James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

I rise to speak on the Migration Amendment (Giving Documents and Other Measures) Bill 2023, which amends the Migration Act 1958 and is designed to improve and clarify the intended operation of the legislative framework for the giving of notices and other documents, and to remove restrictions on certain noncitizens from lodging a valid application for a protection visa.

There are three elements to this bill. The first seeks to provide certainty and consistency in the way in which persons affected by cancellation decisions are notified, including by requiring all cancellation-related documents to be given in writing and confirming that the regulations can prescribe methods for giving such documents. The second ensures that where the minister gives a document to a person under the Migration Act or the Migration Regulations 1994 and makes an error in doing so, the giving of the document is valid where the person actually received the document and the document is taken to have complied with the requirements as to the content of the document, where the minister has substantially complied with the content requirements, and the error does not cause substantial prejudice to the relevant person's right.

This essentially brings a common sense approach to the administration of the complex migration framework by providing certainty to the minister and to the recipients in relation to the giving of documents. This change is intended to reduce the administrative burden on the Administrative Appeals Tribunal and on the courts arising from litigation founded on technical or inconsequential disputes over the giving of the document.

Collectively, these first two elements will streamline and strengthen the notification process, reduce procedural ambiguities that can lead to appeals and generally improve the operation of the legislative framework for the giving of notices and other documents. Ultimately, these changes facilitate the fair and efficient administration of the visa cancellation framework with a greater degree of transparency, certainty and consistency. For these reasons the coalition supports the first two changes proposed under the bill.

The third element of the bill will repeal subdivision AK of division 3 of part 2 of the Migration Act to remove the prohibition on noncitizens who are nationals of two or more countries and certain other cohorts making a valid application for a protection visa. The coalition is concerned about this element of the bill because it removes the requirement for prospective protection visa applicants who are nationals of two or more countries to seek a bar lift which then needs to be assessed and considered by the department and the minister. We are concerned that by allowing the department to be the initial decision-maker rather than the minister, individuals could potentially avail themselves of additional legal avenues and thereby impede the fast and efficient processing of protection visa applications. Ultimately, we want the decision to remain with the minister. While this may necessitate additional workload for the minister, it would potentially prevent decisions being subject to additional judicial processes—processes which can create further administrative burden and run counter to the intent of the bill to create administrative efficiencies in protection visa processing.

I note that the Bills Digest on the bill, prepared by the Parliamentary Library, explains that a statutory bar that prevents a person from making a valid protection visa application, which the government is now trying to remove, was introduced in 1999 via the enactment of the Border Protection Legislation Amendment Act 1999. The specific provisions were not included in the original bill but were passed by the Senate with the support of the then Howard government and the opposition. As noted in Labor senator Chris Schacht's speech in the second reading debate, the amendments were intended to prevent forum shopping by persons seeking to enter Australia. Senator Schacht said:

Clearly there is evidence emerging that forum shopping is about how people, with the assistance of people smugglers, try to make arrangements to end up in the country of their first desire, where they think would be the nicest place for them to go, and the place that would provide the best facilities and the best future. We cannot blame people for having that view; that is a natural human reaction. But when it gets to the stage where, in one form or another, the international and national procedures for dealing with refugees are being, if not abused, at least bent, so that countries like Australia are unnecessarily targeted, we have every right as a nation to make laws in respect of those arrangements.

This is reflected in section 91M of the Migration Act, which states:

This Subdivision is enacted because the Parliament considers that a non-citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa …

The minister said in his second reading speech:

The government's position remains unchanged: those who can avail themselves of protection from a third country because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying for a protection visa in Australia.

