Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Migration Amendment (Streamlining Visa Processing) Bill 2019

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

 

2019

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

MIGRATION AMENDMENT (STREAMLINING VISA PROCESSING) BILL 2019

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon. David Coleman MP)

 

Migration Amendment (Streamlining Visa Processing) Bill 2019

 

 

OUTLINE

 

The Migration Amendment (Streamlining Visa Processing) Bill 2019 (the Bill) amends the Migration Act 1958 (the Act) to enable the Minister to specify groups of visa applicants who are required to provide one or more personal identifiers to make a valid application.

 

A biometric (termed ‘personal identifier’ in the Act), is a unique identifier that is based on individual physical characteristics, such as a facial image or a set of fingerprints, which can be digitised into a biometric template for automated storage and checking. Once ‘anchored‘ to a person’s biographic information, such as name, nationality and date of birth, a biometric adds significantly to verifying that a person is who they claim to be, and to linking an individual to security, law enforcement, and immigration information.

 

The Department’s biometric program has been progressively introduced over time. It commenced in 2006 with collecting facial images and fingerprints of illegal foreign fishers, and was extended in 2010, when the Department commenced collecting facial images and fingerprints from offshore visa applicants in specified higher risk locations and onshore protection claimants.

 

It was further progressed in 2012, when the Department commenced collecting facial images and fingerprints from non-citizens refused entry at Australia’s international airports.

 

In 2015, the Migration Amendment (Strengthening Biometrics) Act 2015 simplified the provisions relating to the collection of personal identifiers and expanded the Department’s personal identifier collection capabilities. The 2015 Act introduced section 257A as a broad discretionary power to collect one or more personal identifiers, intending that it be used in targeted circumstances.  

 

The current legislative framework now needs to be further updated to provide Departmental officers with the tools to more effectively meet current threats and to keep pace with advances in biometric technology. Checks of personal identifiers against existing immigration data holdings, and the data holdings of Australian law enforcement agencies and Five Country Conference partner countries, have revealed undisclosed adverse immigration and criminal history information of non-citizens, and discrepancies in the biographic information provided by non-citizens.

 

These amendments will allow the Government to take advantage of these information holdings and overcome practical difficulties in requesting and obtaining personal identifiers from non-citizens, by requiring personal identifiers to be provided up front in the visa application process. Personal identifiers are more accurate than document-based checks of biographic details, such as name, date of birth and nationality. Obtaining personal identifiers up front in the application process promotes early detection and assessment of critical information.

 

Specifically, the amendments to the Act:

  • enable the Minister to specify groups of applicants who are required to provide one or more personal identifiers to have a valid visa application;
  • render a visa application invalid if the applicant is required to provide one or more personal identifiers  but does not provide them; and
  • enable personal identifiers to be provided either by way of an identification test, or by another way specified by the Minister.

 

 

FINANCIAL IMPACT STATEMENT

 

These amendments will have a low financial impact.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill and assesses that the amendments are compatible with Australia’s human rights obligations. A copy of the Statement of Compatibility with Human Rights is at Attachment A .

 

 

 

 



 

Migration Amendment (Streamlining Visa Processing) Bill 2019

 

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1          Short Title

 

1.       The short title by which the Act may be cited is the Migration Amendment (Streamlining Visa Processing) Bill 2019 .

Clause 2          Commencement

 

2.       Clause 2 of the Bill sets out the times at which the various provisions of the Act commence.

3.       Subclause 2(1) provides that each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table.  Any other statement in column 2 has effect according to its terms.

4.       Table item 1 provides that sections 1 to 3 of the Act and anything in the Act not elsewhere covered by the table will commence on the day on which this Act receives the Royal Assent.

5.       Table item 2 provides that Schedule 1 will commence on a single day to be fixed by Proclamation.  However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

6.       The note in subclause 2(1) makes it clear that the table relates only to the provisions of the Act as originally enacted.  The table will not be amended to deal with any later amendments to this Act.

7.       Subclause 2(2) provides that any information in column 3 of the table is not part of this Act.  Information may be inserted in this column, or information in it may be edited, in any published version of the Act.  There is currently no information in column 3 of the table.

