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Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014

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2013 - 2014

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

MIGRATION AND MARITIME POWERS LEGISLATION AMENDMENT (RESOLVING THE ASYLUM LEGACY CASELOAD) BILL 2014

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments and New Clauses to be Moved on Behalf of the Government

 

 

 

 

(Circulated by authority of the Minister for Immigration and Border Protection,

the Hon. Scott Morrison MP)



Amendments to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [GH118]

 

OUTLINE

 

The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (the Bill) amends the Migration Act 1958 (the Migration Act), the Maritime Powers Act 2013 and other relevant legislation to support the Government’s key strategies for combatting people smuggling and managing asylum seekers both onshore and offshore.  The measures in the Bill are a continuation of the Government’s protection reform agenda and make it clear that there will not be permanent protection for those who travel to Australia illegally.  The measures will support a robust protection status determination process and enable a tailored approach to better prioritise and assess claims and support the removal of unsuccessful asylum seekers.

Government amendments are proposed to amend Part 4 of Schedule 2 to the Bill to allow temporary protection visa holders travel in compassionate and compelling circumstances, as determined by the Minister, to places other than a country in respect of which the temporary protection visa or safe haven enterprise visa holder was found to be eligible for protection.

Government amendments are also proposed to amend Part 1 of Schedule 4 to the Bill to support the Government’s key strategies for combatting people smuggling and managing asylum seekers both onshore and offshore by:

·          omitting subparagraph 5(1)(a)(v) and substituting with new paragraph 5(1)(aa) in the definition of an excluded fast track review applicant , to provide a non-exhaustive definition of what is a manifestly unfounded claim for protection;

·          providing at subsection 5(1AA) that legislative instruments made by the Minister for the purposes of defining who is a fast track applicant and an excluded fast track review applicant , are subject to disallowance under section 42 of the Legislative Instruments Act 2003 ;

·          providing at section 473BA and subsection 473FA that the Immigration Assessment Authority (IAA) will provide a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review); and

·          providing at paragraph 473DD(b) to include that a new type of ‘new information’ that a referred applicant can present to the IAA can be credible personal information which was not previously known and had it been known, may have affected the consideration of the fast track review applicant’s claims.

Government amendments are proposed to Part 2 of Schedule 5 to the Bill.  The amendments in Schedule 5 to the Bill will clarify when a person does not have a well-founded fear of persecution because they could avail themselves of protection by a State or non-State actor. Amendments are also proposed to the definition of ‘membership of a particular social group’ which is one of the grounds for protection as a refugee in the Migration Act.

 

financial impact statement

The financial impact of the amendments is low. Any costs will be met from within the existing resources of the Department of Immigration and Border Protection.



 

AmENDMENTS TO THE Migration amendment (RESOLVING THE ASUYLUM LEGACY) B ILL 2014

 

notes on AMENDMENTS

 

Amendment (1) - Schedule 2, item 31, page 42 (line 3):

1.               Amendment (1) amends clause 785.511 of item 31 of Part 4 of Schedule 2 to the Bill, to omit “remain in Australia” and substitute “remain in, travel to and enter Australia”.

2.               The amended clause 785.511 will provide that a Subclass 785 (Temporary Protection) visa is a visa that allows an applicant to remain in, travel to and enter Australia until

·          if the holder of the temporary visa (the first visa) makes a valid application for another Subclass 785 (Temporary Protection) visa within 3 years after the grant of the first visa—the day when the application is finally determined or withdrawn; or

·          in any other case—the earlier of:

o the end of 3 years from the date of grant of the first visa; and

o the end of any shorter period, specified by the Minister, from the date of grant of the first visa.

3.               The purpose of this amendment is to allow the holder of a Subclass 785 (Temporary Protection) visa to travel outside Australia without having their visa cancelled as a consequence of that travel.

4.               Any travel undertaken by a Subclass 785 (Temporary Protection) visa holder will be conditional to the requirements of new condition 8570 inserted by Amendment 3 below.

Amendment (2) - Schedule 2, item 31, page 42 (line 16):

5.               Amendment (2) amends clause 785.611 of item 31 of Part 4 of Schedule 2 to the Bill, to insert reference to “8570” after reference to “8503”. 

