debate, but I think this bill needs to be seen in the context of that earlier bill.

First, I will indicate the areas of the bill I have serious concerns about and that I will not be able to support. Schedule 2 of this bill is particularly problematic. I know the government has indicated that schedule 2 is intended to clear up drafting issues that arose out of the Federal Court of Australia decision on 24 October 2012 in Minister for Immigration and Citizenship v Mzyyl and Refugee Review Tribunal. I think it is fair to say, looking at the decision of Justices Lander, Jessup and Gordon, that they did have issues with the former government's drafting of the previous legislation—so I can see why the current government wants to clarify that.

However, I do have an issue relating to complementary protection, which is what schedule 2 deals with. The refugee convention provides that protection should be afforded to people who flee from a country out of a fear of being persecuted due to their religion, nationality, race, social group or even political opinion. However, there are, each year, a number of people fleeing countries for reasons that are outside those grounds. That is why complementary protection is important. I have been given a number of examples by the office of the Hon. Richard Marles, the shadow minister for immigration. I am grateful to his office for this information—as I am to the minister's office and his advisers for their great assistance in walking through aspects of this bill with me. I am genuinely grateful for that. The examples I was given included those at risk of honour killings or of female genital mutilation—or it could be that someone has been threatened by an organised criminal group in the country where they are from. These examples do not fall into the usual categories of race, religion, nationality, social group or political opinion covered by the convention, but clearly those people are at real risk for another reason. That is why this complementary protection issue is important.

The former Labor government introduced an administrative framework for complementary protection not covered by the convention. It was, as I understand it, effectively struck down by the Federal Court of Australia on 24 October 2012. Again, it was primarily, I think, an issue of drafting.

The fundamental principle here is whether the test should be if a person is at real risk of significant harm or if a person is more likely than not to suffer significant harm. Clearly, 'real risk' is a more benevolent test and a broader test than 'more likely than not'. Putting my lawyer's cap on, 'more likely than not' implies a threshold of greater than 50 per cent. I think that, when you are considering the risk of people facing very serious injury or even death if they go back to the country from which they have fled, that is simply too high a standard; it is too onerous and too unreasonable. So I cannot support schedule 2 of the bill in good conscience, for those reasons. I understand the government's motivations in respect of it; I can see what they are saying in terms of the Federal Court decision of October 2012, but I think that the 'real risk of significant harm' test is the preferable test. I compliment the minister's office on engaging in a very constructive discussion in respect of this.

That leads me to the other schedules of the bill, and I will just briefly discuss those, because I expect that we will have a fairly robust committee stage of this bill. I expect that Senator Hanson-Young, on behalf of the Australian Greens, will provide a very fulsome and constructive contribution in the committee stage in the context of how this will work and what the potential implications are. I think that that is very healthy in the committee stage of this bill.

There are some aspects of schedule 1 that do concern me. I will need some clarity in the course of the committee stage in terms of the issue of sufficient explanation. I think that the opposition is of the view that you can either provide evidence or a reasonable explanation. The government says that you should provide both. Having discussed that with the minister's adviser recently, my understanding of the government's position is that, if you provide a reasonable explanation and take reasonable steps to provide the evidence, that will suffice. I just want to know how that will work; that may satisfy some of the concerns that have been expressed in relation to that.

There are circumstances where individuals do not have documents or have used bogus documents because they are fleeing imminent danger and prosecution, and documents have been destroyed through no fault of their own. There are other allegations that have been made that people have destroyed their documents deliberately, sometimes on the advice of people smugglers, which can be very problematic. We need to look at that very, very carefully. I would like to see how that would work in terms of what is being proposed by the government and whether it should be 'and' or 'or' in the context of evidence and 'reasonable explanation'. That is an issue that needs to be dealt with.

In the committee stage, I would like an explanation of family reunions from the government. The bill says that you need to apply for a family reunion at the same time as the primary person is seeking protection. Sometimes that may not be practical. If the bill is suggesting that the people seeking family reunion also have to show that they are at risk of persecution, then I think that that would be perhaps quite unreasonable. For instance, if there is a member of a family that is subject to a death threat, the threat of mutilation or another threat by an organised criminal group, then there are issues of complementary protection; I do not think that it is reasonable to expect that members of the family also have to be subject to the same sort of threat. The fact is that, if your loved one is subject to that sort of threat, a family reunion of the immediate family is not an unreasonable consideration. That ought to be taken into account.

There are issues in respect of amending the Migration Act to include proposed section 5AAA. Senator McGrath mentioned this in his contribution, and he made reference to paragraph 196 of the Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status. I do not want to misquote Senator McGrath and his considered contribution, but I think he said that it would not be inconsistent with that. He quoted the UNHCR handbook:

It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.

It goes on to make further reference to that. My understanding of that is that the proposed section may well sit rather uneasily with the existing section 56 of the act, and I would like an explanation from the government as to how those sections would interact in respect of that. I think it is a technical issue, but I think that it is also a live issue in terms of the application of the act.

There are further questions in respect of the issue of bogus documents. Clearly, there may be some applicants who are fleeing persecution and who—in order to get out of a country because of the risk of imminent harm or even death—have used bogus documents. But there may be other circumstances where bogus documents are used where there is no such imperative. Obviously, that would concern me.

So the committee stage of this bill will be quite important. I hope that schedule 2 will be knocked out, because I think that it simply goes too far. I think there are a number of questions about how schedule 1 will apply, and I would like to test that in the course of the committee stage and, of course, to listen to my colleagues as it is tested. I look forward to the committee stage of this bill—as much as you can look forward to any committee stage of a migration bill! It is important that this be sorted out.

The final comment that I wish to make is that I think the government's main ethos in respect of this bill is that it wants to deal with the legacy case load efficiently, and I understand that. But obviously—and I think that the government should have no issue with this—any effectiveness and any efficiency needs to be tempered by fairness. That is what the key issue will be in the committee stage, particularly in the context of schedule 1. So those are the matters that need to be looked at. I look forward to the committee stage of this bill.