Clause 3                      Schedules

8.       Clause 3 of the Bill provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

9.       The purpose of this clause is to clarify that Schedule 1 to the Bill sets out the amendments to the Act, and that the particular provisions mentioned in that Schedule are amended in accordance with the particular items in that Schedule.



 

Schedule 1 - Amendments

 

 

Migration Act 1958

 

 

Item 1             Subsection 46(2A)

 

10.               This item repeals current subsection 46(2A) and replaces it with new subsections 46(2A), (2B), (2C) and (2D).

 

11.               The purpose of new subsection 46(2A) is to establish that, if an application for a visa is made by a person who is included in a specified class of visa applicants, the applicant must provide the one or more specified personal identifiers in a specified way, for their application to be valid. All of the above specifications are to be included in the legislative instrument made under new subsection 46(2B).

 

12.               If an applicant cannot, or refuses to, comply with this requirement, their application will be invalid and cannot be considered further, in accordance with subsection 47(3) of the Act.

 

13.               The note at the end of the provision makes it clear that sections 258B to 258G of the Act, which relate to the provision of personal identifiers, apply to the requirement introduced by this item.

 

14.               New subsection 46(2B) provides the Minister with the ability to make a legislative instrument, to determine that visa applicants in a specified class must provide one or more specified types of personal identifiers in one or more specified ways.

 

15.               This instrument-making power will be used to determine to whom the requirement to provide the one or more personal identifiers applies, what must be provided, and in what way. When linked with new subsection (2A), this requirement to provide personal identifiers becomes a visa application validity requirement.

 

16.               The intention is that the way in which groups of applicants will be specified is highly flexible, whether it be by specified circumstances of the applicants, such as country of residence, or the class of visa being applied for, or a combination of different factors such as these.

 

17.               The different types of ‘personal identifiers’ that can be required are consistent with the current use of the term ‘personal identifier’ throughout the Act. There is not an intention to amend, in any way, the definition or understanding of ‘personal identifier’.

 

18.               By virtue of its location in Part 2 of the Act, and in accordance with Item 20 of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, any instrument made under new subsection 46(2B) will be non-disallowable. Current section 46A of the Act, and surrounding provisions, are located in Subdivision AA of Division 3 of Part 2 of the Act, which deals with ‘applications for visas’. As this new provision relating to a requirement to provide personal identifiers relates to how a person is to make a visa application, and more broadly to the ‘arrival, presence and departure of persons’, it is appropriately located in Part 2 of the Act.

 

19.               New subsection 46(2C) outlines what a legislative instrument under new subsection 46(2B) may specify in relation to the class of applicants, the different types of personal identifiers and the way in which the personal identifiers are to be provided.

 

20.               The broad nature of new paragraph 46(2C)(a) reflects the policy intention that personal identifiers can be required from a group of applicants, however defined, in any specified circumstances. Although the words of paragraph 46(2C)(a) deal with ‘classes’, it is not intended to limit subsection 33(3A) of the Acts Interpretation Act 1901 (the note at the end of new subsection 46(2C) refers) .  

 

21.               The flexibility about what classes of applicants, however described or categorised, can be required to provide a personal identifier will enable the Department to collect personal identifiers from specific cohorts in response to emergent risks based on specified circumstances, recent events, and detected or realised threats. This model will more fully enable the Department to contribute to the national security effort in securing Australia’s border and protecting the Australian community.

 

22.               New paragraph 46(2C)(b) allows the legislative instrument to require different types of personal identifiers from different classes of visa applicants. This flexibility will allow the instrument to, for example, specify a class of applicants, in a certain set of circumstances (applying from a particular country), who are required to provide one or more personal identifiers (a photograph and fingerprints), and another class of applicants, who may be applicants for the same visa as above, who have a different set of circumstances (applying from a different country to above) who are required to provide a different type of one or more personal identifiers (just fingerprints).

 

23.               New paragraph 46(2C)(b) provides that any type or types of personal identifier listed in subsection 5A(1) of the Act, or prescribed in the Migration Regulations under paragraph 5A(1)(g), can be required from a person. The Department’s policy intention is, that there should not be any limitations on the type of personal identifier, as defined in subsection 5A(1), which can be specified for a class of persons by the instrument.