Why, then, is the government seeking to remove the prohibition on nationals of two or more countries from lodging a valid application for a protection visa? Labor should explain this change of heart. Reducing the minister's workload is not a good enough reason to remove a statutory bar that was enacted with bipartisan support and is in line with the government's unchanged position. For the reasons that I have mentioned, the coalition supports the first two elements of the bill but will not support the third change, as we believe that the minister should still retain that discretion to allow noncitizens who are nationals of two or more countries to apply for a protection visa. That's why, when we move to the committee stage, I will move an amendment which seeks to remove schedule 2 of the bill in its entirety.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

This legislation was introduced in the other place, the House of Representatives, during estimates—while the Senate wasn't sitting. It has now been brought on for debate in the Senate without providing the Senate with an opportunity to refer it to an inquiry. This is not what a transparent and accountable government looks like and certainly doesn't live up to Prime Minister Albanese's promise to change the way that politics operates in this country.

The Senate has a constitutional obligation to scrutinise and judge the activities, policies and legislation of the government. We are being prevented from doing that by the government's rush to pass this legislation without a Senate inquiry. This is an omnibus bill, comprising two unrelated schedules. The only commonality between those two schedules is that they both seek to reduce the need for ministerial interventions, thereby reducing administrative burden and increasing visa-processing efficiency. That does sound reasonable, but, as always, the devil is in the detail or, in the case of some of the measures in this bill, the devil is in the lack of detail.

Schedule 2 of the bill will repeal subdivision AK of the Migration Act, which bars dual nationals from lodging protection visas. This will ensure protection for refugees, including children with dual nationality, who fear harm from more than one country. This reform is a good and long-overdue reform, and the Australian Greens welcome and support it. However, there is a lack of clarity here, and that is around what will happen to those whose applications have already been found to be invalid and are awaiting ministerial intervention. I will put that question to the minister representing the minister for immigration in committee of the whole.

Schedule 1 of the bill—validating documents which do not comply with statutory requirements—ostensibly seeks to provide consistency regarding notifications on visa related matters. The government argues this reform will introduce efficiencies and consistency for all parties: the minister, the department and visa holders. But the issue is whether bureaucratic efficiencies and consistencies will trump the needs and rights of vulnerable visa holders. Schedule 1 contains highly technical amendments, and we are concerned about the potential for unintended consequences, which is, of course, exactly why this bill should have been referred to a Senate committee for inquiry, with proper scrutiny and evidence provided by legal and sector experts and those with lived experience of being a refugee. Sadly, that hasn't happened.

In the short time provided to consider the bill, the Australian Greens have concluded that there is the potential for proposed section 494E to be highly problematic. That section, titled 'When documents are taken to comply with content requirements', may well be titled 'Near enough is good enough'. This section provides that a document given to a person that doesn't comply with relevant requirements under the Migration Act will be considered to be compliant so long as there has been substantial compliance or the noncompliance does not cause substantial prejudice to the person's rights. Those concepts—'substantial compliance' and 'substantial prejudice to the person's rights'—are new concepts and are ambiguous concepts that are being introduced into the act. We have no idea how a court may interpret those terms. This ambiguity may diminish a visa applicant's right to challenge any defective notifications, as the interpretation of these terms will be subjective and legally complex.

This schedule is likely to cause prejudice and inconsistency for applicants and may also, despite the government's insistence, increase the department's administrative burden in assessing whether there has been substantial compliance and whether substantial prejudice exists. Worse yet, there appear to be no review rights for decisions made by the department under these new provisions. The bill also removes the requirement that notifications for certain visa cancellations ensure, as far as reasonably practicable, that the holder understands the content. This change, without justification, removes the appropriate burden on the department to notify with clarity. This isn't just rushed legislation; this has the potential to be unjust legislation.

The bill includes amendments to create consistency for visa cancellation notifications. This could be a positive reform, but we actually don't know for sure because this detail will be provided in regulations which we have not yet seen. As we won't be provided with an opportunity to debate any regulations that may be drafted, I want to take the opportunity to provide the government with some guidance on what the Australian Greens believe the regulations should provide for. The regulations must ensure that notifications affecting people's rights, particularly regarding visa refusals and visa cancellations, are clear and accessible and that people actually receive their notification documents. I'll just make the observation here that it's far too common that people do not receive their notification letters and consequently miss their deadlines and face devastating consequences.

