Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard   

Previous Fragment    Next Fragment
Thursday, 17 December 1992
Page: 5452


Senator HARRADINE (12.11 a.m.) —I move:

  After clause 2, page 1, insert the following clause:

"2A. After section 47 of the Principal Act, the following section is inserted:

Circumstances in which permanent entry permits may be granted to persons whose application for refugee status has been rejected

  47A.(1) The Minister may grant a permanent entry permit to a person whose application for refugee status has been rejected if—

    (a)a person applies to the Minister for a permanent entry permit within 14 days of being notified of the rejection of their application for refugee status;

    (b)there are strong humanitarian grounds for the grant of a permanent entry permit to the person.

  (2) The Minister must determine an application made in accordance with subsection (1) within 28 days of receiving the application.".

I point out to the Committee that this amendment proposes to insert after section 47 of the principal Act a provision whereby the Minister may grant a permanent entry permit to a person whose application for refugee status has been rejected. It then goes through the circumstances that apply. I will not take up the time of the Committee by reading it all out.

  The reason I am putting this forward is that I believe that there are circumstances in which the exercise by the Minister of a power to grant a permanent entry permit on strong humanitarian grounds is warranted. That is recognised in any event by the provisions of section 115 of the legislation. I quote from a copy of a letter which the Minister for Immigration, Local Government and Ethnic Affairs (Mr Hand) provided to me after our last discussion here on 8 or 9 December:

The current mechanism for allowing some persons rejected for refugee status to stay in Australia on humanitarian grounds makes use of the Minister's powers under section 115. In essence, the Minister grants applicants a domestic protection (temporary) entry permit in spite of the fact that they have been found not to meet an essential criterion for the permit, namely that they have been determined to be a refugee. The key point is that to access the Minister's powers, an entry permit review application must have been rejected. A refugee status review rejection does not trigger the Minister's section 115 powers. This reflects the fact that at the time section 115 was drafted, refugee status decisions were not formally incorporated in the Act.

Rather than read the whole letter, I seek leave to have it incorporated in Hansard.

  Leave granted.

  The letter read as follows

  MINISTER FOR IMMIGRATION, LOCAL

  GOVERNMENT AND ETHNIC AFFAIRS

  PARLIAMENT HOUSE

  CANBERRA, A.C.T. 2600

Senator Brian Harradine

Senator for Tasmania

Parliament House

CANBERRA ACT 2600

Dear Senator

I refer to the issue you raised in the course of debate on the Migration Reform Bill 1992 on 10 December 1992 on the subject of access of the Cambodian boat people to humanitarian consideration. I am writing to confirm the position outlined by Senator Tate in response to your questions on the issue, namely that under the present Act and Regulations persons who make unauthorised entry to Australia do not have such access.

The procedures currently in place for allowing refugee applicants access to humanitarian consideration are complex. They rely on a power of the Minister to grant individuals an entry permit, in this case a domestic protection (temporary) entry permit, in spite of the fact that criteria for that permit may not have been met, in certain exceptional circumstances.

The Migration Act provides that applicants are entitled to be granted an entry permit if they meet the criteria set out in regulations. Conversely, the Minister is specifically enjoined from granting an entry permit where the criteria are not met. There are only two circumstances where the Minister may grant an entry permit to an applicant who does not meet the regulatory criteria. This is when an application for a permit has been rejected either at internal review under section 115 of the Act or by the Immigration Review Tribunal under section 137 of the Act. In that case, the Minister may grant the permit if he or she considers it would be in the public interest to do so.

The current mechanism for allowing some persons rejected for refugee status to stay in Australia on humanitarian grounds makes use of the Minister's powers under section 115. In essence, the Minister grants applicants a domestic protection (temporary) entry permit in spite of the fact that they have been found not to meet an essential criterion for the permit, namely that they have been determined to be a refugee. The key point is that to access the Minister's powers, an entry permit review application must have been rejected. A refugee status review rejection does not trigger the Minister's section 115 powers. This reflects the fact that at the time section 115 was drafted, refugee status decisions were not formally incorporated in the Act.

The Cambodian boat people are designated persons held in custody under Division 4B of the Migration Act. Previously their status was that of prohibited entrants held under section 88 of the Act. No review rights attach to any entry permit or visa application made by a prohibited entrant or a designated person. As a result, the Minister's powers under section 115 or section 137 cannot be engaged in respect of any such application.

As applicants who have not entered Australia, in the strict legal sense in which the term entry is used in the Act, there are a limited number of visas and entry permits for which the Cambodians can be considered. It would seem that the only permit for which they might qualify is the domestic protection (temporary) entry permit. If the Cambodians are not found to be refugees it is likely that they will not meet the regulatory criteria for any entry permit or visa. If this proves to be the case, neither the Minister nor any officer of the Department will have the power to grant them an entry permit or visa under the law as it presently stands.

In your remarks to the Senate on this issue, you drew attention to the Report of the Joint Standing Committee on Migration Regulations on Australia's Refugee and Humanitarian System, particularly paragraphs 5.4 and following. In those paragraphs, the Committee outlines its understanding of the operation of the present mechanism for granting humanitarian consideration. Although I cannot, of course, speak for the Committee, I think it would be fair to assume that the paragraphs in question were not intended to be a full and complete description of that mechanism. As it happens, the Committee has quite correctly set out the procedures which apply for the normal case. The Committee apparently did not feel it necessary for the purposes of its report to note that these procedures do not apply in all cases. As noted above, in the case of a designated person or a prohibited entrant, the Minister has no power to accede to a recommendation to grant an entry permit on humanitarian grounds.

I hope that this letter helps to clarify the issues you have raised in relation to this complex and important issue.

Yours sincerely

Gerry Hand


Senator HARRADINE —In short—and I will be very short—it seems to me that there could well be circumstances where the Minister may consider, pursuant to his letter, that he has no power; that his hands are tied. There may be circumstances where he would say, `Yes, clearly there are strong humanitarian grounds and we should consider those grounds; we should not close the option up'. Under the present circumstances, pursuant to the letter that he has written to me, he does not have such power. I read the penultimate sentence of that letter:

As noted above, in the case of a designated person or a prohibited entrant, the Minister has no power to accede to a recommendation to grant an entry permit on humanitarian grounds.

I believe that to be unduly restrictive, and I think any reasonable person would understand that. I am not necessarily talking about the people under current review, although I know that there have been appeals, including by the Australian Bishops Conference, for those people to be allowed entry on humanitarian grounds. But, in general terms, I believe that this measure deserves to be supported. It sets certain time limits. It is not a Kathleen Mavourneen. It is not putting the thing on the long finger and stretching things out because, in respect of a person whose application for refugee status has been rejected, I have included the provisions that:

(a)A person applies to the Minister for a permanent entry permit within 14 days. . .—

so he or she has to apply within 14 days—and:

(b)There are strong humanitarian grounds for the grant of a permanent entry permit to the person.

If those conditions are met, this enables—it is not a mandatory thing—the Minister to consider that and to grant a permanent entry permit, if the Minister so chooses. Also, the Minister must determine the application within 28 days of receiving it. I think it is perfectly reasonable and I appeal to the Committee to accede to this amendment.