Dissenting Report
Senator Sarah Hanson-Young
Migration Legislation Amendment Bill (No. 1) 2014 [Provisions]
Introduction
The Migration Legislation Amendment Bill (No.1) 2014
[Provisions] seeks to further limit the protection avenues available to refugees
seeking Australia's assistance by overturning a number of High Court decisions
and implementing punitive measures that will put vulnerable people at potential
risk.
The amendments proposed by this bill will have significant
implications on people seeking to engage Australia's protection obligations.
The Bill, amongst other things, seeks to prevent individuals with genuine
claims from lodging further protection visa applications, limits a migration
assistant’s ability to act on behalf of their client and increases the
likelihood of Australia breaching its non-refoulement obligations.
The majority of submissions received and evidence heard by
the committee on this Bill were not supportive of the proposed changes and
concluded that the Bill should not proceed in its current form.
The Australian Greens do not support the Bill as it is just
another step by the government to limit the protection avenues for refugees who
are in genuine need of protection. This report highlights the areas of serious
concerns as raised by witnesses and submitters to inquiry.
Schedule 1: Application for further visas
The amendments proposed in Schedule 1 of the Bill seek to
prohibit asylum seekers from applying for a protection visa if a previous
application has been made. The amendments specifically stipulate that
regardless of whether the person knew about, or understood the nature of the
application, because they were a minor or due to a mental impairment, they will
be prevented from making a further application for protection.
The Refugee Council of Australia (RCOA) stated in their
evidence to the committee that:
A process which denies this opportunity to particularly
vulnerable groups of asylum seekers due to factors entirely beyond their
control can hardly be described as procedurally fair.[1]
This amendment puts vulnerable people, in particular minors
and the mentally impaired, who were unaware that an application had been made
on their behalf or who were unable to understand the visa application process,
in grave danger of being returned to persecution.
Australia has obligations under the Refugee Convention and
international law to not return people to places where that would be at risk of
significant harm. These obligations cannot simply be dismissed because the
government of the day thinks it is administratively burdensome to process
people's claims for protection fairly.
As stated by the Human Rights Law Centre, 'the proposed
reform prioritises administrative convenience over a correct decision where
protection from serious harm may be at stake'.[2]
'Where fundamental rights are at stake, the overriding concerns must be to
ensure that no individual is returned to a risk of serious harm'.[3]
Further to this, the Australian Greens are extremely
concerned about the impact that these amendments will have on vulnerable
children and young people. The government as a signatory to Convention on the
Rights of the Child is required at all times to act in the best interest of the
child. Despite this, the government expressly states that the proposed
amendment is 'one such measure where the preservation of the integrity of
Australia's migration program outweighs the best interests of the child'.[4]
It is never acceptable to act against the best interest of the child,
particularly to appease public opinion. Similar concerns have been raised by
submitters to the inquiry including Salvos Legal[5]
and RCOA.[6]
Schedule 2: Removal of people on bridging visas
The amendments proposed in Schedule 2 of the Bill seek to
overturn a decision of the High Court to make it possible for the government to
remove unlawful non-citizens when they have a bridging visa application afoot.
The committee heard from a number of submitters and
witnesses stating that the amendments do not provide sufficient safeguards and
could potentially lead to Australia breaching it non-refoulement obligations.
Salvos Legal submitted that:
Removal may adversely impact on unlawful noncitizens 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).[7]
The Refugee Advice and Casework Service clearly outlined to
the committee that we must have a proper process in place to ensure that no
individual is returned to a place where they are significant risk of harm and
that there must be appropriate safeguards in place to ensure that those
processes are being followed properly. As stated by Ms Katie Wrigley, 'streaming
removal to prevent consideration for a bridging visa currently on foot will
remove one of these safeguards'.[8]
Similarly, RCOA has stated the government's pre-removal
clearance procedure did not provide sufficient safeguards against refoulement:
This procedure does not allow for a thorough assessment of
protection claims, nor is it subject to the same forms of independent review as
a visa determination process. As such, it cannot provide a substitute for a
robust, statutory refugee status determination process.[9]
The amendments proposed in Schedule 2 of the Bill create
instances where vulnerable asylum seekers will be put at further risk if
forcibly removed.
Schedule 4: Authorised recipients
Amendments proposed in Schedule 4 of the Bill seek to change
the role of the authorised recipient who has been appointed to act and receive
documentation on behalf of the visa applicant.
Organisations providing asylum seekers and refugees with
legal advice and assistance have raised significant concern about the
implications of these proposed amendments. The Refugee Advice and Casework
Service told the inquiry that:
Changing the law essentially reduces the role of the
recipient to be no more than a person who receives documents. 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 migration agent to an address.[10]
The Australian Greens believe that the proposed amendments
will limit an agent's ability to act on behalf of their client and provide them
with the necessary assistance they require. Any attempt by the government to
dilute an individual's right to access to proper legal representation is
punitive and breaches our obligations to those seeking protection.
Schedule 5: Use of material obtained under a search warrant
Schedule 5 of the Bill if passed would enable administrative
decision makers to use materials and information obtained by a search warrant
in the determination of an individual's visa and citizenship application.
Significant concerns were raised by RCOA in their submission
about the intention of this amendment. RCOA advised the committee that the
information would be 'used for purposes which extend well beyond preventing,
investigating or prosecuting a criminal offence'[11]
as intended under the Crimes Act 1914.
Further to this, RCOA raised concerns about the implications
of this amendment stating that it could put asylum seekers and refugees at
significant risk owing to the confidential nature of a person’s case that is
fleeing persecution.[12]
Conclusion
The Migration Legislation Amendment Bill (No.1) 2014
[Provisions] seeks to further limit the protection avenues available to
refugees seeking Australia's assistance by overturning a number of High Court
decisions and implementing punitive measures that will put vulnerable people at
potential risk.
The Australian Greens depart from the recommendation of the
majority report and conclude that the Bill should not proceed on basis of the
arguments outlined above.
Recommendation 1
1.1
The Australian Greens recommend that this bill not proceed.
Senator Sarah Hanson-Young
Australian Greens
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