Migration Further Protection Legislation

I also rise to speak on the Migration Amendment (Protection and Other Measures) Bill 2014. This legislation is quite technical and procedural, but it is important because it provides the legislative foundations to support this government's response to the very difficult challenge of asylum seekers.

And it is a difficult challenge. There are no easy choices in this debate. I spoke on the bill that was passed just before we rose for Christmas last year as well. It is a difficult issue. We do want to provide protection to those that need it for political reasons. But of course we cannot take everybody and as soon as you have a gate that is open some people will choose to come to this country for reasons other than political protection and we need to have protections in place to ensure that the limited number of refugee visas that we can allocate each year actually go to people seeking political asylum.

I note that Senator Hanson-Young is contributing to this debate—even when she is not on her feet. She also said this morning that this bill puts at risk Australia's ability to meet its international obligations. This is not the case and I will cover that later. I also note that during this debate there have been some claims about torture based on a UN report released last week, which I think has been discredited. The UN's special rapporteur on torture Juan Mendez issued a report last week that claimed Australia is violating the rights of asylum seekers under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The report failed to bother collecting evidence to support the claims of torture.

We heard those on the other side of the chamber compare Australia's system to Nazi Germany, which I think is disgraceful and completely out of order. Many fine words were also spoken about the need for humane treatment of asylum seekers. I support this sentiment 100 per cent, but sentiment is not enough. History has shown that we should take what the other side of the chamber says on these matters with a grain of salt.

On Thursday last week, it was reported in the The Australian that refugee boat activists were quieter under the ALP but are very loud now that there is a different government in charge. That article said:

CELEBRATED human rights lawyer Julian Burnside believes some refugee advocates went easier on Labor than they should have despite crowded, selfharming and difficult conditions for more than 1000 children in the lead-up to the 2013 federal election.

Mr Burnside said:

"I suspect that a number of advocates were a bit quiet when Labor was in because at least Labor were making the right noises … They ended up doing the wrong thing."

I think what we have heard this morning is a classic case of this phenomenon: some in this debate like making the right noises without much regard for the actual impact and outcomes of their decisions.

The families of those who lost their lives at sea do not want us focusing on sentiment; they want us focusing on the issue. The many thousands of children and families who were locked up under previous policies want us to focus on the issue, not sentiment. Many people were defrauded and came here in the false belief that they could achieve freedom and perhaps Australian citizenship, but they were sold lies. They were sold lies by disreputable people who sought to profit from the trade in people. I am proud that this government, through the policies it has implemented, has been able to put a stop to that trade. I am prepared to support a government that is getting behind concrete actions that help keep in place the policies that have stopped drownings at sea and have slashed the number of children in detention by 90 per cent from the peak under the previous Labor government, and that number is continuing to fall.

This bill will continue to help implement those policies. As I said at the start, it is a technical bill that seeks to close some of the loopholes that exist in our regime. The bill seeks to amend the Migration Act 1958 to strengthen the efficiency and integrity of the process by which Australia determines the protection status of onshore refugees.

On the final sitting day last year, we here in the Senate passed the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. I have only been here for about eight months, but I know it was a very important piece of legislation. I know that it took a fair amount of negotiation and caused a fair amount of heartache, particularly for members of the crossbench. The bill was passed with the support of the Palmer United Party and Senators Day, Leyonhjelm, Muir and Xenophon. That side of the chamber decided to do something instead of just seeming to do something. It was a difficult decision for them—I have no doubt about that—but it was the right one and it has contributed to policies which have helped to stop the trade in people across our borders. The bill the government passed last year with their help re-established temporary protection visas, and it had the effect of getting children out of detention on Christmas Island because it fast-tracked a system to do so.

The bill before us is needed to make the legislation we passed last year work as it should. It makes a number of amendments to enhance the efficiency and integrity of our onshore protection visa and refugee status program. It clarifies the responsibility of asylum seekers to provide identity documentation to substantiate claims in relation to protection visas. If asylum seekers do not cooperate with the government to establish their identity, they will not be given the benefit of a protection visa. This is in line with amendments to legislation in the United States, the United Kingdom and New Zealand. It will remove a loophole in the process that currently allows non-genuine asylum seekers to exploit the independent merit review process. Potential asylum seekers can, at times, game the process to present claims of new evidence or claims to bolster their original claims after they learn they were unsuccessful. This causes significant processing delays for other, genuine applicants.

