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Wednesday, 12 February 2014
Page: 153


Mr McCORMACK (RiverinaParliamentary Secretary to the Minister for Finance) (09:19): I endorse the remarks of the shadow minister and member for Corio. This is a bill to amend the Migration Act 1958 in order to further clarify the operations of the act in light of a number of recent court and tribunal decisions. The government believes that these decisions are inconsistent with the policy intention of the Migration Act and accordingly seeks to make the intention of the act clearer, as the shadow minister just pointed out.

This bill reflects the government's ongoing commitment to ensuring that we have in place a rigorous protection visa regime which balances the rights of protection visa applicants with our domestic security objectives. The bill provides for three specific changes to the Migration Act. Firstly, it clarifies when a decision is made and the meaning of 'finally determined'. Secondly, it provides a statutory bar against further protection visa applications. Finally, the bill inserts a specific criterion with respect to protection visa applicants assessed to be a risk by the Australian Security Intelligence Organisation, ASIO.

These amendments are vital for the Department of Immigration and Border Protection to process the visa applications by asylum seekers and noncitizens. Further, these amendments are critical to ensuing that Australia has a strong and rigorous refugee-processing regime in place that meets our international protection obligations whilst also giving full effect to the policy intent and purpose of our own domestic laws. Obviously, as part of a government committed to restoring the integrity of our immigration system, I very much support the intent and the purpose of these amendments in the House today.

The bill gives clarification of when a decision is made and the meaning of 'finally determined'. Schedule 1 of the bill puts a range of matters beyond doubt to provide very clear guidance to the courts about the intention of the act. For example, it puts beyond doubt that a decision by the minister or delegate of an application for a visa, cancellation of a visa or revocation of a visa is taken to be finally made and the decision maker is taken to have discharged their powers at the time and on the day a record of the decision is made.

This schedule, new subsection 5(9A), also puts beyond doubt that a decision by the Refugee Review Tribunal or the Migration Review Tribunal on an application of review is taken to be made, other than an oral decision, by the making of a written statement and to have been made on the day and at the time the written statement was made. This schedule further puts beyond doubt that an oral decision by the RRT or the MRT is taken to be made and becomes final on the day and the time it is given. The amendments contained in this schedule will provide additional clarity and certainty to the administration of the act by making clear when a person may become a lawful noncitizen.

The bill provides a statutory bar against further visa applications. Schedule 2 provides further clarification to section 48A of the act and specifically prevents an applicant who has been refused a protection visa or who has had their protection visa cancelled from making any further applications for a protection visa whilst still in the migration zone. That is extremely important. This amendment was necessitated by the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship, which held that there were effectively different sets of criteria by which a protection visa can be applied for and granted. The court found that section 48A did not prohibit a noncitizen from making a further application on the basis of a different criterion to that which was relied upon in a prior unsuccessful application.

The Abbott-Truss government submits that this decision is contrary to the policy intent of this section. But, in keeping with the purpose of this bill, we are taking the opportunity to remove any doubt by amending the law to ensure that once a review decision is refused, irrespective of the grounds of the refusal or the grounds on which a protection visa was cancelled, an applicant cannot reapply for a protection visa on different grounds regardless of whether alternative grounds existed earlier or not. That is, once a review decision is refused, there are no further grounds upon which an applicant is able to seek additional review. End of story.

There are specific criteria with respect to applicants assessed to be a security risk by ASIO. Schedule 3 of the bill sets out a new specific criterion that requires that an 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. Again the proposed amendment will put beyond doubt that the Refugee Review Tribunal and the Administrative Appeals Tribunal do not have the power to review a visa refusal decision relying on, or a visa cancellation because of, an assessment by ASIO that the applicant or visa holder is directly or indirectly a risk to security. This amendment addresses issues raised in the matter of plaintiff M47/2012 v Director General of Security & Ors. In this case the High Court held that the public interest criteria 4002 of part 1 of schedule 4 to the Migration Regulations 1994 was not a valid criterion upon which to grant a protection visa as it was inconsistent with the Migration Act. The new amendment will reflect the terms of PIC 4002 so that an applicant will be refused a protection visa if they are assessed by ASIO to be directly or indirectly a risk to security within the meaning of section 4 of the ASIO Act.

This bill ensures that the Migration Act operates as intended and provides certainty to the Department of Immigration and Border Protection in the processing of protection visas. The proposed amendments also provide much-needed clarity to the courts in their consideration of matters that might engage these sections of the act. With these amendments the government is striking a balance, a necessary balance, between the rights of protection visa applicants and important domestic security objectives.

This bill has relevance to the Riverina, particularly the city of Griffith, which is the multicultural cradle of Australia. I acknowledge this bill has the support of the opposition. It is important—indeed, essential—that, as former Prime Minister John Howard famously said in 2001, 'we will decide who comes to this country and the circumstances in which they come'. The first role of government is to protect its borders. This legislation certainly assists that process. I commend the bill to the House.