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Tuesday, 7 October 2003
Page: 20682


Mr LAURIE FERGUSON (6:47 PM) —I rise to speak in the debate on the Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003 and move:

That all words after “That” be omitted with a view to substituting the following words:

“whilst not declining to give the bill a second reading, the House:

(1) supports the continuation of a statutory form of regulation of migration agents, believing that complete voluntary self-regulation, as advocated by the Coalition in the past, would seriously endanger vulnerable clients and badly undermine the integrity of our migration system;

(2) expresses its dismay that the Government has allowed privileged access to Ministers, and Ministerial and Departmental staff, to a number of unregistered agents who are close associates of the Coalition;

(3) notes growing concern about the Ministerial intervention process, particularly in so far as it is entails unequal access by certain groups and individuals and arbitrary and non-transparent decision making by the Minister;

(4) requires the Department of Immigration & Multicultural & Indigenous Affairs to display a stronger resolve to investigate and prosecute individuals engaged in unregister-ed practice, people trafficking, migration fraud and other offences under the Act, including matters referred to the Depart-ment by the Migration Agents Registration Auth-ority (MARA);

(5) urges MARA to address concerns about its visibility, efficiency, and accessibility and improve its means of communication with consumers, registered agents, ethnic com-munity organisations and media outlets; and

(6) requests the Minister for Citizenship and Multicultural Affairs to give priority attent-ion to the need to bring overseas agents into the regulatory system and to develop a mechanism to require agents to maintain adequate professional indemnity insurance as a condition of registration”.


The DEPUTY SPEAKER (Mr Wilkie)—Is the amendment seconded?


Mr Kelvin Thomson —I second the amendment.


Mr LAURIE FERGUSON —The amendment essentially goes to a number of issues. There is the failure of the government, at this stage, to deal with a number of considerations which the Spicer inquiry indicated action should be taken on, including the question of the current failure to police agents overseas. Realistically, that is probably where we have more problems than even on shore. The other matter is the question of indemnity insurance for the players in the industry. Again, this was highlighted by the Spicer inquiry. The point was made that it is not uncommon among professionals in this country to have such coverage. I note that on 25 September—which was quite some time ago—the minister indicated that he would act on these matters.

We understand, in going to this issue, that 10 per cent of the practitioners in the industry are not-for-profit and any scheme would of course have to take that into consideration. There has been a doubling of complaints, which is an indication of the problem. Certainly the request that Spicer made that DIMIA and MARA explore the feasibility of a scheme is a matter the government should act upon more swiftly. We do not need to reiterate at length the reality of this industry. We have people who are extremely desperate to live in this country. Some of them have very valid claims in relation to protection visas and others have less credible claims. But what they usually have in common is that they lack a fundamental knowledge of the legal system and processes.

People with this degree of desperation can be exploited greatly. I have enough practical experience to know that there is often a common conspiracy between the client and the agent or the lawyer involved. But realistically they do need protection and the question of what happens in the case of a crisis with an individual practitioner should be tackled by the government. The amendment goes to those issues and it also goes to MARA lifting its game. We have seen enough coverage from the Australian newspaper in recent weeks and its disquiet over that aspect of it. I do not believe the situation is quite as dire as the Australian makes out, but there is obviously a perception of a need for MARA to lift its game.

I will return later to the other aspect of the amendment: the question of the favoured relationship of the minister and a number of unregistered people in this marketplace. On the broader thrust of the current legislation, I want to say that Labor has a strong track record of wanting and seeking integrity in this industry. We have consistently questioned the ideologically driven perception of this government that MARA and the institute were basically able to police themselves, that there was no need for the government to have a role and that essentially the industry was mature enough to look after itself.

The previous minister, who has moved onto the Attorney-General's role, was a strong advocate of getting out of this marketplace. Whether it is because of the fairly shameful allegations and the series of donations that have been made to the Liberal Party, and the relationship with the grant of visas over recent months, or whether it is because the minister who handles this particular portfolio sees an opportunity to become a shining white knight—a Sir Galahad—against fraud and corruption in this field, there has certainly been a change of tune by the government. This government, which said that all was well and that within two years there could be total deregulation and total independence for the industry, is now coming to this House with legislation that really is going over the top in trying to cater for the problem. It is an absolute 360-degree change of position by the government.

As I said, we do not for one moment resile from recognising that there is a very fundamental problem in this industry. The figures that have been provided to the opposition—and I would have hoped that the government would be more forthcoming with what they hold—indicate that, of the 500 practitioners who launched cases over the last two years, 300 managed a 90 per cent failure rate and 50 managed not to win a case. That does indicate that some people might be launching questionable cases. It would be hard in many fields to get that kind of picture.

