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.}

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