Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Hansard source

Australia has a long and proud tradition of offering protection to people fleeing persecution in their home countries. To ensure that this tradition can continue, there must be a robust and efficient processing of applications. But devising such a process must not disadvantage those with genuine claims for protection.

This Migration Amendment (Protection and Other Measures) Bill 2014 seeks to alter various aspects of the protection framework as set out in the Migration Act of 1958 and, while Labor supports some of these changes, we are concerned about others. For example, the bill places applicants for protection at a disadvantage in tribunal hearings by weakening the requirement of the tribunal to give its decisions in writing. And while Labor supports the broad aim of making the assessment of protection claims more efficient, we do not support provisions in this bill that restrict procedural justice for applicants. I will come back to this in a moment.

First, I wish to detail Labor's most substantial concern, and that is that schedule 2 lowers the threshold for complementary protection. The measure in this schedule potentially allows people to be returned to places where they have a risk of suffering death or serious harm. If those changes were not part of this bill we would find it easier to support the legislation in an amended form. Whilst schedule 2 remains, however, Labor cannot support this bill. Labor has grave concerns about the bill's significant changes to the way Australia determines whether it has an obligation to protect noncitizens.

When we were in government we introduced complementary protection visas for people who are not covered by the United Nations conventions relating to the status of refugees but who were, nonetheless, at risk of a serious violation of their human rights if returned to their home country. The changes proposed in this bill undermine the complementary protection framework that Labor put in place. The UN convention provides that protection should be offered to people fleeing persecution on the basis of race, religion, nationality, social group or political opinion. Every year, a small but significant number of people flee in circumstances which are not covered by these categories. Many of those who are not covered by the convention but who do require protection are women, including women who may be at risk of genital mutilation or so-called 'honour killings' in their homeland. Lowering the threshold for complementary protection is likely to particularly affect such women. Because the bill shifts the threshold from applicants having to prove that there is a real chance of suffering significant harm on being returned to their homelands, to requiring them to prove it is more likely than not that they would suffer harm. At present, 'a real chance' is understood to mean a risk of harm that is not remote or unsubstantial but which may be below 50 per cent. It may well be as low as 10 per cent.

In the evidence given to the Senate Legal and Constitutional Affairs Committee, the Department of Immigration and Border Protection conceded that the meaning of the application of the phrase 'more likely than not' may have been inconsistent in the explanatory memorandum to the bill, the then minister's second reading speech and the department's submission to the Senate inquiry. This confusion concerns whether the new threshold would be interpreted by decision makers on the balance of probabilities or on a quantifiable, greater-than-50 per cent criterion. These inconsistencies have increased Labor's concern that the changes to complementary protection in this bill would result in people being returned to their home countries to face persecution. Complementary protection applications are only a small proportion of those who apply for protection, but that is not a reason for weakening the protections that are available to them. Nevertheless, this legislation fits a pattern when it comes to the Abbott government's previous handling of the issue of complementary protection.

Last year, the government sought to remove Labor's changes to complementary protection by introducing the Migration Amendment (Retaining Control Over Australia's Protection Obligations) bill 2013. That bill was not passed by the parliament and this new bill is a further attempt by the government to make it more difficult for those seeking protection to obtain it. Labor puts the government on notice, as we did before: we will not support your attempts to walk away from Australia's international protection obligations and place the lives of the vulnerable at risk.

The bill also changes the determination of refugee status, which Labor supports in part. One such change affects family members of protection visa holders. At present, a member of the family of a protection visa holder is automatically considered to be owed protection. The bill provides that if a person seeking protection does not apply at the same time as the primary applicant, or at least before the primary applicant's claim is granted, that person will have to lodge an application in his or her own right. For example, a person who marries a protection visa holder after the visa is granted will not be considered to be eligible for protection by virtue of the fact that their partner has a visa. It is important to note that this change only applies to applicants already in Australia. The bill also states explicitly that the onus of proof for a claim of refugee status lies with the applicant. This is the way the process has always operated in practice and it is in an applicant's best interest to provide as much information as possible. As the legislation currently stands, the lack of documentary evidence of an applicant's identity is not automatically grounds for refusal, but a decision maker is entitled to draw an adverse inference.