 

24.               This ability to require different types of personal identifiers from different classes of applicants, within a legislative instrument, will greatly assist in identifying particular cohorts and personal identifiers for integrity, efficiency and national security reasons.

 

25.               New paragraph s46(2C)(c) provides that a legislative instrument made under new subsection 46(2B) may specify how the one or more personal identifiers are to be provided.

 

26.                These ways of providing a personal identifier are consistent with the terms of current subsection 257A(5) of the Act. Furthermore, current sections 258B to 258G of the Act are being amended as part of this Bill to ensure they apply to how personal identifiers are provided under new subsection 46(2A). As such, when an authorised officer or an authorised system carries out an identification test, the relevant provisions around how those tests are carried out will continue to apply.

 

27.                New subparagraph 46(2C)(c)(ii) replicates the ability (contained in current paragraph 257A(5)(b) of the Act) to require that a personal identifier be provided by another way that is specified in the legislative instrument. This will provide the Minister the ability to require a person to provide personal identifiers in a way that is not an identification test carried out by an authorised officer or authorised system. The instrument will specify the ‘other way’ the personal identifiers are to be provided.

 

28.               There are circumstances where it is not practical or efficient for personal identifiers to be provided by way of an identification test carried out by an authorised officer or an authorised system. This reflects various provisions currently in the Act that allow for personal identifiers to be provided in a way other than by an identification test.

 

29.               New subsection 46(2D) provides that, in circumstances where a visa applicant is in immigration detention, other than questioning detention, and has provided one or more personal identifiers under Division 13AA of Part 2 of the Act while in detention, they are taken to have complied with the requirement under new subsection (2A).

 

30.               The intention of this provision is to set out when immigration detainees are not required to provide personal identifiers, consistent with existing section 258A of the Act.

 

Item 2               Subsection 258B(1)

 

31.               This item amends current subsection s258B(1) so that, before an authorised officer carries out an identification test on a person for the purpose of section 257A, or new subsection 46(2B), the authorised officer must inform the person of any matters prescribed in the Migration Regulations 1994 .

 

32.               This is a consequential amendment to ensure that the provisions which apply to information to be provided before an identification test is carried out for the purpose of section 257A of the Act also apply to identification testing for the purpose of new subsection 46(2B).

 

Item 3             Subsection 258D(1)

 

33.               This is a consequential amendment to ensure that any regulations which prescribe the manner in which identification tests are to be carried out on a person under current section 257A of the Act also apply to testing under new subsection 46(2B).

 

Item 4               Subsection 258D(2)

 

34.               This is a consequential amendment to ensure that any regulations which prescribe the procedure and requirements that apply if a personal identifier is provided under current section 257A of the Act, other than by way of an identification test, also apply to new subsection 46(2B).

 

Item 5             Section 258E

 

35.               This is a consequential amendment to ensure that the provisions relating to the general rules for carrying out identification tests under section 257A of the Act also apply to testing carried out for the purposes of new subsection 46(2B).

 

Item 6             Section 258F

 

36.               This is a consequential amendment to ensure that the provisions in current section 258F of the Act relating to the requirement to provide, or the provision in a particular way of, a personal identifier also apply to new subsection 46(2B). Section 258F makes it clear that such provisions are not of themselves taken to be either cruel, inhumane or degrading, or a failure to treat a person with humanity and with respect for human dignity. 

 

Item 7             Section 258F

 

37.               This is a consequential amendment to ensure that the provisions in current section 258F of the Act stipulating that nothing in the Act authorising a requirement to be made for the purposes of current section 257A also apply to new subsection 46(2B). Section 258F makes it clear that nothing in the Act authorises a requirement to be made to provide a personal identifier in a cruel, inhumane or degrading way, or in a way that fails to treat a person with humanity and with respect for human dignity. 

 

Item 8               Application of amendments

 

38.                          This item provides that the amendments made by this Schedule apply in relation to an application for a visa made on or after the commencement of the Schedule; that is, the amendments are prospective and have no impact on valid visa applications made prior to the commencement of these provisions.