6.                The insertion of “8570” provides that new condition 8570, created by Amendment 3 below, will be a mandatory condition for the Subclass 785 (Temporary Protection) visa, which is introduced in this Bill.

7.               The purpose of applying this condition is to ensure that the holder of a Subclass 785 (Temporary Protection) visa will be able to travel outside Australia, without having their visas cancelled as a consequence of that travel, if a compassionate or compelling circumstance, as approved by the Minister, justifies that travel.

Amendment (3) - Schedule 2, page 44 (after line 10), after item 36:

8.               Amendment (3) inserts new item 36A into Part 4 of Schedule 2 to the Bill.

9.               New item 36A will insert new clause 8570 after clause 8559 of Schedule 8 to the Migration Regulation 1994 (Migration Regulations). When new condition 8570 is applicable to a visa it provides that the holder must not:

·          enter a country by reference to which:

o the holder was found to be a person to whom Australia has protection obligations; or

o for a member of the family unit of another holder—the other holder was found to be a person to whom Australia has protection obligations; or

·          enter any other country unless:

o the Minister is satisfied that there are compassionate or compelling circumstances justifying the entry; and

o the Minister has approved the entry in writing.

10.           The purpose of inserting this new condition is to ensure that a Subclass 785 (Temporary Protection) visa holder or Subclass 790 (Safe Haven Enterprise) visa holder is allowed to travel in compassionate and compelling circumstances, as determined by the Minister, to places other than a country in respect of which the temporary protection visa or safe haven enterprise visa holder was found to be eligible for protection.

Amendment (4) - Schedule 4, item 1, page 57 (line 20 to 22):

11.           Amendment (4) amends item 1 of Part 1 of Schedule 4 to the Bill at page 57, lines 20 to 22, to omit subparagraph 5(1)(a)(v) of the definition of excluded fast track review applicant .

12.           Subparagraph 5(1)(a)(v) is replaced with new paragraph 5(1)(aa) outlined in Amendment 5 below.

Amendment (5) - Schedule 4, item 1, page 57 (after line 27):

13.           Amendment (5) amends item 1 of Part 1 of Schedule 4 to the Bill at page 57, line 27, to insert new paragraph 5(1)(aa) after paragraph 5(1)(a) of the definition of excluded fast track review applicant .

14.           New paragraph 5(1)(aa) provides that excluded fast track review applicant means a fast track applicant :

·          who makes a claim for protection relying on a criterion mentioned in subsection 36(2) in, or in connection with, his or her application, if, in the opinion of the Minister, the claim is manifestly unfounded because, without limiting what is a manifestly unfounded claim, the claim:

o has no plausible or credible basis; or

o if the claim is based on conditions, events or circumstances in a particular country — is not able to be substantiated by any objective evidence; or

o is made for the sole purpose of delaying or frustrating the fast track applicant’s removal from Australia; or

 

15.               This amendment provides a non-exhaustive definition of what is a manifestly unfounded claim and reflects an interpretation of this concept that is commensurate with the United Nations High Commissioner for Refugees’ position on responding to manifestly unfounded applications.  It provides a non-exhaustive list of examples to guide interpretation and aims to ensure that only non-genuine or unmeritorious claims made in the context of a Protection visa application, will be deemed to be manifestly unfounded.  Claims that have some plausible or credible basis, or are able to be substantiated in part, but not in full, will not satisfy the definition of manifestly unfounded and the fast track applicant will not be excluded from review before the Immigration Assessment Authority (IAA).

 

Amendment (6) - Schedule 4, item 1, page 58 (line 2), after “13 August 2012”, insert ‘but before 1 January 2014, and who has not been taken to a regional processing country’.

16.           This amendment inserts “but before 1 January 2014, and who has not been take to a regional processing country”.  This amendment will seek to clarify that only unauthorised maritime arrivals who pertain to the Legacy Caseload, will be subject to the Fast Track Assessment process.

