Dissenting Report: The Australian Greens
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum
Legacy Caseload) Bill 2014
Introduction
1.1
The Senate inquiry into the Migration and Maritime Powers Legislation
Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 heard from thousands
of human rights lawyers, refugee advocates, academics, and community members,
all of whom rejected the amendments proposed in the Bill.
1.2
Despite the overwhelming evidence from experts and the community, who
have said that this Bill should not proceed, the majority report has
recommended that the Bill be passed. This committee has arrogantly rejected the
evidence of thousands of Australians and has chosen to favour politics and
punishment over protection and the rule of law.
1.3
This Bill is by far one of the most regressive pieces of legislation
this Parliament has seen when it comes to the treatment of asylum seekers and
refugees. There is no doubt that this Bill is an attempt by the government to
dramatically reduce the number of refugees Australia takes each year and to
legitimise their actions at sea when intercepting and turning back asylum
seeker boats.
1.4
This Bill seeks to legalise the Government’s actions at sea, limit
Parliamentary and judicial oversight, disregard Australia’s international and
human rights obligations, reintroduce Temporary Protection Visas for boat
arrivals, introduce a new temporary visa called the Special Humanitarian
Enterprise Visa, introduce rapid processing with the sole aim of reducing the
number of people Australia finds to be in need of protection, remove the
Refugee Convention from the statute books, and deem babies born to asylum
seekers parents as ‘Unauthorised Maritime Arrivals'.
1.5
The Bill is an attack on Australia’s generous heart and will result in
Australia wrongly refusing protection to genuine refugees and returning them to
persecution or significant harm.
1.6
The Australian Greens agree with the majority of submitters that this
Bill is a radical deviation from Australia’s longstanding commitment to
international and human rights law. If passed this Bill will seriously endanger
the lives of thousands of asylum seekers. The Australian Greens strongly
recommend that this Bill be rejected by the Senate.
Amending the Maritime
Powers Act
1.7
The amendments proposed in Schedule 1 of the Bill seek to give the
Minister for Immigration and Border Protection unprecedented power over
operations at sea and limit Parliamentary and judicial oversight. The
amendments would give the Minister of the day the power to detain asylum
seekers at sea for an unlimited timeframe, send them to other countries against
their will and the will of the destination country. The Parliament would have
no say in these actions nor would the judiciary. The amendments proposed would
circumvent the courts by making such powers and decisions immune from legal
challenge.
1.8
Whilst the Government has continued to tout that their actions at sea
are consistent with international law, attempts to amend the law in this way
suggest otherwise. This is quite clearly a power grab by the Minister for
Immigration and Border Protection and an attempt to place the Government above
both the Parliament and the judiciary.
1.9
The amendments proposed will mean that the Australian Government would
not need to comply with, or even consider, international law when exercising
maritime powers.[1]
In practice, this means that any operation at sea that is inconsistent with
Australia’s international obligations, fails to consider Australia’s
international obligations or fails to consider international law or the
domestic laws of another country cannot be invalidated.
1.10
There is no doubt that these changes come in direct response to a case currently
before the High Court[2]
which is challenging the extent of the Government’s maritime enforcement powers
under the Maritime Powers Act and its power to intercept and detain asylum
seekers and then take them to a place outside Australia. Essentially these
amendments would nullify this challenge and any future challenges to the
Government's operations at sea. Any attempt to decrease independent oversight
or Parliamentary scrutiny is extremely concerning in light of the continuing
secrecy surrounding Operation Sovereign Borders and the Government’s actions at
sea.
1.11
The Bill also removes any requirement for maritime powers to be
exercised in accordance with the rules of natural justice. These amendments
will effectively enable the Government to detain and transfer people without
considering their individual circumstances or giving them a fair hearing.[3]
Australia has an obligation under the Refugee Convention not to return people
to a place where they will face persecution or suffer serious harm; these
amendments will compromise Australia’s ability to uphold these obligations and
individuals will not be given the opportunity to receive a fair and thorough
assessment of their protection claims.
1.12
As argued by the Refugee and Immigration Legal Centre:
Australian officials, who intercept, detain and/or transport
people at sea have ‘effective control’ over those persons as a matter of
jurisdiction under international law. Australia’s duty not to refoule persons
to serious harm is engaged at that point. Australian officials who fail to
investigate whether the persons they detain at sea are seeking asylum, fail to
hear claims, and who remove persons to their home country or to third
countries, which may return those people to their home country, will be
responsible for direct or indirect refoulement to persecution or other human
rights abuses.[4]
1.13
Further to this, under these amendments the Minister’s powers are
extended to enable him or her to give directions about the detention and movement
of vessels and people provided that it is in the ‘national interest’. This is
an unprecedented power that will have devastating consequences for asylum
seekers and refugees and will result in Australia breaching its non-refoulement
obligations by sending people back to persecution or serious harm.