These issues can be addressed by the regulations prescribing that the department takes all steps possible to ensure the affected person receives their notification letter and understands their notification letter. For example, people who are in immigration detention and criminal custody should be personally handed their notification documents by immigration officers, rather than via third-party contractors. Also, an explanation of the content of the notification must be provided, including a translation of the letter or via an interpreter, where appropriate. Notifications should also specify the date of a person's review deadline. The current system of calculating deadlines based on when a notification is deemed to be received is confusing and should be changed. Importantly, the Australian Greens want to take this opportunity to strongly encourage the government to agree with the refugee sector, the refugee legal sector and the human rights sector while drafting these regulations.

As the bill stands, we have concerns, in particular, with schedule 1. Unfortunately, rather than allowing the parliament to consider fully formed reforms and their potential impacts on people and on justice in this country, the government has again chosen to leave these important details to delegated legislation and, unfortunately, has, as I stated earlier, refused to allow this bill to be scrutinised by a Senate inquiry. Regardless of what the regulations may or may not include, there is nothing that could be drafted to fix the injustices that we believe are at risk from clause 494E of the bill, which is why I give notice of my intention to move the amendment on sheet 1997, as circulated under my name, to strike out schedule 1 of the bill.

I also want to take this opportunity to make it clear to the government that they are on notice from the Australian Greens on their policies regarding boat turn backs and the continuation of offshore detention. There are still 80 people in Papua New Guinea who were exiled illegally, as the Papua New Guinean Supreme Court found, to Manus Island a decade ago—by a Labor government, I might add. Those people are clearly impacted by the unfortunate situation where this current government has adopted the previous policies of Mr Morrison and Mr Dutton in washing their hands of responsibility for those people who remain in Port Moresby in Papua New Guinea.

I want to make it clear that many of those people are critically ill. In many cases, they are critically mentally ill. We shouldn't be surprised about this. They were subjected to a situation on Manus Island designed to deliberately dehumanise them, brutalise them and torture them. They witnessed death and disease. They were subject to attacks by Papua New Guinean armed forces. They witnessed murders. They witnessed other assaults. And they witnessed those things while being illegally detained in Papua New Guinea, as found by the Papua New Guinea Supreme Court.

There are also many hundreds of people from the offshore cohort who are now in Australia. The department and the government describe them as transitory persons. The Greens describe them as human beings. Many hundreds of those people have no pathway to permanent protection and no pathway to a free and safe place to call home. That's even if the opportunities remaining under the US agreement, the New Zealand agreement and private sponsorship opportunities in Canada are fully filled. There are still many hundreds of people from the offshore detention cohort who have no prospect whatsoever, as we stand here tonight, of permanent freedom and permanent safety. I remind colleagues that we signed up to provide them with those things when we signed the Refugee Convention in the 1950s. Those were the days when Australia was a global leader in human rights rather than the global pariah on human rights that we are today.

I note recent reports around the fact that the United Kingdom is now commissioning an Australian company to provide Hulk barges for the imprisonment of refugees in the United Kingdom. It wasn't that many centuries ago that people who were on prison hulks in the UK became some of the convicts that were brought to Australia in the early days of colonisation and land theft that occurred in this country. Now an Australian company—incidentally, I might add, the very same company that provides travel services to senators in this place—is a contractor to the UK government in providing prison hulks for refugees in the UK. I also note that the UK has entered into offshore detention agreements with third-party governments, once again demonstrating and proving that offshore detention is one of this country's most shameful exports.

This legislation, which relates in part to refugee status, can help us take a small step along a path that would ultimately address a very small part of the reputational damage that Australia has caused to itself and that we have caused to ourselves by our attitude to offshore detention, our attitude to boat turn-backs and our attitude to indefinite onshore immigration detention, which,    quite shamefully, we still engage in in this country. So that part of the bill will receive the support of the Australian Greens, and it will in a very minor way start to repair some of that damage. But, believe me, there is a lot more damage that is yet to be repaired, and this government has a lot more work to do before it can be considered a government that is on the side of people seeking asylum in Australia.