Amendment (7) - Schedule 4, item 2, page 59 (after line 19), after subsection 5(1AC), insert:

17.           Amendment (7) amends item 2 of Part 1 of Schedule 4 to the Bill to insert new subsection 5(1AD) after subsection 5(1AC).

18.           New subsection 5(1AD) provides that despite subsection 44(2) of the Legislative Instruments Act 2003, section 42 (disallowance) of that Act applies to an instrument made under subsection 5(1AA).

19.           The purpose of these powers is to provide the Minister with the flexibility and ability to include other cohorts in paragraph (b) of the definition of excluded fast track review applicant and fast track applicant by way of legislative instruments.  

20.           This new provision will clarify that legislative instruments made by the Minister for the purposes of defining who is a fast track applicant and an excluded fast track review applicant , are subject to disallowance under section 42 of the Legislative Instruments Act 2003

Amendment (8) - Schedule 4, item 21, page 62 (line 17), after “13 August 2012”, insert “but before 1 January 2014 and who has not been taken to a regional processing country”

21.           This amendment inserts “but before 1 January 2014 and who has not been taken to a regional processing country” after “13 August 2012” in Schedule 4, item 21, page 62 (line 17) of the Bill.

Amendment (9) - Schedule 4, item 21, page 63 (lines 13 and 14):

22.           This amendment amends item 21 of Part 1 of Schedule 4 to the Bill at page 63, lines 13 to 14, to omit reference to “and quick” and substitute with reference to “, quick, free of bias and consistent with Division 3 (conduct of review)”.

23.           Section 473BA of the Bill provides a simplified outline of Part 7AA and the Fast Track review application in relation to fast track reviewable decisions. 

24.           The purpose of the amendments is to provide a further safeguard and clarity of expectiona which aims to ensure that in the conduct of its reviews, the IAA will exercise its review powers consistent with general administrative law requirements and consistent with its Code of Procedure requirements as outlined in Division 3 of Part 1of Schedule 4 to the Bill.

Amendment (10) - Schedule 4, item 21, page 68 (lines 25 to 29)

25.           Amendment (10) amends item 21 of Part 1 of Schedule 4 to the Bill at page 68, lines 25 to 29, to omit paragraph 473DD(b) and substitute new paragraph 473DD(b).

26.           New paragraph 473DD(b) provides that for the purposes of making a decision in relation to a fast track reviewable decision, the IAA must not consider any new information unless:

·          the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the information:

o was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

o is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

27.          The purpose of paragraph 473DD(b) is to ensure that for the purposes of making a decision in relation to a fast track reviewable decision, the IAA must not consider any new information unless, in addition to paragraph 473DD(a), the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information was not, and could not have been, provided to the Minister before the Minister made the decision under section 65.

28.           The effect of new paragraph 473DD(b) is that it will provide that a new type of ‘new information’ that a referred applicant can present to the IAA can be credible personal information which was not previously known and had it been known, may have affected the consideration of the fast track review applicant’s claims.

29.           This new provision will extend the types of ‘new information’ that a referred applicant may present to the IAA to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s asylum claims by the Minister.

30.          Where a referred applicant provides or seeks to provide the IAA with new information of their own volition including evidence of torture and trauma, they will have to satisfy the component of the test outlined in paragraph 473DD(a) in addition to the component in paragraph 473DD(b).

31.          The purpose of requiring a referred applicant to demonstrate both requirements under paragraphs 473DD(a) and (b) when they give or seek to give new information to the IAA is to reinforce the policy position that fast track applicants must be forthcoming with all of their claims and provide all available information to the Minister before a fast track decision is made under section 65 of the Migration Act.

Amendment (11) - Schedule 4, item 21, page 72 (line 18)

32.           Amendment (11) amends item 21 of Part 1 of Schedule 4 to the Bill at page 72, line 18, to omit reference to “and quick” and substitute with reference to”, quick, free of bias and consistent with Division 3 (conduct of review)”.

33.           Subsection 473FA of the Bill provides how the IAA is to exercise its function and specifically that it is to pursue its objective of providing a mechanism of limited review that is efficient and quick.

