Hansard, news and academic articles – guantanamo

Alternatives to Indefinite Detention

37. Alternatives to protracted detention in secure immigration detention centres might include:
(i) increased use of ‘open facilities’ such as at Inverbrackie;
(ii) increased use of community detention;
(iii) use of appropriate control orders, including monitoring;
(iv) use of case specific or ‘tailor-made” reporting arrangements to match the risk;
(v) special hearings to consider release and conditions of release (along the lines of ‘bail’ hearings);
(vi) best interests of the child determinations for children affected by the adverse security assessments
of their parents or principal caregivers.

This information is taken from paragraph 37. See the full UNHCR Report: Expert Roundtable on National Security Assessments for Refugees, Asylum Seekers and Stateless Persons in Australia. Canberra 3 May 2012.

Hansard: Second Reading Senate Migration Amendment Bill 2013

Senator MOORE (Queensland) (11:18): The opposition will be supporting this legislation, the Migration Amendment Bill 2013. I must put on the record at the very start that one of the key reasons that we are supporting this legislation is in the explanatory memorandum to the bill, which has been publicly made available, which goes into great detail about the reasons that this bill actually does confirm our international obligations. Consistently in the argument over many years the important element has been where Australia’s decisions fit within the international area of decision making. So, whilst we have concerns about elements of the bill—and I have to put on record that I have had those concerns and have raised them—on the basis of the explanation in the explanatory memorandum, the ALP has determined that it does meet the obligations.
It is a technical bill. The intent of the bill is to give certainty—and that is very important. Whether or not people are happy with the policy, it is absolutely critical that everybody has certainty about the decision-making process, where they stand and what options they have.

The bill before us has three schedules. Just for the record, I will go through the schedules—because that is what we do in this place; we read out what is in the schedules even though everybody has the information. Schedule 1 of the bill allows that a decision on review of a refusal, cancellation or revocation decision by the minister or his delegate is deemed to be made on that day and at the time when a record of it is made, not when the decision is notified to the applicant. It removes any doubt as to when the ministerial or delegate decision is made and when an application is finally determined and no longer able to be reviewed. The amendment clarifies that an oral decision by the RRT or MRT is taken to be made and becomes final when it is given and it removes the necessity to notify the applicant and the secretary of the department, as was previously the case for RRT reviewed decisions.

As with many of the clarification aspects in this legislation, this particular schedule has been a reaction to a court decision. When the courts bring down a decision which indicates any lack of clarity or uncertainty, it is important that the government of the day takes action to ensure that certainty is entrenched. So we are saying that, in terms of this process, we are responding to the concerns of the Federal Court and acknowledging that the government has put a process in place. We also want to put on record that it is absolutely essential that the person about whom a decision had been made is made fully aware of the decision and the basis of the decision and is given full consideration so that they understand what is happening to them. That is actually a position of natural justice. We believe that, no matter what legislation we are dealing with, in any form, the principles of natural justice must be maintained.

Schedule 2 of the bill would prevent a non-citizen who has been refused a protection visa or had a protection visa cancelled from making a further protection visa application whilst in the migration zone. Again, it is very important that we ensure that people are certain of their situation and their responsibilities, but the process cannot go on endlessly in terms of the action. Once a decision has been made with the full understanding and engagement of the person who is involved, it cannot then go on as has seemed to have occurred in some cases through concerns that have been raised through various reviews, inquiries and the court system.

Schedule 3 deals with the sensitive issue of persons who have a negative ASIO assessment. This has been a longstanding issue of concern. The schedule that we now have makes it completely clear that persons who have a negative assessment from ASIO will be unable to gain a protection visa, and that fact will not be reviewable by any tribunal or, indeed, ultimately, the minister. It is a significant step to take, and the decision we come to must be very cautiously and carefully determined.

As you well know, Mr Acting Deputy President Furner, in the whole area of ministerial discretion—of the minister being called upon to make, individually, these decisions—this issue has been of genuine concern, to many people in this place and in the wider community. We understand the history of that. Certainly, when you are not the minister, it seems to be a particularly attractive process—that there is always, for the minister, the ability to step in, reconsider and make a decision. But I have talked to a number of people who have had the onus of responsibility on them—who have been the minister in this field—and this has been a very difficult area.
So the intent of the legislation put forward by the government is for the process to be clear, to ensure that there is no grey area which leads to more concern and stress, and for the ASIO determination—as was the original intent when the legislation came in—to be based on a range of things: health, identity and security. From the very start, the issue of security was most important.

We do acknowledge that any ASIO decision must be done in a timely way. And I know that sounds very easy to say. But when there is any decision which determines someone’s future the expectation, quite rightly, is that the decision is made in a timely and respectful way. So if someone is under scrutiny—if there is concern about issues to do with security—there must be an understanding within the system of the need to make decisions carefully and also in a timely way. But the intent of this schedule is to determine that, whilst the ASIO determination is unresolved, there is no ability to change the decision or to have ministerial discretion in the process.

The shadow minister in his contribution in the other place made it very clear that our support was on the basis of clarity, so that people understand their position. We have raised and will continue to raise concerns about delays or uncertainties, or behaviour to or treatment of individuals which seems to be unfair or unreasonable. However, on the basis of the information, the recommendation is that the ALP will be supporting the legislation

Senator HANSON-YOUNG (South Australia) (11:25): I rise to speak to the Migration Amendment Bill 2013 and to make the Greens’ position on this piece of legislation very clear. We do not support this piece of legislation, for a number of reasons.

Firstly, this legislation enacts changes that circumvent a number of rulings of the courts, thus thumbing our nose at the rule of law, and locking people—people who have already been found to be in genuine need of Australia’s refugee protection—into indefinite detention, possibly for the rest of their lives. This bill also enacts changes to the Migration Act that go against recommendations that have come before this chamber a number of times over the last few years.

