David Shoebridge (NSW, Australian Greens) Share this | Hansard source

by leave—I move Greens amendments (1) and (2) on sheet 2882 together:

(1)—Clause 2, page 4 (at the end of the table), add:

(2)—Page 49 (after line 17), at the end of the bill, add:

Schedule 6 — Reconsideration of IAA decisions

1 Definitions

In this Schedule:

ART means the Administrative Review Tribunal.

IAA means the Immigration Assessment Authority, as in existence before the transition time.

Minister means the Minister administering the Migration Act 1958.

new Act means the Administrative Review Tribunal Act 2024.

transition time means the time the new Act commences.

2 Reconsideration of decisions on protection visa applications

(1) Subitem (2) applies if, at any time before the transition time:

(a) a person applied for a protection visa (within the meaning of the Migration Act 1958); and

(b) a decision (the original decision) under section 65 of that Act on the person's application had been made to refuse to grant the visa to the person; and

(c) the IAA reviewed and affirmed the original decision; and

(d) the person has not been granted a protection visa since the original decision was made.

(2) The Minister must:

(a) refer the original decision to the ART as soon as practicable after the commencement of this item; and

(b) notify the person in writing that the Minister as referred the original decision.

(3) If the person requests the Minister to withdraw the referral, the Minister must withdraw the referral.

(4) If the Minister refers an original decision to the ART under subitem (2), and the referral is not withdrawn on request of the person:

(a) the person is taken to have made an application to the ART under section 347 of the Migration Act 1958 (as amended by Schedule 2 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024) for a review of a reviewable protection decision; and

(b) the application is taken to have been properly made under sections 347 and 347A of the Migration Act 1958 (as amended by Schedule 2 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024).

(5) The ART must, as soon as practicable after receiving the referral, review the original decision and:

(a) affirm the original decision; or

(b) remit the original decision for reconsideration in accordance with such directions or recommendations of the ART as the ART considers appropriate.

(6) In reviewing the original decision, the ART must:

(a) give the person a reasonable opportunity to provide additional information in relation to the original decision; and

(b) disregard the decision made by the IAA to affirm the original decision.

3 Effect of this Schedule

This Schedule has effect despite any other law of the Commonwealth.

4 Rules

(1) The Minister administering the Administrative Review Tribunal Act 2024 may, by legislative instrument, make rules prescribing matters relating to the review by the ART of decisions covered by subitem 2(1).

(2) Without limiting subitem (1) of this item, rules made for the purposes of that subitem may modify the operation of this Schedule or the new Act, to the extent that the modification is necessary to facilitate the review by the ART of the decisions covered by subitem 2(1).

We had a discussion yesterday about the institutional unfairness that was inherent in the coalition's Immigration Assessment Authority process, and we saw some valiant efforts from Senator Scarr to try to hide the fact that some 460-plus determinations of the Immigration Assessment Authority were reviewed by the Federal Court, found to be unlawful and then referred back to the IAA to be determined in accordance with law. We requested of the government some insight into the countless millions of dollars of Commonwealth money that was spent defending the indefensible in the Federal Court and the extent of the delays that were caused by the grossly and, in fact, intentionally unfair process that was established by the IAA, but we haven't yet had that information provided. I understand the minister's argument that it's not the core issue. The failure of the IAA isn't the actual core issue that he came briefed to deal with today and yesterday, but it remains the fact that the fast-track process was an abuse of process that was intentionally designed to refuse valid asylum claims.

I particularly want to note the unfairness that it visited on the Tamil community. Tamil claims for asylum were rejected at an obscene rate. They were almost guaranteed to be rejected. The country assessment from DFAT, relied upon by the IAA, deliberately minimised the ongoing persecution the Tamil community face and deliberately sought to downplay the ongoing violence towards, disappearances of and exclusions against the Tamil community, and, for that reason, hundreds of claims from the Tamil community for asylum were unfairly and unreasonably rejected.

I want to note that it's not just the Tamil community. The unfair approach was adopted for claims from those seeking asylum from persecution in Myanmar, Bangladesh, Pakistan, Iran, Sudan—the list goes on. I was particularly moved by the reports of one young woman, who is now an incredible contributor to our society—a leading international researcher on trying to understand skin cancers. I've got to admit I have skin in the game on that one. She is an extraordinary woman, who only found her way through university through grants and scholarships because she was trapped in the fast-track system. Having come here as a child and graduated from high school with all that promise, she was refused HECS and refused support into university, but, thankfully, universities and the broader community worked together with scholarships and grants, and she completed her studies, completed her postgraduate studies and is now a world-leading researcher and scholar on skin cancers. She is repeatedly invited to international forums to speak about it, but she can't leave the country, because she's trapped in the fast-track process. Her asylum claim was rejected by the unfair IAA process. She can't travel and is caught, like thousands and thousands of others, having been rejected by the IAA and had this government, frustratingly, refuse to provide a safe and viable pathway for permanency.

We've heard stories—and, if the government and the opposition were willing to listen, you'd hear stories—about claimants who put their application in to the IAA. They have researched sometimes for weeks or months, with a maximum five-page covering letter and then sometimes countless pages of documentation identifying their persecution and identifying their well-founded fear of persecution in the country from which they fled to Australia for safety.

One case sticks in my mind—this young woman who put together her application, supported by hundreds of pages of documents, and finally submitted it at 10 o'clock one night to the IAA. Having submitted it at 10 o'clock that night, she woke up the next morning, and, at 10 am, she got an email saying it had been rejected. She puts it in at 10 o'clock at night, with hundreds of pages of supporting documentation—it's a hugely considered application—and it's rejected by the coalition's unfair IAA at 10 o'clock the following morning. That was only enough time for the assessing officer to literally open it up. They couldn't have pretended to have considered it. They couldn't have pretended to have looked at it. As a result, she's been caught in 10 years of insecurity and threats of deportation. Surely no government of conscience could let that stand.

Instead, we have this government saying that they're not going to put in a process to reconsider those unfair rejections in the IAA. The only process they have on foot is individual ministerial intervention—literally the feudal lord approach to this. You have to go and beg the minister for an intervention, and he or she may deign to give a tiny handful of people ministerial intervention. Let's be clear: with 7,000 applications for ministerial intervention, if that were actually the approach, considering those matters would be all the minister did for the next decade. It is a pretend solution.

It's a nonsolution, so that's why we advanced this amendment, which is a real solution. This amendment would provide for the reconsideration of those unfair IAA decisions. Instead of placing it in the hands of a feudal lord politician, it would actually take the matter to the Administrative Review Tribunal. It would require the minister to refer to the ART, as soon as practicable, those matters where the circumstances are that there has been a review by the IAA that rejected an asylum claim and the person who was the subject of that review has not been granted a protection visa since that original decision was made.

The minister, having referred them to the ART, obviously gives those individuals the right to seek to have the matter withdrawn. But if they don't, then the ART is required to consider the application, to treat it as a valid application, to then either affirm or reject the decision to review, and, in that process, to allow the person and the department to present whatever additional information is needed, to do the process fairly, to assess the claims in accordance with law and to live up to our commitment to provide a credible, honest and genuine pathway to actually have claims fairly assessed for those thousands of people who were caught in the fast-track process. I urge the government to adopt this. We know the coalition won't, because they specialise in cruelty and they're trying to defend their unfair system.

We repealed the IAA because it was unfair. There are now thousands of people just demanding some fair chance to have their claims assessed—they and others are often protesting out the front of the minister's office. This gives them that fair chance. We urge the government to step up and do the right thing.