34.          The overall purpose of paragraph 473FA(1) is to outline how the IAA is to exercise its functions.  When conducting a review of a fast track reviewable decision, the IAA is to keep in mind its overall functions of providing an efficient and quick limited review.   The note to new subsection 47FA(1) refers the reader to new section 473DB which describes what the limited merits review function of the IAA entails.  The IAA is to conduct limited review of fast track reviewable decisions on the papers as soon as decisions have been referred to it by the Minister without accepting or requesting new information or interviewing the referred applicant. 

35.          While the IAA is not bound by the rules of evidence, it is subject to the exhaustive statement of the natural justice hearing rule in section 473DA and the relevant codified requirements of procedural fairness.

36.           The purpose of the amendments is to provide a further safeguard and clarity of expectation which aims to ensure that in the conduct of its reviews, the IAA will exercise its review powers consistent with general administrative law requirements and consistent with its Code of Procedure requirements as outlined in Division 3 of the Bill.

Amendment (12) - Schedule 5, item 7, page 93 (lines 24 to 31):

37.           Amendment (12) omits subsection 5J(2) in item 7 of Part 2 of Schedule 5 to the Bill and substitutes a new subsection 5J(2). New subsection 5J(2) provides that a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

38.           The purpose of this amendment is to provide a new definition of ‘effective protection measures’ which is consistent with Article 7 of the EU Qualification Directive (recast) of 13 December 2011 (the Directive). The Government considers that the standard for ‘effective protection measures’ provided in Article 7 of the Directive is an appropriate standard to include in the statutory framework relating to refugees.

39.          The amendment also inserts a new note after new subsection 5J(2). The new note provides that for effective protection measures see section 5LA. New section 5LA is inserted by amendment (12) below and provides the new definition of ‘effective protection measures’, which is consistent with Article 7 of the Directive, to be applied in new subsection 5J(2).

Amendment (13) - Schedule 5, item 7, page 95 (lines 15 to 31):

40.          Amendment (13) omits section 5L in item 7 of Part 2 of Schedule 5 to the Bill and substitutes a new section 5L. New section 5L provides that for the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

·          a characteristic is shared by each member of the group; and

·          the person shares, or is perceived as sharing, the characteristic; and

·          any of the following apply:

o the characteristic is an innate or immutable characteristic;

o the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

o the characteristic distinguishes the group from society; and

·          the characteristic is not a fear of persecution

 

41.               Prior to this amendment, section 5L specified that the standard for ‘membership of a particular social group’ requires the satisfaction of both the ‘protected characteristics’ and ‘social perception’ approaches. A ‘protected characteristic’ was expressed in subparagraph 5L(1)(b)(i) as an innate or immutable characteristic and in subparagraph 5L(1)(b)(ii) as a characteristic that is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it. The ‘social perception’ approach was expressed in paragraph 5L(1)(d) as a characteristic that distinguishes the group from society.

 

42.               The Government now intends to modify its approach and specify that the standard for ‘membership of a particular social group’ only requires the satisfaction of either the ‘protected characteristics’ approach or the ‘social perception’ approach. New section 5L requires that in addition to the rest of the section, the person need only satisfy either subparagraphs 5L(c)(i) or (ii) (‘protected characteristics’) or subparagraph 5L(c)(iii) (‘social perception’).

 

43.               New section 5L is consistent with the High Court’s reasoning in Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 per Gleeson CJ, Gummow and Kirby JJ at [36] (Applicant S) which applies the ‘social perception’ approach: “ First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A ... a group that fulfills the first two propositions, but not the third, is merely a ‘social group’ and not a ‘particular social group’.” The ‘social perception’ approach is expressed in new subparagraphs 5L(c)(iii)

 

44.               The new section also includes the ‘protected characteristics’ approach in subparagraphs 5L(c)(i) and (ii) as an alternative criteria to the ‘social perception’ approach.

 

45.               The section has been restructured to give effect to this modification and now provides in new paragraph 5L(d) that the characteristic shared by the members of the particular social group is not a fear of persecution. New paragraph 5L(d) is intended to codify the second element of the Applicant S test referred to above. Prior to this amendment, subsection 5L(2) provided instead that a well-founded fear of persecution is not an innate or immutable characteristic for the purposes of ‘membership of a particular social group’. The Government considers that new paragraph 5L(d) more appropriately implements the second element of the Applicant S test.

