Additional Comments from the Australian Greens
The Australian Greens view the inquiry into Migration, Pathway to Nation Building, as a much-needed review of the deficiencies with Australia’s immigration system and how to approach migration in the future. However, the review's terms of reference are limited to the point that this inquiry is unable to address some of the most pressing issues in the migration system.
This limitation is particularly concerning as it relates to the almost complete exclusion of people seeking asylum and refugees from the purview of the inquiry. The Chair Report makes statements such as:
“Australia has a long and proud history of welcoming newcomers and is a nation founded on the enterprising spirit and community enrichment that migration imparts.”
The Chair's Report can make such statements only by excluding the treatment of people seeking asylum from the inquiries reference, which, through offshore detention, temporary protection visas and other punitive policies, has seen many newcomers harmed and marginalised by the Government.
Further, while making some important recommendations, the Chairs Report itself frames migration as a primarily ‘economic’ mechanism, undervaluing its cultural, social, and familial elements.
This is a focus that fails to recognise how humanitarian and family reunion programs, which used to be the main flow of migration to Australia, provide enormous social, economic and familial benefits across the country.
This review has not appropriately addressed the fundamental shift in Australia’s immigration system away from families towards work-based visas. In the mid-1980s, for every skilled visa provided, there were four family visas. Today, that trend has been reversed, with only one person coming to Australia on a family visa for every three people coming on a skilled visa.
Even the absolute number of people arriving in Australia on Family visas has decreased over recent decades, from 79,500 in 1987-88 to only 52,500 in 2022-23. This is a systemic change in Australia’s migration program away from family and community towards a narrow economic approach, which has ramifications for social cohesion and, ultimately, our broader economic interests.
As ANU Migration Hub stated in its submission:
“International migration is not like international trade or international finance because people have agency, while widgets and money do not. Framing Australia’s migration system narrowly as a tool for ‘enriching the economy’ misses this insight. The risk of such an economistic framing is that it quickly loses social license.”[1]
The issues with treating immigration as an issue of economics were also highlighted by the Federation of Ethnic Communities Councils of Australia (FECCA), which stated:
“Social aspects of migration such as family reunion, are as equally important as the economic aspects and are crucial to creating a society where everyone can belong.”[2]
The reduction in family visas has profound social impacts. People travelling to Australia to contribute their skills and knowledge are often denied the ability to form deeper ties to the community by bringing their family over. As the Sanclon report found:
“Migrating to Australia, especially without family, can be a difficult and isolating experience. In 2023, 58 per cent of people who have migrated to Australia in the last 10 years reported that they feel isolated from others some of the time or often.”[3]
Furthermore, grandparents and other family members often perform important unpaid and unrecognised work, such as looking after grandchildren while their work-age children are at work.
While family visas offer the community these clear benefits, the wait times and costs are often exorbitant. A recent Commonwealth Ombudsman Report on parent visas noted:
“Depending on the type of parent visa applied for, the total [Visa Application Charge] payable can be as high as more than $40,000 and the wait time for processing up to almost 30 years.”[4]
Furthermore, according to the joint submission from the Human Rights Law Centre, Migrant Workers Centre and Asylum Seeker Resource Centre (the joint submission), some visa classes have wait times that exceed the length of the visa. This includes the Prospective Marriage (Subclass 300), which lasts for between 9 and 15 months but has a current processing time of 37 months. An ANAO report found in June 2022 that a quarter of Partner visa applications on hand were older than three years.[5]
As the joint submission also noted, the offshore Partner (Subclass 309) visa processing times doubled over the previous decade from 4-11 months in 2011-12 to 7-23 months in 2020-21. The joint submission also made the point that the standard processing times between partners from the UK and Afghanistan also show discrimination within the processing system.[6]
[7]
Multicultural communities applying for their parents or loved ones to come to Australia often feel like the high fees and long wait times are intentional policies to prevent them from bringing the family here.
