Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The committee is considering the Migration Legislation Amendment Bill (No. 1) 2008 and amendments moved by Senator Evans on sheet PD344. The question is that amendments (1) to (2), (4) to (5), (7) to (11) and (13) be agreed to and that schedules 1 and 5 stand as printed.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

With your indulgence, Mr Temporary Chairman, I will make a brief contribution in relation to the Migration Legislation Amendment Bill (No. 1) 2008 and raise some issues. I had the opportunity to have a brief but very useful discussion with the minister yesterday. My consideration of this bill has raised concerns about inconsistencies in relation to time frames for judicial review, but before I address these I will speak briefly on the substance of the bill. I appreciate that it is an omnibus bill that is to tidy up and rectify impracticalities within the Migration Act, the Australian Citizenship (Transitionals and Consequentials) Act and the Customs Act, and I support the general thrust of the bill: improving the effectiveness of migration and citizenship legislation by addressing and rectifying a range of problems that have been identified in the legislation over the years. Therefore, I am sympathetic to and supportive of the broad intentions of this bill.

I wish to note aspects of the first schedule of the bill which the government proposes to remove by amendment. Items 30 to 35 sought to amend the time limits imposed on applications for judicial review from 28 days to 35 days. I am pleased that the government proposes to remove these items, as I would not have been able to support them. But that leaves uncertainty around the matter of time limits and extensions. I have been informed that the government will address these matters in future legislation. It also raises issues about the history of judicial review of migration decisions in Australia. For many years the legislation has excised judicial review of migration decisions from the Administrative Decisions (Judicial Review) Act and placed it within the Migration Act. In doing so, the right to judicial review for applicants was significantly constrained. Most notably, tight time lines were introduced for submitting applications for review, with no exemptions or consideration of other factors. However, the changes in this legislation will still not permit the courts to allow an application to be lodged outside the set time period. I refer the committee to the High Court ruling in Bodruddaza v Minister for Immigration 2007, which relates to the issue of time limits. It reads:

... the limitation structure provided by section 486A does not allow for supervening events which may physically incapacitate the applicant or otherwise, without any shortcoming on the part of the applicant, lead to a failure to move within the stipulated time limit.

This points to an unfair situation, which the government must fix substantively rather than administratively. This could result in an inconsistency, as time extensions can be granted for consideration by the Administrative Appeals Tribunal—which handles visa issues related to business—but cannot be granted for the Refugee Review Tribunal, which handles refugee visas, or the Migration Review Tribunal, which handles migrant visas. We have a situation where there is provision for extension for applicants for review of any decision made by any Commonwealth department unless they are a refugee or migrant. I want to make it clear that I am not advocating for changes to the criteria by which refugee or migrant status is granted. What I am calling for is a fair go, for there to be an onus on the government to explain why migration judicial review decisions have different conditions from those of any other department.

I have been approached by the Circle of Friends group in my home state, who have highlighted the cruel edge of this policy inconsistency. I have informed the minister’s office in broad terms in relation to this case and today I will forward the specific details to the minister and request an urgent response. The man in question was assisted to escape Afghanistan by his mother and uncle in 1999 and now resides in Australia. In retribution for assisting him in his escape, the Taliban executed both his mother and uncle and then took his orphan brother captive. After many years this man, with the assistance of the Red Cross, was able to locate the boy in Pakistan and in July 2004 instructed his migration agent to lodge the documentation for a subclass 117 orphan relative visa. What followed was a series of acts of incompetence by the migration agent—the details of which I will also forward to the minister—which ultimately resulted in the migration agent being suspended for three years. Most importantly, the migration agent’s negligence included failing to lodge applications for appeal within time.

Due to the lack of provision for any time extensions, the Migration Review Tribunal now cannot hear this case. While the man has the right to sue the migration agent, this is little comfort while his orphan brother is left in Pakistan. With this man, we do not see a case for changing the criteria for refugee or migrant status; we see a case for the criteria we already have being amended. This man wants not favouritism but a fair go. His is a situation where bureaucracy and inconsistency are adding to a family’s pain and may well be putting a young life at risk. That is the nub of the concerns of Circle of Friends, and I appreciate that the minister will be looking at this as soon as those details are forwarded to him. I look forward to the minister’s response, if not in the committee stage then at some subsequence stage, to this and other matters. I thank the committee for its indulgence.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

I will sum up the debate. I thank Senator Ellison and Senator Xenophon for their contributions and their cooperation in progressing what is quite complex legislation made more complex by the government moving its amendments. I wanted to make a couple of points. I am happy to take up—as I indicated to Senator Xenophon—the individual case of the Afghan citizen that he raised. Circle of Friends I know are very active in arguing for and supporting refugees and refugee issues. I have a lot of correspondence from them and we have a lot of interaction with them. It is always good that people take an interest in these matters and advocate on behalf of those in need of support. I am happy to have a look at that particular case and deal with it on its merits.