 



Attachment A

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Amendment (Streamlining Visa Processing) Bill 2019

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

Through amendments to the Migration Act 1958 (the Act) this Bill enables the collection of personal identifiers (as defined in subsection 5A(1) of the Act) to be a prerequisite to making a valid visa application.  If an applicant refuses to provide their personal identifiers then they cannot make a valid visa application and it cannot be considered , in accordance with subsection 47(3) of the Act

 

These amendments provide a mechanism for the Minister to specify who must provide personal identifiers (the class of persons), what personal identifiers they must provide and by what identification test or other specified way the personal identifiers must be provided. 

 

As discussed below, these amendments fully retain existing protections associated with the collection of personal identifiers in the Act, in particular those relating to privacy and the manner in which personal identifiers are collected.  Nor do these changes expand who may be required to provide personal identifiers or what personal identifiers may be requested.  This is because under existing section 257A of the Act, the Minister (or his delegate) has the power to request personal identifiers from all visa applicants after they have made a valid visa application. 

 

These amendments provide a mechanism for the Minister to specify a group of visa applicants who must provide one or more specified personal identifiers in order to make a valid visa application. 

 

The amendments to the Act are not designed to require all visa applicants to provide personal identifiers in order to make a valid visa application.  Of the group that do need to provide personal identifiers this may not necessarily be at the application validity stage.  It may continue to operate after visa application lodgement under section 257A of the Act.  Only the class of applicants specified by instrument will be required to provide specified personal identifiers at the application validity stage.

 

At this point in time, it is envisaged that the provision of personal identifiers in order to make a valid application will be required in relation to some applicants from 2021.  This will enable the Department of Home Affairs to provide a more efficient and convenient visa application and assessment process.  By requiring personal identifiers in order to lodge a valid application, the Department of Home Affairs removes the need for additional contact and process after application lodgement. 

 

It is essential that the Department know the true identity of a visa applicant by anchoring the applicant’s biometrics to a single confirmed identity.  The collection of personal identifiers better protects the Australian community from imposters and people using fraudulent documents to conduct criminal or terrorist activities.  Hence, the collection of personal identifiers from people seeking to make a valid visa application strengthens Australia’s border security and improves national security.  It also helps to protect visa applicants from identity fraud. 

 

International law does not provide a person with the right to enter a country of which they are not a national.  The collection of personal identifiers, as a pre-requisite to making a visa application, is essential to establishing the identity of non-citizens, as checks using personal identifiers are far more accurate than document based checks of biographic details such as name and date of birth alone. 

 

Human rights implications

 

Prospective applicants to which the amendments in the Bill will apply are able to apply for a visa either overseas or within Australia.  Generally, Australia owes human rights obligations only to those persons within its territory and/or jurisdiction.  As such, the following analysis of the human rights implications of the amendments relate only to applicants applying for the relevant visas whilst in Australia.

 

The following human rights are engaged:

 

The right to freedom from unlawful or arbitrary interferences with privacy

 

Article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides that:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation .

2. Everyone has the right to the protection of the law against such interference or attacks .

 

The UN Human Rights Committee has recognised the measures regulating migration are in accordance with the aims and objectives of the ICCPR, stating that ‘The Covenant does not recognise the right of aliens to enter or reside in the territory of a State party.  It is in principle a matter for the State to decide who it will admit to its territory […]  Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment’ (CCPR General Comment 15, 11 April 1986). The Committee goes on to say, however, that ‘in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise.’ 

 

Pursuant to Article 17(1) of the ICCPR, an interference with an individual‘s privacy must have a lawful basis.  The collection of personal identifiers is already lawful at domestic law under the Act.  As discussed above, the Bill simply makes the provision of personal identifiers mandatory for specified applicants in order to make a valid visa application, without the need for the Minister to request this of each applicant.

 

Existing safeguards applied to the Department’s collection of personal identifiers will continue to apply, namely the Australian Privacy Principles contained in the Commonwealth Privacy Act 1988 and the requirements in Part 4A of the Act which provides for a range of rules and offences relating to the access, disclosure and use of identifying information.  This is consistent with the UN Human Rights Committee General Comment 16.  The Committee states that the gathering and holding of personal information using information technology must be regulated by law and that effective measures must be taken to ensure that the information collected is not accessed by persons who are not authorised by law to receive, process or use it.  Additionally, the safeguards in section 258E of the Act which requires that an identification test (the test used to obtain a personal identifier - section 5 of the Act) be carried out in a manner which affords reasonable privacy to a person, will continue to apply for the provision of personal identifiers for the purposes of subsection 46(2B).  

