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Legal and Constitutional Affairs Legislation Committee

CHAN, Ms Angela, National President, Migration Institute of Australia

TEBBEY, Mr Nicholas, Member, Migration Institute of Australia

CHAIR: I welcome the witnesses from the Migration Institute of Australia. Thank you for coming along today and for your written submission, which we have recorded as submission No. 44.

These are proceedings of the federal parliament, so everything said is covered by parliamentary privilege. If there is anything you would like to say in private, please tell us and we can consider going in camera.

If you wish to make any amendments or additions to your submission, now is the time to do that. If not, I invite you to make an opening statement and then we will ask some questions.

Ms Chan : Thank you, Senators, for the opportunity to come today to discuss with you the proposed bill, which has a very long name that I will not repeat. The Migration Institute of Australia is very concerned that with this bill, despite a 250-page explanatory memorandum, there still appear to be a lot of questions that need to be answered and a lot of doubt. A lot of general principles which we would not normally subscribe to and are very worried about arise in this bill.

We believe that the government should have more of an innovative approach to the settlement of asylum seekers. We need to have a holistic and enduring approach to the whole program which is consistent with our humanitarian values and Australian values. Australia could take the lead globally in resettling refugees. When you consider the amount of money that is paid to keep people within detention centres and to turn back boats, it is quite significant. We believe that it is around $3 billion over the past two years—the UNHCR budget for 51 million refugees in one year was only $3 billion. So there is a significant amount of money in the pool that could be used in better ways. We believe that, unfortunately, this bill provides too many opportunities for people to make decisions about people's lives without having proper direction or proper accountability. We are very happy to discuss it with you if you have any questions. I could go through all the schedules, but you probably have some questions that you would like us to answer.

CHAIR: We do indeed. Thank you very much for your brief opening and, I might say, for your very concise submission, which gives a quick response to each of the schedules. Mr Tebbey, do you wish to say anything additional?

Mr Tebbey : No, nothing to add.

Senator JACINTA COLLINS: I am not sure of the extent to which you have followed some of the earlier evidence we have taken today. Many of the issues in your submission raise very similar points to many of the other submissions we have received. Is there one particular area that you have identified that has not yet been encompassed by what has been before the committee?

Ms Chan : Unfortunately, I was not able to hear what was said this morning, but I do have a general understanding of what has been submitted from discussions with other people and in reading their submissions. I think that there is general agreement that there are many problems with this proposed bill. They go not only to the actual processing of potential asylum seekers but to the whole-of-government powers and approach, what they can be, what they should be and what they will be or will not be. It is legislation which I think is a bit reactionary and is more of a patchwork to try and solve a problem to appease the electorate, whereas I think that we need to look at better solutions in tackling this whole area.

Senator JACINTA COLLINS: You mentioned one area, which I could characterise as false economy: your view that resources could be better targeted at resettling people rather than what is currently occurring with the $3 billion. One of the other areas of false economy that has been raised with us this morning is the view that this proposed approach to processing—the fast-tracking—will be counterproductive. Do you have any sense of that from your work?

Ms Chan : Definitely. If you are going to have legislation where people are going to be fast tracked as far as their applications are concerned, or they could be returned—their boats could be turned back—we are looking at the possibility of refoulement of these people, which is against our obligations under the United Nations convention. There are also significant problems with looking at redefining what the Australian government at the time considers to be a refugee. Taking it out of the Migration Act—basically removing it from the act—sends all the wrong messages to people. I have always been of the view that if an administration does not really believe in the United Nations convention or upholding it then they should come out and say that, and face international scrutiny on that. It is not something that you just work your way around domestically and pretend that you are still supporting the convention when you are not supporting the convention. Australia is trying to circumvent the convention.

With respect to fast-tracking people, I do not see where the natural justice provisions lie, when the only way that you can get a review is if the application is agreed to by the department or the minister. To me that is like the police reviewing the police or any other government department trying to review themselves. It does not work. Many years ago we used to have the Migration Internal Review Office, which used to do exactly that. They used to look at the administrative side. They used to look at the review of applications internally before they went to the Immigration Review Tribunal at the time. It was so bad, and there were so many applications that were refused again by the same people within the unit within the department, that they abolished the Migration Internal Review Office because it was not working. I cannot see how this can work. You cannot have your own peers reviewing your work or saying, 'We're happy for that to be sent on review.'

