Linda Reynolds (WA, Liberal Party) Share this | Hansard source

The amendments in this bill seek to clarify the responsibilities on asylum seekers so that this identification can occur as soon as possible after arrival. The amendments codify the existing responsibilities of asylum seekers in relation to protection claims in the Migration Act 1958. The bill clarifies that any person's claim for a protection visa must be comprehensive and supported to the best of the asylum seeker's ability—hardly unreasonable in the circumstances.

I would like to reiterate that these responsibilities exist currently and that the proposed amendments make no changes to the requirements placed on asylum seekers. The amendments seek to clarify these responsibilities in the legislation. Further, these responsibilities are consistent with an acknowledged, longstanding principle of international refugee law—that is, 'the burden of proof lies on the person submitting a claim'. That is the current burden of proof in international refugee law—although you would not know it from listening to those opposite.

This principle is an important one. In making a claim, an asylum seeker must provide supporting evidence to the best of their ability, to allow our border protection officials to decide whether there is an obligation to provide protection. Again, on behalf of the Australian people, this is not an unreasonable requirement. Without the assistance of the asylum seeker making the claim, the jobs of our border protection and immigration officials become extremely difficult—if they cannot prove who these people are. Whilst officials can continue to ask questions and seek clarification on information given by the applicant, early and full presentation of claims allows refugees to be recognised much earlier, which again is the more humane outcome rather than making them wait years and years.

Further, the amendments will allow our border protection officers to process asylum seekers in an efficient manner, which will see those who need asylum granted protection at the earliest possible opportunity instead of having to wait up to seven years as is currently the case. The importance of presenting a full claim for protection at the earliest opportunity is, as I have said, essential both for the claimants and the Australian government.

Currently, non-genuine asylum seekers can, and do, exploit the application process by presenting new claims or evidence at the review stage. This deliberately causes significant delays in processing their claims and the claims of other applicants. This bill enables the Refugee Review Tribunal to draw an unfavourable inference about the credibility of claims or evidence that is not raised at the earliest possible opportunity. Again, this is a very fair and reasonable requirement. This will discourage the late presentation of evidence and ensure that applications are able to be processed in a timely manner. If people can provide the evidence, they should provide it at the earliest possible opportunity.

The bill includes safeguards to ensure that applicants with a genuine need for protection are dealt with appropriately. If new claims and evidence are accompanied by a reasonable explanation as to why this information has been provided later, the tribunal will address all the claims and evidence on their merits. These amendments strike a totally appropriate balance between deterring abuse of the system—which is clearly occurring at the moment—and ensuring procedural fairness for those who are in genuine need of assistance.

We are all too aware that many asylum seekers, on the advice of people smugglers, destroy their identity documents before they arrive in Australia, assuming that they will just be given the benefit of the doubt. I know from my personal experience in this policy area that people smugglers do recommend to asylum seekers that they give up their identity documents before they are permitted to board boats in Australia. We know this. We know it is true and we know it has been a longstanding practice.

These identity documents have previously been used by the same asylum seekers to travel to Indonesia, sometimes on one, two or even three different flights, through customs and borders in a number of countries before they get to Indonesia. We know that for many of them their identity documents did exist but they are destroyed to give them a better chance and to exploit our goodwill and our current systems.

If you are a genuine refugee, an identity document should be the most important document that you hold and you should retain it throughout your journey to Australia because it will also assist to prove your case. The destruction of these documents, quite rightly, raises concerns about the validity of asylum seekers' claims, as does the use of forged documents, which is also something that occurs.

Establishing a person's identity, nationality or citizenship is central to determining protection visa eligibility. People smugglers do not screen their customers on the basis of whether they are a genuine refugee or not; this point is irrelevant to them. As long as they have the cash, they will take them. They will take anyone who has the US$10,000 dollars or more—although, I understand it is a bit cheaper lately due to our border protection policies. They do not screen them for the genuineness of their claims.

We cannot rely on the simple fact that a person has paid a people smuggler—and flown through a number of countries, ending up in Indonesia, with or without documentation—to prove that they are in fact a genuine refugee. The simple fact that they have put themselves on this boat is not sufficient for us to say, 'Yes, they are a genuine refugee'. We must be able to establish their identity. It is, therefore, vital that the use of bogus identity documents, and the destruction or discarding of documentary evidence, is discouraged and not rewarded. The measures proposed in this bill are critical in this respect.

Despite what Senator Milne has just told us, this amendment is not a case of Australia going rogue, Australia going it alone or evidence of international exceptionalism, because, in fact, it is in line with legislation already in the United States, in the United Kingdom and in New Zealand. So this is hardly going rogue. It is hardly going against our international obligations or an example of exceptionalism.

I would also like to address some of the claims of those opposite that there are no safeguards. The safeguards to ensure an asylum seeker is afforded procedural fairness remain unchanged. I will say that again: the safeguards to ensure an asylum seeker is afforded procedural fairness remain unchanged. The codes of procedure within the Migration Act will ensure these new measures are used appropriately and that all protection visa applications will continue to be assessed in good faith.

The primary purpose of these amendments is not visa refusal but to ensure that asylum seekers are aware of the importance of providing genuine documentation as soon as they can. To rebut what has also been suggested by the Greens speakers: where an applicant has a reasonable explanation for failing to produce original documents and has taken all reasonable steps to do so, these amendments will not be invoked. Additionally, these amendments represent a fair and balanced approach to handling claims in the absence of documentation provided by the applicant. I believe it is absolutely imperative that our Border Protection officials are able to determine the identity of those seeking asylum in Australia, and these amendments are critical to ensuring that they can.

I am also aware that the opposition have indicated that they support all parts of this bill other than schedule 2, which concerns the 'more likely than not' threshold for complementary protection. 'Complementary protection' is a term that describes a possible visa pathway for a category of people who, whilst not meeting the refugee convention definition, are nonetheless in need of protection on the basis that they would face serious violations of their human rights if sent back to their receiving country. For this class of people, the bill seeks to restore the originally intended 'more likely than not' threshold, which I think is a very good thing and a fair thing.

This threshold is an acceptable position open to Australia under international law and is consistent with the thresholds adopted in both the United States and Canada, despite the assertions by the Greens that this somehow represents Australia going rogue; it does not. Despite what they would have us believe, this test does not require decision makers to precisely determine whether there is a 48, 49 or 47 per cent chance of an asylum seeker being subject to torture. It is not a quantifiable, greater than 50 per cent chance style of test—and that is very clear. The Greens' assertion is simply not true. Civil courts in this country make judgements every day based on the balance of probability. The 'more likely than not' test is the same threshold. It is a fair and reasonable standard to use in the case of complementary protection.

It is interesting to note that this threshold is the same threshold that was initially adopted by the Labor government when the Migration Amendment (Complementary Protection) Act commenced in March 2012. I say that again: this is exactly the same threshold test that was introduced by Labor in 2012. It is par for the course that Labor are now rejecting the very threshold that they themselves adopted. This bill's intention is not to raise the threshold but merely to return it to the level which was set by Labor. Once again, those opposite are seeking to derail the government's pledge to take control of our borders and restore faith in Australia's immigration measures.

If Labor and the Greens vote with the government today, we could ensure that thousands of illegal maritime arrivals have their asylum applications dealt with in the most efficient and—