There was a report by the Joint Select Committee on Australia’s Immigration Detention Network. Its recommendations, which were supported by both the Greens and the Labor Party, said that those refugees who had adverse ASIO assessments needed to have periodic reviews—needed to be able to access some form of fairness within the system. This bill does the exact opposite.

This bill says that any refugee—anyone who has arrived in Australia and been found to be in genuine need of protection, who has fled war or torture, whose family has had to scrabble together enough to get out of a scene of brutality, and who has arrived in Australia and been acknowledged, through all of the checks and balances, to be a refugee—on whom there is a little red flag from ASIO—keeping in mind that, when that happens, unlike Australian citizens, refugees are not able to access the reasons why that little flag from ASIO has popped up—is condemned under this piece of legislation to never being given a refugee protection visa, despite the fact, putting everything else aside, that they are entitled to that protection. Rather than finding a way of managing the needs of that particular group—and there are not many of them; there are currently only 50 refugees who have this adverse security assessment flag against them, not knowing what the claims are, never being able to have their case heard in a court, effectively being sentenced without trial—they are going to have to remain in immigration detention for the rest of their lives if they are to remain in Australia. That is effectively what this piece of legislation is doing.

It is inhumane. It is in stark contrast to international law, and it has been condemned by international organisations, including the United Nations, time and time and time again. It is an affront to basic fairness and justice under the law.
I just want to take some time in this chamber today to tell you about one of the people that this bill will affect. Her name is Ranjini. She is a young mother. She and her three children are currently in immigration detention at the Villawood detention centre in Sydney. She has been there for a number of years. Her youngest child was born in immigration detention; that child has never seen the reality of freedom in the outside world. Her oldest son is suffering severe developmental issues because of being kept in immigration detention indefinitely. This young mother and her three children do not know why it is that ASIO has a red flag against them. They have not been able to put forward their case. They have not been able to defend any of the accusations. None of this incarceration has been before a court, yet this young woman and her three children remain incarcerated indefinitely and, under this bill, this young woman may be there for the rest of her life.

Ranjini and her two young children arrived in Australia after fleeing torture and brutality in Sri Lanka. After being found to be a genuine refugee she thought that she would be able to start to rebuild her life and provide a fresh start, a secure start, for her and her young boys. She was living in the community, having been found to be in genuine need of protection. But, after a call from the immigration department asking her to come back to see her case officer—after already living in the community, safely, and starting to rebuild her life; her boyshad started going to the local school—she realised that she had received a negative ASIO assessment. She was ripped out of the Australian community. Her boys were taken out of school. They were flown from Melbourne and locked up as prisoners in the Villawood detention centre—that was three years ago—where they remain today.
At that time Ranjini had already met a new partner in Australia, had got married and had fallen pregnant with her third child. That third child, a baby boy, was born in immigration detention. He has never seen the outside world and the real meaning of freedom. Ranjini and her three children have been in detention for three years. She has been told that, despite having the assessment by ASIO reviewed, she will have to remain there. This chamber has had recommendation after recommendation, calling on the government of the day to come up with a better way of managing cases such as Rajini’s.

If somebody is found to be in genuine need of protection and a young family is incarcerated, then surely there is a better system than keeping them locked up forever just because there has been a flag from ASIO. There was no degree of seriousness stated—and I think this is really important to understand—when the assessment was made. We do not know whether Ranjini is a high risk, a medium risk, a low risk, a somewhat risk or a maybe risk. The flag is one size fits all. No appropriate management of that response is carried by this government. It is a policy decision; it is not the law. There is nothing in law that says that Ranjini and her three children need to remain in immigration detention. If Ranjini were an Australian citizen, she would have had her case heard before a court, she would have been able to have somebody advocate and defend her, and she would have had a fair trial. This young mother and her three children have been sentenced to life without having any access to a trial, let alone a fair one.

Ranjini has no right of appeal. She is now, effectively, left in immigration detention to rot. Her children suffer every day and she has been given no information as to why she is deserving of such treatment. It is all under the lock and key of ASIO and the minister.

Not for one moment are the Greens arguing that we do not need these checks and balances. Of course we do. We need to know who people are, where they come from and what possible threats they may or may not bring with them. But you cannot just lock up somebody and throw away the key and not give them the chance to access a fair go under the law. But yet that is exactly what the current law does and what this piece of legislation enshrines even further.

As I said, this bill is about circumventing a number of decisions made by both the High Court and the Federal Court. It has been a regular practice in this place over the last couple of years—it was under the previous government and, sadly, it seems as though it will continue under this government—that whenever a court makes a decision that does not suit the government of the day, bang, before we know it legislation is drafted, it is on the table and we are changing laws to suit the government rather than those who take on board the warning signs of the highest courts in the land.

What makes Australia a great country is our adherence to the rule of law and the fact that we pride ourselves in having a fair go before the law—everyone taking responsibility, everyone understanding that consequences occur, but having a fair go before the law. But not if you happen to be an asylum seeker who comes from Sri Lanka, caught up in the horrors of the brutal civil war or a young Hazara boy who has had to flee the Taliban in Afghanistan! Australia prides itself on the rule of law but not for those who actually fall within the definition of ‘a refugee’.

As I said, there are currently 50 refugees, including five children, who remain in immigration indefinitely. If this bill passes they will remain there for the rest of their lives, unless they can be deported to another country somewhere else, which of course will not happen because, if Australia thinks they are a good enough threat to keep locked up for ever and a day, then how on earth would it convince another country to take these people? It is an absolute affront to the basic rules of law and justice for some of the world’s most vulnerable people.