The bill will also create the grounds to refuse a protection visa application when an applicant refuses or fails to establish their identity, nationality or citizenship. Establishing an applicant's identity is vital to making a decision to grant or refuse a visa. An individual's identity, nationality or citizenship can have a direct bearing on whether they engage Australia's protection obligations. These provisions are important for that reason.

It is in the interests of all Australians and all genuine asylum seekers to discourage the use of bogus identity documents and to discourage the destruction or discarding of documentary evidence of identity, nationality or citizenship by or on behalf of people seeking protection in Australia. Establishing identity is vital to the integrity of any immigration system, for obvious reasons. It allows accurate assessment of a person's protection claims, particularly in a time of increased dual and multiple citizenship. The measures also help safeguard the Australian community from people who have committed serious crimes. Just to be clear, this bill is not about forcing people to come up with documents that do not exist; what it does is make it clear that protection visa applications must be made in good faith. So, unless the applicant has a reasonable explanation for presenting bogus documents, their protection visa application will be rejected.

It is important to note, however, that the refusal power will not be engaged if the decision maker is satisfied that the applicant has a reasonable explanation for refusing or failing to comply or for producing documents which prove untrue, if they either produce the documentary evidence requested or have taken all reasonable steps to do so. I think it is reasonable that we ask people who are seeking to come to our country—to live under the protections, privileges and responsibilities that we all have as Australian citizens—to take reasonable steps to establish their claim. We of course understand that, in the difficult circumstances in which some people come to this country, they may not have all the documentation you would expect of most migrants. But it seems to me that it is a reasonable thing for our parliament to ask people to take reasonable steps to establish their identity to prove the claims that they are making. Therefore, the definition of 'reasonable explanation' is very important to the detail of this bill, and I want to spend a bit of time explaining what a 'reasonable explanation' is under this legislation.

A reasonable explanation for the purposes of this legislation can include having had no reasonable opportunity to present the claim—for example, an interpreting or translating error was made in the primary stage of an application. It can include a change in the country situation affecting human rights after the primary decision was made, or new information relevant to the application that was not available earlier—for example, documentary evidence of their identity. It can include a change in personal circumstances allowing the presentation of new claims—for example, a new relationship, a new spouse, or a new child with a person who has protection claims in their own right. It can include being a survivor of torture and trauma where the ill treatment has affected the applicant's ability to recall or articulate protection claims. It can include the applicant being considered most vulnerable—for example, a minor, a mentally or physically disadvantaged person or someone who has a restricted ability to participate in the protection process. Those criteria seemed to me to be eminently reasonable, and they feed into a process which will require reasonable explanations for claims under our asylum seeker process.

In addition to these new protections, the bill also removes a number of statutory bars to implementing the government's fast-track process established in the legislation passed last year. Until we pass this legislation, the majority of the maritime arrival backlog—which is around 22,000 people at the moment, living in the community on bridging visas—will not fit the definition of a fast-track applicant and cannot be processed as such. As I said in my earlier remarks, the legislation passed last year has played a significant role in fast-tracking the backlog of maritime arrivals who are claiming asylum. These are people living in circumstances which I think we all recognise are not ideal. We prefer to process their applications as soon as possible, but we simply cannot with so many people and also with so many avenues for appeals and disputes to emerge which hold up the process for everyone, including those who probably have genuine and applicable asylum claims.

The bill contains a number of other safeguards and protections to ensure procedural fairness to protection visa applicants. Of course, decision makers must act themselves in good faith—just as the applicants must—fully assess protection visa applications and afford procedural fairness to asylum seekers. Decision makers are also provided with guidance to be aware of the special needs of vulnerable applicants and to ensure that appropriate support and consideration is provided. For instance, the department's Procedures Advice Manual, Gender Guidelines and Refugee Law Guidelines assist in assessing claims from vulnerable applicants, including women and applicants with an intellectual disability. Vulnerable applicants include unaccompanied minors, survivors of torture or trauma and applicants who are physically or mentally incapable of taking full responsibility for their claims. Under the requirements of the Migration Act, decision makers are required to act in good faith to fully assess protection visa applications and afford procedural fairness to asylum seekers. Vulnerable applicants will also receive help to present their claims. They have the right to seek privately arranged application assistance—as does, of course, any person who is claiming protection in Australia.

This bill also seeks, as Senator Seselja said earlier, to restore the 'more likely than not' threshold for complementary protection. There is no change in this bill to the threshold applied to the refugees convention. I note that the Labor Party at this stage have indicated that they will support other parts of the bill but not those in schedule 2. Those concern the 'more likely than not' threshold for complementary protection. As Senator Seselja pointed out, this is a little strange, although we are getting used to it. The Labor Party had a position in government; they have a different position in opposition. They seem to have had a change in principle about and attitude to the budget and migration legislation, and they cannot, in my view, always explain why.

In 2012, the Labor government introduced complementary protection provisions. They were inserted into the Migration Act in March 2012. The 'more likely than not' threshold was stated in their policy originally but was not followed through in legislation. So it was their policy in early 2012. It is now not their policy. I am not sure what their policy on border protection will be at the next election, but, if it is anything like their policy before the 2007 election and before the 2010 election, it will lead to weakening of our border protection laws, potentially opening the gate again to more arrivals, more difficulties for our processing of applications and more hold-ups for people who are actually genuine refugees around the world who are seeking to come to this country for protection.

There is also evidence that this was the Labor Party's policy, because the Department of Immigration and Border Protection confirmed that, between 24 March 2012 and the Federal Court decision on 20 March 2013, the Labor government applied the 'more likely than not' test to complementary provision applications. So, even though it was not in the legislation, it was a test that was applied in practice by the then Labor government. Labor even argued in the Federal Court that the proper threshold was 'more likely than not', but this was unsuccessful.

This legislation does not raise the threshold. It does not change the threshold that was applied. It simply seeks to clarify in legislation, to codify, a test that was being applied in a policy sense but that the court ruled was not applicable. It is the court's right to do that, but of course this is a matter where we as a parliament can resolve that, no, we would like to look at these things in a different way, and we would like to apply a 'more likely than not' test. That would not provide for the kinds of court decisions we saw in 2013.

I said earlier that there have been claims made that this 'more likely than not' threshold is not consistent with our international obligations, but it is an absolutely acceptable position under those obligations, and it is consistent with the thresholds that are adopted by other countries similar to ours in terms of human rights and our record, such as the United States and Canada. Specifically, the 'more likely than not'—sometimes called the 'more probable than not'—threshold is reflected in the views of the UN Human Rights Committee in its General Comment No. 31 and the United Nations Committee against Torture in its comment No. 1 as to when a non-refoulement obligation will arise:

… the risk … must be assessed on grounds that go beyond mere theory or suspicion. However, the risk does not have to meet the test of being highly probable.

So it seems to me that there is quite a bit of evidence there that it is consistent with our international obligations and that, by passing this specific piece of legislation, we will simply be re-establishing the test that was applied in some years of the Labor government. It does not seem to me an overly controversial change, and I have not seen any reason why we should change from that process.

But this is not unusual, because the Labor Party and the Greens have, unfortunately, blocked or not supported almost any of the changes that we have tried to make to fix the crisis they created. It was during their time in government that we had almost, or maybe even a little bit above, 50,000 arrivals to this country of people seeking asylum. Because of that, we ended up with 30,000 of them with their applications unprocessed when the coalition came to government. We had almost 2,000 children in detention at the peak during the Rudd Labor government, and when the 2013 election was called we had 1,743 children in detention. In 2007, there were zero children in detention when the Labor government came to power, and we would like to get back there, because I do not want to see kids in detention if we do not have to. I want to make sure we have a system which processes people's refugee claims as quickly and as humanely as possible, but we cannot do that unless we have a system which deters people from trying to abuse the system. If we have a system that people can easily abuse and take advantage of, there will be no avoiding processing backlogs and therefore, under the detention policies that both major parties support, a lot of people, including children, having to remain in detention.

It is a very good outcome that today we have fewer than 120 children in detention, and hopefully that can be reduced to zero over the next year or so. This bill that we are passing today, or that we hope to pass today, would help achieve that, because it will free up our application process, it will make sure that people have to act in good faith when they make a claim, and it will reduce the delays that currently beset the processing of applicants for asylum in this country.

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