1.14
In addition to the overwhelming opposition to these amendments which was
raised by witnesses and submitters to the inquiry, the Parliamentary Joint
Committee on Human Rights has stated that the amendments outlined in schedule 1
breach a number of human rights obligations and will allow Australia to
undertake actions at sea that are inconsistent with Australia’s international
obligations.
Temporary Protection Visas
and Safe Haven Enterprise Visas
1.15
Schedule 2 of the Bill seeks to reintroduce Temporary Protection Visas
(TPVs) and create a new visa named the Safe Haven Enterprise Visa (SHEV). These
two visas classes will be the only visas that will be available to asylum
seekers who have arrived in Australia by boat and are found to be in genuine
need of protection. The legislation will be applied retrospectively to all
individuals who have applied for Permanent Protection Visas.
1.16
The Government continues to promote TPVs as an effective deterrent
against boat arrivals; however, evidence suggests that this is not the case. In
1999 following the introduction of TPVs by the Howard Government the number of
boat arrivals grew ten-fold, including a significant increase in the number of
women and children making the perilous journey to Australia by boat, as TPVs
denied family reunification. The Government cannot continue to argue that the
reintroduction of TPVs will act as a deterrent as they will only apply to those
who are currently in Australia.
1.17
TPV holders will live in a constant state of limbo as they will face the
very real prospect that their visas will not be reissued after 3 years. Hanging
over their head will be the constant fear of being returned to the danger they
once fled. As was the case previously, TPV holders will be unable to sponsor
family members, will be precluded from re-entering Australia should they need
to travel and will be barred from applying for any other visa in Australia.
History has shown that those who were previously granted TPVs suffered from
high levels of anxiety, depression, post‑traumatic stress disorder and
other psychiatric illness.[5]
As stated by Amnesty International in their evidence, 'TPVs, far from offering
the protection refugees have been found to require, in fact create prolonged
uncertainty, separation, frustration, fear and mental ill-health'.[6]
1.18
In addition to the reintroduction of TPVs this legislation creates a new
visa, the Safe Haven Enterprise Visa (SHEV). Whilst the legislation clearly
amends the Migration Act to include TPVs, it does not do the same for the SHEV.
The Bill names the visa type but fails to detail the criteria and conditions.
Regulations will be required to establish the SHEV, however the Minister cannot
be compelled to designate the regulation.
1.19
As detailed by the Minister for Immigration and Border Protection in
correspondence with the Palmer United Party, the SHEV will be a valid visa for
five years and like the TPV will not include the right to family reunion or the
right to re‑enter Australia. SHEV holders will be required to work in
regional areas, after having worked in regional Australia for three and half
years without accessing welfare and if they meet the eligibility criteria they
may be able to apply for other onshore visa types, such as skilled or family
visas.
1.20
As argued by the Refugee and Immigration Legal Centre:
...the criteria will be unattainable for the overwhelming
majority and for these the prospect of a permanent visa through the proposed
SHEV scheme will be merely illusory.[7]
1.21
The Minister himself has admitted that it will be extremely difficult
for SHEV holders to obtain permanency in Australia and that there is an
extremely high bar to pass. It is evident that the pathway to permanency will
be long and hard for genuine refugees.
1.22
The introduction of this visa subclass is being viewed by many as
necessary in order to ‘deal’ with the 30,000 asylum seekers currently living in
the community. It is important to note that the Department of Immigration and
Border Protection have stated that it will take three years to process the
backlog.[8]
Those who are currently in the community have already been waiting years for
their claims to be processed, the reintroduction of temporary visa will not
‘fix’ the backlog, instead it will condemn thousands of refugees to a life of
uncertainty.
Rapid processing of asylum
claims
1.23
Schedule 4 of the Bill creates a rapid assessment process for asylum
seekers who have arrived in Australia by irregular means. Whilst enforcing
strict timeframes and requirements these amendments also deny persons the right
to appeal the decision.
