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Monday, 22 September 2014
Page: 10008


Mr BANDT (Melbourne) (17:38): I sincerely hope that Australia remains a stable, peaceful democracy where no one here ever has to feel that their safety is so threatened that they have to flee. I hope that no one in Australia ever feels that their life or their family's lives are at risk, such that they might have to put whatever they can into a bag in the middle of the night and flee—using whatever means they can—to get out of the country. I sincerely hope that no one in Australia ever has to live through a war in this country that might see orderly systems of migration stopping and them having to turn to whoever they possibly can to smuggle them out the country to save their own life and their family's lives.

If any one of us in this country ever found ourselves in danger, if any one of us in this country ever found ourselves worried that our family members or people close to us might be in danger themselves and if we were forced to flee and go to knock on the door of another country, we could not in all good conscience ask them to take us in given that this is what we are doing in this bill to people who are coming here seeking our protection. Under this bill, we now have the very real likelihood that Australia will take some of the most vulnerable people in the world—who are coming here seeking our help, who have experienced war, who have experienced persecution and who have experienced torture—and we will send them back into danger. This is not only morally repugnant in its own right but it breaches international obligations that we have signed up to. It seriously compromises the integrity of our rigorous protection determination system and it erodes procedural safeguards and it puts Australia at risk of breaching our non-reformat obligation, which is the obligation not to put someone back in harm's way.

What we know is that people who arrive on our shores seeking protection are extremely vulnerable. They have often experienced persecution, trauma and torture. But the amendments in this bill presume that the person who arrives on our doorstep is lawyered up, has all the resources available to a Liberal party donor and backer and are able to hire this country's best legal minds to go and represent them in a now very narrowly prescribed tribunal system. There is absolutely no evidence that the integrity of our current system is at risk or is in any way compromised in its current functioning, but what this government is doing is what it usually does whenever it finds itself in political trouble: it turns on refugees, it turns on the vulnerable and it turns on those who are least able to defend themselves and it attacks them.

This bill will have incredible adverse impacts on those in the world who most need our help. How does it do that? One of the things it does is that it alters the burden of proof. The amendments proposed by the bill state that the burden of proof will rest solely on the applicant to prove:

…that they are a person to whom Australia has protection obligations…

And that sufficient evidence must be provided in the first instance to establish that claim. On one reading and on the face of it, it sounds reasonable—of course someone has to prove their case. But what anyone who has paid the slightest attention to what happens in reality would know or even if you just think about it for a moment, someone who arrives here who is a genuine refugee may have nothing with them and they are almost certainly not going to have a fine, detailed knowledge of Australia's migration law.

That is why the Office of the United Nations High Commissioner for Refugees states:

while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of ref ugees would not be recognized.

That makes perfect sense. Someone who turns up here may not speak English, almost certainly will have no idea about the finer points of Australian migration law and may not have a dollar to their name, yet this government is saying, 'It is now your job to front up and prove every single aspect of your case, otherwise we will consider sending you back.' To add insult to injury, this comes on top of this government cutting funding for legal advice to these very same people.

Mr Randall: Hear, hear!

Mr BANDT: In this budget that we have just seen, these people who are now expected to prove every element of their case are not going to have access to legal representation. I hear a member opposite shouting, 'Hear, hear,' because these people are not going to have access to legal advice. If they are genuine refugees, surely they are the kind of people who are turning up with nothing in their pockets.

Mr Randall interjecting

Mr BANDT: The member interjects, 'What about my genuine constituents?' Let me tell you, my genuine constituents—and, indeed, one in four in this country—were not born here or have parents who were not born here. The suggestion that somehow genuine refugees are not genuine constituents is offensive, and it shows exactly what is behind this government's motivations. David Manne, the CEO of the Refugee & Immigration Legal Centre, said:

It is often very difficult for people in those circumstances to understand what is required and how to present it. That is why the conventional position in international law and under our system is that the duty of establishing claims, the duty of listing those claims and evaluating them is a shared duty between the applicant and the decision maker.

That is point 1 of this offensive bill.