In other countries, the balance between ensuring that there are proper assessments of people and how to work out what is the appropriate management of them is taken very seriously. Countries like Canada and our cousins over the ditch in New Zealand have a special clause in their law that understands the need to accept that refugees who have fled war, torture, persecution and brutality need the opportunity to be able to argue their case and appeal this type of incarceration, just like an Australian citizen does. Why is it that, if ASIO says Joe Bloggs who lives down the street from me is a risk, we accept that he can argue his case in a court of law? He does not have to be put in immigration detention. If ASIO thinks he is just as much risk as anybody else who has an adverse assessment, he can argue his case. Yet, if you are a young mother who has fled the brutality of civil war in Sri Lanka, you do not have the same right. It is an abuse of the vulnerabilities of these people, it is an abuse of human rights, it is an affront to basic justice and it is a breach of international law.

In August last year the UN Human Rights Committee found that Australia had committed 143 human rights violations by indefinitely detaining the group of 50 refugees, including children. We had violated 143 times, and yet here in this place we see the Labor Party and the coalition saying, ‘We’ll just ignore that. We’ll just ignore what this means in the international context and what this means to the UN bodies that we have signed up to. We’ll ignore the warning signs from the highest court in the land and we’ll change the law to suit ourselves.’ What makes this country great is that we have a fair go before the law and we treat people equally. It seems not, of course, if you happen to be a refugee.
We should be addressing these violations, we should be finding practical, responsible and secure ways to manage the needs of these people, but it seems that for the government of the day it is all too hard. It is easier to just condemn a young mother and her three children to incarceration for the rest of their lives. Who is going to care anyway? That is pretty much the attitude from the major parties on this front. We are damaging these children, knowingly and deliberately, for the rest of their lives. The young baby born in immigration detention has never seen the outside world has not broken any laws. Who is the young mother who fled the brutality in Sri Lanka—desperate to put her life back together and desperate to give her kids freedom and protection—really a threat to? What threat is her son—who goes to one of the schools near the Villawood detention centre—to the other seven-year-olds he sits in class with, whom he is desperate to build friendships with? I will tell you a story. This young boy, because of these harsh laws and this abhorrent attitude, was banned from participating in his school class photograph because the immigration department thought that it would be a threat if he was in the school class photos. He came back to the immigration detention centre at the end of the school day and asked his mum, ‘Mum, why wasn’t I allowed to have a school photo like my friends?’ That is what we are doing to these children. That seven-year-old deserves a fair go. His mother deserves a fair go.

Yes, let’s come up with ways of managing potential threats, whether people are born in Australia or not, but do just condemn somebody to indefinite incarceration because it is the easy way out. We all know what this is about. This is because it is easier to play the fear card in relation to asylum seekers and refugees than it is to stand up for what is right, to stand up for a fair go before the law. It is absolutely abhorrent that, despite everything that has happened in the last six months—in particular, the chest-pumping of this government and the brutality of the Abbott government’s approach to refugees and asylum seekers—the Labor Party could even sit here and vote for legislation that condemns a mother and her children to a life of imprisonment, with no trial, no appeal and no-one to advocate for them.

It is only 50 people at the moment, but they deserve a fair go and the children deserve a childhood, and they are not being given that. If this bill passes, they never will have that. How would it make Mr Morrison, Mr Abbott or Mr Shorten feel if they were their children? Parents who flee the brutality of war to get their children out of there and to give them safety and protection deserve as much protection under the law as if their children had been born here. How arrogant of us as a nation to say, ‘We believe in the rule of law and fairness, but only for those we choose.’ It undermines the very values of a fair go: justice, the rule of law and protection for the most vulnerable.

The Greens condemn this bill and will not be supporting it.

Senator IAN MACDONALD (Queensland) (11:44): I support this bill and think that it is another step by the minister in trying to bring some sense and certainty to the whole refugee and migration program. I congratulate the minister on what he has done. I have long been an adversary of those supporting the illegal arrival of people into our country, on the basis that every person who arrives illegally further pushes out someone who is doing the right thing by waiting in a squalid refugee camp somewhere around the world for their turn to get to Utopia—Australia. I congratulate the minister on the work he has done on border control. It is a fantastic record and it will help regularise our refugee and migrant intake. In the budget, something like $2½ billion will be saved because detention centres can be shut down. The sheer cost of dealing with people arriving illegally in our country has been addressed by the fact that no-one now is illegally arriving, so all congratulations to the minister for that.

I want to speak on some comments and recommendations by a couple of Senate committees of which I am a member. The Legal and Constitutional Affairs Legislation Committee made three recommendations on this bill, the third of which was that the bill be supported. But the third recommendation also contained a plea, a request, a recommendation that the government seriously consider recommendations 1 and 2. Recommendation 1 related to hearings of the Refugee Review Tribunal and the Migration Review Tribunal. When a matter is brought before one of those tribunals by an applicant a decision is made but, as I understand it, the decision is only communicated by mail, or by some transmission process, but not in a court. I accept that these tribunals are not courts and they fulfil a different role from courts, and I do understand that they do need a degree offered stability. But we did here evidence from applicants who have been before the tribunal. What I understand happens in most cases is that the tribunal reserves its decision and then at some time the tribunal registry writes out to the applicant and tells them the decision. That is fine if they get the advice. But for any number of reasons, some of which were mentioned to the committee—applicants move, the addresses are not valid or something else has happened—some persons never actually receive advice of the decision.
I and the committee understand that the department need some certainty as to when decisions are finally determined. I and the committee agree that there has to be that certainty—and some of the provisions put in place by this bill help with that. But it concerns me that there are instances where people, through no fault of their own, do not actually receive advice of the outcome—and the appeal provisions are then in some difficulty. I hope the minister might refer to this in her final address, but I understand there is a suggestion that, if someone does not actually receive advice, then it is a defective advice and the appeal times do not run until the person is advised. That was not, as I recall, the evidence before the committee. I thought some of the evidence given before us did relate some instances where, through no fault of the applicant, the applicant was not aware of the outcome until somebody turned up at the door and said, ‘You’re being deported.’ As a lawyer and a politician, I find it unfortunate that there is not any certain way that applicants can be advised of the final decision.

