CHAPTER 2
Key issues
2.1
All submissions received by the committee raised issues regarding the
Bill. Submitters were particularly concerned with the amendments contained in
Schedule 1, but also raised issues with Schedules 2, 4 and 6 of the Bill.
2.2
This chapter focuses on the issues raised in relation to those schedules.
Application for further visas (Schedule 1)
2.3
Submitters to the inquiry expressed concern regarding the provisions
contained in Schedule 1.[1]
These amendments seek to clarify that children and people with a mental
impairment whom have had a protection visa application previously made on their
behalf are prevented from making a further visa application, regardless of
whether they knew about the previous application.
2.4
As discussed in chapter 1, these amendments stem from the Federal Court
decision in Kim v Minister for Immigration. This was the view of Refugee
and Casework Service (RACS) who stated that they were unaware of other cases
where this issue has appeared before the court.[2]
2.5
The issue of who would actually be affected by the amendments set out in
Schedule 1 was discussed in detail.[3]
As noted by RACS in its written submission:
As the Court in Kim makes clear, this is unlikely to be
relevant for children of younger years. However for young people under 18 years
of age with capacity, including capacity to providing consent and capacity to
form an intention, it is unwise to legislate that such matters can never be
considered in relation to future visa applications.
Visa applicants under 18 years of age are not a uniform
group, and it seems prudent to allow for some consideration of factors such
level of understanding, intelligence, competence, knowledge, family conflict
and mental incapacity.[4]
2.6
During the public hearing, RACS provided further information on when a
child was likely to be considered competent for the purposes of making their
own decisions with regards to visa applications.[5]
Ms Katie Wrigley, Principal Solicitor at RACS, noted that the older the child,
the more likely it is they will be considered to have capacity.[6]
2.7
RACS also discussed the significance of where a child or a person with a
mental incapacity was not aware of an application being made on their behalf.[7]
RACS identified possible scenarios where these amendments could adversely
impact young visa applicants:
A 17 year old young man lives independently of his parents in
a relationship not approved of by his parents. He is included on a non‑meritorious
protection visa application by his parents without his knowledge. This
application is refused. He only learns of this visa application history when he
makes his own visa application in the future, which is deemed invalid.
A 16 year old girl remains in conflict with her father due to
family violence and remains living in a refuge with her mother. She is included
in a non‑meritorious visa application without her knowledge by her father
which is refused. When her mother includes her on a subsequent meritorious visa
application as her dependent, she is informed that the application by the
daughter is invalid due to the father’s previous application.[8]
2.8
Ms Wrigley noted that while visa applicants should not be allowed to
make repeated, non-meritorious applications, the amendments went too far and
may result in unintended consequences for minors in situations similar to those
discussed above.[9]
2.9
Submitters also raised concerns about how the amendments would interact
with Australia's obligations under international law.[10]
RACS referred to Australia's obligations under Article 12 of the Convention on
the Rights of the Child:
This right recognises that children should be given the
opportunity to participate in all decisions that affect them. The changes
proposed to the law by the Bill rule out consideration of a child's views in
relation to matters significantly affecting them- namely their rights to bring
future visa applications in Australia.[11]
2.10
The Human Rights Law Centre (HRLC) was particularly concerned with
Australia's obligations under the Refugee Convention with respect to the
principle of non-refoulement.[12]
In her evidence to the committee, Ms Emily Howie, Director of Advocacy and Research
at the HRLC, stated that:
At the heart of our opposition to the proposed amendments to
proposed section 48A is the fundamental principle that a person should not be
returned to a country where they face persecution. This principle is at the
core of Australia's international legal obligations under
the Refugee Convention and other international treaties to which
Australia has agreed to be legally bound. The proposed amendments, however,
have the potential to undermine our obligations. They may result in a person
being returned to a country in which they have genuine protection concerns,
simply because Australia's migration system refuses to permit a further
protection visa application from them on the basis that someone else may have
already made an application for them on their behalf, despite the fact it may
have been made without their knowledge or proper understanding and therefore
may not have properly articulated their claims.[13]
2.11
Another concern raised by submitters was the lack of justification
provided by the minister. In its submission, the Refugee Council of Australia
