Sarah Hanson-Young (SA, Australian Greens) Share this | Hansard source

The Migration Amendment (Protection and Other Measures) Bill 2014, as we know, has been on the books for some time. As a result, every time it is looked at, every time somebody outside of this place views the detail of this bill, it becomes clearer and clearer just how reckless this bill is and how dangerous this bill is. It will undoubtedly put people's lives at risk.

Whilst the bill at face value seems very technical in nature, it is everything but. It is a fundamental change to how we assess and how we value Australia's role in protecting people from persecution and danger. This bill carries with it the very real likelihood of Australia deporting people, particularly young women and girls, back to danger. The bill seriously compromises the integrity of Australia's rigorous protection determination system, it erodes procedural safeguards, it hands unprecedented power to the minister of the day and it puts Australia at risk of breaching its non-refoulement obligations. This bill disregards the realities of those fleeing persecution and dismisses the very real and complex nature of the needs of people seeking asylum and the support that they require from any fair-minded and decent country.

This bill is nothing more than an attempt by this government to limit Australia's responsibilities to those seeking protection. This is about allowing this government to give fewer people refugee protection, not because they do not deserve it but because it is all about the numbers. Fewer people is why the government is attempting to change the rules. We know that those who arrive on our shores seeking protection are extremely vulnerable and have often experienced persecution, trauma and torture. Rather than enhancing the integrity and fairness of Australia's onshore protection status determination process, this bill does the complete opposite.

I foreshadow here a number of amendments that the Greens will move if this bill goes to the committee stage, one of which will reinstate legal assistance for asylum seekers. The ludicrous situation we have here is that, through this piece of legislation, the government is trying to change the rules for how people apply and the thresholds on which they will be assessed, yet no-one will be given legal assistance to help them work through the current or indeed the new process. That of course leaves open the opportunity for mistakes. When we are talking about decisions being made that impact directly on the life or death of somebody who has fled a horrific regime, it is simply madness, it is reckless, not to ensure that those decisions are being made with all of the appropriate information given up-front so that people are given the utmost opportunity to present their case in the best possible way. The government's scrapping of legal assistance to asylum seekers some months ago is going to have a disastrous effect and, in fact, a deadly impact on people if this bill passes without reinstating proper legal assistance to them.

The amendments proposed by this bill state that the burden of proof will rest solely on the applicant to prove that they are a person to whom Australia has protection obligations and that all evidence must be provided in the first instance. This is a retrospective measure. We currently have almost 30,000 people living in the Australian community who this will retrospectively impact upon—people who have been traumatised and re-traumatised through the detention process and are now living with very little care in the Australian community, with no legal assistance. The government is insisting through this legislation that changing the rules will not just happen for new cases but be retrospective. That is appalling, and the Greens will move to ensure that any changes are not retrospective in their nature. It is always a bad position to make retrospective laws, and we will be doing our best to fix those.

At face value, it does seem to be in some ways reasonable to have people prove their case for protection. They need to be given the best mechanisms to be able to do that. This bill ignores the realities of people seeking protection and assumes that people are fully aware of the complex nature of Australia's migration system. The UNHCR acknowledge this in their guidelines for decision making. They say:

… 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. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.

…   …   …

… it is hardly possible for a refugee to "prove" every part of his case …

We know that the reality of people seeking protection is that they have fled some pretty awful and traumatic experiences. They often have to leave in secret in order not to be detected by the regime or the militia group that they are fleeing. Just in recent days, there was the news of a young man who was working alongside coalition forces in Afghanistan being killed because he was not given protection soon enough. Of course, the Taliban found him. They knew that he had helped the Australian and US forces in Afghanistan, and he is now dead. That is the reality of the people that we are talking about.

Rather than following these guidelines, the government thinks that a person fleeing persecution, who may have fled in the middle of the night, has all the correct information. It is just not like that. It is just inconceivable to assume that somebody who is actually fleeing for their life will always have all of this information to hand, is fully aware of Australia's migration law and has access to a lawyer before they flee in the dead of night. It is completely unreasonable and ignores the realities of seeking protection. As stated by experts in this field, it is often difficult for people in those circumstances to understand what is going to be required of them much further down the track when they are facing the application process . People flee as refugees as a decision between life and death, saving themselves or saving their family. As to making sure you have collected everything—that is, even if you had access to all of those documents—it just beggars belief that this government wants to trash what is universally understood as the challenges of people fleeing for their lives and seeking refugee protection.

There is a part of this bill that relates to increasing risk thresholds to 'more likely than not'. This is in relation particularly to those people seeking complementary protection. When the then Minister for Immigration and Border Protection stood in the other place, he announced that refugees would have to prove that they had a greater than 50 per cent chance of being tortured or killed. The flip side of that is that they can have a 49 per cent chance of being returned to serious harm and being deported back to danger.

I want to be very clear here: those who are most at risk of being deported back to danger under this legislation are young women and girls—young women who are fleeing female genital mutilation or death by stoning because of trumped-up charges of adultery. We see our Prime Minister and our foreign minister out on the radio and the television every day talking about standing up for the rights of women across the world and particularly in our region. This bill fundamentally puts many of those girls and young women at risk. It will lead to the deaths of young women if we do not put in some proper safeguards to ensure they are not deported back to danger.