Claire Chandler (Tasmania, Liberal Party, Shadow Assistant Minister for Foreign Affairs) Share this | Link to this | Hansard source

I rise this evening to make just a short contribution to the debate on the Migration Amendment (Giving Documents and Other Measures) Bill 2023. As my colleague Senator Paterson said, the bill before the Senate today amends the Migration Act 1958 to improve and clarify the intended operation of the legislative framework for the giving of notices and other documents, and to remove restrictions on certain noncitizens lodging a valid application for a protection visa. Again echoing my colleague Senator Paterson, I do want to put on the record the coalition's position on this bill. We are providing our support to major aspects of the bill, as the bill is generally administrative in nature and makes some sensible changes to streamline the notification processes around certain visas.

The first two areas of the bill make relatively minor amendments to the Migration Act and will reduce the number of applications for administrative review on minor matters, such as documents being sent to a wrong address or minor mistakes in correspondence. This bill makes clear the instances when the minister or the government must contact a person or persons who could be impacted by the cancellation of a visa, and a person affected by the cancellation of a visa must, under this bill, be notified in writing. It confirms that the regulations can prescribe methods for giving such documents. This both clarifies and reinforces the existing mechanisms within the legislation to help ensure that a person affected by a visa cancellation has the best chance of receiving the relevant documents. The amendments will also improve the operation of the act and reduce the number of matters that go to the Administrative Appeals Tribunal or the Federal Court on minor technical issues. As I stated previously, the coalition agrees with and is supportive of these amendments.

However, the coalition has raised concerns surrounding the third point of this legislation, which deals with the removal of the requirement for the minister to consider an application to allow someone to lodge a protection visa application due to dual citizenship issues. The coalition believe that this change will have unintended consequences, and therefore we cannot provide our support on this point. If the department is the initial decision-maker, we want to ensure that the change proposed in this bill does not lead to an ability for people to avail themselves of judicial rights just because a decision has been made by the department rather than the minister. It comes down to a case of workload. We believe that the minister, instead of delegating to the department, should rightly still retain that discretion to allow noncitizens who are nationals of two or more countries to be able to apply for a protection visa.

More broadly, it is important that we ensure our migration system remains current and can deal effectively with issues relating to migration into this country. As I said in my initial remarks, the Migration Amendment (Giving Documents and Other Measures) Bill 2023 largely does do that. But, as I explained, the coalition holds some reservations relating to the unintended consequences of a specific element of this bill.

Our nation has a very long and very proud history of welcoming new migrants to our shores. You only have to look at our cities and our local communities to see the immense impact and positive contribution of our migrant communities. While we always come into this place and speak about our experience in our home states, because that's what we as senators are here for, I must say that in my own home state of Tasmania I'm very proud of everything that our migrant communities bring to our fantastic state. It is truly amazing that so many people from so many parts of the world can come together in one country, work hard, provide for their families and call it home.

It is incredibly important that our migration system is balanced in welcoming migrants but also ensuring that our borders are kept secure. Any legislation that comes to this place and seeks to make that process easier to understand for those attempting to navigate the system is, I think, a good thing, because when it comes to migration there are a number of questions on this front—particularly of late—that I think the government need to answer, in terms of how easy that system is to navigate and being able to solve any issues that individuals might have when they are trying to navigate that system.

I notice that recently my office has received calls from people who want to make Australia their permanent home and who, when going through the application process to make that a reality, can often find themselves caught up in a complex web of departmental bureaucracy surrounding their visa application. I am sure there would be many senators in this place who have had that experience of their constituents coming to them and seeking advice on how to navigate the visa application system. I've had calls from people complaining about the wait times when it comes to processing their visa applications. I've had people call to tell me that the department has provided them with the wrong information or in some cases hasn't even communicated with them regarding their application at all.