The exceptional circumstances case is also unsatisfactory. If anybody knows about the operations of any type of migration work—I have been doing migration work since 1988—they could tell you that people who are very educated and are good in English still cannot get their forms right. That is why they use the services of migration agents or lawyers to help them with their applications. The issue is in expecting people who are seeking asylum and escaping persecution to have all their documents ready and be able to fill out forms with incredible detail. I do not know if you have seen the forms but it would probably be a good thing for you to look at the forms and see were all the questions lead to. It is frightening. And then to punish them if they do not provide the information at the time of the first interview I do not believe is consistent with our natural justice provisions and it is not consistent with our Australian values.

Mr Tebbey : Can I add a little bit to that. I think the committee would be well aware that administrative review is one of the hallmarks of Australia. Since the introduction of the AD(JR) Act and so on, administrative review and the role of merits review tribunals has been of increasing importance. The fact that this bill effectively proposes to strip certain migration decisions from any tangible merits review process and to establish the IAA which, let's be frank, will not have any real independence whatsoever, is potentially going to drive more judicial review applications.

The role of the courts will be tested in terms of people seeking to have some sort of review. The fact is that the merits review tribunals are often there to give people a fair hearing and the opportunity to actually have their say and to put forward their concerns. I think one of the consequences that you talked about in the efficiencies is that if you remove that less formal process more people are going to turn to the courts.

Senator HANSON-YOUNG: Have you been able to turn your mind to the schedule that relates to babies that have been born in Australia?

Ms Chan : Yes.

Senator HANSON-YOUNG: It strikes me as extraordinary that, in relation to a child that is born here on Australian soil, this bill is retrospectively going to deem that child to be an unauthorised arrival. I reckon those babies arrived the same way my child arrived or I arrived or any of the rest of us arrived. Concerningly, despite all the hoo-ha about this bill being an opportunity to get children out of detention, in fact under this bill a number of these children that have been born in Australia will now be sent to Nauru. Does the association have a position on that?

Ms Chan : We are very concerned about children and babies being born in detention and their status. The problem arises that I think there are only 100 children that have been born, and these children will be basically stateless. How long do they stay in detention for? They will not be entitled to education, to health care. They are children. They need to have their basic requirements, their entitlements to life while they are growing. I find again that it is against most Australian values that we would want to treat children in this manner. It does worry me, but it is also consistent with the changes that the government proposes with the citizenship bill, where they intend to bring in legislation for children who were born here of parents who were not permanent residents; they will not be entitled to automatic rights to Australian citizenship after their 10th birthday, which is quite extraordinary. I think the records show that there are only about 400 children in the last year who were entitled to this. When you consider the entire migration program, it is not a big number. But for us to pick on the children and say, 'I'm sorry, you're not an Australian, you're not entitled to residence here'—gee whiz we're looking like a very mean society, and internationally—

Senator HANSON-YOUNG: I just heard the Prime Minister say in the chamber in his opening address to David Cameron that being born in Australia is the best lottery in life—not if you are a refugee child born in detention, obviously.

Ms Chan : No.

Mr Tebbey : No. Being born in Australia under certain circumstances is a lottery. Our view is that anything that puts children in detention should be severely avoided and restricted at all possible costs. I think we have very clear obligations under the Convention on the Rights of the Child, and there are countless reports—and I know that the committee has them—that say that detention has serious problems: mental and physical health, all those sorts of things, for children. It does for everyone, but children in particular are a vulnerable group, and anything that makes it easier for children to be put into detention—obviously this schedule 6 amendment is in line with the recent Federal Court case. We had serious concerns about that as well. I think it is, as Ms Chan has said, another example of Australia removing itself from what was once our ideal humanitarian goals and the Australian way.

Senator HANSON-YOUNG: Can I ask you about the amendments in this bill to introduce the safe haven enterprise visas.

In your experience someone who has been kept in immigration detention for a number of years and then in limbo in the community on a bridging visa, to then be on a five-year SHEV, what is the likelihood that those people are going to be able to effectively apply for a permanent visa and be able to satisfy the criteria?

Ms Chan : Thank you for asking that question. It is a concern because there does not appear to be enough information in the bill about SHEVs.

Senator HANSON-YOUNG: No, there is nothing really.

Ms Chan : That is right.

Ms Chan : I think it is probably not going to work for many people because a lot of them will not be able to meet the criterion of the new definition of 'refugee', which is what is proposed by this new bill. That is going to be the catch from many people. I do not think they will be able to get many people who would meet the new definition of 'refugee'. Having said that, if you are lucky enough to come out—I have dealt with people in detention.