Recommendation 1 was that the committee recommend to the department that it put in place policies and procedures, consistent with the act, which would support applicants to seek leave to apply out of time or apply for alternative forms of review in the rare situations where the department or tribunal fails to correctly notify the applicant and the applicant has been directly disadvantaged. If there is an answer, I would have hoped that the minister may have responded before this time. As everyone knows, this is my government and it is my minister. But that does not absolve anyone on the executive, in my view, who ignores recommendations and reports of this parliament, of this Senate committee.

I have a vague suspicion that I read somewhere that an explanation was given for why you could not reconvene the tribunal to actually deliver the judgement in person—which is what I and others suggested at the committee hearing. We suggested that, if it was 12 months later—and in some instances I understand that it is—that the decision was about to be delivered, the applicant should be advised. They could appear in the tribunal by themselves or via counsel and actually hear the decision and would then know straightaway what the decision was. And then, if there were appeal processes, they could start straightaway. I hope I am not misjudging the minister—perhaps he has written to me and I have lost it in my paperwork—but I would hope that any minister would respond seriously to recommendations of Senate committees.

Recommendation 2 was dealt with not only by the Legal and Constitutional Affairs Legislation Committee but also by the Scrutiny of Bills Committee, which met this morning and—unbeknown to me, I must confess—had raised the same issue. The minister did give a response to the Scrutiny of Bills Committee, which I will relate. Again, it was not a particularly useful response, but at least it was a response to the Scrutiny of Bills Committee. Recommendation 2 was:
… that the … Government consider putting in place a regulatory framework to underpin the powers, authority and role of the Independent Reviewer of Adverse Security Assessments.

I think most Australians would expect that under Australian law it is a criterion for a grant of a protection visa that an individual does not have an adverse security assessment by ASIO. I think we would all accept that. If ASIO have some real problems with an applicant then we as Australians do not want that person in our country. I think that is in order.
But ASIO, as they admitted in evidence before the committee, are not always perfect. Sometimes they do make a mistake. They gave, as I recall, evidence saying that on one occasion they had given an adverse security assessment. They then, some months down the track, realised that they had got it wrong, that the information they had been working on was not valid, and they withdrew their assessment. So it does happen, on the admission of ASIO themselves, and I am sure that, human nature being what it is, there are at times mistakes made.

To address that, governments in the past have arranged for what is called the Independent Reviewer of Adverse Security Assessments to have a role not in rehearing or completely reassessing the work that ASIO has done but in cases of people who feel that they have been judged on the wrong basis, on the basis of the wrong facts. They can approach the independent reviewer, as I understand it, and have the matter looked at. The situation, I understand, works well.

We noted in our report that the committee supported ‘the excellent work undertaken by the Hon. Margaret Stone in her role’ as the independent reviewer and that this system does work. That is good. We all support that. Unfortunately, though, the position is not a statutory or a regulatory position; it is a policy position of the government of the day. Accordingly, while it seems to work well and everyone seems to be happy with that, tomorrow a government could say, ‘Sorry, that position is abolished; it’s gone.’
This is a very important issue. I am a great supporter of ASIO. I know they do a very, very difficult job. I am not one of those who would in any way want to diminish their powers, because they do a fabulous job in protecting and supporting our country and my fellow Australians. But, as I say, given the instance—and there are many others, I understand—where mistakes have been made or a decision has been made on wrong facts, this process of the independent reviewer does give confidence to me and everyone else in a democracy like Australia that, if decisions have been made on the basis of completely wrong facts or maliciously or in any other improper way, there is someone you can go to and say, ‘Hey, can you have a look at this because I think they got it wrong?’ So it works. It is good. Everybody supports it. But it is only a policy decision.

Recommendation 2 of the Legal and Constitutional Affairs Legislation Committee was that the government look at putting some more certainty into that position. As I say, as far as I am aware, there has been no response by the government to that recommendation. Perhaps the minister may be able to address that in her final summation. But the same issue was raised by the Scrutiny of Bills Committee. The issue there was that, while there is a process for independent review of adverse ASIO security assessments, in the light of concerns particularly that the process is fully administrative, independence is not guaranteed by the law and the whole scheme is ‘subject to administrative alteration or abolition at any time’. That is from the Scrutiny of Bills Committee report.

The report goes on to say that the committee sought advice from the minister on whether the independent review process should be placed on a statutory basis. The minister responded to the scrutiny committee and did not answer the question—which mildly annoys me as well—so the committee wrote again to the minister. The minister did then say that placing the independent review process on a statutory basis is beyond the policy intent of the bill. The minister also noted the role of the Independent Reviewer of Adverse Security Assessments but stated that the government does not consider it appropriate or necessary that an independent reviewer be established on a statutory basis. I am reading from the digest. I am not sure that the government gave any reasons why they did not consider that the additional scrutiny needed to be subject to regulatory or legislative attention, so I again ask the government. The minister has just mentioned to me privately, and no doubt she will put this on the record, that this independent reviewer of adverse security assessment is not a matter for the immigration minister but rather the Attorney-General. I accept that that would be the case, but the recommendation of the committee was not a recommendation to the Minister for Immigration and Border Protection; it was a recommendation to the Australian government, of which the Attorney is a member, about that issue.