 

Amendment (14) - Schedule 5, item 7, page 95 (after line 31):

46.               Amendment (14) inserts new section 5LA after section 5L in item 7 of Part 2 of Schedule 5 to the Bill. New section 5LA provides the definition for ‘effective protection measures’ for the purposes of new subsection 5J(2). The purpose of this amendment is to modify the definition of ‘effective protection measures’ in accordance with Article 7 of the Directive.

 

47.               New subsection 5LA(1) provides that for the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

·          protection against persecution could be provided to the person by:

o the relevant State; or

o the party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

·          the relevant State, party or organisation mentioned in paragraph 5LA(1)(a) is willing and able to offer such protection.

 

48.               New subsection 5LA(1) is intended to be consistent with paragraph 1 of Article 7 of the Directive which provides that “protection against persecution or serious harm can only be provided by:

·          the State; or

·          parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State;

provided they are willing and able to offer protection in accordance with paragraph 2.”

 

49.               New subsection 5LA(2) provides that a relevant State, party or organisation mentioned in paragraph 5LA(1)(a) is taken to be able to offer protection against persecution to a person if:

·          the person can access the protection; and

·          the protection is durable; and

·          in the case of protection provided by the relevant State-the  protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system

 

50.               New subsection 5LA(2) is intended to be consistent with paragraph 2 of Article 7 of the Directive which provides that “p rotection against persecution or serious harm must be effective and of a non-temporary nature. Such protection is generally provided when the actors mentioned under points: (a) and (b) of paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and when the applicant has access to such protection.”

 

51.               The Government considers that the standard for ‘effective protection measures’ provided in Article 7 of the Directive is an appropriate standard to include in the statutory framework relating to refugees.

 



          Statement of Compatibility with Human Rights

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

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014

This Legislative Amendment 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 Legislative Amendments

Schedule 2 — Temporary Protection visas (TPVs) and Safe Haven Enterprise visas (SHEVs)

Amendments to Schedule 2 will allow travel in compassionate and compelling circumstances, as determined by the Department, to places other than the country from which a Temporary Protection Visa (TPV) holder sought protection.

TPV holders are free to leave Australia at any time.  Under these amendments, TPVs will not cease if the person departs Australia, which means the TPV holder will be able to re-enter Australia within the validity period of the visa.  However, TPV holders will be subject to a condition that means their visa can be cancelled if:

·          The visa holder enters the country from which they sought protection, or

 

·          The visa holder enters another country unless:

 

o    it is for compassionate and compelling reasons and

o    the Minister’s approval has been obtained for that entry.

Schedule 4 — Fast Track Assessment Process and the Immigration Assessment Authority (IAA)

The proposed amendments to Schedule 4 clarify the purpose of the IAA to “pursue the objective of providing a mechanism which is efficient, quick, free from bias and consistent with Division 3 (conduct of review)”. 

Amendments are proposed to 473DD, paragraph (b) of Schedule 4 in respect of the IAA considering new information in exceptional circumstances.  For the purpose of making a decision in relation to a fast track reviewable decision, the IAA must not consider any new information unless:

a)       the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

b)       the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

ii)                   was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

iii)                 is credible personal information which was not previously known and had it been known, may have affected the consideration of the fast track review applicant’s claims’.  

This amendment will extend the types of ‘new information’ that a referred applicant could present to the IAA to include evidence that they were suffering from significant torture and trauma and which if it had been known, may have affected the consideration of their claims by the Department of Immigration and Border Protection. 

Amendments to the definition of excluded fast track review applicant will clarify the meaning of ‘manifestly unfounded’ by including the following non-exhaustive examples of manifestly unfounded claims:

·          a claim that has no plausible or credible basis;

·          a claim that is based on conditions, events or circumstances in a particular country - is not able to be substantiated by objective evidence; or 

·          a claim that was made for the sole purpose of delaying or frustrating the fast track applicant’s removal from Australia.

