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Wednesday, 25 May 2011
Page: 4513


Mr BOWEN (McMahonMinister for Immigration and Citizenship) (10:59): I thank the honourable members who have contributed to this debate. Although in the course of the debate many extraneous matters were raised that I am very tempted to respond to, I will not. I will confine my remarks to the bill before the House, the Migration Amendment (Complementary Protection) Bill 2011.

This bill amends the Migration Act to eliminate a significant administrative deficiency in the visa application process. The bill will build on Australia's framework for assessing claims for protection under the Refugee Convention and provide a protection visa decision-making process that is more efficient, transparent and accountable. The amendments in this bill are important and necessary to address inefficiencies in the current protection framework. The bill permits claims made by protection visa applicants that may engage Australia's non-refoulement obligations to be considered under a single, integrated and timely protection visa application process.

As has been mentioned in the House, Australia of course is a signatory to the Refugee Convention. It does not refoule people where there is a convention related fear of persecution. However, applicants who fall outside these categories of race, religion, nationality, social group or political opinion are not eligible to receive a protection visa through the usual process. Some of these people are fleeing significant harm, such as women fleeing so-called honour killings. These people can fall outside the categories recognised by our current process.

It has been mentioned by some honourable members that there is a ministerial intervention power to deal with these cases. That is correct, and it is used. It has been used by ministers of both sides of the House. The previous speaker, the member for Murray, said it was used by coalition ministers, and it was. It has been used by Labor ministers, including myself. It is appropriate that it be used. It is necessary that it be used. But the honourable member for Murray said that it was an 'efficient and easy system' to get ministerial intervention—'quick and simple' was the contribution by the honourable member. That is completely and utterly incorrect. It is not a simple and easy system to get ministerial intervention.

Under our laws, to get a minister to intervene in your case you must first apply to the Department of Immigration and Citizenship, have that application rejected by the department, apply to a relevant tribunal, have that application rejected by the relevant tribunal and then seek ministerial intervention. The department will then prepare the case for the minister to consider. That process can take a long time, as all honourable members who have been involved in it would know. It takes a considerable length of time to go through the system and be rejected by the department and rejected by the tribunal before the case can even be put to a minister for consideration, yet the member for Murray calls it a quick and simple system. It is not.

It is not just about time. If you are in a situation in which you are fleeing persecution, whether that be honour killings, genital mutilation or the other areas of persecution that were outlined by me in my second reading speech and by other members, it is not just about time. It is about the implications of being rejected at each level—by the department, by the tribunal—and the anguish that causes, in the hope that your case will eventually get to a minister and that the minister will eventually intervene. All immigration ministers that I know would intervene in such cases and would grant that visa. I have said that previously. But why put people through the situation whereby they must go through that continual rejection under the law before they can even get to a ministerial intervention?

I want to deal with two other points that were raised during the debate. The member for Cook put forward a proposition that these provisions will lead to a situation similar to that which occurred in the 1980s. In 1981 the then Fraser government introduced a 'strong and compassionate humanitarian grounds' test into the Migration Act, which was intended to deal with a small number of meritorious cases that could not otherwise be approved. As the shadow minister noted, claims made against this provision grew substantially in number until the provision was repealed by the Hawke government in 1989.

The member for Cook compares that to the test introduced under this bill. He seems unaware of the fact that this is a very different test. This test involves substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk they will suffer significant harm. This is a much higher and more precise test and will not lead to anything like the situation in the 1980s, as the member for Cook well knows.

There is one other matter I want to respond to. The member for Pearce raised some concerns that applicants may be excluded by the test that requires that harm must not be faced by the population generally and suggested in particular that women or girls fearing female genital mutilation may not be able to have their claims considered. With respect, that is not correct. Under international law a 'real risk' requires that a person face a personal, direct and foreseeable risk of harm in certain circumstances. Under this legislation, if there are substantial grounds for believing that a woman or girl will face a real risk of genital mutilation that the authorities cannot protect her from, she may be entitled to Australia's protection on the grounds that she will suffer torture or cruel, inhuman or degrading treatment upon return.

Finally, the member for Pearce suggested that the policy guidelines or ministerial directions could be revised to specifically state that women or girls fleeing such persecution are considered a particular social group for the purposes of the Refugee Convention. In fact, this cannot be done, as policy guidelines must be consistent with Australian case law. It is simply not possible for policy guides to make a group of persons a particular social group when the courts have found otherwise.

I do thank honourable members for their contribution in this debate. It is an important one, and I commend the bill to the House.

Question agreed to.

Bill read a second time.