Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I move:

That Schedule 7 of the Migration Amendment Regulations 2005 (No. 8), as contained in Select Legislative Instrument 2005 No. 221 and made under the Migration Act 1958, be disallowed.

This motion, for which notice was first given, I think, in late November last year, seeks to address one schedule amongst a range that were put forward in the Migration Amendment Regulations 2005 (No. 8 ) from October last year. This schedule changes the criteria in regard to remaining relative visas. Currently, prior to these regulations coming through, an applicant could apply for a remaining relative visa if they, together with their spouse, did not have any overseas near relative residing in the same country as them, did not have more than three overseas near relatives and had not had contact with those relatives within a reasonable period before they applied for the visa. The effect of the schedule, which the Democrats seek to disallow, is to restrict eligibility for the remaining relative visa to people who have no other near relatives living outside Australia at all. It is said that this needs to occur to address so-called integrity issues associated with the visa category and ensure that only applicants left in genuinely isolated situations overseas will be eligible.

This is not an earth-shattering, world-changing regulation overall. It is not going to affect a massive number of people, but if we look at the total numbers of our migration intake with permanent visas—and indeed the even much larger number now coming in on temporary residents visas—we see more and more that a component of the intake is being tilted further towards business and skilled visas. The family component as a proportion of the total has certainly shrunk dramatically in recent years. As I said, this individual change in itself will not affect huge numbers of people, but it is a further tightening of family migration for people wanting to reunite with remaining relatives. I do not believe that is desirable in terms of the balance of the migration program nor from the point of view of multiculturalism.

I do not want to range too broadly in this contribution as I want to keep my contribution reasonably short, but the broader issues of multiculturalism and ensuring a harmonious, well-integrated society in Australia with migrants from a large and diverse number of backgrounds are not helped if we unnecessarily restrict family intake. Family migration, having relatives living together in Australia, is a significant glue that helps to maintain the fabric of multiculturalism and I believe that this change, while small, will be to the detriment of that. I do not wish to overstate the case and to say that it will have monumental impacts of a negative type, but I believe that we are unnecessarily restricting family intake when there are people wishing to migrate to Australia to join other near relatives—and near relatives are defined in the regulations—and that we should not be making that unnecessarily hard for people.

This restriction, which comes in through the schedule of this regulation, makes it unnecessarily hard for people to shift from having three near relatives in other countries who they have not had contact with for ages to having no other relatives overseas at all and those near relatives being normally resident in Australia. That makes it unnecessarily tight. It might address the so-called integrity issues but it does that by basically making the purpose of the visa unnecessarily restricted in the process. All of these things are a balance, and I believe we have things out of balance in regard to family intake in the migration area.

That is not to criticise skilled migration and it is certainly not to criticise migration in general. Some time many years ago, at least some in the Democrats had a very strong anti-migration viewpoint and sought to dramatically reduce the amount of people allowed into this country. That is not a view held by any Democrat senator now—indeed any Democrat senator who has been in this place for quite some time—and it is not a view reflected in our party’s policy. We need to have a migration intake that allows our population levels in Australia to be sustainable. I believe the current levels of migration combined with the current fertility rate enable us to establish a sustainable population level in Australia. But part of it is also about ensuring that the mix within that intake is a balanced one.

Whatever size you think our migration program should be, it is always going to need some limits put on it. We certainly cannot at this stage have an open-slather approach. We need to put criteria in place in regard to eligibility for migrating. But I believe it is undesirable to tilt that, as has happened, too far towards skilled and business visas. Further restricting the ability of family to reunite and for people to migrate and contribute to Australia in conjunction with relatives they already have here does not help our national self-interest. It will unnecessarily lead to more isolation with people spread out over different parts of the world when they do not want to be in that situation.

So the Democrats believe this change is not a desirable one. As I said, it is not a massive component of the entire migration program, but it reflects a wider trend that we have concerns about. We believe in this instance it is appropriate to disallow this change and allow the remaining relative visa to apply more widely than it will under the schedule contained in these regulations. I urge those senators who support the concept of a reasonably broad family intake in our migration programs to support the Democrats’ motion to disallow this unnecessarily restrictive change.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I suspect this disallowance motion moved by Senator Bartlett will not be successful. I am unsure how those on the other side of this chamber are going to vote, but I have a feeling they are going to vote it down. Senator Bartlett has raised a number of points, but if you look at the overall effect of this regulation it seems to be a cut that is based on cost—in other words, the department has come to a view that these are costly issues and that, as a consequence, it wants to revamp the visa system. It is not appropriate criteria in all events to look only at cost and I think in this instance that has been the main driver behind some of these changes, particularly this one.