1.24
It is clear that the amendments proposed are about the Government trying
to make it as hard as possible for a person to be found to be a refugee and in
turn be eligible for any type of permanent visa in Australia. Under these
changes Australia will make incorrect determinations and will risk sending
people back to danger and serious harm, breaching Australia’s non-refoulement
obligations.
1.25
Under these amendments asylum seekers will have their applications
assessed initially by the Department of Immigration and Border Protection. If
they are unsuccessful in their application only some will be eligible for an
expedited and limited review process through the newly established Immigration
Assessment Authority (IAA), an authority of the Department of Immigration and
Border Protection. All applicants will be precluded from applying to the
Refugee Review Tribunal (RRT).
1.26
As per the amendments the IAA will have limited review powers, will have
no obligation to ever interview applicants or consider any new information
should it arise unless ‘exceptional circumstances’ exist.
1.27
Further to this, not all asylum seekers will get access to this limited
review. The amendments proposed in this Bill seeks to exclude people who may
have provided false documentation, who may already have been denied refugee
status by the UNHCR in another country, have ‘manifestly unfounded claims’, or
if they fall within a class of persons the Minister for Immigration and Border
Protection prescribes. These amendments are unjust, fail to recognise the
realities of seeking asylum and hand unprecedented power to the Minister to
determine the future of vulnerable asylum seekers.
1.28
Further to this, it is important to note that those who are found under
this process not to be owed protection will become unlawful citizens leaving
open the possibility of people being returned to detention. The effects of this
amendment will be that a larger number of asylum seekers will be denied
protection and therefore be mandatorily detained or returned to danger.
1.29
Australia has an obligation to protect people fleeing human rights
abuses and to uphold the standards of procedural fairness. If due process
fails, there is an increased likelihood that people will be wrongly refused
protection and removed to the very real prospect of persecution or serious harm
in their country of origin. Under these amendments, Australia will risk
breaching its obligations under the Refugee Convention, most namely the
principle of non-refoulement.
Removing references to the
Refugee Convention
1.30
The amendments outlined in Schedule 5 of the Bill removes most
references to the Refugee Convention from the Migration Act and replaces it
with the Government’s own interpretation of Australia’s protection obligations.
The amendment goes so far as to redefine what it means to be a refugee. The
changes will also make it possible for the Government to remove asylum seekers
without considering the risk of refoulement.
1.31
The proposed amendments are in contradiction with Australia's
obligations under international and human rights law and will result in the
very real risk of Australia returning genuine refugees to danger.
1.32
The Refugee Convention remains at the cornerstone of international
refugee protection. The government is arrogantly attempting to impose its own
interpretation of what has been an internationally understood treaty. As stated
by the Human Rights Law Centre, the Convention 'cannot be unilaterally
redefined by Australia more than 60 years after it was signed'.[9]
1.33
Further to this, the amendments outlined in this schedule also seek to
remove Australia’s obligation to consider refoulement when removing a person
from the country. This amendment is regressive and completely flies in the face
of Australia’s commitment to international law. As argued by the Refugee and
Immigration Legal Centre, these amendments are:
...entirely inappropriate and would further limit Australia’s
capacity to comply with its international obligations, and consequently increasing
the risk of it breaching those obligations.[10]
1.34
There are a number of concerning aspects regarding the government’s
redefinition of the Refugee Convention. Currently, under Australian and
International law, a person is not eligible for protection if he or she can
safely access another location and it is ‘reasonable’ for him or her to move
there. This Bill seeks to remove the reasonableness criteria and instead
introduce a blanket clause stating that an individual must show that there is a
real chance of persecution in all areas of their country, regardless of the
practicalities of moving and living there. The UNHCR stated in its submission
that decision makers are required to assess whether internal relocation 'is a
reasonable consideration, both subjectively and objectively, given the circumstances
of the asylum seeker'.[11]
Protection should not be contingent on the persecuted trying to avoid their
persecutors.
1.35
When determining a person’s refugee status these amendments will deny a
person protection if the government believes that if they change their
behaviour they will no longer be in fear of persecution or serious harm. As
stated by the Asylum Seeker Resource Centre in their evidence:
This is an affront to the rule of law, supports actions of
oppressive regimes and undermines the purpose of the Refugee Convention. It is
not and should not be question for an Australian decision maker to consider
what aspects of a person’s belief should be modified to suit the extremist
group’s ideology.[12]
1.36
Protection should not be contingent on the persecuted having to modify
their own behaviour so as not to agitate their persecutors.