(RCOA) stated that the 'rationale for these amendments has not been
sufficiently explained or justified':
While the Explanatory Memorandum accompanying this Bill
claims that the amendments are necessary to preserve the integrity of
Australia's visa systems, it presents no evidence demonstrating that the extant
working of the Migration Act 1958 has significantly undermined the
integrity of these systems. Moreover, we do not accept that allowing asylum
seekers to lodge a subsequent Protection Visa application if their first
application was lodged without their knowledge or consent would in any way
threaten the integrity of Australia's visa processes. On the contrary, ensuring
that all asylum seekers are able to have a fair hearing of their claims would
help to ensure the integrity of these processes.[14]
2.12
During the hearing, Ms Howie expressed a similar view on behalf of the
HRLC:
...the proposed amendments cannot be justified under the
rationale of administrative expediency. Permitting a person the opportunity to
make a further protection visa application in limited circumstances in which
the original application was made without the person's knowledge or
instructions is unlikely to open the floodgates or to place an unreasonable
administrative burden on the system. In any event, our system ought to be one
which upholds the principle against non-refoulement, well above the issues of
administrative inconvenience.[15]
2.13
Another point of discussion at the public hearing was whether section
48B, which provides an exception to the operation of 48A, is a sufficient
safeguard against injustice. In her evidence to the committee, Ms Howie
discussed the operation of section 48B:
It empowers the minister to lift the bar imposed by section
48A and to determine that the section does not apply to an individual where the
minister is of the opinion that it is in the public interest to permit that
person to make a further protection visa application. This discretion is
personal to the minister and non-compellable.[16]
2.14
Section 48B only operates with regards to protection visas. It was the
view of submitters that section 48B is not an adequate safeguard when weighed
up against the right of non-citizens to not be removed.[17]
2.15
The RCOA stated in its submission that it:
...rejects the assertion that the Minister's personal,
non-compellable powers under section 48B of the Migration Act 1958 provide
adequate protection against refoulement for people subject to section 48A. A
non-reviewable process which relies on the discretion of a single Minister,
based on powers which the Minister is under no obligation to exercise, does not
provide a sufficient safeguard against forcible return of refugees to
situations of persecution and danger.[18]
2.16
Ultimately, both RACS and the HRLC were of the view that the current
arrangements were robust enough to prevent the filing of repeat applications.[19]
In her opening statement, Ms Wrigley from RACS noted that:
In terms of cost-benefit analysis, the need to alter the
current law on this point is simply not supported by the volume of legislation
generated by the current ability at law for a person to seek scrutiny of this
issue before the courts.[20].
2.17
The Department of Immigration and Border Protection (DIBP or the
department) responded generally to concerns raised about whether the amendments
proposed in the Bill would breach Australia's obligations under the Refugee
Convention:
We would start by saying that the government certainly
remains committed to adhering to all of our non-refoulement obligations under
all the conventions to which we are signatories. And processes are in place to
ensure that anyone who is found to engage our non-refoulement obligations under
the treaties will not be removed from Australia in breach of the obligations.[21]
2.18
The department also emphasised that there are a number of processes in
place to ensure that non-citizens with legitimate grounds are not removed:
The way we look at any other protection obligations that
arise perhaps outside the refugees convention is through pre-removal clearance
processes. At every stage before a removal there are processes that the
department undertakes to ensure that a person is not returned if there is a
likelihood of refoulement occurring, and that is an opportunity for people to
raise those issues with the department before any removal takes place.[22]
2.19
With regards to the amendments set out in Schedule 1 of the Bill, DIBP
noted that these are not aimed at changing the law, but rather returning 'the
[A]ct to the situation as it stood since 1994', before the decision in Kim
v Minister for Immigration.[23]
The department stated that the rationale for the amendments was to remove the
need for departmental officers to consider each situation subjectively:
I think it related to the requirement that would be imposed
on the department to go to more subjective consideration of whether or not a
child was aware of or had knowledge of the application that was made on their
behalf. As we had understood the operation of those sections on the act, there
was a very clear and objective requirement for departmental decision makers to
view, which was around whether or not a visa had been refused in the past.