These issues are sometimes referred to as “informal caps”, which are not aligned with the intent of the family visa program to be “demand-driven”. As the joint submission states:
“Family visas are intended to be ‘demand driven’ – that is, applications are to be processed and granted according to the number of eligible visa applicants, and not based on a limited supply of places available. This is expressed in the Act, which states that caps are not to be imposed on Partner or Child visas.”
Despite this, the Government and Department continue to observe an informal cap on the number of Partner visas available by way of annual programming levels, which Departmental officials and members of Government often refer to erroneously as a ‘ceiling.’”[8]
Even when a family member arrives, there are barriers to accessing the support needed to engage in the community. A significant barrier is the four-year prohibition on support under the waiting period for newly arrived residents. As the Settlement Council of Australia noted:
“In order to better attract and retain migrants to Australia, Australia has to be seen as a destination where new arrivals will be supported when they first arrive – but also if they come across hard times, know they and their families will be supported by the Australian government. Currently, most migrants who arrive as permanent residents have to wait up to 4 years before accessing government payments due to the newly arrived resident's waiting period.[9]
While the Chair’s Report makes a series of positive recommendations that move migration away from the security framing of the previous Coalition Governments, this cannot be replaced with an economic framing that values certain migrants over others.
The Chair’s report acknowledges the cultural impacts of reduced family reunions, stating:
“The Committee strongly agrees that a shift in the Australian Government’s approach to family migration is necessary, particularly in respect to parent visas. Family, in all of its diversity and across generations, plays a significant part in the building of our nation. While recognising that a solution that meets the demographic and economic needs of the country, as well as the social needs of its people, is unlikely, the Committee urges that equity and fairness be the underpinning principles of any new programs put in place. To this end, fees should be affordable and not encompass options that offer a faster track.”
However, there is a failure in the recommendations to make the system fairer or address the scale of the issue acknowledged. The Recommendations concerning this issue only call for the following:
Far more is needed. Ending permanent parent visas to new applicants may be more honest with applications about the likelihood of the application being processed, but it does allow someone's parent to come to Australia and complete their family.
Recommendation 1
The government should implement the changes recommended by the Commonwealth Ombudsman in its review of parent visas.
Recommendation 2
The government’s migration planning should seek a better balance between family and skilled streams, acknowledging that people on family visas also bring unique skills and benefits to Australia.
Recommendation 3
Additional funding should be urgently provided to process family visas in acknowledgement of the unacceptable delays.
Recommendation 4
The government should abolish the newly arrived resident's waiting period (NARWP).
Recommendation 5
The Department of Home Affairs provides a transparent assessment of the actual cost of visa processing and ensures that the fees charged are in proportion to the expenses incurred.
Because of the narrow terms of reference, the Chair’s Report fails to address both the Australian Government’s historical treatment of people seeking asylum and the rights that have been denied to them. The conscious exclusion of people seeking asylum from the migration experience in Australia was an inherent design flaw in this inquiry.
The policies of offshore detention and the denial of rights for people who sought asylum have been formative migration policies over the past two decades and have become Australia’s most internationally identifiable immigration policy.
To ignore the treatment of people who sought asylum by sea in this inquiry is a conscious choice by the Government ot avoid addressing the well-known human rights abuses, cruelty and harm with these policies.
The Chair Report notes multiple times the conversion of those who had a Temporary Protection Visa (TPV) and Safe Haven Enterprise Visa (SHEV) to permanent protection through the RoSV process. It was the right call to provide people on TPV and SHEV who have gone through the unfair Fast Track system a pathway to permanent protection.
But the Chair’s Report is silent on all those who failed by the Fast Track system living in Australia and are unable to access a permanent visa, as well as all those people held in offshore detention currently in Australia and others who still remain held offshore.
In explanation of who was impacted under the Albanese Government’s RoSV process, the Chair Report states:
“The announcement does not apply to those persons who arrived prior to the commencement of Operation Sovereign Borders but have subsequently been found not to be owed protection as a refugee—that is, those not holding a TPV or SHEV visa. This group comprises approximately 12,000 people.”