The fact that these amendments have not been followed does not cause me to suggest that the Senate should not support this bill. I certainly will be supporting the bill. But I would hope that those two issues do receive the attention of the government sometime in the future. There may be a very good reason why the independent reviewer of adverse security assessments is just there as a policy decision. But if that is the case then I would not mind hearing it. It would seem to me that this process of assessments and then those assessments having very dramatic results in what happens to applicants in the future is something that perhaps governments could look at making more secure. Like the appeals court, like the High Court, perhaps we should do that. I look forward to the minister responding to those two things and putting on record what the government’s decision is.
With those concerns about the process, this is a bill that does take Australia forward. I think it is a very worthy bill and I certainly will be supporting it.

Senator CASH (Western Australia—Assistant Minister for Immigration and Border Protection and Minister Assisting the Prime Minister for Women) (12:01): I thank senators for their contributions to this important debate. The Migration Amendment Bill 2013 amends the Migration Act 1958 to remedy three distinct issues resulting from recent court and tribunal decisions that significantly affect the operations of the Department of Immigration and Border Protection, particularly its capacity to process visa applications and to be clear when a person is available for removal from Australia. The bread and butter of the department’s work is facilitating the movement of people across our borders for commerce, tourism, trade and study, and one of the department’s most important roles is nation building through a targeted immigration program.

The role is also rooted in a matter of national security and the protection of that national security, and the decisions that are made carry important consequences and an important responsibility for those who have to make decisions in government in this country. One important responsibility is to enable legitimate visa holders with a genuine purpose to travel and conduct business here whilst ensuring that those persons who are a threat to national security or are seeking to abuse the system are prevented from entry or removed from Australia, where they have no permission to remain. It is critical that Australian legislation supports the work and decisions made by the Immigration and Customs and Border Protection officials on our front line and enforces the integrity of these processes. We are committed to restoring integrity and confidence in our immigration program. That is fundamental to having a successful immigration program that Australians have confidence in and Australians support and that enables us to continue to run an immigration program which is the cornerstone to so much of both economic and social success in what I describe as an immigration nation.

The measures contained in this bill before the Senate today go towards achieving that purpose by clarifying and remedying matters that have arisen in a series of recent court decisions. The first schedule to the bill will put beyond doubt that the decision on review or visa refusal, cancellation or revocation decision by the minister or his delegate is taken to be made on the day and at the time when a record of it is made and not when the decision is notified or communicated to the applicant or the former visa holder. The amendments address the decision of the full Federal Court in the case of the Minister for Immigration and Citizenship v SZQOY of 2012 that the RRT’s decision-making power in respect of review is not exercised or spent until the review decision is notified irrevocably and externally. The amendment also addresses the full Federal Court’s decision in the Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY of 2013 in which the full Federal Court extended the judgement in SZQOY and found that an application is finally determined that is no longer subject to a form of merits review only when the review decision of the RRT is notified to both the review applicant and the secretary of the Department of Immigration and Border Protection according to law. It was immaterial that the review decision had been notified externally and that the review applicant has actually been notified of the review decision despite any error in the notification itself. These findings cause potential difficulties and risks in the administration of the act. For example, the concept of an application being finally determined is crucial to liability for removal under section 198 of the act. These amendments are critical, as they will remove any doubt as to when the decision by the minister, delegate or tribunal is taken to be finally made and when an application is finally determined.

The second schedule of the bill clarifies that a person in the migration zone who has previously been refused a protection visa or who held a protection visa that was cancelled is prohibited from making a further protection visa application. This applies regardless of the basis on which the earlier protection visa application was made or granted and regardless of the basis upon which the further protection visa application purportedly relies. The amendment addresses the decision of the full Federal Court on 3 July 2013 in SZGIZ v the Minister for Immigration and Citizenship. In that case the full Federal Court found that section 48A of the Migration Act only prohibited the making of a further protection visa application that relied on the same ground or criterion as the previously refused protection visa application. That means that, for example, if a noncitizen previously made a protection visa application raising claims under the refugee convention, section 48A of the Migration Act would not prohibit a new protection visa application based on complementary protection claims. By restoring the intended operation of the statutory bar in section 48A of the act, the amendment will preserve the integrity of Australia’s protection visa program and avoid its abuse, by preventing noncitizens without meritorious claims for protection from delaying their departure from Australia by making protection visa applications on different grounds each time.

The third schedule of the bill addresses the decision by the High Court in Plaintiff M47/2012 v Director-General of Security & Ors

[2012] HCA 46. In October 2012 the High Court of Australia found that the use of public interest criterion 4002 in the Migration Regulations 1994 was not a valid criterion for the purposes of a protection visa application. Public interest criterion 4002 states that the applicant is not to be assessed by the Australian Security Intelligence Organisation, ASIO, to be directly or indirectly a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisation Act. In the absence of public interest criterion 4002, the protection visa assessment process for persons with an adverse security assessment is currently problematic, as each case requires individual consideration as to whether the person does or does not pass the character test in section 501 of the Migration Act. This bill will amend section 36 of the Migration Act to insert a new specific criterion for a protection visa that the applicant is not assessed by ASIO to be directly or indirectly a risk to security within the meaning of section 4 of the ASIO Act. The new criterion in section 36 reflects the terms of public interest criterion 4002.

Additionally, the amendments introduced by the bill will put beyond doubt that the Migration Review Tribunal, the Refugee Review Tribunal and the Administrative Appeals Tribunal will not have the powers to review a decision to refuse to grant or to cancel a protection visa on the basis of an adverse security assessment by ASIO that the applicant for, or holder of, a protection visa is directly or indirectly a risk to security within the meaning of section 4 of the ASIO Act. The amendments will also reflect current paragraph 500(4)(c) of the Migration Act by confirming that the Refugee Review Tribunal does not have the power to review a decision to refuse to grant or to cancel a protection visa made on the basis of one or more of articles 1F, 32 or 33(2) of the refugee convention, or paragraphs 36(2C)(a) or 36(2C) (b) of the Migration Act. Paragraph 500(1)(c) provides that only the Administrative Appeals Tribunal has the jurisdiction to conduct a merits review of those decisions.