It's understandable why these people are so worried and feel the need to pick up the phone to their local politician. From what I've heard from colleagues and in the other place, it's something a lot of us are getting calls about, and these individuals often come to us as the last port of call. But the support that we're able to provide to them is somewhat limited, and I know from personal experience that that can be quite frustrating. This is especially the case when we as parliamentarians are trying to make representations to the government or to the department and are told that we're not in a position to inquire about a visa application on behalf of an applicant. I understand why, for privacy reasons, that would be the case. But, when we go back to applicants and tell them that we, as elected parliamentarians in this place, aren't in a position to help them navigate our migration system, it is effectively just adding to their worry and their concern.

So, in looking at the good things about this bill that we are debating here this evening, I note that it will make notification processes more streamlined. I think that that can only be a good thing in ensuring that individuals navigating the visa application process are appropriately made aware, in certain instances, of what is happening with their visa application.

I had one experience recently of being approached by an individual, a member of the Iranian diaspora community, because they were under the impression that they had to contact the Iranian embassy to get a police check as a requirement of the visa application. I raised this issue at the recent Senate estimates. Certainly, from looking at the information that I was provided with relevant to that individual's application and at the publicly available information on the department's website, it did seem to be the case. Thankfully, in Senate estimates the department was able to set the record straight on this issue and state that it wasn't necessary for these people to get in contact with Iranian authorities or go through the Iranian embassy as part of the application process. However, the fact that I had to raise the issue at Senate estimates does fundamentally highlight the confusion and the information out there that isn't always accurate when it comes to the visa application process. Like I say, anything that streamlines and simplifies this process is a good thing, but the bill that we're discussing here this evening does have to be considered within the prism of some of our concerns in regard to the ability of the minister to maintain a discretion in some specific instances. As I said, in this bill that we're debating here this evening that is a discretion to allow noncitizens who are nationals of two or more countries to apply for a protection visa.

I certainly think that this bill does some good things. There are some areas, as I've said, that the coalition does take issue with, and we will be moving amendments to that effect to try and make this bill as ideal as we would like it to be. That's because our migration system is important; it is important that people understand it and that people are able to easily navigate it. But, as I say, it is also important that we balance that up with the ability to ensure that the correct decision-makers are making appropriate decisions. With the minister retaining this specific discretion here, we think that that's where that decision would be most appropriately made.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I thank those members who've contributed to this debate. The Migration Amendment (Giving Documents and Other Measures) Bill 2023 will amend the Migration Act 1958. The amendments in this bill will support improved and fairer processes under the Migration Act. They improve the effectiveness of the notification of decisions and actions under the act and reduce inefficient processes relating to the making of valid protection visa applications for dual citizens.

The common sense amendments in this bill strengthen the notification framework for visa related decisions. They do this by reinforcing the existing mechanisms, ensuring that those affected have the best chance of actually receiving the relevant documents. It also mirrors other legislative frameworks by adopting a substantial compliance notification framework, providing greater certainty in relation to the notification of visa related decisions and actions for both the minister and the recipient of such notices.

The bill also removes the prohibition on nationals of two or more countries from lodging a valid application for a protection visa. Subdivision AK of division 3 of part 2 of the Migration Act currently prevents any person who is a national of two or more countries from lodging a valid application for a protection visa, but allows the minister to lift the bar if it is in the public interest to do so. The removal of this subdivision from the Migration Act will improve administrative efficiencies, minimising the risk of family separation and streamlining the process for dual nationals seeking protection in Australia.

The government's position remains unchanged: those who can avail themselves of protection from a third country because of nationality or some other right to re-enter and reside in a third country should seek protection from the third country instead of applying for a protection visa in Australia. This bill deserves support. I commend the bill to the House.

Question agreed to.

Bill read a second time.