CHAPTER 1
Introduction
The referral
1.1
The Migration Amendment (Protection and Other Measures) Bill 2014 (bill)
was introduced in the House of Representatives on 25 June 2014 by the Hon Scott
Morrison MP, Minister for Immigration and Border Protection.[1]
On 26 June 2014 the Senate referred, on the recommendation of the Selection of
Bills Committee, the provisions of the bill to the Senate Legal and
Constitutional Affairs Legislation Committee (committee) for inquiry and report
by 22 September 2014.[2]
Rationale for the bill
1.2
The bill seeks to amend the Migration Act 1958 (the Act) to
enhance the integrity of the onshore protection status determination process.[3]
Aimed at increasing the efficiency of Australia's protection system,[4]
the bill responds to current challenges in the domestic asylum seeker landscape[5]
and seeks to ensure public confidence in the government's capacity to assess
asylum seeker claims in the interests of Australia, and against the interests
of those who show bad faith.[6]
1.3
The bill clarifies the responsibility of asylum seekers who claim to be
a person in respect of whom Australia has protection obligations and encourages
complete information to be provided upfront.[7]
The bill also streamlines the statutory bars that preclude certain persons from
making visa applications[8]
and improves the merits review system.[9]
The bill has four schedules that address distinct issues.
Accordingly, each schedule is considered in this chapter separately.
Schedule 1: Protection visas
1.4
Schedule 1 of the bill sets out amendments aimed at improving the
integrity of the onshore protection status determination process. It clarifies
that the responsibility for making a claim for protection and providing
sufficient evidence to establish such a claim sits with the individual who is
seeking protection.[10]
Its purpose is to discourage applicants from providing false identity documents
or destroying or discarding genuine identity documents.
1.5
In order to encourage asylum seekers to provide all claims and
supporting evidence as soon as possible, schedule 1 provides that:
-
the Refugee Review Tribunal (RRT) is required to draw an
inference unfavourable to the credibility of new claims or evidence when claims
were not raised or evidence was not presented before the primary decision was
made by the Department of Immigration and Border Protection (department) on
their protection visa claim.[11]
However, this provision will not apply where the RRT is satisfied that the
applicant has a 'reasonable explanation' for refusing or failing to comply with
the request and either produces documentary evidence of their identity,
nationality or citizenship or has taken reasonable steps to produce such
evidence;[12]
and
-
the Minister for the department (Minister) must refuse to grant a
protection visa when an applicant provides a bogus identity document, or the
Minister is satisfied that the applicant has disposed, destroyed or caused to
be destroyed identity documents.[13]
1.6
Schedule 1 also contains an amendment relevant to applications for
protection visas by members of an applicant's family.[14]
Under this amendment a family member of a protection visa holder will be
required to apply independently for their own individual protection visa.[15]
This change is aimed at discouraging family members of protection visa holders
from arriving in Australia illegally, with the expectation of being granted a
protection visa on the basis of being a family member.[16]
Schedule 2: Australia's protection
obligations under certain international instruments
1.7
Schedule 2 introduces a higher risk threshold for assessing Australia's
protection obligations in respect of non-citizens under the International
Covenant on Civil and Political Rights (ICCPR) and the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT).[17]
The purpose of this amendment is to restore the risk threshold for
complementary protection to the higher threshold that was intended when the
complementary protection framework was inserted into the Act in 2012.[18]
1.8
Currently, Australia has protection obligations in respect of a
non-citizen where the Minister believes there is a 'real risk' the non-citizen
will suffer significant harm if removed from Australia to a receiving country.[19]
Under the proposed amendment the threshold for return is raised, such that
Australia would only have protection obligations in respect of a non-citizen
where the Minister is satisfied that 'it is more likely than not that the
non-citizen will suffer significant harm' if removed from Australia to a
receiving country.[20]
1.9
Schedule 2 also amends the definition of 'receiving country'[21]
to clarify the reference point for assessing Australia's protection obligations