This is a misleading statement. The only pathway for people who sought asylum by sea in the period indicated was through the Fast Track process, a process that was deeply flawed and cannot be considered a fair refugee status determination system. To say people who are not on a TPV/SHEV are by definition not owed protection ignores the fact that Fast Track was not a fair determination process.
The review body for the Fast Track process, the Immigration Assessment Authority (IAA), was rightfully abolished earlier this year. While acknowledging the process was unfair, the Albanese Government is still forcing people who have gone through this system to live with the consequences.
As the joint submission noted:
“The Albanese rightly acknowledged these harms in extending permanent residency to 19,000 people who had previously been subjected to the ‘fast track’ process. But that announcement arbitrarily excluded another 12,000 people subjected to ‘fast track’ assessment, approximately 1000 asylum seekers transferred from Nauru and Manus Island to Australia, and another 165 people who continue to languish in those countries.”[10]
The current proposition that people should exhaust their legal options and then apply for Ministerial Intervention is not a solution. People need a clear pathway to permanency after over a decade of being part of the community.
Recommendation 6
Provide a fair pathway to permanency for all those subjected to the Fast Track process.
Recommendation 7
Abolish TPV/SHEVs.
It is to the great shame of Australia that the country's most identifiable immigration policy, since the White Australia policy, has been offshore detention of people who seek asylum by sea. The fact that the Terms of Reference purposefully excluded offshore detention from consideration means that this review will be an incomplete look at the migration system.
People have been held offshore, having sought asylum by sea in Australia a decade ago. A recent report by ASRC found that out of the nearly 50 people held on PNG and 100 on Nauru, health issues were widespread, finding that:
There are also around 1,000 people who sought asylum by sea, were taken to offshore detention, were not included in the Fast Track process, and are in a permanent state of visa limbo. This group of people is caught in an indefinite process of renewing bridging visas with no ongoing work rights, study rights, Medicare, or support.
The Joint Submission provided the following case study that showed what people in this group experience:
“Continuing Limbo in PNG Mohammad is a Hazara man from Afghanistan who is in PNG. He entered Australia by sea in 2013; several of the men he travelled with were subject to the ‘fast track’ process and will shortly receive RoS visas. Mohammad has been recognised as a refugee in PNG. But is currently under severe strain he is worried about his family in Afghanistan who are living under Taliban rule. He is engaged in the Canadian resettlement process.
Mohammad has suffered in offshore detention in PNG for over 9 years. He has a multitude of untreated health conditions which makes it difficult for him to eat. He also suffers from depression. His doctor suggests he exercises, but Mohammad does not want to leave his house for fear of his safety.
“My hopes are to be with family, find work, stand on my own feet, feel independent and feel like a human. To have a peaceful life. Just do not forget us and hopefully, you can help us get out of this situation. We are stuck and cannot do anything to change our life for the better.”[12]
The joint submission also noted that this cohort is not eligible to apply for a bridging visa and must wait for the Minister to ‘lift the bar.’
The violations of human rights and international law committeed through offshore detention have been well documented and should have been included in this inquiry.
Recommendation 8
For the Minister to permanently ‘lift the bar’ to permit people deemed ‘unauthorised maritime arrivals’ or ‘transitory persons’ to make valid Bridging visa applications as of right.
Recommendation 9
Provide a fair pathway to permanency for all those who sought asylum by sea.
Recommendation 10
End offshore detention of people who seek asylum by sea.
The chair’s Report has largely failed to address the most prevalent form of ‘temporary permanency’ in Australia, bridging visas.
Bridging visas are meant to be interim visas that bridge people from one substantive visa to another. However, this is not how it is currently used, instead, they are a mechanism for Governments to address the deficiencies and injustices of the immigration system.