I have gone to hearings with people who have been in detention for quite some time and they are not in a very good mental state. Is it better overall to let people out into the community? We would support that because it is a better proposition than to have people held in detention. A lot of these people are like anybody who wants to make their life better and their future better for their families—they have a lot of drive. So they would be highly motivated to achieve and to do things.

On the other hand, to talk about temporary protection visas as an indefinite temporary lifestyle in Australia and never being able to get permanent residence I think is flawed because it is similar to the situation in Europe with the Turks in some countries where some of them have been refugees on temporary protection visas for 30 years. Their children have grown up but they have never been entitled to education and a lot of benefits that citizens are entitled to. They are not entitled to apply for permanent residence, let alone citizenship, and they are entitled to stay there only as long as they have a job. I do not think that is what is meant by Australia being able to afford protection to people who are genuine asylum seekers. We have seen from the records that 60 per cent to 100 per cent of those who put in claims are genuine refugees. That is a very high ratio of those who are coming in putting in claims.

Senator HANSON-YOUNG: Effectively the rest of the bill undermines whatever deal was struck between Clive Palmer and the government. If the idea was that a visa would be established to offer a pathway to permanency, a pathway to permanency is not in in this bill and it does not have to happen. If it does, it is all really at the whim of the minister through regulation.

Ms Chan : That is right.

Senator HANSON-YOUNG: Secondly, it sounds as though the rest of the bill is designed to undermine the whole process of allowing people to get there anyway.

Mr Tebbey : Yes: 'We will give you the visa you want but nobody will be able to get it.'

Senator HANSON-YOUNG: That is right.

Ms Chan : Yes, and I think the minister said at a press conference, 'Good luck to them. They are going to have very high bars to jump over.' The intention is to make it as difficult as possible for anyone to obtain permanent residence.

Senator HANSON-YOUNG: This is just more of an attempt to reduce the number of people Australia helps overall out of the group of 30,000. They call it fast tracking. It is to try to fast track people out of the country.

Mr Tebbey : To fast-track refusals.

Senator HANSON-YOUNG: Yes, fast-track refusals.

CHAIR: On the issue of children born in Australia, are you conscious of the fact that people have children so the child becomes Australia and therefore the parents almost automatically can become Australians. That is I think what this legislation is trying to address, not the status of the child.

Ms Chan : As I said, I have been doing this work since 1988, and I have heard a lot of stories about how women used to come off the plane and fall pregnant and have a baby so that they could get their partner visas. I do not think that that is a standard that we should be looking at when we are considering our entire international obligations.

CHAIR: But it is trying to stop those sorts of issues.

Ms Chan : There are not that many of them.

CHAIR: It is the same as the issue we talked about this morning. Unaccompanied minors come to Australia—sent by their parents on a very dangerous journey—get Australian recognition and that means they can bring the parents in. That is okay. We love refugees, and Australia has one of the best reputations in the world, but we like to do it in an ordered way so that people cannot jump the queue.

I accept that there are concerns with this bill. It is, I might say, even a bit draconian in places, but it is meant to get the Australian immigration system and the refugee system into a semblance of order so that people who are waiting years in squalid camps for their turn to come along have an opportunity. Do you concede that if our entrance system is regularised we have a better chance of spending that $2 billion that you talk about on actually getting in refugees under the UNHCR system?

Mr Tebbey : Where to begin? The first part of your question was in relation to children and whether it is appropriate to strip them of their rights as some sort of measure to prevent them from reuniting with their parents. I think the MIA's position on that is that we do not accept that the ends justify the means.

You mentioned that parents are putting children on boats and sending them on perilous journeys and then re-uniting. I think we have a tendency to focus on easily-publicised and often tragic circumstances of people on boats but the reality is that that belies the issue for—

CHAIR: Would you send your children across the world unaccompanied—children under the age of 12?

Mr Tebbey : I think in Australia, as we have just heard, I won the lottery of life. I think we have this awful tendency to pretend that we know what is going on for these people.

CHAIR: I know that they are in tragic situations—absolutely tragic—but so are the people waiting in the refugee camps, who we are trying to get in.

Mr Tebbey : That was the last part of your question. I absolutely agree with you. If we could spend $2 billion—

Ms Chan : It is $3 billion.

