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Thursday, 12 December 2013
Page: 2590


Mr MORRISON (CookMinister for Immigration and Border Protection) (12:56): I move:

That this bill be now read a second time.

The Migration Amendment Bill 2013 amends the Migration Act 1958to address a number of recent court and tribunal decisions that significantly affect the operations of my department, including the processing of visa applications made by asylum seekers and other non-citizens.

When a decision is made and meaning of 'finally determined'

The first schedule to the bill will put beyond doubt that a decision on review, or a visa refusal, cancellation or revocation decision by the minister or his delegate, is taken to be made on the day and at the time when a record of it is made, and not when the decision is notified or communicated to the application or the former visa holder.

The amendments address the decision of the full Federal Court of Australia in Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131, in which the full Federal Court found that the RRT's decision-making power in respect of a review is not exercised or 'spent' until the review decision is notified 'irrevocably and externally'.

They also address the full Federal Court's decision in Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY[2013] FCAFC 104, in which the full Federal Court extended the judgment in SZQOY and found that an application is 'finally determined'—that is, no longer subject to a form of merits review—only when the review decision of the RRT is notified to both the review applicant and the Secretary of the Department of Immigration and Border Protection according to law. It was immaterial that the review decision had been notified externally and that the review applicant had actually been notified of the review decision despite any error in the notification itself.

These findings cause potential difficulties and risks in the administration of the act. For example, the concept of an application being 'finally determined' is crucial to liability for removal under section 198 of the act. The amendments will therefore remove any doubt as to when a decision by the minister, delegate or tribunal is made and an application is 'finally determined'.

Statutory bar against further Protection visa applications

The second schedule to the bill clarifies that a person in the migration zone who has previously been refused a protection visa, or who held a protection visa that was cancelled, is prohibited from making a further protection visa application. This applies regardless of the basis upon which the earlier protection visa application was made or granted.

The amendment addresses the decision of the full Federal Court on 3 July 2013 in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71. In that case, the full Federal Court found that section 48A of the Migration Act only prohibited the making of a protection visa application that relied on the same ground as the previously refused protection visa application.

For example, if a non-citizen previously made a protection visa application raising claims under the refugee convention, section 48A of the Migration Act would not prohibit a new protection visa application based on complementary protection claims.

By restoring the intended operation of the statutory bar in section 48A of the act, the amendment will preserve the integrity of Australia's protection visa program and avoid its abuse, by preventing non-citizens without meritorious claims for protection from delaying their departure from Australia by making repeat protection visa applications on different grounds each time.

Protection visa applicant not assessed to be a risk to security by ASIO

The third schedule to the bill addresses the decision made by the High Court in Plaintiff M47/2012 v Director-General of Security & Ors [2012] HCA 46. In October 2012, the High Court of Australia found that the use of the public interest criterion 4002 in the Migration Regulations 1994 was not a valid criterion for the purposes of a protection visa application.

Public interest criterion 4002 states that the applicant is not to be assessed by the Australian Security Intelligence Organisation, ASIO, to be directly or indirectly a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979, known as the ASIO Act. In the absence of PIC 4002, the protection visa assessment process for persons with an adverse security assessment is currently problematic as each case requires individual consideration as to whether the person does or does not pass the character test in section 501 of the act.

The bill will amend section 36 of the Migration Act to insert a specific criterion for a protection visa that the applicant is not assessed by ASIO to be directly or indirectly a risk to security, within the meaning of section 4 of the ASIO Act. The new criterion in section 36 reflects the wording of PIC 4002.

In addition, the amendments in the bill also put beyond doubt that the Migration Review Tribunal, the Refugee Review Tribunal and the Administrative Appeals Tribunal will not have the power to review a decision to refuse to grant or to cancel a protection visa on the basis of an adverse security assessment by ASIO that the applicant for, or holder of, a protection visa is directly or indirectly a risk to security within the meaning of section 4 of the ASIO Act.

The amendments will also reflect current paragraph 500(4)(c) of the Migration Act by confirming that the Refugee Review Tribunal does not have the power to review a decision to refuse to grant or to cancel a protection visa made on the basis of one or more of articles 1F, 32 or 33(2) of the refugee convention or paragraphs 36(2C)(a) or 36(2C)(b) of the Migration Act. Paragraph 500(1)(c) provides only the AAT has the jurisdiction to conduct a merits review of those decisions.

The amendments ensure that to meet community expectations, the government must not only have the ability to act decisively and effectively, wherever necessary, to protect the Australian community, but also to have the legislative basis to refuse a protection visa, or to cancel a protection visa, for those non-citizens who are a security risk.

We must prevent and deter any threats posed by those who are a risk to the security of our nation and must implement legislative amendments such as those to section 36 of the Migration Act to ensure the security and safety of the Australian community.

I commend the bill to the House.

Debate adjourned.