The amendments in the government's bill show that women fleeing honour killings or female genital mutilation, if there is a 40 per cent or 30 per cent chance that they will face that upon return, will be sent home. We are talking about people whose life or death decisions are being made at the flick of the coin. It is unconscionable that we would do this to somebody who has made their way to Australia and fears for their life: rather than doing what we can to help them, we flick a coin as to whether they get sent back to have a bullet in their head or to be tortured. It is unthinkable that a fair-minded and decent country like Australia would put young women at risk like this.

These changes are in direct contravention of international and human rights law—in particular the International Covenant on Civil and Political Rights; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the fundamental principle of refugee law, which is about non-refoulement, not knowingly sending people back to danger to be tortured, killed or abducted. That is the fundamental principle of international refugee law, and this bill single-handedly undermines that, particularly for those most at risk, such as young women and girls.

Despite the attempts by this government to cover its tracks and amend the bill to clear up some confusion, we know what this government's intentions are. It is determined to give fewer people refugee protection by whatever means possible, and this is just one of the aspects of doing that. There are legitimate issues around trying to make applications more streamlined to ensure that people are able to have their cases dealt with more efficiently. This is not how you do it. This is going to send people directly back to danger. There is no doubt that with the 'more likely than not' test there will be a significant increase in Australia's chances of making the wrong decision on whether somebody is protected from serious harm or not. We will risk breaching our obligations and returning people to persecution and other forms of life-threatening abuse.

In these last few minutes, I just want to address the issues of bogus documentation, because of course this is quite a hot-button issue when we talk about it outside the context of the realities of people seeking protection. This bill will deny genuine refugee protection to those who are thought to have or who actually have provided false identity, citizenship or nationality documents. This amendment ignores the realities of seeking asylum and goes against the basic principles of the refugee convention. There are many, many reasons why people are unable to obtain identity documents or may not have had the correct documentation when they arrive in Australia, such as that their home government is refusing to issue documentation. If you have stood up to an oppressive regime to a point where you are now being tortured or your family are being targeted, you can hardly go to the passport office of that government and say: 'Look, you've treated me appallingly. You're threatening my family. I'm going to get out of here. Can you please stamp my passport or issue me a passport so I can flee.' It just does not work like that. As we know from the harrowing stories of Jews having to flee persecution in Nazi Germany or occupied France, many people had to use false documentation to get out safely. We know that that is the case, because those stories of courage and heroism have been written, retold and celebrated across the world. It is one of the reasons that in the international convention there is a very clear statement about not punishing people because they did not have the right documentation at the time.

We know that many people may be too afraid to request documentation from their government before they leave, because they may be caught and not be able to leave in the first place. There is also the issue of not having the time to obtain documentation. I return to the story of last week about a young man who helped the Australian forces in Afghanistan who is now dead because he could not get out safely, despite the fact that he had applied through the proper means for protection in this country. The Taliban got him. Now he will never be safe because he no longer exists in this world, because he was caught for being not just a help to the Australian and coalition forces, but because he then tried to leave in an orderly manner. It puts people's lives at risk.

To propose an amendment such as that the government is here is to dismiss the experiences of those fleeing persecution. Amendments of this nature will result in genuine refugees being denied protection, purely on the basis that they were unable to provide the right documentation. This will put Australia at risk of returning refugees back to their persecutors.

I have spoken already about the retrospective nature of this legislation. We in this place should never move to change the rules and pull the rug from under people and have laws that are retrospective in their nature. It is unfair and it is not in line with what we in a fair-minded, decent country like Australia consider to be natural justice.

There are many aspects in this bill that are fundamentally dangerous and reckless to the lives of those who genuinely need our help and protection. There are many aspects to the bill, including limiting an asylum seeker's ability for family reunion. There is the rejection of applications by the RRT on the basis of new information that has been provided. There are amendments that would undermine the independence of the RRT and the MRT and deny applicants procedural fairness. The list goes on and on. There are so many holes in this bill.

I question why the government wants this brought on today. I question how long they would like this debate to go for, because as I see it the bill, as it currently stands, does not have support in this place. It needs fundamental amendments to be brought in line with what we consider to be natural justice and basic fairness under law, and also to ensure that we are not knowingly or unwittingly putting people's lives at risk and in danger.

The Australian Greens, and others I am sure, will be moving a number of amendments. It needs a lot of maintenance and fixing up to get this bill to the particular point where it should be passable by this place. It strikes me that a bill designed to make it harder for genuine refugees to apply for asylum is never going to be something that a house of review, such as the Senate, should simply rubber-stamp and pass on. We must question the motives as to why this bill is being brought on today and why the government wants to pass it so quickly this week. It will put people's lives at risk. It will send people back to danger on the flip of a coin. And without reinstating fundamental access to legal assistance, every person who currently is waiting or has an application on foot will be at risk of being sent back to death, torture or further persecution. I am not prepared to stand by quietly and see that happen. It is not okay. We have changed a lot of laws in this place over the past few years to make things harder for those applying for asylum. I think we do need a rigorous system. I believe we have a rigorous system. You do not make it better by taking away procedural fairness and giving more unchallenged power to the minister of the day.

It is a bad idea to play with the lives of people with the flip of a coin, which is what this is proposed with this bill. I will not stand here in silence as this bill proceeds for its remaining few days. It is fundamentally flawed and it should be opposed or at the very least heavily amended.