Mr Tebbey : or $3 billion—whatever it is—working with those refugee camps, let's do it. I tell you what: if we do that rather than enacting laws like this the boat people issue will eventually dry up.

CHAIR: But we are only going to have the $3 billion if we stop the boats, and if we deal with this enormous case load that has arisen over the last four or five years, of people who are now living in uncertainty. The bill, with all its faults and flaws—and I recognise many—is trying to give certainty to these 30,000-plus who are here in limbo. Let's get that back into order and then let's spend our $1 billion on, perhaps, increasing the refugee intake.

Ms Chan : I think you can do both, without using children as a scapegoat for bringing in very bad legislation.

CHAIR: I am not here to argue. I am here to ask you questions. I accept all your points, but this is not being done just to be nasty to this group of people; it is meant to regularise a situation which used to exist. I think you concede that Australia has one of the best per capita refugee intakes in the world. Perhaps it is a bit light; there was a move to increase it to 20,000, which I personally support. But we cannot do any of that until we fix the problem. That is the difficulty that the government finds itself in. The government is not out there to be nasty or awful.

Ms Chan : I think that if you look at the legislation in its entirety you would see that its effects are far-reaching.

And, if it does go through, it will change the legal framework that Australians operate under. It will change our perceptions as to what are acceptable values and what our obligations are internationally. Once this type of bill comes in, it will never go out. If you fix it up—if you fix all these backlogs and everything up—it is not going to change. This bill will never change. It will be there—

CHAIR: But it won't be needed.

Ms Chan : No, but the actual way of processing will be, and totally providing the minister with such incredible powers to—

CHAIR: But, for those who apply through the UNHCR and end up at Australia's door and the minister has got to say whether they are, he will not need to use any of these powers.

Ms Chan : That is a different situation.

Mr Tebbey : Maybe not in relation to those people. I do not accept that this is the way to cure the backlog. I do not think that in order to cure a backlog of applicants you need to enact what is probably one of the single most draconian laws the migration system has seen—and, let's face it, we have seen a lot. To remove the refugee convention and to put in its place our interpretation of the refugee convention, to redefine our obligations in terms of nonrefoulement and all of the other things that this act tries to do, I am afraid—and this is where the argument comes in, though I do not want to argue with you—that I do not accept that this is done simply to cure that backlog and then will not be needed anymore.

CHAIR: Then why do you think it is being done?

Mr Tebbey : I think because Australia does not want to feel like it is beholden to a 1951 convention any longer.

CHAIR: No; it does not want to be beholden to the High Court that will pick every comma in the wrong place, to allow someone in—

Senator HANSON-YOUNG: We are not missing commas. We are missing the rule of law.

CHAIR: Thank you, Senator Hanson-Young; that is very useful! But that is the purpose of it: if what we deal with are refugees who we used to deal with through the UNHCR in an ordered way, none of this will be important. But anyhow, I keep saying myself that, as chairman, I should not be arguing, and I do not want to. We are here to hear your views—

Mr Tebbey : I appreciate it.

CHAIR: which I think you have made clear. I guess we all look forward to the day when we can accept as many refugees as possible, but in an ordered way. Senator Reynolds, did you want to ask a question?

Senator REYNOLDS: I do. There are a couple of points.

CHAIR: Questions, not points.

Senator REYNOLDS: Thank you. I was watching your testimony and missed a little of it. Did I hear you right—that you think that, under this legislation, our definition of 'refugee' has changed?

Ms Chan : Yes, it will be changed.

Senator REYNOLDS: Just so that we can have a look, can you point out exactly the section? We have had this claim before and they took it on notice because they could not point us directly to exactly where that occurs.

Ms Chan : Basically, it is the definition in schedule 3.

Mr Tebbey : It is section 5J—

Ms Chan : And schedule 5, which removes—

Senator REYNOLDS: Have you got a page number?

Mr Tebbey : It is page 93 of the bill, which inserts a new meaning of 'well-founded fear of persecution' amongst other things; section 5H: the meaning of 'refugee'; and so on and so forth.

Senator REYNOLDS: Can you explain exactly what your contention is and how that makes a change?

Ms Chan : I actually think that the definition itself, in trying to prove that you are a refugee and in demonstrating that—

Senator REYNOLDS: But haven't we always had a test—that people do have to prove that they are a refugee, and they cannot just claim?