To meet community expectations, the government must have the ability to act decisively and effectively, wherever necessary, to protect the Australian community. The government must also have the legislative basis to refuse a protection visa, or to cancel a protection visa, for those noncitizens who are a security risk. We must prevent and deter any threats posed by those who are a risk to the security of our nation and must implement legislative amendments such as those proposed in this bill to ensure the security and safety of the Australian community. The best thing a government can do to support our agencies that work on the front line in immigration and border protection and who make these decisions is to equip them with the resources that they need and provide clarity through legislation so that they can do their jobs to the best of their ability, in Australia’s interests. In that regard, I welcome the support of the opposition for this bill.

I will now briefly address the points raised by Senator Macdonald in relation to the report of the Legal and Constitutional Affairs Legislation Committee into the Migration Amendment Bill 2013. In relation to recommendation 2, Senator Macdonald is correct. The minister has provided a response to the Senate Scrutiny of Bills Committee in relation to their queries on the Migration Amendment Bill 2013. The position of the government is as stated in that letter to Senator Polley. The minister stated as follows:
The adequacy of review mechanisms for adverse security assessments from the Australian Security Intelligence Organisation and whether it would be more appropriate for an independent review process to be placed on a statutory basis are issues that are not appropriate to address within the Migration Act 1958. Placing the independent review process on a statutory basis is beyond the policy intent of the bill, which is to address the number of recent court and tribunal decisions that significantly affect the operations of the Department of Immigration and Border Protection, including the processing of visa applications made by asylum seekers and other noncitizens.
In my summing-up speech, I have referred to those decisions, which this bill is seeking to address. The minister goes on to further say in his response to the Scrutiny of Bills Committee:

The Australian government respects the professional judgement of ASIO. At the same time, the government supports appropriate oversight arrangement of our intelligence and security agencies. The Inspector-General of Intelligence and Security, an independent statutory office holder, plays a primary and comprehensive oversight role, complementing parliamentary committees such as the Parliamentary Joint Committee on Intelligence and Security. As the committee is aware, there is also the Independent Reviewer of Adverse Security Assessments, who examines all the materials relied on by ASIO, including classified material, and provides her opinion and any recommendation to the Director-General of Security.

In answer, ultimately, to Senator Macdonald’s query on what is the government’s position at this point in time in relation to this bill, the minister states:
The government does not consider it appropriate or necessary that the Independent Reviewer of Adverse Security Assessments be established on a statutory basis.
But, as I said, in any event, the minister is of the opinion that it is not appropriate to address that particular issue in this bill, because this bill itself seeks to remedy certain defects that have resulted from a number of High Court decisions that have been handed down and which I addressed in my summing up speech.
In relation to Senator Macdonald’s comments on recommendation 1 of the committee report and in particular where it states ‘the rare situations where the department or a tribunal fails to correctly notify the applicant’: in that particular case I am advised that the time frame for seeking merits review does not begin to run if the notification is defective. But I would say to Senator Macdonald that I do acknowledge your comments that this bill is a way forward for the government in relation to ensuring that we have the appropriate tools to make decisions. These amendments themselves remove any doubt as to when the decision by the minister, delegate or tribunal is taken to be finally made and when an application is finally determined. That is the clear policy intent of this bill.

Finally, the Department of Immigration and Border Protection employs over 10,000 people. The people who work at the department have always demonstrated extraordinary passion and professionalism. There is no doubt that they have a deep care and a deep interest in the work that they do and that it is shared by many of the other agencies that serve our nation well, including, of course, ASIO, who have an extremely difficult job in making these decisions. But that is the job that we the government give them to do on our behalf in the national interest. Such commitment is an asset that has guided us through incredibly difficult times and will continue to do so in the future. In support of them and the work they do on our behalf we need to ensure that they have an immigration program and particularly a refugee and humanitarian program that has integrity and that maintains the support of the Australian community.

I commend the bill to the Senate.

The PRESIDENT: The question is that the bill be now read a second time.
Bill read a second time.

Screen Shot 2014-06-03 at 10.40.41 am

Question agreed to.
Senator CASH (Western Australia—Assistant Minister for Immigration and Border Protection and Minister Assisting the Prime Minister for Women) (12:23): I move:
That this bill be now read a third time.
The PRESIDENT: The question is that the bill be now read a third time.
The Senate divided. [12:25] (The President—Senator Hogg)
Question agreed to.
Bill read a third time.

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By | 2018-01-04T16:14:17+00:00 May 14th, 2014|Hansard, news and academic articles - guantanamo|

Hansard: 2nd Reading House of Reps Migration Amendment Bill 2013

Mr MARLES (Corio) (09:10): I rise to speak in support of the Migration Amendment Bill 2013 and, in doing so, commend the minister on the appropriate length of his speech, which has allowed me to speak at this moment. This bill does a number of important things in relation to the Migration Act and providing certainty. It clarifies the intent of the legislation and makes the protection visa process more stringent. We support the bill as it clarifies the intent of the principal legislation and provides greater clarity for the decision makers within the system. The bill contains three schedules.

The first is a technical but very important schedule which deals with the timing of a decision by a decision maker in relation to the granting or not of a protection visa. It makes clear that the date on which a decision is taken to be made is the date when the decision is put in writing as opposed to the date on which the decision is notified to the person to whom it applies, which had been the finding in the court decisions. This is important because a circumstance where the date of a decision is taken as being the date of notification—and indeed the appropriate fulfilling of the making of a decision requires the appropriate notification—can lead to a situation of uncertainty for the decision makers, the department, and that is something that needs to be clarified. It is a technical matter but a very important matter and the opposition support this amendment to the Migration Act to provide for certainty around that issue.

