Paul Scarr (Queensland, Liberal Party, Shadow Assistant Minister for Multicultural Engagement) Share this | Link to this | Hansard source

I move the opposition's amendment on sheet 3164:

(1)—Schedule 4, page 48 (after line 4), after item 5, insert:

5A At the end of section 237

Add:

Registrar in each State, in the Australian Capital Territory and in the Northern Territory

(3) The Principal Registrar must ensure that at least one registrar is appointed in each State, in the Australian Capital Territory and in the Northern Territory.

5B Section 243

Repeal the section, substitute:

243 Registries

The Minister must cause such registries of the Tribunal to be established as the Minister thinks fit, but so that at least one registry shall be established in each State, in the Australian Capital Territory and in the Northern Territory.

Question agreed to.

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

The government will be opposing this amendment.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Shoebridge, a point of order?

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

The chamber seems to be in some sort of procedural miasma this morning. My understanding is that the amendment just passed on the voices. Then we had the government stand up and say they 'will be' opposing it, as though it's something in the future they're going to do. You just nodded. It's all somewhat confusing for those of us trying to follow what's going on.

The TEMPORARY CHAIR: Sorry, I thought I—Senator Scarr?

Paul Scarr (Queensland, Liberal Party, Shadow Assistant Minister for Multicultural Engagement) Share this | Link to this | Hansard source

Acting Deputy President, maybe we should just walk through it again for the benefit of everyone.

The TEMPORARY CHAIR: Yes. Let's go. You've got the call.

I move opposition amendment (1) on sheet 3164:

(1) Schedule 4, page 48 (after line 4), after item 5, insert:

5A At the end of section 237

Add:

Registrar in each State, in the Australian Capital Territory and in the Northern Territory

(3) The Principal Registrar must ensure that at least one registrar is appointed in each State, in the Australian Capital Territory and in the Northern Territory.

5B Section 243

Repeal the section, substitute:

243 Registries

The Minister must cause such registries of the Tribunal to be established as the Minister thinks fit, but so that at least one registry shall be established in each State, in the Australian Capital Territory and in the Northern Territory.

Question agreed to.

David Shoebridge (NSW, Australian Greens) Share this | Link to 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.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

I first want to thank Senator Shoebridge for his work in this area over many, many years now, and that includes his time in the Senate. Also, I've seen the way Senator Scarr engages methodically and in good faith on a range of issues, including this. I may very much disagree with his party's position on elements of amendments in this bill, the Administrative Review Tribunal (Miscellaneous Measures) Bill 2024, but I do think he's a genuinely good-faith actor when it comes to getting across legislation and ensuring that it is sound.

I also want to commend the Attorney-General and the government for making the Administrative Review Tribunal more independent and transparent. This is clearly a crucial and long-overdue step towards a fairer system. But fairness and accessibility, two of the tribunal's stated goals, remain out of reach for many, particularly when it comes to migration matters. 'Fair and accessible' should mean just that, and it should mean that for everyone, but under the Migration Act, the tribunal has no discretion to extend appeal deadlines for migration applicants, regardless of their circumstances.

If you are currently homeless and don't receive a decision in time, too bad. If you're in hospital with a serious illness and you miss the deadline, too bad. If you're fleeing family violence and your decision is sent to your abuser's address, too bad. In these cases, the only option is to go to the Federal Court, where cases drag on for years, clogging our legal system and dragging out the uncertainty.

Migration matters make up 87 per cent of the tribunal's case load, yet the tribunal is stripped of discretion in these cases. I find there is a disconnect in this place, in that we say to these bodies, 'We trust you. You're experts. The appointment process is sound. We're going to have people on there who make great decisions,' but then we take away discretion. We've seen it done time and time again. We saw it done with the NACC, where we don't leave it up to the experts. We say: 'You're experts. Do your thing, except in these circumstances where politics comes into play.' On this issue, it is very cruel politics, and so many Australians want the major parties to do better on this. This bill was an opportunity to fix this, and I think it's an opportunity that has been missed.

Beyond procedural barriers, the government has failed to address another major injustice: the people who have been left behind by the fast-track process. It's a process that, while in opposition, Labor pointed out many times was neither fast nor fair and has left so many people in our communities in limbo. It was a deeply flawed refugee determination system that was, rightly, abolished by this government, yet we have 7,000 people stuck in limbo, denied a fair review of their asylum claims. Many of these people arrived in Australia as children. It wasn't their decision to come here. They came here with their parents or with a parent. They went to school here and made friends here. They learned our history. They play sport in local teams in their community. They have dreamed about their future, like any other Australian kid. But, for them, that future remains uncertain. These young people, many of whom are now in their late teens or early 20s, don't even remember their country of origin. For all intents and purposes, they are Australian. They believe they're Australian. They sound like they're Australian. They are committed to Australian values and want to contribute but, because of the political race to the bottom on asylum seeker issues, our government still refuses to give them a fair go.

For how long have we heard leaders say, 'If you have a go, you'll get a go'? What about these young people? They've grown up in a country that treats them as temporary, in the only home they've ever known. They've been forced onto temporary bridging visas that keep them in a cycle of precarity, preventing them from planning their lives, accessing higher education or pursuing long-term employment. Many aren't even allowed to work or study at all because of the conditions of their bridging visas. Imagine finishing high school alongside your classmates. You've got hopes and dreams for the future. You apply to university, and you get in. Some young people I've spoken to have won scholarships to universities. They've been the top of their class. They've worked harder than their peers, driven by a desire to make something of the opportunities this country should be giving them. They go to university and, when they turn 18, they get a letter from this government saying, 'Sorry, you can no longer study at this institution.' In many cases, they can't work. They have no study or work rights. This is so cruel. When you zoom out, its cruel, and, when you talk to someone in that situation, it's cruel. I do not understand why we do this as a country. We've got young people who have dreamt of working in health care or education. We hear so much about the desperate need for more workers in those areas, and we see a government trying to get more people to migrate to Australia. Yet we have people here in our communities who want to do that, and we're not allowing them to chase their dreams. They're being shut out of university or even TAFE.