Point 2 is increasing the risk threshold to 'more likely than not'. Let us pause and think about this for a moment because it bears significant examination. What this bill proposes to do is significantly increase the risk threshold for people who are fleeing harm. Under the proposed amendments, asylum seekers will have to prove that they have a greater than 50 per cent chance of being tortured or killed. If you have only a 49 per cent chance that someone is going to put a gun to your head and kill you if the Australian government sends you back, the Australian government will be allowed to send you back under this bill. Even if there is a 40 per cent, a 30 per cent, a 20 per cent or a 10 per cent chance that you are likely to be killed or tortured when returned, under these amendments that will now be enough to have you sent back. That change is in direct contravention to international and human rights law, in particular the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the principle of nonrefoulement.

The amendments proposed refer to people who are seeking protection on complementary grounds—that is, people who are not captured by the refugee convention but are still deserving of protection as they are fleeing serious harm such as torture, honour killings or female genital mutilation. These are the people who are relying on this protection that is there at the moment. So a woman who arrives here, who may not speak English or have had formal education, and is seeking our help will now be sent back if she can prove that she is only at 49 per cent risk of female genital mutilation. That is what this government is proposing in this bill. As stated by Mr Manne from the Refugee & Immigration Legal Centre:

… the proposed 'more likely than not' test would ultimately significantly increase the risk of Australia making the wrong decision on whether or not somebody should be protected from serious harm. The test raises the real prospect of returning people to persecution or other forms of life-threatening harm, in violation of our non-refoulement obligations. That is the bottom line here.

This unacceptably high threshold is at odds with our international obligation, which is the lower threshold test that has been well established and applies in comparable countries like the UK and New Zealand.

Point 3: if somebody arrives here with wrong documentation or no documentation and are unable to prove their identity, under this bill the application for protection will be denied. That just plainly ignores the reality of someone who is seeking asylum and goes against the basic principles of the refugee convention. As has been made very clear through the inquiry process into this bill and elsewhere, there are many reasons why people are unable to obtain identity documents or may not have the correct documentation when they arrive in Australia.

I do not know whether members opposite have had any practical experience in assisting people in their electorate trying to bring family members here or with their own migration claims, so this may come as news to them, but there are some countries which do not have a robust, democratic government and accountable bureaucracy. Someone who has fled the police will now be asked to go back. The police may be the only authority in that country who is able to issue you any documentation at all, so the same people who want to kill you may be the only ones who can give you this precious piece of paper that the government is now saying stands between you being accepted as a genuine refugee and not. It may also be the case that you just did not have time to get the documentation before you left. When your life is threatened, which is one of the instances in which you would be found to be a refugee, you may not have time to gather everything together and get that piece of paper that up until now you have never had any reason to hold.

As was raised by one of the submitters to the inquiry, these amendments contravene article 31 of the refugee convention, which prohibits governments from penalising refugees who arrive without authorisation. Mr Webb stated:

… the refugee convention recognises what these reforms ignore—that is, the basic legal and moral duty to protect a person is not diminished just because that person arrives without certain paperwork or with fake documents.

It should be up to the tribunal to assess in each instance whether the fact that you have come with the wrong documents or no documents means that you are not a genuine refugee. It should be up to the tribunal to assess if you are trying to put one over on the system here and are not a genuine refugee versus saying: 'There is a completely legitimate reason why in this instance you have no piece of paper at all. I can see that your life was threatened.' This bill says: 'Enough of that. We don't care.' This bill says, 'Those people who have a genuine reason are treated like everyone else and now the door is shut to you as well.'

We know that this bill also contains changes with respect to family reunion, to the Refugee Review Tribunal's processes, with respect to new claims and to retrospectivity. But, fundamentally, this bill must be opposed because it is yet another instance of this government saying: 'When you are someone who comes here seeking our help we will turn our backs on you. We will turn our backs on you and we are quite prepared, in all good conscience, to say that if you have a 49 per cent risk of being killed, we are happy to send you back to where you came from.' That is not the kind of Australia I want to live in. I want to live in the kind of Australia where if someone has a genuine fear for their life and that person can meet the test to prove they are a genuine refugee then we welcome them in. I do not want us shutting the door on people who may have had to flee in the middle of the night in fear of their life or their family's lives, but that is what we are about to do so this government can try and seek a bit of a bump in the polls.