A further amendment will make two proposed legislative instruments, which are currently non-disallowable, subject to disallowance.  Subsection 5(1AA) creates a power for the Minister to make a legislative instrument for the purposes of the following provisions:

·          paragraph (b) of the definition of excluded fast track review applicant in subsection (1);

·          paragraph (b) of the definition of fast track applicant in subsection (1).

As these instruments are currently made under section 5 of the Migration Act, they are not disallowable.  The proposed new subsection 5(1AD) will enable the instruments to be scrutinised by Parliament.

The amendments will also limit the application of the Fast Track provisions to UMAs who entered after 13 August 2012 but before 1 January 2014 and who have not been taken to a regional processing country.

Schedule 5 — Clarifying Australia’s international law obligations

The proposed amendments to subsection 5J(2) of Schedule 5, which specifies when a person does not have a well-founded fear of persecution because they could avail themselves of protection by a State or non-State actor, will adopt a consistent approach with Article 7 of the EU Qualification Directive (recast) of 13 December 2011 (‘the Directive’).  Article 7 of the Directive, which relates to actors of protection, provides that:

1.       Protection against persecution or serious harm can only be provided by:

a)       the State; or

b)       parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State;

provided they are willing and able to offer protection in accordance with paragraph 2.

2.       Protection against persecution or serious harm must be effective and of a non-temporary nature. Such protection is generally provided when the actors mentioned under points:

(a) and (b) of paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and when the applicant has access to such protection.

The amendment ensures that a person will only be found to have effective protection in the receiving country where the State or non-State actor is willing and able to provide protection, the person can access the protection and the protection is of a durable nature. Further, where protection is provided by the relevant State, the protection must consist of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

A further amendment is proposed to section 5L - Membership of a particular social group other than family. Section 5L in the Bill currently specifies the standard for a group to be considered to form a ‘particular social group’ requires satisfaction of both the ‘protected characteristics’ and ‘social perception’ approaches. The further amendment will instead adopt a standard that requires the satisfaction of either approach.   

The amendment provides for an alternative, rather than cumulative approach to the definition of membership of a particular social group. This is consistent with the United Nations High Commissioner for Refugees’ position and also the position of likeminded countries such as the UK. The amendment will ensure that applicants will satisfy the definition if they meet either the ‘social perception’ or the ‘protected characteristics’ approach. The amendment therefore provides for a less stringent test.

Human rights implications

These amendments have been assessed against the seven core treaties that comprise Australia’s human rights obligations.

Cancellation for breach of the new travel condition inserted by amendments to Schedule 2 is discretionary and will consider relevant international obligations such as family unity, the best interests of the child and non-refoulement obligations.

The insertion of the new condition is done in combination with an amendment to when TPVs are in effect.  TPVs will now not cease automatically if the person departs Australia. These amendments enhance TPV holders’ freedom of movement as they will not be discouraged from leaving Australia by the prospect of not being able to re-enter Australia if they travel to a third country when they have a compassionate and compelling reason and the Minister’s approval for doing so.

These amendments engage the human rights already discussed in the Statement of Compatibility (SoC) to the Bill in a positive way and the proposed amendments are therefore consistent with Australia’s international obligations.

As outlined in detail in the SoC to the Bill, the Government considers that the fast track process is consistent with human rights. The proposed changes to Schedule 4 seek to enhance the fast track process and introduce further safeguards to ensure that the process remains procedurally fair and is limited to appropriate cohorts. To the extent that the amendments may engage human rights already addressed in the SoC to the Bill, it is the Government’s view that any engagement has already been dealt with in the statement of compatibility to the Bill and that any limitations identified are not impacted any further by the proposed amendments.

The proposed amendments to Schedule 5 also engage human rights discussed in the original SoC to the Bill in a positive way consistent with Australia’s international obligations. 

 

Conclusion

This legislative amendment does not limit any of the rights or freedoms expressed in Australia’s international obligations, and is compatible with human rights for the reasons outlined above.

 

 

 

The Hon. Scott Morrison, MP,

Minister for Immigration and Border Protection