 

In addition to requiring a lawful basis for limiting the right to privacy, Article 17 prohibits arbitrary interference with privacy.  Interference which is lawful may nonetheless be arbitrary where that interference is not in accordance with the objectives of the ICCPR and is not reasonable in the circumstances.  The UN Human Rights Committee has interpreted the requirement of reasonableness in terms that any interference with privacy must be proportional to the end sought and be necessary in the circumstances.

 

The restriction on the privacy of persons whose information is collected is aimed at the legitimate goal of ensuring the integrity of Australia‘s visa system and the protection of the Australian community, including by detecting those visa applicants who are persons of concern.  This measure enables the department to identify visa applicants as soon as practicable, who are attempting to represent themselves as a particular person, but who are someone else.

 

In light of the UN Human Rights Committee‘s views outlined above, the requirement to provide personal identifiers in order to make a valid visa application, is clearly aimed at a legitimate purpose within the framework of the ICCPR.

 

Whether the measure is reasonable or proportional to the purpose to be achieved requires an assessment of the need to mitigate particular risks.  Recent border and terrorism-related events worldwide illustrate the need for measures to strengthen community protection.  In the immigration context this means greater scrutiny of visa applicants and critically, being certain that the identity presented by a visa applicant is their true identity. 

 

The collection of personal identifiers enables the Department to establish, with greater certainty, the identity of a visa applicant.  Once this is done, the Department can then utilise the personal identifiers to initiate law enforcement checks to ascertain if the visa applicant has a criminal history, the extent of that history (if applicable), and whether the visa applicant poses a criminal risk to the Australian community.  Similarly, security checks enable identification of those applicants who pose a risk to national security such as from terrorist activities.

 

The risk these amendments seek to address in the current heightened security environment, is from people seeking to apply for and be granted a visa to Australia to engage in terrorism or undertake criminal conduct.  The ability to undertake more accurate checks based on the collected personal identifiers earlier in the assessment of a visa application will allow the Department to more efficiently manage and mitigate the risks.  The collection of personal identifiers and associated checks utilising these, provides necessary integrity in the management of Australia’s visa program.  It also provides a basis for the Australian community to have confidence in the integrity of our immigration system.

 

The right to privacy is not absolute and the ability to collect and use personal identifiers such as a photograph of a person’s face, is necessary, reasonable and proportionate to achieve the legitimate objective of accurately identifying a visa applicant thereby maintaining the integrity of Australia‘s visa system and protecting the Australian community.  This measure is therefore compatible with Article 17 of the ICCPR.

 

The right to equality and non-discrimination

 

Article 2 of the ICCPR provides that a party to the Covenant undertakes:

 

‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’

 

To the extent that these amendments single out non-citizens rather than citizens this is permissible in that immigration controls remain within the remit of sovereign states. The UN Human Rights Committee stated in General Comment 18 that:

 

‘The Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.’

 

Section 4 of the Act provides, ‘The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’  In that sense the purpose of the Act is to differentiate on the basis of nationality between non-citizens and citizens. As noted above, the UN Human Rights Committee has recognised in the ICCPR context that ‘It is in principle a matter for the State to decide who it will admit to its territory’  (CCPR General Comment 15, 11 April 1986).

 

To advance its object, subsection 4(3) of the Act provides for non-citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.  The authority to collect personal identifiers in order to lodge a valid visa application means that the Minister is able to establish or verify a person‘s identity as quickly as possible after lodgement of a visa application.

 

The determination of which class of visa applicants must provide personal identifiers in order to make a valid application does target certain non-citizens.  This determination is based on factors including: Australia’s national security and fraud risks in visa caseloads (informed by objective information such as the Department’s collection and analysis of statistics and intelligence information) and practical considerations such as the availability of personal identifier collection facilities.  At this point in time, the Department does not have personal identifier collection facilities in every country of the world, hence the need to target certain groups based on the objective assessment of national security and fraud risks.  The collection of personal identifiers is necessary to achieve the legitimate goal of protecting the Australian community through a well-managed visa program. 