Where this decision took us was to then, in certain circumstances, have to go
behind that to see whether or not the minor in those particular circumstances
was aware.[24]
2.20
The department argued that the court's decision would place 'our
decision makers in an impossible situation where they have to work out what the
child's knowledge and state of mind were maybe five, six or seven years ago'. [25]
It also highlighted the difficulty in drafting exceptions with regards to the
Migration Act and maintained that ministerial intervention under section 48B of
the Act is a better avenue.[26]
2.21
The department noted that children still retained the right to be heard
in a judicial or administrative proceeding:
In the case of a child who has personal protection claims, the
Minister is able to intervene under section 48B of the Migration Act to enable
the person acting on the child's behalf to make a further Protection visa
application so that the child's personal protection claims may be assessed and
their best interests would be the primary consideration. In other cases where
ministerial intervention is not available, the child may seek judicial review
of the decision that the purported further application is invalid, if the
child, or their parent or guardian, believes that decision is wrongly decided.[27]
2.22
The department stated that it was not possible to reframe the Bill to
allow for those non-citizens who have meritorious claims, as this would require
the decision maker to make a subjective assessment of the person's claims.[28]
In its response to questions on notice, the department stated:
It is a long standing and fundamental principle of the
migration legal framework that the validity of an application must be
determined by reference to objective criteria. In addition to administrative
certainty, this objectivity is important so that prospective applicants know
exactly the requirements they have to meet for their application to be accepted
as valid, instead of having that acceptance decided based on a subjective
assessment with its attendant uncertainty and variability of outcomes. It also
means that officers processing/receipting applications do not need to make
subjective assessments that go to the validity of the application.[29]
2.23
The other issue that the department clarified in its response to
questions taken on notice was with regards to the number of visa applicants who
would be affected by the proposed amendments.[30]
2.24
While the department stated that it was only aware of one other person
affected by the decision in Kim v Minister for Immigration (other than
Ms Kim), it highlighted the potential for there to be numerous claims:
Based on the Department's interrogation of its systems with a
data range from 1 July 2000 to COB 5 May 2014, as at 6 May 2014 there are a
total of 3,317 non-citizens who are affected by the KIM decision. That is, as
at 6 May 2014 there are 3,317 non-citizens in Australia who were minors
aged 15 years or less at the time they were included as dependent applicants in
their parents' visa application that was refused and who, following the
decision in KIM, would not be barred by section 48 (or if relevant,
section 48A) and would now be able to make a further application for the
grant of a visa (whether for the same subclass of visa as the one that was
refused, or for a different subclass of visa).[31]
2.25
These calculations did not include applicants aged between 16–18 who are
required to sign visa application forms.[32]
The department further noted that the calculations discussed above do not take
into account applicants yet to apply:
...there is an unknown and potentially large number of
non-citizens that are minors who, following the refusal of their application
(whether in their own right or as dependent applicants in their parents'
applications), will in future not be barred by section 48 or section 48A, as
the case may be, from having application/s made repeatedly on their behalf
until such time that they either reach 18 or their competence can be
established, whatever occurs earlier.[33]
2.26
The department also provided reassurance that there were processes in
place to ensure that applications were not made on behalf of children where the
person making the application lacked proper authority:
Where doubt exists about whether the person making the application
on behalf of the child is indeed the parent or the legal guardian of the child,
the department's practice is to request evidence of the person's authority
to make such an application; [the] department does not simply accept the
application made on behalf of the child as valid without query when there is
such a doubt.[34]
Committee comment
2.27
The committee notes the department's concern that there are a
significant number of individuals who may be eligible to make further visa
applications as a result of the Minister for Border Protection v Kim
case and its claim that the amendments proposed in Schedule 1 would merely
change the legislation to reflect the department's understanding of the
Migration Act prior to this court case. The committee also acknowledges the
difficulties associated with considering visa applications subjectively and the
need for administrative certainty for visa applicants.
2.28
However, the committee remains concerned about the potential impact on
children and people with a mental impairment seeking to make a subsequent visa
application in circumstances where these individuals are unaware of a previous
application having been made on their behalf. In the committee's view, it would
be unfair to prevent these individuals from making a subsequent visa
application. The committee appreciates that addressing this issue would likely require
the Department of Immigration and Border Protection to make certain inquiries
and decisions of a complex nature; irrespective, the committee is eager to
ensure that children and people with a mental impairment are not unfairly
treated as a result of the proposed amendments.
2.29
The committee therefore recommends that the Commonwealth government
consider additional safeguards to ensure children and people with a mental
impairment are not unfairly prevented from making a subsequent visa application
where they were unaware of a previous application having been made on their
behalf.
Recommendation 1
2.30
The committee recommends that the Commonwealth government consider
additional safeguards to ensure that children and people with a mental
impairment are not unfairly prevented from making a subsequent visa application
in circumstances where they are unaware of a previous application having been made
on their behalf.
Removal of people on bridging visas (Schedule 2)
2.31
As discussed in chapter 1, Schedule 2 amends section 198 of the Migration Act
which sets out the minister's power to remove non-citizens in certain
circumstances.