This is a moral failure of our country. It's a moral failure to not recognise the contributions of thousands of people who have already given so much to this country despite being given so little in return. I would urge colleagues in this place to think about this moral failure. If we truly love this place, we should expect more of this country. We should be constantly challenging ourselves when it comes to these issues that happen for political reasons but have such a brutal impact on fellow human beings.

I support this bill, given the government's amendments that remove the provisions that would have caused even greater harm to migration applicants. But let's be clear. The tribunal is still not fair and accessible for the majority of its applicants, and the government must act to fix the impacts of the broken fast-track system that has left 7,000 people in our communities in limbo. We must do better. Fairness should not depend on who you are, who you know or where you were born.

Minister, can you advise whether it is the government's intention to continue to work to make the ART more fair and accessible for migration applications, considering they make up 87 per cent of the tribunal's case load?

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

Thanks, Senator Pocock, for that contribution and thanks, also, to Senator Shoebridge for moving that amendment. I can confirm that the government will be opposing the amendment moved by Senator Shoebridge. Matters previously determined by the IAA will not be able to be re-reviewed by the ART. All matters that had been finally determined by the IAA prior to the abolition of the IAA remain final and determined. This is appropriate as it provides finality and certainty as the outcome of protection visa decisions.

Individuals whose applications have been considered by the IAA have already had an opportunity to access merits reviews. It is not appropriate to provide an additional right of review. If a person is concerned about a particular IAA decision, the appropriate course of action is to seek judicial review of that decision. In terms of the changes the government have made to the ART, we believe that it is a fairer system and that it is one that is operating better than the previous government's AAT, particularly in regard to dealing with some of those more complex cases that we talked about yesterday as part of this committee process.

Perin Davey (NSW, National Party, Shadow Minister for Water) Share this | Link to this | Hansard source

I just want to put on record the opposition's position on this amendment on sheet 2882. The ART, under this government, is experiencing an absolutely unprecedented blowout in its case load. In the migration and protection space, its load increased by 6,000 cases in just the first six weeks. When the coalition were in government, we introduced the fast-track process, through the Immigration Assessment Authority, to deal with Labor's previous massive backlog of unauthorised maritime arrivals. It was logical, sensible and appropriate. It was an appropriate response to Labor's incredible failures on border protection during the Rudd-Gillard-Rudd years. The fast-track process that we established through the IAA was able to resolve those cases very quickly, usually in a matter of weeks rather than months. And the overturn rates were in line with other decisions of the tribunal.

Essentially what the Greens want to do with this amendment is reopen every single refugee case that was finally decided by the IAA. This would almost inevitably lead to a massive increase in the burden that is already placed on the tribunal. It will increase costs and increase delays for everyone involved, including the people the Greens say they're trying to help. There is no public benefit in this amendment. It's not an appropriate measure and it should be opposed.

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

It is remarkable but not unprecedented to see how closely Labor and the coalition align on this point and to hear both parties speak about 7,000 people—children, mums, dads, aunts and uncles—and never reference them as people but see them only as a political plaything that they have between them.

I want to thank Senator Pocock for his contribution, for talking about these 7,000 people as though they actually matter and talking about the teenagers who are right now going into their HSC year wondering if politics will ever give them a pathway to go to uni in the only home they've every know. I think we should reflect upon the difference in politics of talking about people as though they're people, as opposed to the way the coalition and Labor are doing it here, talking about them as political problems or political pawns or inconveniences to the case management of an administrative tribunal.

We heard the coalition come up and say they weren't going to provide a just pathway for these 7,000 people—the mums, the dads, the kids, the brothers and the sisters—because it's administratively inconvenient to them. That's the nature of their politics, and I understand that's the nature of their politics, but it's politics the Greens fundamentally reject.

The government stood up and said, 'Well, these people have already had a merits review,' and therefore they're not going to open the door to a review of the fast-track process. I remind the government that we abolished the fast-track process, and we supported the government's bill to abolish it because the government acknowledged, as did every informed observer, that it was an unmeritorious review. It was, as many have said, neither fair nor fast; it was grossly unfair.

To remind the chamber, the IAA fast-track process did not even pretend to observe minimum procedural fairness standards. Nobody had the right to a hearing. Almost 100 per cent of the claims were decided on the papers, because they didn't want to hear from the people who brought the claims. People were only allowed to provide a five-page written submission. They had no legal support, legal advice or support from the government in any case, and they often had only three weeks to provide their submission about their entire life. They were almost always prohibited from providing fresh information and were stuck with whatever the department had decided should be before the IAA. That's not a merit based process. Then the government said, 'Oh, by the way, there was a judicial review.' We know that that's not a merits review. We know that that never went to the substance of the matter.

Again, I urge the Labor Party—I think it's a lost cause with the coalition—to think about the core principles that are meant to underpin their movement, to think about what their members would want, even if it's politically inconvenient to them in the moment, and to think about these 7,000 people as people.

Dorinda Cox (WA, Australian Greens) Share this | Link to this | Hansard source

The question is that the amendments on sheet 2882, moved by Senator Shoebridge, be agreed to.