Ms Chan : Absolutely, but, as to whether you can resettle yourself in another area of your country, in many countries that is just impossible because—

Senator REYNOLDS: But my question was: if you are saying that this has changed it, how has it actually changed it? What you were saying was a comment on its appropriateness, but how has it actually changed it?

Mr Tebbey : Perhaps this will not exactly answer your question, but the first change is to remove the actual adoption of the definition in the refugee convention and put in its place a legislated definition settled by the Parliament of Australia. So we take ourselves one step away from our international treaty.

Senator REYNOLDS: But is it inconsistent with our international obligations?

Mr Tebbey : That is your actual question. It is inconsistent in the sense that, if you look at proposed section 5J, it says:

… the person fears being persecuted for reasons of race …

That is what you would expect to see. It goes on:

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted …

(c) the real chance of persecution relates to all areas of a receiving country.

This is imposing an extra test on the definition of 'refugee' that is not—

Senator REYNOLDS: So it is that extra test that you object to.

Mr Tebbey : Correct.

Senator REYNOLDS: So it is not the whole thing. It is not saying it is all the changes; it is that one you object to.

Mr Tebbey : Yes.

Ms Chan : It is also removing—

Senator REYNOLDS: Sorry. Just to be specific, we have honed it down, so it is 5J(1)(c) that you are objecting to. Are you saying that that is unfair or is inconsistent with our international obligations?

Mr Tebbey : Both of the above.

Senator REYNOLDS: What does that relate to? What international obligation is that contrary to?

Mr Tebbey : It is contrary to the definition of 'refugee' in the convention, which requires us to—

Senator REYNOLDS: Sorry. I have actually just had a look at this in the break. Can you tell me exactly what section of the convention it is—

Mr Tebbey : I do not have the section in front of me.

Ms Chan : I do not have that here.

Senator REYNOLDS: Can you take that on notice, because that is actually very important. If you are making the claim that it is inconsistent then I would like to be able to go back and have a look to see exactly where it is.

Ms Chan : Sure.

Mr Tebbey : We can start from article 1(A) of the refugee convention. I suppose the concern of the institute is that what this section attempts to do is to impose another level on the definition within the convention. The definition within the convention provides those words about 'well-founded fear of being persecuted' et cetera, and this says, 'And then, also, those people must be unable to be relocated anywhere inside their country.'

Senator REYNOLDS: I understand that. I am happy for you to take it on notice. I understand you are not happy with it, but I think what you said before was that this actually contravened our international obligations or the convention. I am happy for you to take that on notice and just show me exactly where it does contravene. I am happy for that to go on notice if you have not got it at your fingertips.

CHAIR: It might be better to ask the department.

Senator REYNOLDS: We will come back to the department and ask them, then. That is a good point. I may have missed this; you may have covered this in your opening speech, and I apologise if you have already gone through this. Do you accept that there is a problem with these 30,000 who arrived during that 2012-2013 period and that they should be dealt with? Do you come from the premise that they should be dealt with expeditiously?

Ms Chan : I come from the view that they should be dealt with at the time that they arrive and not held in detention indefinitely until we come up with a bill that is supposed to fast-track them through the system.

CHAIR: You cannot deal with 30,000 all at once.

Senator REYNOLDS: That is a good point, but I understand most of those people—I think 25,000-odd of them—are currently not in detention. The advice that we have received is that, under current processes, it could take up to seven years to actually give them a resolution. I cannot see any humanity or fairness in keeping people waiting for seven years, particularly when a lot of those people can be dealt with quickly to get a positive response, and those who were always going to get a negative response have to wait seven years. Surely it would be better to deal with it before seven years have passed.

Ms Chan : I agree with you, but I do not know where that figure of seven years comes from, because I have dealt with refugee applications, and if they are dealt with properly in the first instance then they often get processed quickly.

Senator REYNOLDS: But there are 30,000. Are you saying that that is not a problem?

CHAIR: Senator Reynolds, we are over time.

Ms Chan : If I could answer on the backlog, 30,000 is not a big backlog for the department of immigration. They deal with backlogs all the time and, if they have the will to deal with this matter, they could process these people very quickly without having to change any legislation.

Senator REYNOLDS: Is that the bottom line for you? Is it that the problem rests with the department's ability to process them and nothing else?

Ms Chan : It depends on what the minister wants and what the government dictates.

Senator REYNOLDS: No-one has put that point of view, but thank you.

CHAIR: Thank you very much for your submission and for being here. It has been useful to the whole committee. We appreciate it very much.