Senator Bartlett has made a couple of particularly interesting points which I think can be supported by the opposition. Those points really go to the fact that there has been a long history of support for family migration, particularly the type provided here, for a range of reasons. Those articulated by Senator Bartlett go to issues of multicultural policies, which Labor has supported and pursued vigorously and which I think this government has abandoned. But when you dissect this particular initiative of the government, you could then say that on balance it may be a constructive regulatory change. While it will restrict a percentage of people from being eligible to apply, the basis for the amendment is to address integrity issues around the visa, so it seems sensible on face value. The amendment to this regulation reduces the number of other remaining relatives an applicant may have from three to none. Prior to the amendment, an applicant could have three other remaining relatives and be eligible for the visa, as long as they were estranged and had not been in contact with them for a certain period of time.

In many cases the department of immigration was thus forced to prove a negative—that is, the department had to prove the relatives had not been in contact. Of course, that can be a costly and difficult exercise. For the special concession visa, it would appear to be an unnecessary and inappropriate use of departmental resources and time to prove that negative.

On that basis, at first glance the opposition considered that there might be merit in the amendment. When we looked at it in a little bit more detail we expected to find that the government had mounted the case. Labor understand that if people miss out on this concessional visa, due to this new regulation, they do not necessarily miss out on being able to come to Australia. It is a special concessional visa targeted at a specific group of people with special circumstances. But, when we lifted the skin from the custard, when we looked a bit more deeply, it was obvious that the minister has not made an argument to say that the regulation is better policy than that which is currently in existence. The minister at no stage in the argument being used to defend the regulation has argued that there will be fairer outcomes or more just outcomes. In fact, there is a policy vacuum in terms of what would be a better or more just outcome.

The argument about the difficulties in verifying the rules that applied before this regulation was introduced is not an argument about the policy or the reasons for the concessional visa. It is an argument about cost. These are costs associated with having to check that a number of relatives have had no contact with each other. But we are dealing with what is very much a concessional visa. It is not unreasonable for the minister to want to take those issues into account—that is, the reasons why the concessional visa should or should not be granted—and not balance those simply by saying that the costs far outweigh the position. Of course there will always have to be a balance. We are not saying that there should be no consideration of compliance costs with this sort of concessional application. But we would expect the government to argue its case more fulsomely. I suspect we would not be debating this now if the government had been able to make the case as to why, in terms of both the policy and the compliance costs, this concessional visa should be removed and dealt with in another way.

Labor, of course, does not object at all to compliance costs—they are a necessary part of the department—and the integrity of the system being matters taken into account in relation to visas. It is reasonable, in fact, to undertake due diligence and due examination to make sure that people are obeying the rules. But it seems that the balance here has tipped to the other side. In other words, the evaluation of how this concessional visa has worked has not taken into consideration (a) the number of people who would be affected and (b) how you will then deal with those people in a much fairer or more just system. They are simply saying that compliance costs seem to be prohibitive and as a consequence we can remove this type of concessional visa.

When we look at it, there are cases where we have some sympathy for wanting to reduce the compliance burden on the department. But we also have some sympathy for the point of view that was articulated by Senator Bartlett. There has to be, as I have said, that balance struck. If you have other relatives out there somewhere in the world but you are genuinely isolated and have had no contact with them for a substantial period of time, then the reasons for having this concessional visa do apply to you.

If we are going to knock out the people in this situation because of the administrative burden, we need to know how many people are going to be affected. We need to ask for the information and the department needs to provide it. Information from this department to enable us to make those assessments as to whether there are alternative ways to deal with this has been scant. We can only reach the conclusion that the department does not examine these issues in great detail but makes administrative decisions based on costs rather than on the actual issues themselves.

The balance that we as legislators have to make is between, in this instance, the compliance costs that they say are burdensome—as I understand their argument—and need to be reduced, and the number of people who will be affected and who may have to find some other mechanism and could genuinely use this concessional visa. It is impossible, in some parts, to make that assessment, when much of the information to base the argument on should come from the government and they are not providing it in a way that provides a sound reason why this regulation should be removed. Until such time as they can produce that evidence—produce the reasons, produce the costs and tell us how many of these people there are and that they will be dealt with in a more humane or different way—then Labor is not in a position to support this regulation.

