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Monday, 22 September 2014
Page: 10002


Mr THISTLETHWAITE (Kingsford Smith) (17:12): I speak on the Migration Amendment (Protection and Other Measures) Bill 2014. Generally, Labor support the intent of the bill, which streamlines the processes and efficiencies associated with processing claims for asylum. In terms of the whole of the bill, Labor supports schedule 1. We have reservations regarding schedule 2, and item 17 of schedule 4, which I will detail throughout the course of this speech.

The Migration Amendment (Protection and Other Measures) Bill 2014 seeks to restore integrity and efficiency to the protection and processing framework, as well as restore the original legislative intent of particular sections of the Migration Act following some judicial decisions. The bill aims to increase the efficiency of processing visa applications and streamline the assessment of protection claims.

As I mentioned, in terms of schedule 1, Labor is supportive of the provisions contained within the bill. In particular, the two new sections that have been inserted in schedule 1, section 5AAA, that makes it clear that the onus of proving a claim for refugee status lies firmly with the asylum seeker applicant. There is currently no provision in the act that explicitly states that the onus of proving a claim lies with the asylum seeker. However, it has always operated in that manner in practice. It has always been in the applicant's best interests to provide as much information as possible to substantiate their claim and application.

Section 423A encourages all information to be provided at the earliest possible opportunity. This change will apply regardless of whether the decision is administrative, before the Refugee Tribunal or a ministerial intervention. This is not a substantial change from current practice, and the changes will restore the original legislative intent, and also put Australia in line with other like minded jurisdictions including the US, New Zealand, and the UK. In terms of schedule 1 part 2, this amendment relates to documentary evidence of identification for someone claiming protection. It amends section 91W and inserts new section 91WA. Currently the decision maker can draw an adverse inference where no documentary evidence of an asylum seeker's identity is available. However, it is not grounds for refusal. This amendment will allow refusal of an application by an asylum seeker who refuses or fails to provide evidence of identity, nationality or citizenship; who provides a bogus document; or who destroys documents intentionally relating to their identity. The refusal power will not apply where the applicant has a reasonable excuse—for example, where an applicant is stateless or where reasonable steps have been taken to obtain such documents.

Part 3 of schedule 1 inserts new section 91WB to put beyond doubt that an applicant for a protection visa who is a member of the same family unit or an existing protection visa holder cannot be granted protection simply on the basis of being a member of the same family unless they apply before the protection visa has been granted to the original protection visa applicant. Currently, if someone is a family member of a protection visa holder they are automatically considered to be owed protection by virtue of simply being a member of the same family without having to assess the claim individually. This results in family members of protection visa holders being advantaged over those who apply through the non-family stream. This amendment will restore the original intent of the legislation and these measures will improve processing and streamline the efficiency of the act. They really do codify what is occurring in practice both through common law decisions and through the principles that are applied in terms of practice notifications at various levels and in different jurisdictions.

Of particular concern to me is schedule 2 of this proposed bill, which Labor will not be supporting. As the shadow minister mentioned earlier, when the bill moves to the consideration in detail stage Labor will seek to move an amendment to have this schedule removed in its entirety. The reason for that is that this schedule inserts a new section 6A which makes clear in cases of complementary protection that it is more likely than not that the applicant will suffer significant harm if they are removed from Australia. This proposed change to the risk threshold is a higher threshold than that which currently operates at the moment and, importantly, it will introduce a higher threshold than is contained in international agreements. Most notably, in the refugee convention, the wording is a 'real chance' of significant harm. This reform will change that threshold and will change that test that is applied for someone seeking protection in Australia to more likely than not that the applicant will suffer harm if they are removed from Australia.

This change has caused considerable alarm amongst the community, with stakeholders such as the Refugee Council of Australia expressing alarm that under this bill people fleeing torture or other forms of serious harm will have to prove that there is a greater than 50 per cent chance of being harmed to avoid being returned to their home country. So the asylum seeker now has a 50 per cent threshold that they need to get over; they need to prove that they will be harmed beyond that threshold if they are going to be afforded protection. It is a clumsy test. It is inconsistent with international agreements that Australia is a signatory to, and on that basis is does not have my support or the support of the Labor Party.