The second schedule deals with the grounds upon which a person can make an application for a protection visa and specifically prevents somebody from making an application for a protection visa where they have failed in a previous application for a protection visa on another ground. To make that more clear, it ensures that a person seeking a protection visa must put all their grounds in the first application and not be in a situation where they can put a subsequent application in on differing grounds. This is an important measure because it prevents working the system such that a person might be able to put in an application for a protection visa on a particular ground, have it go through the entire process, have that process end in an unfavourable result and then make another application on a separate ground. There are basically four grounds on which a person could seek a protection visa and were this not dealt with there would be an ability to have four separate processes which could extend into years. This schedule makes it very clear that once a person has failed in the granting of a protection visa, having gone through the entire appeal process, that is then the end of the matter and they are then prevented from being able to make another application for a protection visa.

The opposition supports this amendment to the Migration Act. The third schedule deals with the sensitive issue of persons who have a negative ASIO assessment. This schedule now makes it completely clear that persons who have a negative assessment from ASIO will be unable to gain a protection visa and that fact will not be reviewable by any tribunal or indeed, ultimately, by the minister. This is a significant step to be taken and a decision we come to very cautiously and carefully, but ultimately we accept this change to the Migration Act. We do so on the basis that the Stone review process within ASIO, which is a mechanism for having one’s negative assessment by ASIO reviewed within the ASIO system, remains intact. It is an important safety valve for persons who have a negative ASIO assessment to be able to have that reviewed. But if that is not successful and a negative assessment remains—and indeed so long as a negative assessment remains in relation to a person—then a person with such a negative assessment is prevented from gaining a protection visa within the migration review and application system.

We are pleased that the Stone review process has been kept intact. That is an important consideration for us in taking the decision that we have. We note that this, in essence, removes any review rights within the migration system itself and actually removes the minister’s ability to review these circumstances, but the reality is that no minister is going to review a decision to prevent a person from getting a protection visa based on a negative ASIO assessment without some comfort through a process such as the Stone review process. In those circumstances, this legislation, I believe, confirms the reality of the way in which the immigration system was being managed by the former government and is being managed, I am sure, by this government as well. The opposition supports these three schedules. We see these as matters which will provide for greater certainty and clarity within the Migration Act. We see these as matters which honour the intent of the Migration Act. They make the process of obtaining a protection visa more stringent but in doing so they also make the process more certain for everyone concerned.

Finally, I make this point: it is important to have a robust and fair system in place for the granting of protection visas—one which meets our international obligations. I note that in the explanatory memorandum there is an extensive discourse about how these particular amendments to the Migration Act conform with our international obligations; that is an important consideration from the point of view of the opposition in supporting this bill. It is important that we get the balance right when we put our migration system, and the way in which decisions are made and reviewed, in place—that there is in that process a fairness, a dignity and an efficiency and indeed, importantly, a certainty, but that it remains a rigorous and stringent process as well. Ultimately we see this bill as being consistent with those objectives and so, on that basis, the opposition are supporting these amendments.

Mr McCORMACK (Riverina—Parliamentary Secretary to the Minister for Finance) (09:19): I endorse the remarks of the shadow minister and member for Corio. This is a bill to amend the Migration Act 1958 in order to further clarify the operations of the act in light of a number of recent court and tribunal decisions. The government believes that these decisions are inconsistent with the policy intention of the Migration Act and accordingly seeks to make the intention of the act clearer, as the shadow minister just pointed out.

This bill reflects the government’s ongoing commitment to ensuring that we have in place a rigorous protection visa regime which balances the rights of protection visa applicants with our domestic security objectives. The bill provides for three specific changes to the Migration Act. Firstly, it clarifies when a decision is made and the meaning of ‘finally determined’. Secondly, it provides a statutory bar against further protection visa applications. Finally, the bill inserts a specific criterion with respect to protection visa applicants assessed to be a risk by the Australian Security Intelligence Organisation, ASIO. These amendments are vital for the Department of Immigration and Border Protection to process the visa applications by asylum seekers and noncitizens.

Further, these amendments are critical to ensuing that Australia has a strong and rigorous refugee-processing regime in place that meets our international protection obligations whilst also giving full effect to the policy intent and purpose of our own domestic laws. Obviously, as part of a government committed to restoring the integrity of our immigration system, I very much support the intent and the purpose of these amendments in the House today. The bill gives clarification of when a decision is made and the meaning of ‘finally determined’. Schedule 1 of the bill puts a range of matters beyond doubt to provide very clear guidance to the courts about the intention of the act. For example, it puts beyond doubt that a decision by the minister or delegate of an application for a visa, cancellation of a visa or revocation of a visa is taken to be finally made and the decision maker is taken to have discharged their powers at the time and on the day a record of the decision is made. This schedule, new subsection 5(9A), also puts beyond doubt that a decision by the Refugee Review Tribunal or the Migration Review Tribunal on an application of review is taken to be made, other than an oral decision, by the making of a written statement and to have been made on the day and at the time the written statement was made. This schedule further puts beyond doubt that an oral decision by the RRT or the MRT is taken to be made and becomes final on the day and the time it is given.

The amendments contained in this schedule will provide additional clarity and certainty to the administration of the act by making clear when a person may become a lawful noncitizen. The bill provides a statutory bar against further visa applications. Schedule 2 provides further clarification to section 48A of the act and specifically prevents an applicant who has been refused a protection visa or who has had their protection visa cancelled from making any further applications for a protection visa whilst still in the migration zone. That is extremely important. This amendment was necessitated by the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship, which held that there were effectively different sets of criteria by which a protection visa can be applied for and granted.