People on a bridging visa do not have a guaranteed ongoing right to work, study, access to Medicare or any mainstream social support. The visas normally last only for six months - an indication that the original intention of the visas was that they only be used for a short-term interim visa - however, people are now left languishing on these visas for years, constantly having to renew them.
The joint submission noted:
“There are currently more than 357,743 Bridging visa holders in Australia experiencing these types of uncertainty. It is unacceptable that a significant segment of the community is subjected to years of purgatory and heightened insecurity (including at work, as we return to below). The flow-on consequences of such arrangements for people’s ability to settle and make a life in the country are obvious.”[13]
While there is a general overuse of bridging visas, there is a specific issue when concerning people seeking asylum. Wait times for permanent protection visas have become unconscionable. As the Asylum Seeker Resource Centre (ASRC) noted in its submission:
“As of August 2022, the average Department of Home Affairs processing time for a Protection visa was 1,076 days. As of 31 December 2022, the AAT processing times for protection cases was 1,968 days. In addition, applicants seeking judicial review of their Protection visa refusals wait for at least two to three years for their matter to be finalised.”[14]
During this time, people seeking asylum are held on bridging visas without guaranteed work rights, study rights, Medicare, or support. For years, their applications are in limbo, during which time people are in a precarious situation and can be exploited.
As Refugee Advice and Casework Service (RACS) explained:
“Conditions attached to bridging visas, notably any prohibitions on working, can lead to exploitation of people seeking asylum as they are left with little option to earn an income other than enduring harsh working conditions outside the regulated labour market, as they are also not eligible for any financial support programs.”[15]
The Refugee Council of Australia (RCOA) highlighted that the overuse of bridging visas is a systemic change in Australia’s migration system:
“A major shift in Australia’s migration, including to some extent in the Humanitarian Program, has been the explosive growth in temporary migration. In recent years, there has been discussion of making this the default position, with all migrants treated as provisional entrants. Such policies should be avoided.
…
They are also more at risk because typically social protections, including access to social security, depend on a fundamental division between permanent and temporary residence. For example, women fleeing family violence are often not able to access refuge because of their lack of secure visa status. Typically, the social effects are being mitigated by funding and programs provided by State governments.
These effects are very apparent in the system of temporary protection visas for refugees and the ongoing reliance on bridging visas. People in this situation face many barriers, including to further education and to disability support. They are ineligible for most social security benefits, increasing their vulnerability further. Such barriers impede their settlement and are directly counterproductive to their ability to contribute to Australian society.”[16]
Part of the reason that this proliferation in bridging visas occurred is due to the defunding of legal assistance, as ASRC explained:
“The defunding of free legal assistance to people seeking asylum has also contributed to ineffective visa processing. Since 2014, successive governments have whittled down funding and since August 2022 there has been no government-funded legal assistance for protection visa applicants
The lack of free legal assistance to people seeking asylum has had a devastating impact on their ability to engage with the complex visa application process due to barriers including literacy and language skills, poor mental health, and isolation from community support, especially for people in immigration detention. Without legal assistance, people seeking asylum cannot effectively engage in the refugee status determination process, which increases unfair outcomes and inefficient visa processing. It also exposes people seeking asylum to defective advice and covert representation, at great expense to their futures.”[17]
The lack of legal assistance also leads to poor applications or applications that require further information, contributing to the backlog and delays, as previously noted.
The joint submission made this point clearly:
“Given the already onerous impact of precarious Bridging visa status, and noting that delays across the regime (from visa processing to merits and judicial review) mean that people now remain on Bridging visas for years on end, there is no justification for subjecting visa holders to restrictive conditions. Study and residence-related restrictions function to prevent Bridging visa holders from participating in the community on an equal footing for years on end. As we discuss at section 4.1. below, work-related restrictions do not in fact prevent Bridging visa holders from engaging in work – particularly given that they are deprived of all other forms of income support. Rather, such restrictions serve only to channel Bridging visa holders into informal and unregulated forms of work, in which they are at greater risk of being exploited and underpaid.”[18]
The joint submission recommended that connecting the bridging visa with a clear event such as Ministerial intervention, ‘third country resettlement’ or the conclusion of a court case, would stop the constant renewal and would address many issues with the current system.