On the question of effective time limits: as Senator Xenophon quite rightly pointed out, proposed government amendments (2) to (7), which dealt with these issues, were withdrawn. I want to make it clear, though, that we are still very committed to having effective time limits in the legislation. They are important for an efficient and cost-effective litigation system. They provide a balance between giving the applicants an opportunity to seek judicial review of migration decisions and ensuring timely handling of these applications.

One reason we have people in long-term detention is that they have pursued extensive litigation. They are people who, I think on any measure, ought not be allowed to remain in Australia. They are often people with criminal and other histories, not those that people would traditionally regard as refugees. Some have been in detention for three, four or five years as a result of their pursuit of litigation. It is a real issue for me, for the department and for the system to see that litigation does not lead to long-term detention. It is a complex matter.

Quite frankly, a series of recent court decisions have largely made the Migration Act’s current time limits ineffective. We think reinstating the effectiveness of those time limits is important and does act as a disincentive for people to take advantage of litigation delays and to wait until removal is imminent before lodging an application review. In many instances people wait until they get the notice that they are about to be removed in two days time and then they lodge another application. We want to give people fair process but we do have to have the capacity at some stage to reach a final decision and for the law to be effective. So it is about a balance between time limits and procedural fairness, and we will come back to this issue at a later time in another piece of legislation. We have been affected by the fact that the recent Sales decision has created an urgency about this bill, most particularly schedule 4. Therefore we want to proceed with the bill and we have withdrawn those issues that relate to the time lines.

In summing up, I remind the Senate that schedule 4 to the bill amends the Migration Act so that the character cancellation provisions in section 501 apply to all temporary and permanent transitional visas. Under section 501 of the act, where a visa applicant or visa holder does not pass the character test I have been given the direction to refuse or cancel a visa. This section and this power have been much in the news in recent times. In exercising this power I have a responsibility to the parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas or to cancel visas held by noncitizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within Australia.

It has always been intended that the minister’s powers under section 501 to refuse or cancel a visa on character grounds would apply to all visas. There was no doubt about that at the time of the bill’s introduction. Doubt has been cast on this by comments in the May 2007 full Federal Court decision in Moore v Minister for Immigration and Citizenship. The full Federal Court decision in Sales v Minister for Immigration and Citizenship on 17 July 2008 gave effect to these comments in Moore. As part of what was a highly technical judgement, the full Federal Court found in the Sales case that a transitional permanent visa cannot be cancelled on character grounds because it is a visa that is held rather than granted. These visas are instead held by operation of law. For the nonlawyers this is terribly confusing but as a result of this decision in Sales some 20-odd people, including Mr Sales, were released from immigration detention. The department, based on legal advice, decided not to appeal the judgement in the Sales case. The advice was that that was not a wise course of action. However, the amendments in schedule 4 anticipated this difficulty and ensure that the character cancellation provisions apply to all temporary and permanent transitional visas and provide validation of all past character cancellation decisions in relation to such visas. This maintains the minister’s ability to protect the Australia community.

I have spoken previously on the government amendments and the rationale for them, and I thank the Senate for its support for those amendments. As I indicated, because of recent court decisions this bill is now quite urgently needed to allow us to administer migration law in this country in the way I think the public would require of us. It is certainly my view that these amendments are very necessary. I appreciate the contribution of senators and their cooperation in dealing with this bill. I appreciate the wider issues raised by Senator Xenophon. Obviously, it is not appropriate to try to deal with some of those highly legal issues on the run. His legal skills will probably be tested when we get to test those issues because migration law—I think Senator Ellison made this point—is as complex as the tax act, and as a result employs thousands of lawyers and migration agents in very comfortable circumstances around the country. It is very frustrating for the minister and at times for the parliament more generally.

I intend to bring a series of pieces of legislation before the parliament that fundamentally look at reform of the act. I think there is a case for a major overhaul of the Migration Act. We have had amendment after amendment built on each other. The complexity now and the interaction of 20-odd years of amendments have made the case for major reform of the act. In addition to that, of course, the Labor government has a very large reform agenda in detention and migration policy that will be reflected in legislation we hope to have this parliament carry. I can assure senators that there will be plenty of opportunity in the next couple of years to debate migration issues and to address any concerns they have as we seek to bring fundamental reform to migration policy in this country. I thank senators for their support. I apologise for the need to make extensive government amendments to our bill and I look forward to its passage.

Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The question is that amendments (1), (2), (4), (5), (7) to (11) and (13) be agreed to.

Question agreed to.

The Temporary Chairman:

The question now is that schedules 1 and 5 stand as printed.

Question negatived.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.