 

The right to physical integrity and freedom from cruel, inhuman or degrading treatment

 

Article 7 of the ICCPR provides that:

‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’

 

Article 9 of the ICCPR provides that:

‘everyone has the right to liberty and security of person.’

 

Under a new power in subsection 46(2B), if an applicant is required to provide one or more specified personal identifiers, those personal identifiers must be provided in one or more specified ways.  Further paragraph 46(2C)(c) provides that the way in which a personal identifier must be provided through either or both of an identification test (carried out by an authorised officer or an authorised system), or in another specified way.  The procedures for carrying out an identification test are established in sections 258B to 258G, and these sections will apply to people required to provide personal identifiers under new subsection 46(2B).  In particular, sections 258E and 258F are designed to be compatible with Articles 7 and 9 of the ICCPR.  Section 258E provides the rules for carrying out an identification test, including circumstances that afford reasonable privacy to a person.  Further, section 258F provides that the carrying out of an identification test must not be done in a cruel, inhuman or degrading manner, or in a manner that fails to treat a person with humanity and respect for human dignity.

Under subsection 46(2B) there is no power to compel the provision of personal identifiers.  If a person decides not to provide a personal identifier/s it will not result in the use of any force.  Rather it is the individual’s choice. 

 

Where the Department of Home Affairs or its contracted agencies, known as service delivery partners (SDPs) collects fingerprints, it primarily uses scanning technology, which involves placing fingers and/or thumbs on a scanning/capture device.  That is, an image is captured of a person‘s fingerprints as they place their fingers on the flat surface of a scanning device.  This technology is non-invasive, and requires no physical contact with a departmental officer or authorised person.  There is no physical contact involved other than the placing of fingers/thumbs on a flat scanner surface.  The collection process takes minutes only. 

 

The Department of Home Affairs has engaged SDPs to collect biometrics on its behalf since 2010.  The long standing arrangements with SDPs are contract-based, and SDPs must meet high integrity standards for the management of the personal information of clients set by the Department of Home Affairs under contract.

 

Rights of the Child

 

Collecting personal identifiers, such as a photograph and fingerprints in some cases where the secondary applicant is a child, in order to make a valid application, will act as a disincentive for people seeking to traffic children into Australia.  Fingerprints provide a unique capability to accurately identify individuals that is not possible using a facial image, particularly if the person is a minor.  Unlike a facial image, which is subject to considerable change as a person ages into adulthood, fingerprints are relatively stable throughout a person‘s lifetime.  As the utility of collecting personal identifiers rests on a foundation of accurate identification, fingerprints are a superior identity assurance measure than a facial image.

 

Effectively establishing identity immediately following lodgement of a visa application provides an important mechanism to establish a single biometrics based identity of a visa applicant, including children.  It also enables earlier identification of children who may be at risk of trafficking and smuggling.  Requiring personal identifiers in order to provide a valid application by certain children may also act as a disincentive to people seeking a visa to move a child into Australia without the consent, or the knowledge of one or more parents, such as to avoid court rulings in a foreign country relating to child custody matters.  In this circumstance it is firmly in the child’s best interest that personal identifiers be provided.

 

Article 3(1) of the CRC requires that the best interests of the child are treated as a primary consideration in all actions concerning children.  While the best interests of the child are a primary consideration, they are not the primary consideration, and may be outweighed by other countervailing considerations including the protection of the Australian community from children who are persons of concern, (such as if they have been radicalised overseas) immediately following visa application lodgement. 

 

Article 16 of the CRC is drafted in similar terms to Article 17 of the ICCPR and prohibits the arbitrary or unlawful interference with the privacy of the child.  The considerations are similar to those outlined in the general privacy discussion above.