The court found that section 48A did not prohibit a noncitizen from making a further application on the basis of a different criterion to that which was relied upon in a prior unsuccessful application. The Abbott-Truss government submits that this decision is contrary to the policy intent of this section. But, in keeping with the purpose of this bill, we are taking the opportunity to remove any doubt by amending the law to ensure that once a review decision is refused, irrespective of the grounds of the refusal or the grounds on which a protection visa was cancelled, an applicant cannot reapply for a protection visa on different grounds regardless of whether alternative grounds existed earlier or not. That is, once a review decision is refused, there are no further grounds upon which an applicant is able to seek additional review.

End of story.

There are specific criteria with respect to applicants assessed to be a security risk by ASIO. Schedule 3 of the bill sets out a new specific criterion that requires that an applicant is not assessed by ASIO to be directly or indirectly a risk to security within the meaning of section 4 of the ASIO Act. Again the proposed amendment will put beyond doubt that the Refugee Review Tribunal and the Administrative Appeals Tribunal do not have the power to review a visa refusal decision relying on, or a visa cancellation because of, an assessment by ASIO that the applicant or visa holder is directly or indirectly a risk to security. This amendment addresses issues raised in the matter of plaintiff M47/2012 v Director General of Security & Ors. In this case the High Court held that the public interest criteria 4002 of part 1 of schedule 4 to the Migration Regulations 1994 was not a valid criterion upon which to grant a protection visa as it was inconsistent with the Migration Act. The new amendment will reflect the terms of PIC 4002 so that an applicant will be refused a protection visa if they are assessed by ASIO to be directly or indirectly a risk to security within the meaning of section 4 of the ASIO Act.

This bill ensures that the Migration Act operates as intended and provides certainty to the Department of Immigration and Border Protection in the processing of protection visas. The proposed amendments also provide much-needed clarity to the courts in their consideration of matters that might engage these sections of the act. With these amendments the government is striking a balance, a necessary balance, between the rights of protection visa applicants and important domestic security objectives. This bill has relevance to the Riverina, particularly the city of Griffith, which is the multicultural cradle of Australia. I acknowledge this bill has the support of the opposition. It is important—indeed, essential—that, as former Prime Minister John Howard famously said in 2001, ‘we will decide who comes to this country and the circumstances in which they come’. The first role of government is to protect its borders. This legislation certainly assists that process. I commend the bill to the House. Mr THISTLETHWAITE (Kingsford Smith) (09:26): I speak in support of this bill, the Migration Amendment Bill 2013. The amendments made by this bill are essentially administrative but do provide important clarity particularly for the courts in assessing protection visa applications.

Schedule 1 of the bill puts beyond doubt that a decision on review or a visa refusal, cancellation or revocation decision by the minister or his delegate is taken to be made at a time when a record of it is made and not when the decision is notified or communicated to the review applicant, visa applicant or former visa holder. The second schedule clarifies the operation of the statutory bar on making a further protection visa application. The amendments also make it a criterion for the grant of a protection visa in section 36 of the Migration Act that the application is not assessed by the Australian Security Intelligence Organisation to be a risk to security within the meaning of section 4 of the ASIO Act and associated measures.

The bill is aimed at providing certainty to what has been seen as the intention of the legislation and making the protection visa process much more stringent and clear. Schedule 1 of the bill amends the Migration Act to put beyond doubt that a decision of the Refugee Review Tribunal or the Migration Review Tribunal on application for review is taken to be made on the day and at the time the written or oral statement is made. This amendment comes on the back of two important matters before the Federal Court. One was the judgement in 2012 in the Minister for Immigration and Citizenship and SZQOY in which the court held that a decision by the Refugee Review Tribunal on an application for review under part 7 of the Migration Act did not become final until the review decision was notified outside the Refugee Review Tribunal, externally and irrevocably. On 11 September 2013 the full court delivered its judgement in the Minister for Immigration and Multicultural Affairs and Citizenship and SZRNY.

Again, the court held that a notification of a review decision by the review tribunal forms part of the core function of review and until both the review applicant and the Secretary of the Department of Immigration and Border Protection are notified of the review decision according to law the decision of the relevant applicant remains subject to review and not finally determined within the meaning of section 5(9) of the Migration Act. So this amendment clarifies that a decision on review or a visa decision by the minister is taken to be made on the day and at the time when the record of it is made. That finalisation is not dependent upon when the decision is notified or communicated, which provides important clarity for applicants and indeed for the court. Labor accepts that it is important that decision makers and applicants have that clarity regarding the timing of final decisions, but we are also satisfied that these changes to the Migration Act do not impeach the procedural fairness obligations of the government or, indeed, of the court. Labor broadly supports this bill as it clarifies the current positions of the courts and removes some of the uncertainty around protection visa procedures and processes.

It is appropriate that recent decisions of the courts are clarified to ensure consistency in decision making. Schedule 2 of the bill amends the Migration Act to clarify that section 48A of the act prevents a noncitizen who has been refused a protection visa, or had a protection visa cancelled, from applying for a further protection visa while in the migration zone. This amendment was precipitated by the judgement of the Federal Court in SZGIZ v the Minister for Immigration and Citizenship, a decision of that court in 2013 which held that the act does not preclude a noncitizen seeking a further protection visa application based on criteria which did not form the basis of a previous unsuccessful protection visa application.

The amendment will mean that the department, the Refugee Review Tribunal and the courts will no longer have to dedicate the resources to repeat protection visa applications. Labor accepts that the decision of the court that an applicant with an unmeritorious claim may seek to delay the procedure has the potential to create a burdensome ongoing workload for the department, associated bodies such as the Refugee Review Tribunal and the courts generally. However, the process should still be handled in accordance with affording applicants procedural fairness. Schedule 3 of the bill amends the Migration Act to insert a criterion for the granting of a protection visa subclass 866 that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security. Again, this is a provision that Labor supports, and I commend the bill to the House.

{Debate adjourned.}

By | 2018-01-04T16:14:31+00:00 February 12th, 2014|Hansard, news and academic articles - guantanamo|