Marise Payne (NSW, Liberal Party) Share this | Link to this | Hansard source

I am pleased to have the opportunity to make a few remarks on this motion of Senator Bartlett’s in relation to schedule 7 of the Migration Amendment Regulations 2005 (No. 8)—Remaining relative visas. I note the remarks of both Senator Bartlett and Senator Ludwig and perhaps, in some small way, can add to the discussion, particularly to expand on the observation Senator Ludwig made in relation to this step being based primarily on cost. It is important to place on the record that there are broader reasons in relation to this matter than just cost, and the department has explored those. I am pleased to have the opportunity to discuss them this afternoon.

The changes that have been made to this remaining relative visa subclass, which has previously had the intention of enabling Australian citizens and permanent residents to bring to Australia a remaining relative who would otherwise be left in an isolated situation overseas, are addressing some broad concerns around the use of that visa class. The origins of the remaining relative category go back to those times when the ease of international travel and communication facilities, such as telephone and internet, were not as readily available as they are today, so communications and contact were far less easily facilitated than they are in many instances today. Also, as Senator Ludwig acknowledged, this is in fact a concessionary category of visa subclass. It has no skills or age criteria either.

Before 1 November 2005, the then extant regulations allowed an applicant and their spouse, if they had one, together to bring to Australia up to three overseas near relatives who did not reside in the same country as the applicant and spouse, provided there had been no contact with those overseas near relatives within a reasonable period prior to the application. One of the problems with the visa subclass was that the provisions which allowed an applicant to bring up to three overseas near relatives were in fact, as far as the department was concerned and as far as their examination of several key cases showed, resulting in fraudulent claims. I know that, notwithstanding the observations of Senator Ludwig and Senator Bartlett in relation to the importance of the family migration category, no-one in this chamber supports the existence of a regulatory environment which gives some succour, if you like, to the making of fraudulent claims. This would be one example of that.

As I understand it, the three principal areas of fraudulent claims were the concealment of the existence of overseas near relatives, the misrepresentation of the usual country of residence of the overseas near relatives, and the concealment or misrepresentation of the nature of contact with overseas near relatives. These areas of fraud were borne out by a refusal rate on this subclass which averaged approximately 50 per cent, so not an insubstantial amount. In addressing these integrity issues, the category was reviewed and, in the contemporary environment to which I alluded earlier—particularly in relation to communications and travel—it was decided that having up to three overseas near relatives in the subclass category was no longer appropriate. The new regulations now require an applicant and their spouse, if they have one, together to have no near relatives other than those near relatives who are both usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealander citizens. I understand that no other country has a category of ‘remaining relative’ within their migration system, but Australia retains this category. We did wish to retain this category for those relatives who are genuinely left in an isolated situation overseas. It has been suggested that the regulations should allow one overseas near relative in a third country—and that would take up some of the points made by Senator Bartlett in his earlier remarks—but there is a concern that this would still give rise to the integrity issues that I have outlined in my comments.

I want to stress to the chamber this afternoon that these changes are really about addressing integrity issues and not about reducing the family stream of the migration program. While I think the department probably expects a reduction in applications that have fraudulent claims, there is not any expectation of a significant reduction in the actual number of persons qualifying. Importantly—and I think it is important to note this, because there was an emphasis from Senator Bartlett on the importance of the family migration stream—if there is a general reduction in the family stream, additional places will be provided for other uncapped categories within that stream. I hope that that will go some distance towards addressing those concerns.

As far as the numbers are concerned, in 2004-05 the department received 2,461 applications for remaining relative visas. The major source countries for those visa applications in that calendar period were the PRC, the United Kingdom, Vietnam, Cambodia and Pakistan. In that same period, 1,154 of those visas were granted and 1,122 applications were refused. That gives rise to the refusal rate I indicated earlier of close to an average of 50 per cent. It is worth noting that, in the two months prior to the changes, there was an increase in the number of applications for remaining relative visas, followed by a comparable reduction in applications during the next two months. With regard to the numbers—and this is a matter that Senator Ludwig raised—the long-term effect on application numbers and refusal rates will not be evident for some time. I think the changes to the remaining relative visa subclass in this regulation go to issues of greater significance than perhaps Senator Ludwig gave the government credit for. I think it is important to have placed those on the record this afternoon.

Question negatived.