1.37
Further to this, the Bill proposes to change and codify the test of
defining a particular social group. The Bill seeks to add an additional requirement
which states that the defining characteristic of the particular social group
must be either innate or immutable or so fundamental to the member’s identity
or conscience, the person should not be forced to renounce it.[13]
As noted previously, protection should not be contingent on the persecuted
having to modify their behaviour to avoid persecution.
1.38
The amendments proposed to this schedule are an affront to international
law and Australia’s long and proud history of offering protection to those in
need.
New born babies
1.39
With retrospective effect, the Bill would also classify babies born in
Australia to asylum seeker parents as 'Unauthorised Maritime Arrivals (UMAs)'. These
children were born in Australian hospitals, yet the Bill seeks to classify them
as if they arrived by boat.
1.40
Should this Bill pass it will significantly impact a current case before
the Federal Court of Australia, in which Maurice Blackburn Lawyers are
representing a baby named Ferouz, who was born in Brisbane’s Mater Hospital,
holds a Queensland birth certificate and is eligible to apply for Australian
citizenship.[14]
These amendments represent another attempt by the government to overrule court
proceedings and circumvent the law.
1.41
The consequences of such changes will be devastating for these
Australian born babies as the amendments will leave them liable to transfer
offshore, subject to arbitrary and indefinite detention, and effectively deemed
stateless.
1.42
As was raised by ChilOut in their submission to the inquiry, this
amendment, which will result in the indefinite detention of children, is at odd
with the concluding observations of the UN Committee on the Rights of the
Child, where it was stated that children should only be held in detention as a
last resort and for the shortest possible period of time.[15]
1.43
Putting aside the absurdity of the claim that babies born in Australian
hospitals in fact arrived by boat, these amendments seriously compromise Australia’s
obligations under the Convention on the Rights of the Child and Article 24 of
the International Covenant on Civil and Political Rights (the right to acquire
nationality).
1.44
These amendments would effectively render these children stateless due
to their inability to acquire nationality and would result in Australian born
babies being subject to offshore indefinite detention.
Statutory limit on
Permanent Protection Visas
1.45
The amendments outlined in schedule 7 introduce a statutory limit on the
number of Permanent Protection Visas which can be issued within a particular
financial year and removes the 90 day processing requirement for the Department
and the RRT and related Parliamentary reporting requirements.
1.46
These amendments come in response to the decisions of the High Court in Plaintiff
S297 of 2013 and Plaintiff M150 of 2013 and to ensure that 'the
onshore component of the Humanitarian Programme is appropriately managed'.[16]
1.47
Australia is obliged to provide protection to those who arrive in
Australia and are found to be in genuine need of protection. A cap on
protection visa applications for people who have been found to be genuine
refugees abrogates this important responsibility and places Australia at
considerable risk of inflicting harm on people by leaving them languishing for
long periods of time should the cap be reached.
1.48
As stated by the Refugee Council of Australia, 'Protection Visa grants
should be guided, first and foremost, by the protection needs of individual
applicants'.[17]
Conclusion
1.49
This Bill is by far one of the most regressive pieces of legislation
this Parliament has seen when it comes to the treatment of asylum seekers and
refugees. There is no doubt that this Bill is an attempt by the government to
reduce the number of refugees Australia takes each year.
1.50
The Government’s arrogant approach to those seeking protection in
Australia is an attack on the nation’s generous heart and proud history of
resettlement of the world’s most vulnerable.
1.51
The committee heard unprecedented evidence from experts around the
country stating that this Bill should not be passed. The Australian Greens
agree and strongly recommend that the Bill be rejected by the Senate.
Recommendations
1.52
Recommendation 1: The Australian Greens recommend that the Bill be rejected
by the Senate.
1.53
Recommendation 2: The Australian Greens recommend that the Government
reinstate legal funding for IAAAS for all protection visa applicants and make
migration assistance available to all those considered part of the ‘legacy
caseload’.
1.54
Recommendation 3: The Australian Greens recommend that Australia’s
humanitarian intake be increased immediately to a minimum of 20,000 places per
annum.
1.55
Recommendation 4: The Australian Greens recommend that the Government
immediately begin processing claims under the current Refugee Status
Determination System and make available Permanent Protection Visas to people
found to be owed protection.
1.56
Recommendation 5: The Australian Greens recommend that the Government
pass the Australian Greens’ Guardian for Unaccompanied Children Bill 2014 to
ensure that unaccompanied minors have a truly independent guardian acting in
their best interest.
Senator Sarah Hanson-Young
Australian Greens
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