Previously, the Government had a ‘90-day rule’, which required a visa status determination process for people seeking asylum to be completed within 90 days. The abolishment of this rule corresponds with a blowout in wait times. The Chairs Report makes a very weak recommendation to “consider” reintroducing this 90-day rule. This is insufficient, partially as the the Labor Party nominally supports its reintroduction in full.[19]
Recommendation 11
Provide people seeking asylum access to government-funded legal assistance.
Recommendation 12
Amend Bridging visa conditions to provide guaranteed ongoing work, study and support, with expiry occurring once an event has occurred (such as a substantive visa is provided).
Recommendation 13
Reintroducing the ‘90-day rule’ into the Migration Act 1958 to ensure that refugee status determinations are concluded within 90 days.
Australia has a uniquely cruel onshore immigration detention system. Once against this, it was noticeably excluded from the review remit. How the government treats people who have had their visa expire or have had it cancelled is integral to the migration system as a whole.
The average time someone will spend in Australia’s immigration detention system is 545 days, with some people held for over five years, up from under 100 days in 2013.[20]Compared to other countries like Canada, the UK, US, Germany and France, the average time spent in detention is between 14 and 55 days.[21]
Part of the reason there has been such an unparalleled rise in average time spent in detention is linked to the Minister’s ‘god-like’ powers to cancel visas. Powers that have drastically increased in recent years. As the joint submission notes:
“Visa cancellation decisions on character grounds have increased exponentially since the introduction of mandatory cancellation powers to the Act in 2014. The following graph depicts the immediate and exponential increase in cancellation decisions between 2013 and 2014.”[22]
Australia’s punitive and cruel system is known internationally, so it should not be a surprise that we are not attracting people to the same extent as countries with fairer systems.
Recommendation 14
Detention can only be a last resort with strict timeframes.
Recommendation 15
The Minister's visa cancellation powers are reviewed.
The Chair Report also notes:
“The Committee recognises the important role that international students play in adding vitally-needed skills into the Australian economy. The Committee hopes that international students continue to be a significant source of Australia’s permanent migrant program and that the reforms announced by the Australian government for international education help to ensure that Australia is able to retain those international students who can potentially make the best contributions to Australia’s economy and society as permanent residents and citizens.”
This is deeply offensive when viewed in the context of the Albanese Government rushing through student visa caps without proper consultation or process. International students are vital not only to Australia’s economy but also to our culture and society.
The treatment of international students by the Albanese Government, including scapegoating students for the housing crisis and leaving thousands without certainty.
The Public Interest Criterion (PIC) and Significant Cost Threshold (SCT) are in desperate need of reform as they entrench discrimination against people with disabilities and illnesses into the immigration system. The Chair’s Report does not go far enough in its recommendation for a simple exploration of issues that are already clear and relegating the rights of people with a disability as secondary to unclear considerations of “Budget impacts”.
The Chairs Report makes the following recommendation concerning PIC:
“The Committee recommends that the Australian Government explores simplifying the health requirements to a single Public Interest Criterion that incorporates an entitlement to apply for a waiver of the health requirements.”
In April 2024, the Department released the Review of the Migration Health Requirement and Australia's visa Significant Cost Threshold (SCT). In this review, the Department recommended the Government:
“Consider greater access to a health waiver (PIC 4007) for permanent skilled visa subclasses. The review notes that Government authority would be required for this change. [And] Identify options to streamline the health waiver processes for visa applicants and visa delegates.” The review did not recommend further exploration.
The Chairs Report, by not recommending implementing the finds of the review is effectively dragging its feet on reform. There has been sufficient “exploration” of the negative effects of the limits to the PIC, and now action is needed.