Yet the industry does attract a large number of applicants. To this date, I think estimates have been given of a 13 to 20 per cent growth rate in the number of people coming into this field. More and more people are coming in and many of the practitioners seem to have, on the surface, a very dubious track record of success. In these situations, clients often do not know the details. Many of these practitioners go to various gala events in ethnic communities, make donations to good causes in those communities, advertise in ethnic media and sometimes essentially have a monopoly practice in different ethnic markets. They might lose a few cases, but, for the ones they win, the clients tell the next person et cetera. So they actually have people out there in the marketplace seeking business for them. That situation, as the opposition has consistently said, is not satisfactory. Certainly, it is not helpful to the integrity of our immigration processes that people launch preposterous cases and seek to buy time or that clients and the people who advise them launch cases which, on any honest and objective analysis, have no validity based on the objective human rights situation in those countries.

We then have streams of cases. If you are in your electoral office often enough, you will see a stream of cases from Nigeria, because some states have introduced sharia law. We have a line of argument that says that every Nigerian Christian should move to Sydney rather than relocate within the country. Similarly, at one stage, we had a stream of Tongan women's cases because Tonga is a patriarchal society. So it goes on. In more recent years, there has been a proclivity to argue that homosexuals and lesbians from the Middle East, if they were to return to their villages, would be persecuted greatly.

We have agents out there manufacturing these cases, perhaps thinking they might beat the system—they might find the tribunal member who got out on the right side of the bed that day—or, more particularly, buy time within the system, hoping that other alternatives will emerge during the period in which they are fighting their way through the system. Alternatively, in cases where applicants have children, they might be here long enough for those children to acquire rights of permanent residence and thereby change the families' migration situation. I have had people walk into my office, having fought the system in some cases for eight, 13 or 14 years, and tell me that they will simply take another class action to get the required further year or two until the balance of the family have permanent rights in this country.

We do not for a moment think that all is well in this situation. However, there must be grave doubts about whether the government is tackling the issue in a sensible fashion. The government's intention seems to be to start building up a profile of dubious agents, constructed through a requirement that the agent advise whenever they give assistance to a person. There are a number of concerns with this. Firstly, in the last week many lawyers have put to us the question of confidentiality of the client. Others have put it to us that it would feasibly allow the department to build up a list of people who were shopping around, possibly to launch claims—the fact that they have been to a person for advice would perhaps indicate that they have a few ideas. Personally, I am not as concerned about that complaint as some other people are. I think we can possibly work our way through options for confidentiality between client and agent.

However, I think we really do have to look at the broader picture. There are some grave difficulties in this legislation. It seems that the government is going to take a profile of four cases in a six-month period, from what I understand. If, in the case of protection visas, the agent fails in 90 per cent of cases and, in other classes of action, that agent fails in 75 per cent of cases, the agent would have to show cause as to why they should remain in the industry. For all my concern with the manipulation of the system, with people launching false claims and buying time and thereby, most importantly, hurting other people who have legitimate claims—and these people are forced to wait longer and longer and get more and more frustrated with the system—I think we have to be realistic about the possibility that many very genuine agents could launch four cases in a period of six months and lose all four.

All MPs in this House have seen cases which they thought were fairly strong and which were eventually rejected. You could have a situation where the Department of Foreign Affairs and Trade takes a particular position with regard to a country. I am cynical enough to think that the Foreign Affairs position is not always totally objective and altruistic—it relates to our national and international needs. For some nations, Australia takes a softer line on human rights abuses because our national requirements dictate it. A person could be launching most of their cases involving that particular country. Therefore, they could have a very low success rate without in any way intending dishonest practice.

It is also a reality that circumstances can change in a particular nation or region between the launch of a case and its finalisation. This is quite clearly what the government are saying in regard to the situation with temporary protection visas—that they will look at the situation of Hazara Shia or Uzbek speakers in northern Afghanistan, or perhaps now more the stronger claims of Pashtuns on the border with Pakistan. They are saying that the situation can change, so an agent could, as I say, launch a case and find that the rugs have totally moved during the consideration of that case. That could be taken as another cross against their name and lead to their exclusion from the field.

Similarly, there are issues as to what advice is. It has been put to the opposition that, if you require people to indicate that they gave any advice whatsoever to a claimant, then a number of agents could be involved in a particular case as it goes through the system. A person could seek the interpretation of a variety of agents before they even launch their initial approach. Those agents could give varying analyses, varying advice, but they would all be part of that claim, it seems. We could have a series of agents affected by the one failed case, with each of those agents having a very different relationship with the launch of the case, its preparation and the fight for it. Agents who advised people not to launch a claim and that a claim lacked merit could be affected because they have still advised. So that is another issue that must cause concern.