in respect of
non-citizens.[22]
The purpose of this change is to ensure that there is always a country of
reference where a person is claiming protection, regardless of whether 'they
may be stateless or that their county of nationality or habitual residence may
not in fact accept their return.'[23]
Schedule 3: Unauthorised maritime
arrivals and transitory persons
1.10
Schedule 3 seeks to broaden the operations of the statutory bars to
allow unauthorised maritime arrivals (UMAs) and transitory persons to be
granted bridging visas (or other temporary visas) while their asylum claims are
being assessed. The amendments seek to 'ensure there will be only one provision
that prevents an unauthorised maritime arrival or a transitory person from
making a valid application for a visa, simplifying the legal framework,'[24]
and 'will support the orderly management of visa applications from unauthorised
maritime arrivals [and transitory persons] and in some cases, their release
from detention.'[25]
1.11
Under the amendments, UMAs and transitory persons who are unlawful
non-citizens, bridging visa holders or temporary visa holders, will be
prevented from making a valid visa application unless the Minister determines
it is in the public interest to permit them to do so.[26]
Additionally, the measure seeks to exclude UMAs and transitory persons holding
a temporary safe haven visa, temporary humanitarian visa or a temporary
protection visa, from applying for another valid temporary safe haven visa,
unless the Minister determines to allow them to do so.[27]
1.12
The amendments in schedule 3 provide the Minister and the department
with more flexibility to address the specific issues relevant to individuals
and cohorts, including the majority of UMAs who are present in Australia but
have not been permitted to make a valid application for a protection visa.[28]
Schedule 4: Migration Review Tribunal
and Refugee Review Tribunal
1.13
Schedule 4 introduces amendments that strengthen the powers of the
Principal Member of the Migration Review Tribunal (MRT) and the RRT. The bill
proposes to enable the Principal Member of the MRT and RRT to:
-
issue 'practice directions'[29]
about procedures to be followed in relation to proceedings before the tribunals;[30]
and
-
issue 'guidance decisions' relating to the issues of a case that
must be complied with by the tribunals in making a decision, unless the tribunals
are satisfied that the facts or circumstances of the case are clearly
distinguishable from those in the guidance decision.[31]
1.14
The purpose of the measure to issue 'guidance decisions' is to promote
consistency in the decision making between different Members of the tribunals
in relation to common issues and/or the same or similar facts or circumstances.[32]
1.15
Schedule 4 gives the tribunals increased flexibility in handling cases
where an applicant fails to appear[33]
and the ability to provide an oral statement of reasons where it makes an oral
decision.[34]
1.16
These amendments have the potential to significantly reduce the
administrative burden of the tribunals, and implement some of the
recommendations of Professor Michael Lavarch who conducted an inquiry into the
increased workload of the MRT and RRT.[35]
Conduct of the inquiry
1.17
Details of the inquiry were made available on the committee's website.[36]
The committee also contacted a number of relevant organisations inviting
submissions by 4 August 2014. The committee received 18 submissions. A full
list of submissions is provided at Appendix 1.
1.18
The committee held a public hearing in Canberra on 5 September 2014. The
witness list for the hearing is available at Appendix 2.
Consideration of the bill by other committees
1.19
The bill has been considered by the Senate Standing Committee for the
Scrutiny of Bills (Scrutiny committee)[37]
and the Parliamentary Joint Committee on Human Rights (Human Rights committee).[38]
Scrutiny committee
1.20
The Scrutiny Committee examined the bill in Alert Digest No. 8 of 2014,
tabled in the Senate on 9 July 2014.[39]
Human Rights committee
1.21
The Human Rights committee examined the bill in its Ninth Report of the
44th Parliament, tabled in the Senate on 15 July 2014.[40]
Financial Impact Statement
1.22
The explanatory memorandum submits that the financial impact of the bill
is low and that existing resources of the department will be used to cover any
associated costs.[41]
Acknowledgement
1.23
The committee thanks the individuals and organisations who made
submissions and gave evidence at the public hearing.
Notes on references
1.24
Reference to the committee Hansard is to the proof. Page numbers
may vary between the proof and the official Hansard transcript.
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