The Refugee Council has expressed alarm regarding this. The council has said:

Making these kinds of presumptions is unfair and out of touch with realities of forced displacement.

When people are fleeing persecution, many are not able to obtain or travel safely with their own identity documents, as doing so could allow them to be identified by the very people from whom they are fleeing.

The Refugee Advice and Casework Service has also expressed its opposition to this aspect of the bill, while the University of New South Wales' Professor Jane McAdam and the Australian National University's Kerry Murphy have stated:

Overall, the bill … is designed to reduce adherence to Australia’s international legal obligations and make it easier to refuse refugees on technical grounds. … This bill underscores that the driving force in Australian refugee law will be punishment, not protection.

Tony Wright of the Sydney Morning Herald put it brilliantly when he wrote that the government was playing a dangerous game with the lives of people who are desperate enough to seek asylum in the face of threats to their lives in their homelands. He wrote:

Applicants for asylum on the basis of fear of torture must establish, under his proposal—

under this immigration minister's reforms—

that there is more than a 50 per cent probability that they will be subjected to [torture, to harm] or even death if returned to the country they have fled.

In short—

Tony Wright of the Sydney Morning Herald said—

if there is a mere 49 to 50 per cent chance of escaping being hung by one’s thumbs from meat hooks while being thrashed by a length of electrical flex, that’s good enough for Mr Morrison. They can be sent to whatever fate might await them.

No doubt Mr Wright's comments are a particularly graphic account of the horror that might be visited upon some desperate and poor people, but such is the unworkable nature of this amendment.

Until now, those seeking asylum have escaped the indignity of being made to prove that the possibility they would return home to face the prospect of significant harm was in fact a probability. A 10-per-cent chance of torture upon return has, in some cases, been deemed sufficient. As Mr Wright put it, a one-in-10 probability of being reduced to a whimpering bloodied mess might not sound particularly attractive to those possessing a heart, but it was deemed to constitute a real chance. On that basis, Labor has difficulties with schedule 2 of the bill and, as I said earlier, we will move an amendment during the consideration in detail.

In terms of schedule 3: this amendment removes the need to grant temporary safe haven visas and enables people in detention to be moved into the community on a bridging visa. The introduction of a statutory bar to unlawful noncitizens' bridging visas and other temporary visa holders will enable increased efficiency of processing and management of caseloads by expanding the basis for getting people out of immigration detention. On that basis, I will support schedule 3.

In terms of schedule 4: these are amendments that seek to streamline some of the processing and administration of the Migration Review Tribunal and the Refugee Review Tribunal decision-making processes. They will enable the principal member to issue practice directions to applicants and their representatives and to issue guidance directions to other members of the tribunal, similarly to other jurisdictions in Australia where practice directions are widely used and which, no doubt, provide excellent guidance to advocates, claimants and those working within the system, and also to members of tribunals through the guidance directions.

Item 17, which relates to written reasons being given for oral decisions, is something that Labor has a difficulty with. Currently, if an oral decision is given then there is a requirement for a written statement of reasons for that oral decision to be provided to an applicant. The amendment contained in this bill will seek to change that and the written reasons will only be given if there is a claim or a request made for those written reasons. That is a change that Labor is opposed to. We do believe that it impinges on the notion of procedural fairness and providing adequate reasons for decisions. Again, amendments will be moved during the consideration in detail.

Labor's approach to this bill is based on our guiding principles associated with migration and asylum seeker claims: compassion, fairness, and generosity. A fundamental maxim is that this country should not harm people who are claiming asylum and who are seeking to flee persecution. On the whole, we support these amendments to improve the efficiency, the streamlining and the operation of our migration legislation. But we do not support amendments that make things unreasonably difficult for people who have genuine claims for protection, who are genuinely fleeing difficult situations throughout the world and seeking protection from Australia—to have unnecessary and burdensome tests applied to their applications. That is exactly what schedule 2 does, and that is why we oppose that amendment to this bill. But, on the whole, the bill is supported.