 

The policy intention is that the instrument specifying who has to provide personal identifiers in order to make a valid visa for a General Skilled Migration visa application would require children aged 0 to 4 years to provide a photograph (where they are a dependent on their parents’ main application for a General Skilled Migration visa), and children aged at least 5 years to provide a photograph, and fingerprints (also where they are a dependent on their parents’ application) if they were resident in a specified country where personal identifier collection was available.  The instrument enables the

Department to respond to emerging risks.  Collecting fingerprints from minors aged over five years would assist to identify minors known to international partners.  This policy is entirely consistent with existing powers to collect personal identifiers under existing section 257A after a visa application has been made.

 

The intent is that the collection of personal identifiers from children be undertaken, when their parents or legal guardian provide their personal identifiers for collection.  In relation to an application for a General Skilled Migration visa it is not possible for a child to be the primary applicant and need to provide personal identifiers to make an application without their parent or legal guardian. 

 

The Government‘s view is that these legislative measures combined with the stated policy intent are proportionate to the objectives of protecting the security of the Australian community, preventing terrorism, preventing the trafficking of children and maintaining the integrity of the visa system.  The Government‘s view is that these measures are necessary because personal identifiers (biometric information) allows a higher level of certainty in establishing the identity of children than is possible with documents alone.

 

Rights of Incapable Persons - Convention on the Rights of Persons with Disabilities

 

Australia is a party to the Convention on the Rights of Persons with Disabilities (the Disabilities Convention).  The Disabilities Convention provides for the same rights as those outlined above, including Article 22, which provides for an individual‘s privacy in similar terms to the ICCPR; Article 14, which provides for liberty and security of persons; and Article 15, which provides relevantly for freedom from cruel, inhuman or degrading treatment.

 

It is important to note at the outset that the Department understands that all persons with a disability are not incapable; any person with a disability unrelated to their capability to understand and consent to the collection of personal identifiers will be subjected to the main personal identifier collection provisions (subject to any appropriate adjustments which may be necessitated by their disability).

 

The amendments will provide for the collection of personal identifiers from a class of persons specified in a legislative instrument, including incapable persons.  In practise, these persons will have had an application made on their behalf by their legal guardian.  Their legal guardian will also need to make arrangements to have the incapable person’s personal identifiers collected.  It is not possible for an incapable person to lodge a visa application themselves and need to provide personal identifiers to make an application without their legal guardian.  

 

The policy considerations relating to incapable persons are similar to the concerns relating to children, as outlined above and in accordance with current practises adhered to under section 257A of the Act where personal identifiers are requested of a person with a disability during the processing of a visa application. 

 

Article 18 of the Disabilities Convention provides for the recognition of the rights of persons with disabilities to liberty of movement.  The Australian Government recognises these rights, but on the explicit understanding that the Disabilities Convention does not create a right for a person to enter or remain in a country of which he or she is not a national, where these requirements are based on legitimate, objective and reasonable criteria.  The personal identifier provisions will not be discriminatorily applied to incapable persons (or other persons with a disability); they will be applied on the same basis as to persons without a disability.

 

Insofar as the amendments in the Bill limit the above-mentioned human rights of incapable persons, including minors, the considerations are not substantially different from those outlined above.  The objectives of ensuring the security of the Australian community, ensuring the protection of incapable persons from trafficking, and ensuring the integrity of Australia’s visa system are all legitimate within the framework of human rights law.  The new provisions are reasonable and proportionate to the objective they seek to achieve, and any adjustments or special considerations to accommodate and ensure the dignity of persons with a disability will be implemented in policy.  As such, the amendments, when considered, are compatible with the rights of disabled persons as outlined in the Disabilities Convention and the other human rights instruments.

 

Conclusion

 

These amendments enable personal identifiers to be a requirement to make a valid visa application for specified visa applicants, without the need to request them of each visa applicant.  They do not expand who has to provide personal identifiers because under existing section 257A of the Act, the Minister (or his delegate) has the power to request personal identifiers from all visa applicants. 

 

Establishing identity immediately following visa application through the provision of personal identifiers at the time of application, supports the safety of the Australian community, the safety of vulnerable people, and the integrity of the visa system.  These measures are aimed squarely at furthering these legitimate goals.  The Government‘s view is that the measures in the Bill are reasonable, necessary and proportionate to achieve these legitimate objectives.  As such, the Government‘s view is that these amendments are compatible with human rights.

 

The Hon. David Coleman MP, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs