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Migration Legislation Amendment Bill (No. 4) 1995



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House: House of Representatives

Portfolio: Immigration and Ethnic Affairs

Commencement: Royal Assent

Purpose

To amend the Migration Act 1958:

(a) in response to the the Federal Court's decision in NG 327 of 1994 (unreported); and

(b) to prevent repeat applications for protection visas from non-citizens.

Background

Migration Legislation Amendment Bill (No. 4) 1995 replaces Migration Legislation Amendment Bill (No. 3) 1995. The Government has stated that Bill (No. 4) 'is substantially the same' as Bill (No. 3). 1 Bill (No. 3) was considered by the Senate Legal and Constitutional Legislation Committee and a majority of the Committee recommended that Bill (No. 3) be adopted. 2 However, following submissions by the President of the Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, advice from the acting Solicitor-General, and consideration of the 'totality of evidence received by the Committee', the Government has drafted amendments to proposed sections 36(3) and 36(4). 'These amendments will clarify the operation of the Bill.' 3

Bill (No.4) also makes it clear that certain decisions relating to visa applications (refer to section 91F of the Principal Act and proposed section 48B) are not to be subject to review by the Federal Court.

NG 327 of 1994

In Fact Sheet No.5, revised 25 January 1995, the Department of Immigration and Ethnic Affairs states that in the period 1989-1995, 1,751 'boat people' have arrived in Australia seeking recognition as refugees. 4 Of these, the number from the People's Republic of China was 1240. 5 On 11 March 1995, the Canberra Times reported that a further 52 Chinese 'boat people' had arrived in Darwin. 6 The total number of applications for refugee status in 1990-91 was 16,937, in 1992-93 there were 2,957 applications, and in 1993-94 there were 5,259. 7

The 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees, defines a 'refugee' as, amongst other things, a person who possesses 'a well-founded fear of being persecuted for reasons of ... membership of a particular social group.' In order to satisfy this definition, a person must show:

.a well-founded fear of persection; and

.that this persecution flows from membership of a particular social group. 8

On 6 December 1994, the Federal Court in NG 327 of 1994 (unreported), upheld a decision of the Refugee Review Tribunal (RRT) granting refugee status to a married couple, nationals of the People's Republic of China (PRC). The RRT found that the couple was 'at risk of forcible sterilisation by reason of population control policies and practices followed in some parts of China.' 9 Sackville J upheld the RRT decision that 'those who having only one child do not accept the limitations placed on them or who are coerced or forced into being sterilised' constitute a social group. 10

On 30 December 1994, the Minister for Immigration and Ethnic Affairs, Senator Nick Bolkus, announced that the Government would amend legislation 'to ensure that claims for refugee status cannot be made on the basis of China's one child policy.' 11 In the Second Reading Speech, Senator Ray said that the decision in NG 327:

distorts the meaning of the Convention ground of particular social group to such a degree that the integrity and effectiveness of Australia's refugee determination system would be threatened if it were allowed to stand. 12

The Government, therefore, moved to amend Migration Act 1958. To this end, the Government introduced Migration Legislation Amendment Bill (No. 3) 1995 on 31 January 1995.

Bill (No. 3) has, however, met with considerable criticism. The Regional Representative, United Nations High Commission for Refugees, Dr Fontaine, is reported as saying that Bill (No. 3) was 'unusual, unfortunate and without precedent.' 13 Writing in The Australian, Catherine Armitage criticised Bill (No. 3), arguing that it 'makes no sense, for the sake of an unnecesary law, to appear to condone human rights abuses, or to appear to be stepping back from Australia's longstanding commitment to international refugee conventions.' 14 It was reported in the Canberra Times that the Australian Catholic Bishops have called upon the Opposition to oppose Bill (No. 3). 15

In a dissenting report, the Coalition members of the Senate Legal and Constitutional Legislation Committee, said that the 'Government is attempting to hurriedly pass potentially flawed legislation which deals with complex and weighty issues of public importance.' 16 Independent Senator Brian Harradine also opposed the proposed amendments stating that they would 'tarnish Australia's international reputation as a leading defender of human rights.' 17 Australian Democrat Senator Sid Spindler said that the ' Bill which appears to have been thrown together in an absolute panic is a repugnant and inappropriate remedy, even if the fear of large numbers of asylum seekers were justified.' 18

Senator Bolkus, however, said that the aim of Bill (No. 3) was to undo the Federal Court's extension of the law in NG 327 by providing a 'commonsense approach to the definition of particular social group under the convention.' 19 Senator Bolkus continued:

Migration Legislation Amendment Bill No. 3 1995 will ensure that people affected by their government's fertility control policies, but with nothing else in common, would not be regarded as coming within the definition of a 'particular social group'. 20

Senator Bolkus also said that forced abortion or sterilisation is not acceptable and is a clear violation of fundamental human rights. He said:

I have made this point clear in the legislation. 21

On 6 March 1995, Senator Bolkus announced that Migration Amendment Bill No. 4 (1995) would be introduced into the House of Representatives. 22 Although Bill No. 4 would be in 'substantially the same terms' as Bill (No. 3), Senator Bolkus said it would incorporate amendments drafted by the Government to clarify the definition of a 'particular social group'. 23

Retrospectivity

The proposed amendment is to apply retrospectively to applications that have not been finally determined at the date of Royal Assent (Item 8). This means that if, on the day of Royal Assent, a person has an application before the Refugee Review Tribunal or the Federal Court, that application will be subject to the amendment. For example, if NG 327 is not finally determined at that date, it will be subject to the amendment.

Repeat Applications

In the Second Reading Speech to Bill (No. 3), Senator Ray said:

Under current legislation, when a person has exhausted the process, it is not difficult for them to lodge another application for a protection visa and start the whole process again. The fact that repeat applications serve to delay the removal from Australia of the applicant has led to their increased use. The processing of these repeat applications, which like the initial application are free of charge to the applicant, is both expensive and time consuming. 24

The Outline to the Explanatory Memorandum (paragraph 12) also states that the aim of this amendment is to 'stop the use of repeat applications for protection visas by non-citizens to delay their removal and to circumvent the immigration requirements of Australia.' The Memorandum (paragraph 12) further states that:

This amendment will contribute to increasing the efficiency of Australia's refugee determination system and to minimising ill-founded protection visa applications.

The Minister may exercise a non-compellable discretion to allow further applications where he or she considers it to be in the public interest to do so (proposed section 48B). With the addition of an amendment making it clear that the Minister's decision made under section 48B is not judicially-reviewable (Item 7), the proposed amendments are the same as those proposed in Bill (No. 3). 25

The majority report of the Senate Legal and Constitutional Legislation Committee stated in respect of the repeat application amendments in Bill No. 3 that there appears to be 'an intention to oust judicial review although this is not clear on the face of the legislation.' 26 The Committee also stated that although it considers that the 'procedures in proposed section 48B will function as an effective safeguard ... it believes that the procedures for effecting the discretion should be effective and that it would be helpful if the procedures are clarified.' 27

In his dissenting report, Senator Spindler said:

Using a ministerial rather than a judicial discretion to determine whether or not to allow a repeat application adds a political dimension to the refugee determination process, and provides no guarantees that a person's case will get a fair and adequate hearing.

Main Provisions

Item 2 of the Schedule adds new subsections 36(3), (4) and (5) to the Migration Act 1958. Subsection 36(3) abrogates NG 327 in that it provides that 'a class of persons is not to be treated as a particular social group if the description of the class contains a reference to the whole or any part of the fertility control policies of the government of a foreign country.' Further, proposed paragraph 36(3)(b) states that the 'fertility control policies of the government of a foreign country are to be disregarded in determining if a class of persons is a particular social group.'

Proposed paragraph 36(3)(c) provides that if a person is found to be a member of a particular social group following the application of the proposed test, 'the fertility control policies of the government of a foreign country may be taken into account in determining if the applicant has a well founded fear of persecution.'

Proposed subsection 36(4) states that the fertility control policies of the PRC are an example of the policies referred to in subsection 36(3).

Proposed subsection 36(5) provides that paragraph 36(3)(a) 'does not prevent a class of persons from being treated as a particular social group where the class could be described in the same terms even if the fertility control policies of the government of a foreign country did not exist'. It also provides that paragraph 36(3)(b) 'does not prevent a class of persons from being determined to be a particular social group where the class of persons would be a particular social group even if the fertility control policies of the government of a foreign country did not exist'.

Item 4 inserts new sections 48A and 48B. Section 48A provides that, subject to section 48B, where the grant of a protection visa has been refused, a non-citizen may not make a further application for a protection visa while in the migration zone. Section 48B provides that the Minister may personally determine that section 48A does not apply if he or she thinks that it is in the public interest to do so.

Item 7 inserts sections 48B and 91F into paragraph 475(2)(e). 28

This makes it clear that decisions made under section 48B are not judicially-reviewable by the Federal Court. In order to seek redress, therefore, a complainant would, presumably, need to apply to the High Court under the prerogative writs of mandamus, prohibition or injunction. Under section 75 of the Constitution, the High Court has original jurisdiction in these matters.

Section 91F relates to applications by certain non-citizens for visas. It was inserted into the Principal Act by Migration Legislation Amendment (No. 4) 1994. Section 91F provides that the Minister may determine that section 91E does not apply to a non-citizen if he or she thinks it is in the public interest to do so. Section 91E provides that certain non-citizens are unable to make valid applications for certain visas. Subdivision AI of the Principal Act (in which sections 91E and 91F are contained) was enacted because Parliament considered that certain non-citizens who are covered by the Comprehensive Plan of Action, or in relation to whom there is a safe third country, should not be allowed to apply for protection visas.

Item 7 also makes it clear that decisions made by the Minister under 91F are also not judicially-reviewable by the Federal Court. However, complainants may still seek redress in the High Court through the prerogative writs procedures enshrined in the Constitution.

Item 8 makes it clear Item 2 applies retrospectively to those applications not yet finally determined.

Endnotes

1 Hon J.A. Crosio, Parliamentary Debates (Hansard), House of Representatives, 8 March 1995, p 1801.

2 ibid.

3 ibid.

4 Department of Immigration and Ethnic Affairs, Fact Sheet No. 5, 25 January 1995. In Fact Sheet No. 4, 21 February 1995, the Department states that 406 'boat people' have been approved to stay in Australia, 499 have left Australia, and the rest are awaiting decisions.

5 ibid.

6 Canberra Times, 11 March 1995.

7 ibid.

8 For a further discussion of the definition of a 'refugee' at international law, see: Current Issues Brief No.34 of 1994/95: The Definition of 'Refugee' and China's One Child Policy.

9 NG 327 of 1994, (unreported), 6 December 1994, p 1. For a discussion of the case, see: Bills Digest No. 29 of 1995 (available on PDBS) and Current Issues Brief No.34 of 1994/95: The Definition of 'Refugee' and China's One Child Policy.

10 The Minister for Immigration and Ethnic Affairs has appealed the Sackville J decision and the matter is awaiting a hearing by the Full Federal Court.

11 Senator the Hon. Nick Bolkus, Press Release, B93/94, 30 December 1994.

12 Senator the Hon. Robert Ray, Parliamentary Debates (Hansard), Senate, 31 January 1995, p 36.

13 The Weekend Australian, 25-26 February 1995.

14 The Australian, 22 February 1995.

15 Canberra Times, 4 March 1995.

16 Migration Legislation Amendment Bill (No. 3) 1995, Report by the Senate Legal and Constitutional Legislation Committee, March 1995.

17 ibid.

18 ibid.

19 The Australian, 2 March 1995.

20 ibid.

21 ibid.

22 Senator the Hon. Bolkus, Press Release, B14/95, 6 March 1995.

23 ibid.

24 Senator the Hon. Robert Ray, Second Reading Speech, 31 January 1995, p 37.

25 For a discussion see: Bills Digest No.29 of 1995.

26 Majority Report, Senate Legal and Constitutional Legislation Committee, p 22.

27 ibid, p 24.

28 Section 475(2) provides that certain decisions are not judicially reviewable by the Federal Court.

Dr Max Spry (Ph. 06 2772477)

Bills Digest Service 13 March 1995

Parliamentary Research Service

This Digest does not have any legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

Commonwealth of Australia 1995.

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Published by the Department of the Parliamentary Library, 1995.