There is also the issue that the department seemingly is going to be judge and jury in these matters, that MARA is essentially going to be sidelined, sent to Coventry, in regard to this area. Who would not be worried about that, particularly when the criteria are so low in a number of cases? It could feasibly be a situation where a particular agent has been associated with campaigns that the government—and even the department—do not particularly like. Those agents, those lawyers, would seem to have some grounds for concern that it is the department that is seemingly going to decide whether there is good cause for them to be thrown from the industry. I appreciate there can be appeals to the AAT but I still think that, when you look at the overall approach that the government has in this legislation, there must be a grave worry here.

Also—and this comes to the question that I and other speakers will refer to about the image of the previous minister over the last year or two in regard to ministerial discretion—seemingly another provision of this bill is that the minister or his department, having decided that someone has a track record so bad that they should be forced out of the industry and MARA should basically stamp that situation, can revoke that. The minister can turn around and decide, for whatever reason, that that was all wrong.

As I say, if you go through this you do have to say that there are indeed grave worries with the way in which this has been constructed. There are other parts of the legislation of course that we would fully endorse—the strengthening of sound knowledge, the move towards examinations, the strengthening of penalties against unregistered practice, the introduction of additional offences. All of those things are commendable. They have been advocated in the past and they have been supported by MARA, by practitioners, by activists and by Spicer. As I say, it is unfortunate that the department and the minister have chosen to deal with what is a very real problem in such a ham-fisted way that it might not be too easy for us to come to some kind of consensus about this legislation. I want to say very genuinely that, if there is a will, there is a way. I hope that we can come to some kind of understanding on these matters.

I now turn to the other aspect of the second reading amendment—that is, the question of the seemingly special treatment of some people in the immigration field. The past few months have seen tremendous focus on a number of individuals and the use of section 417—ministerial discretion. The main player, of course, has been Mr Karim Kisrwani, a travel agent from Western Sydney. We have moved on from the first event there—allegations in regard to Mr Bedweny Hbeiche, who the previous minister told the House was successful because he had a few sisters in Australia. Realistically, I think we know that that is not a very credible argument as to why that case was successful. I could go through the situation with a few other communities—Pacific Islanders, for example. Many Pacific Islanders in my region have multiple siblings in this country, and the ones I have seen have cases as poor as Mr Hbeiche's. They did not get any special treatment or recognition because of their family ties in this country. We have the allegation that donations were made and, despite the previous efforts of the member for Parramatta and the previous firm rejections by the RRT and our courts, suddenly Mr Hbeiche was judged to be a person meriting protection.

We have moved from there, of course, to Mr Kisrwani's broader role in Australian immigration. It is interesting to note that the Senate inquiry is now seeking his appearance. One would have few reasons why he could perhaps be very helpful to an inquiry with regard to ministerial discretion, because he seems to have broadened his interest in the immigration field beyond the traditional pattern of a father figure in the Lebanese community who historically undertook a role of assistance to a wide number of recently arrived migrants to a pattern of facilitating people with more questionable antecedents. The first of these, of course, is the Filipino corporate fugitive, Mr Dante Tan. We know the claim of Mr Kisrwani that he certainly did not take money with regard to trying to influence the minister. This was all a business transaction—a loan to a company that Mr Kisrwani was involved in. It was so successful in water and, from recollection, leather exports that that loan was allegedly paid back in a few months.

In this process, Mr Tan developed some very close relationships with people in Australia. He saw a need to go to breakfast with Minister Abbott and Minister Reith; to go on harbour cruises with Minister Abbott and Minister Coonan; to attend Romeo's Restaurant with the New South Wales member for the Hills, Minister Abbott and Minister Ruddock; and to attend Melbourne Cup luncheons. Minister Ruddock conceded at one stage that he had been out with him two or three times socially, but could not recall which events. We have a situation where, when you add up all the events, he was at a fundraiser every week or so during the campaign.

Then we had, of course, Mr Foo, who was escorted in handcuffs from a plane in Singapore. Returning to Mr Tan, we had a reversal of the department's hostility to his claims to have been setting up legitimate businesses in this country. The department vacated the field because it was costing the Australian taxpayer too much money! If you look at what the department is doing in this country with regard to the cost to taxpayers, the argument that the reason they suddenly withdrew from Mr Kisrwani's business partner's case was because of cost is once again a preposterous argument. We all know that the department, sometimes quite rightly, fights many of these things to the nth degree. I am, quite frankly, totally unconvinced that that was the reason the department vacated the field in this case.

Then, of course, Mr Kisrwani—coincidentally a travel agent, not involved in immigration, just a `community leader'—got tangled up with Mr Foo, and they were gallivanting around town to fundraisers as well. And there has been an admission, not an allegation, that Mr Foo—I am not sure whether he is still in Changi prison or where he is—also seemed to think that Mr Kisrwani, this travel agent, was somehow the No. 1 honcho in Australian immigration, because he went into a $4,000 consultancy with him. He did not go down to some of the larger firms in Sydney or Melbourne to get his assistance. He thought that this little-known travel agent in Harris Park was the person to go to. I wonder why. Could it be because Minister Abbott described him as a close personal friend of the minister for immigration? I think that is perhaps the reason, because I cannot logically see why he would otherwise be regarded, unregistered as he is, as a person who could be helpful with regard to immigration advice.

As I have said on many occasions, I am also rather amazed that when this Filipino corporate fugitive, Mr Dante Tan, got off the plane, having used a speedboat to escape from the Philippines and divert legal authorities, he said: `I won't look at the Financial Review or go down to the stock market to get a business partner. There's a guy in Harris Park, Karim Kisrwani. He's the person I should go into partnership with if I am going to establish a legitimate company in Australia and make enough money. He's the one person in this whole country that I should go into partnership with.' Once again, I wonder why. I think it is fairly clear that the reason that he at least perceived he should go into partnership with Mr Kisrwani was that Mr Kisrwani was perceived as having influence.

Then, of course, we had Mr Kisrwani, travel agent, again involving himself in an area of the immigration system when he became the middle man with regard to sale transactions of the Australian College of Technology. Once again unexplained was the great expertise and the great need for this man, but he was there again when Mr Nasr and Mr Yung, it seems, entered into some negotiations with regard to that college, which certainly had grave problems with the department. The other coincidence was that Mr Yung was walking around the Australian political system saying: `I'd like to participate. How can I participate in politics in this country? Why don't I give a donation to the minister for immigration?' There was no connection with him giving that money to the particular minister. There was no relevance in the relationship between Mr Kisrwani and Mr Yung and the fact that Mr Kisrwani was a close personal friend of the minister, but Mr Yung decided to give $2,000 and the person he was negotiating with, Mr Nasr, also had to give $1,000.

I want to say—and I think it is very unfortunate that I have to make this point—that I noticed that the former minister for immigration indicated that he thought his memory was somewhat better than Mr Kisrwani's with regard to the timing of donations. He has refuted Mr Kisrwani's claims that he and Mr Tan went to the campaign launch in Berowra and that a donation was made around 14 October. He claims that the donation was actually made by cheque in January the next year. I am slightly questioning of that, because Mr Yung also just happens to have signed a statement about his donation, and he just happened also to put 14 October. So we have these two people in this mire indicating that there were donations around that time. I have to say that the image of ministerial discretion has very much come under the spotlight. The whole problem was perhaps summarised in the current issues brief No. 3 2003-04. In relation to ministerial discretion, it stated:

While this provision was designed to act as an accountability mechanism, in reality these tabled statements read like a set of templates, containing three or four paragraphs which convey very little substance about the specific case.

We have a situation here where the Australian public and the Australian parliament know nothing whatsoever about why approximately 2,000 people have been allowed through the system under ministerial discretion. These are people who were rejected by the department, rejected by the tribunal and rejected often by the courts. Yet 2,000 of them have come through the door. We have people out there trying to increase ethnic tension in this country and to denigrate and stereotype people that arrive by boat. I for one am realistic enough to know that they are not all genuine claimants either. At the same time as we have 2,000 people coming through the back door, we have a travel agent in Parramatta who has a 50 per cent success rate. That compares with Amnesty International's 11 successes and 51 losses. That compares with the Fijian Australian Community Council's zero successes and 36 losses. That compares with the Refugee Review Tribunal referring back to the minister many cases and having a 17 per cent success rate. It does not read as genuine. There is no way in the world that this travel agent knows more about immigration, knows more about these cases, knows more about the law of protection visas and has had this success rate by himself.

Quite clearly, he is only a small part of a bigger mess. We have Mr El Ashwah described by the Australian as `the poor man's Karim Kisrwani'. We have his involvement in the case of Indograin. We have Gilda Ponferrada, former officer of the department, sitting in Kisrwani's office for many months, and it was allegedly put to the public that she was still working for the department long after she had left. We have Fahmi Mustapha Hussain, the former Liberal candidate for Auburn, who is debarred as a lawyer and debarred as a practitioner. He is also part of this peddling of influence that has basically characterised the operation in Western Sydney. The opposition has moved the second reading amendment that goes to those points. I would hope the government shows some sense about the way in which we can handle the broader bill. (Time expired)