This bill imposes a duty on the minister to refuse to grant a protection visa if the applicant refuses or fails to comply with a request for documentary evidence and does not have a reasonable explanation for this refusal or failure. Similarly, the minister is obliged to refuse a visa if the applicant provides a bogus document as evidence of identity or nationality or if the minister is satisfied that the applicant has destroyed or disposed of the documentary evidence, unless the applicant has a reasonable explanation for these actions. The obligation to refuse does not apply if the applicant has a reasonable explanation, such as statelessness, and/or provides other documentary evidence of identity or has taken reasonable steps to obtain such evidence.

Labor regards this requirement as an onerous burden to place on applicants. They are therefore asked to double up. Even if they have a reasonable explanation, they must also provide documentary evidence or show that they have taken reasonable steps to obtain it. In these circumstances, a reasonable explanation should be sufficient, and Labor will seek to amend the bill accordingly.

Finally, the bill encourages all information to be provided at the earliest possible opportunity. When an applicant seeks to raise new evidence, the bill requires the Refugee Review Tribunal to infer that the evidence lacks credibility when the applicant cannot provide a reasonable explanation for not presenting the evidence to the primary decision maker. Labor will seek to amend the bill to require the tribunal to give an applicant a written warning before making an unfavourable inference when a new claim has been raised.

The bill also changes the processes and administration of the Migration Review Tribunal and the Refugee Review Tribunal. Labor is especially concerned by one of these, which sets out circumstances in which the tribunal's ruling may be given orally, without a requirement for a written copy of the ruling unless it has been requested by the applicant. We cannot support this weakening of the existing requirement, which potentially denies procedural fairness to applicants. Labor will seek to amend the bill by removing this item.

Other changes enable the principal member of each tribunal to issue practice directions to applicants and their representatives and to issue guidance directions to other tribunal members. This is consistent with the practice of other Commonwealth merit review tribunals such as the Administrative Appeals Tribunal. The tribunal will also be able to dismiss an application if the applicant fails to appear after being requested to do so. The tribunals will be able to reinstate the case if requested by the applicant within a specified period and if it is appropriate to do so.

While Labor generally support these measures, we are concerned that the specified period is too short. We will therefore move an amendment to extend the time from seven days to 14 days, and this is consistent with the recommendations of the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the bill.

The bill seeks to streamline statutory bars to making a visa application. These changes ensure that an unauthorised maritime arrival in Australia who is an unlawful noncitizen, a bridging visa holder or a holder of a temporary visa will not be able to apply for a visa unless the minister determines that it is in the public interest. The explanatory memorandum states:

Most unauthorised maritime arrivals and some transitory persons who arrived in Australia before 19 July 2013 have been granted a temporary safe haven visa and a Bridging … visa …

At present anyone with these visas would be subject to three provisions in the act that prevent them from making a valid visa application. The bill's changes ensure that unauthorised arrivals are caught by only one provision relating to unauthorised maritime arrivals generally. Importantly, the changes do not expand or alter the minister's existing powers to lift the application bar in relation to an unauthorised maritime arrival or a transitory person. The changes only affect applications made by unauthorised maritime arrivals and transitory persons after the amendments commence. They do not affect applications already lodged with the department.

Labor support these changes and note the High Court's judgement in Plaintiff S4/2014 v. Minister for Immigration and Border Protection & Anor. We also acknowledge the department's statement in response to a question on notice from the Senate Legal and Constitutional Affairs Legislation Committee that it is still considering the implications of this judgement for the proposed change.

So, although Labor accept that in some respects the bill improves existing protection processes, we cannot support it in its present form because of the changes to the complementary protection and procedural justice rights of applicants, and I urge the government and the Senate to accept Labor's amendments.