Concerning the SCT, the Chair’s Report makes the following recommendations:
The Committee recommends that the Australian Government remove specialised education services from the description of ‘community service costs’ in the policy settings for the Australian visa Significant Cost Threshold, with appropriate consideration to Budget impacts.
The Committee recommends that the Australian Government increases the Significant Cost Threshold to an amount that will enable Australia to remain competitive with comparable countries, with appropriate consideration to Budget impacts.”
Once again, these recommendations are insufficient. Ensuring people with a disability are treated fairly, and their rights are respected, or at the very least Australia’s laws are aligned with other comparable nations, should not be a secondary consideration to “budget impacts.”
While there has been a welcome step by the Governmnet to raise the SCT from $51,000 to $86,000. However, this is still extremely low and well below comparable countries such as Canada and New Zealand, whose equivalents of over 10 years would be $296,000 and $151,000, respectively.
The equivcation in the recommendation to remove specialised education services from the description of ‘community service costs’ in the SCT is also a concern. Education is a fundamental right, the need for education should not be counted against somoenes visa application.
Recommendation 16
The government should provide greater access to PIC health waivers.
Recommendation 17
Special education costs are excluded from the SCT.
Recommendation 18
Raise the SCT to an amount that allows us to remain comparable with other countries.
There are some recommendations in the chair’s Report that will have notable benefits, including:
The Committee recommends that the Australian Government make available more specialised employment and domestic violence support services for migrant refugee women.
Finally, the Chair Report's recommendation for an independent collaborative institution for research and data collection and analysis related to migration policy and associated policy impact is positive. The advisory panel that oversees this body must have people with lived experience of seeking asylum and migrating to Australia represented.
Senator David Shoebridge
Greens Senator for New South Wales
Footnotes
[1]ANU Migration Hub, Submission 70, p. 8.
[2]Federation of Ethnic Communities’ Councils of Australia, Submission 52, p.2.
[3]Dr James O’Donnell, Mapping Social Cohesion: 2023, Scanlon Foundation Research Institute, 2023, p. 87.
[4]Commonwealth Ombudsman, Righting Refunds Investigation into the appropriateness of the Department of Home Affairs’ policies and procedures for Visa Application Charge refunds for parent visas, 13 August 2024 p.3.
[5]Auditor-General, Management of Migration to Australia — Family Migration Program, Report No 16 2022– 23 (27 March 2023) (ANAO Report)
[6]Human Rights Law Centre, Migrant Workers Centre and Asylum Seeker Resource Centre, Submission 120, p. 27.
[7]Ibid
[8]Human Rights Law Centre, Migrant Workers Centre and Asylum Seeker Resource Centre, Submission 120, p. 25.
[9]Settlement Council of Australia, Submission 34, p. 7.
[10]Human Rights Law Centre, Migrant Workers Centre and Asylum Seeker Resource Centre, Submission 120, p. 14.
[11]ASRC, Cruelty by Desgin: The health crisis in offshore detention,July 2024 p.3.
[12]Human Rights Law Centre, Migrant Workers Centre and Asylum Seeker Resource Centre, Submission 120, p. 17.
[13]Human Rights Law Centre, Migrant Workers Centre and Asylum Seeker Resource Centre, Submission 120, p. 9.
[14]Asylum Seeker Resource Centre, Submission 86, p. 3.
[15]Refugee Advice and Casework Service (RACS), Submission 104, p.9.
[16]Refugee Council of Australia, Submission 105, p. 10.
[17]Asylum Seeker Resource Centre, Submission 86, p. 4.
[18]Human Rights Law Centre, Migrant Workers Centre and Asylum Seeker Resource Centre, Submission 120, p.11.
[19]Australian Labor Party, ALP National Platform, p.141.
[20]Department of Home Affairs, Immigration Detention and Community Statistics Summary, July 2024, p.12.
[21]ASRC, Ending Indefinite and Arbitrary Immigration Detention, August 2022 p.7.
[22]Human Rights Law Centre, Migrant Workers Centre and Asylum Seeker Resource Centre, Submission 120, p.11.
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