2.32
RACS understood the rationale behind the amendments is to prevent a
person from making repeat applications for bridging visas.[35]
Ms Wrigley argued that the amendments are therefore unnecessary due to the
operation of section 74 of the Migration Act:
The stated aim of this legislative amendment can already be
achieved, we say, by recourse to section 74 of the Migration Act, which would
facilitate removal of an unlawful non-citizen during the 30-day period within
which a further application for a bridging visa may not be made.[36]
2.33
At the public hearing , Ms Wrigley stated that the amendments proposed
in Schedule 2 go further than the provisions currently set out under section
74:
I think...what would be new about this is that there would be
no initial right to a bridging visa application to be considered in that it
could be someone's first application for a bridging visa which was not going to
be considered during the period that they are removed, whereas under this
section 74 there is to some extent a safeguard in that a person would at least
have an opportunity to make one application for a bridging visa and then, if
that is refused, they may not make one for another 30 days, and during that
time they could be removed.[37]
2.34
Salvos Legal noted that the amendments appeared to be aimed at removing
applicants that may otherwise remain in indefinite detention due to not having
substantive visa options.[38]
It opposed the idea of applicants being removed while still having their
bridging visa application considered:
Removal may adversely impact on unlawful non-citizens who
have made a bridging visa application with the intention of lodging a
subsequent visa application, or who are in the process of preparing a request
for Ministerial intervention (including if on grounds never previously raised).[39]
2.35
RACS argued that there is a need to maintain strict safeguards with
regards to the removal of non-citizens:
A robust process for determining asylum claims will always
involve a degree of administrative burden, but given the fundamental rights at
stake the overriding concern must be to ensure that we have proper processes in
place to make sure that no individual is returned to risk of serious harm and
that there are safeguards in place to ensure that we are correctly and properly
following those processes. Streamlining removal to prevent consideration of an
application for a bridging visa currently on foot will remove one of these
important safeguards.[40]
2.36
As noted in chapter 1, the government's rationale for these provisions
is to enable the removal of non-citizens who have made only a bridging visa
application and not a substantive visa application.[41]
The department stated that these amendments would:
...prevent the possibility of those individuals remaining in
detention indefinitely where they have no further immigration claims or avenues
of appeal, but refuse voluntary removal and cannot currently be involuntarily
removed due to an ongoing Bridging visa application.[42]
2.37
The EM acknowledged that it is not the government's intention that
non-citizens who have applied for bridging visas to remain in 'a state of
indefinite immigration detention'.[43]
2.38
The department noted that these amendments are not about preventing
repeat bridging visa applications (which section 74 of the Act already provides
for) but rather the situation where an individual applies only for a bridging
visa and fails to apply for a substantive visa:
At present the language of section 198(5) does not cover the
situation where a person has applied only for a bridging visa and not for a
substantive visa. A submission to the committee from the Refugee Advice and
Casework Service suggested that these amendments were unnecessary as multiple
bridging visa applications were already prevented through the operation of
section 74 of the act. The problem being dealt with here though is not with
multiple applications for bridging visas but, rather, to deal with the
situation where a detainee applies only for a bridging visa in accordance with
section 195 and not for a substantive visa. Our advice is that the current
wording of section 198(5) takes the removal power out of play if there is an
application for a bridging visa even if that application is refused.[44]
2.39
The department again stated that where certain risk factors are present
a pre-removal clearance process is undertaken.[45]
Committee comment
2.40
The committee acknowledges the concerns raised by submitters about the
removal of non-citizens who have applied for bridging visas.
2.41
However, the committee is of the view that the department has adequately
addressed these concerns. In its evidence at the public hearing, the department
stated that the rationale for these amendments is to allow for non-citizens in
detention who are unable to apply for substantive visas to be removed from
Australia. The department argued that section 74 of the Migration Act, which
prevents applicants from making repeat applications, does not allow for the
removal of non-citizens who have only applied for bridging visas.
2.42
The committee considers that the department has proper processes in
place for ensuring that non‑citizens with legitimate grounds are not
returned in breach of Australia's international obligations.
2.43
The committee supports the department's view that people should not
remain in indefinite detention.
Other issues
Role of authorised recipients
(Schedule 4)
2.44
RACS raised a number of issues with regards to changes to the role of
the authorised recipient:
The proposed amendment removes the current, rational,
position that a client applicant is free to instruct an agent and tell that
agent what the agent is empowered to do. It reduces the agent to an address.
Migration agents are professionals. Agents are bound by a Code of Conduct, and
subject to regulation by the Migration Agents Registration Authority (MARA).
Agents have a codified role as representatives and advocates of their clients.
It is inappropriate to provide, by law, that they are prevented from acting in
this role including acting as agents for their clients. It was never the
intention of section 494 that migration agents be excluded from their role as
their client’s representatives.[46]
2.45
RACS also argued that these amendments would mean that they would no
longer be able to ensure they are notified when their clients are contacted by
the department:
...the Bill significantly dilutes the scope of agents’ ability
to act on behalf of their clients in the course of visa applications. The Bill
and the explanatory memorandum are silent as to how any more wide-reaching
authorisation from a client to agent would be notified to or observed by the
Department. RACS’ clients represent an incredibly vulnerable client base. It is
vital that they retain access to agents who can speak and act on their behalf
and ensure their claims are expressed clearly to decision makers considering
their cases.[47]
2.46
As discussed in chapter 1, the purpose of the amendments to
subsection 379G(1) of the Act are to clarify that an authorised recipient
can only accept documents on an applicant's behalf.[48]
As stated in the EM,[49]
this is to ensure that the provisions reflect the intended policy position in
light of the decision of MZZDJ v Minister for Immigration and Border
Protection.[50]
2.47
The EM noted that 'these amendments do not prevent a person from acting
as the agent of the applicant for review due to some other authorisation'.[51]
They do prevent an person acting on an applicant's behalf without the proper
authorisation:
For example, the authorised recipient cannot unilaterally
withdraw their authorisation to receive documents on behalf of the applicant
for review. It is the applicant for review who must make arrangements for this
to occur. This clarification is important to avoid administrative uncertainty
for the Tribunal in relation to its communications with applicants for review.[52]
2.48
The department clarified that where an authorised recipient is also an
applicant's solicitor or migration agent, they would continue to receive all
written and oral communications on the applicant's behalf.[53]
Procedural fairness requirements
(Schedule 6)
2.49
During the public hearing, Mr Motjtahedi from RACS was asked to explain
how the amendments set out in Schedule 6 of the Bill would operate:
The effect of the High Court decision in Saeed is that
offshore applications and onshore applications require different forms of
procedural fairness. Onshore applications are dealt with under a code of
procedure, which requires a decision maker to provide certain forms of
procedural fairness, whereas in the absence of that codified procedure the High
Court found offshore applications were entitled to common-law procedural
fairness. I understand the purpose of this part of the bill to be to bring them
in line.[54]
2.50
RACS noted in their submission that there would still be differences
with regards to the procedural requirements for onshore and offshore
applicants, as the common-law rules for procedural fairness only apply to onshore
applicants.[55]
The test for common law procedural fairness is broader than the test set out
under section 57 of the Migration Act and requires information to be put to the
applicant if it is 'relevant, credible and significant'.[56]
2.51
RACS argued that the common-law test should apply to both onshore and
offshore applicants:
RACS supports a refugee status determination process which is
procedurally fair for all applicants and we say that the best way to achieve
this end would be to require all information which is relevant, credible and significant
to be put to all applicants.[57]
2.52
In response to this concern, the department stated that the common law
test is confusing for delegates to apply and creates an administrative burden:
...under section 57 it is clear that adverse information needs
to be put to the applicant for comment only if, inter alia, it would be the
reason, or part of the reason, for refusing to grant the visa, and most
delegates instinctively understand whether or not they would be relying on the
adverse information as the reason or part of the reason for refusing the visa
application. Under the common law, however, a delegate is obliged to put any
adverse information that is 'relevant, credible and significant' to the
applicant, even in circumstances where my delegate does not intend to rely on
that information as the basis for making a decision to refuse.[58]
Committee comment
2.53
The committee accepts that the amendments set out in Schedule 4 of the
Bill are merely aimed at returning interpretation of the Act to that prior to
the decision of MZZDJ v Minister for Immigration and Border Protection.
While the committee acknowledges the concerns raised by RACS with regards to
the important role undertaken by agents on behalf of their clients, it also
notes that these amendments do not prevent a person acting as an agent for an
applicant.
2.54
The committee supports the changes to section 57 of the Act which would
ensure that the procedural fairness requirements set out under this section
apply to both onshore and offshore applicants. The committee also accepts that
it is the government's position that the common-law test for procedural
fairness should not be extended to offshore applicants.
Recommendation 2
2.55
Subject to the preceding recommendation, the committee recommends that
the Bill be passed.
Senator the
Hon Ian Macdonald
Chair
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