18 September 2017
PDF version [1206KB]
Elibritt
Karlsen, Law and Bills Digest Section
Janet Phillips, Social Policy Section
Contents
Introduction
Chronology of significant events
2013
2014
2015
2016
Key policy developments
Operation Sovereign Borders
Boat turnbacks
Offshore processing and settlement
Temporary protection
Fast-track processing of asylum
claims
Key legal developments
Legislation
Government initiated
legislation—Bills
Regulations and other legislative
instruments
Non-government (privately sponsored)
legislation
Case law
2013
2014
2015
2016
Key reports and inquiries
Introduction
The Liberal Party of Australia, in
coalition with The Nationals (together, the Coalition), won the 2013 federal
election, defeating the Australian Labor Party (ALP) which had been in power for
six years since December 2007. Tony Abbott was duly sworn in as Australia’s 28th
Prime Minister on 18 September 2013.
The key asylum and refugee policies that the Coalition took
to the 2013 election included:
- restoring Temporary Protection Visas (TPVs) and ensuring no
permanent protection visas are issued to any of the unauthorised maritime
arrivals in Australia who are awaiting a decision on their application
- establishing Operation Sovereign Borders, bringing together
fifteen departments and agencies under a single a military-led operational
command
- instructing Border Protection Command to turn back boats where it
is safe to do so
- withdrawing taxpayer funded immigration assistance to prepare
asylum claims under the Immigration Advice and Application Assistance Scheme
(IAAAS) for those who arrive without a visa
- denying refugee status for those who are reasonably believed to
have deliberately discarded or destroyed their identity documentation
- establishing a new fast track assessment and removal process to
have protection claims assessed and immigration status resolved as quickly as
possible and
- expanding the offshore processing capacity in Papua New Guinea
(PNG) and Nauru.[1]
One of the first things the newly elected Coalition
Government did upon taking office in 2013 was to establish Operation
Sovereign Borders (OSB), a military-led, border security operation, bringing
together the operational elements of fifteen departments and agencies under a
single command led by Lieutenant-General Angus Campbell. However, despite
repeated attempts, the Government was unable to reintroduce TPVs, as the
Opposition and the Australian Greens united in the Senate to block its
attempts. In order to fulfil the Government’s election commitment that no irregular
maritime arrivals (IMAs) would be granted permanent protection in Australia,
the Immigration Minister instead turned to making administrative determinations
to limit the number of protection visas that could be granted in the financial
year. However, such a mechanism was soon after found to be invalid by the High
Court of Australia.
2014 was a significant year of controversial refugee
law and policy reform for the Government. The year began with a series of
incidents of rioting, unrest and injury in PNG leading to the death of one
asylum seeker and multiple injuries to others. Later in the year, another
asylum seeker died at the offshore processing centre in PNG from an infection.
There were also numerous reports of sexual assaults and incidents of self-harm
at the processing centres. By the middle of the year, the Government was
embroiled in legal action as it unsuccessfully tried to return a boat carrying
157 Sri Lankan asylum seekers back to India. Nonetheless, the Government was
able to implement three significant administrative measures generally designed
to deter future boat arrivals. The first was to give the lowest processing
priority to refugees who arrived by boat wanting to be reunited with family
members under the family stream; the second was to remove unauthorised
arrivals’ access to the Immigration Advice and Application Assistance Scheme;
and the third was to implement a prohibition on resettling refugees to
Australia from Indonesia (if registered with UNHCR after 1 July 2014).
By September, the Cambodian Government had agreed to
resettle refugees from Nauru on a voluntary and permanent basis and, by year’s
end, the Australian Government had successfully secured passage of the Migration
and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy
Caseload) Bill 2014, which saw the reintroduction of TPVs, the introduction of
a fast track assessment process, codification of Australia’s interpretation of
its protection obligations under the 1951 Convention Relating to the Status
of Refugees (the 1951 Refugee Convention) and the introduction of a
legislative basis for the Minister to cap the number of protection visas which
could be granted. Perhaps most significantly, passage of the Bill also amended
the Maritime Powers Act 2013 to clarify the Government’s powers to
detain and move vessels and people, thereby paving the way for the High Court
to subsequently confirm the legality of the Government’s handling of the 157
Sri Lankan asylum seekers.
In contrast to 2014, 2015 proved to be a quieter year
although there were still several significant developments. It began with the
tabling of the Australian Human Rights Commission’s report into children in
immigration detention. By the middle of the year the Australian Government had
announced the arrival of the first four refugees to be settled in Cambodia from
Nauru and, in September, in response to growing public pressure, the Australian
Government announced that it would resettle an additional 12,000 refugees who
had fled the conflict in Syria and Iraq. A change in the Coalition Government
leadership led to Malcolm Turnbull being sworn in as Australia’s 29th Prime
Minister on 14 September 2015, but he was quick to rule out any change to the
Government’s tough policies. While the Government closed the year with an
announcement that it had successfully turned back 23 boats carrying 685 asylum
seekers since December 2013, the UN refugee agency issued a statement saying
that intercepting and turning back boats carrying asylum seekers was contrary
to the spirit of the 1951 Refugee Convention.
While 2016 saw the Government announce that there
were no longer any children in onshore immigration detention centres (excluding
community detention), the year was largely dominated by circumstances in Nauru
and PNG. A grass roots campaign ‘Let Them Stay’ aimed at preventing hundreds of
asylum seekers (including babies) from being returned to Nauru after medical
treatment in Australia, gained significant community support (including from
State Premiers and the Chief Minister of the ACT). In April the PNG Supreme
Court unanimously found the detention of refugees and asylum seekers on Manus
Island to be unconstitutional, and shortly thereafter, two asylum seekers on
Nauru self-immolated, resulting in critical injuries and one death. This
prompted the UN refugee agency to issue another statement saying arrangements
in both PNG and Nauru were ‘completely untenable’ (as detailed below).
Meanwhile, all but one of the refugees who voluntarily resettled in Cambodia reportedly
left Cambodia during the year.
This Research Paper provides an overview of these and other
significant developments in refugee law and policy during the period 18
September 2013 to 2 July 2016 (the Coalition Government’s first term in
office). In doing so, it builds upon a number of other Parliamentary Library
publications in this series:
Acknowledgements
The authors wish to gratefully acknowledge colleagues
Harriet Spinks, Claire Petrie, Pauline Downing and Alissa McCulloch for their assistance
with this paper.
Chronology of significant events
2013
- 18 September 2013 — the Coalition (Abbott) Government
sworn in and Scott Morrison appointed as Minster for Immigration and Border
Protection.
- 18 September 2013 — immediately upon forming Government, the
Coalition implements Operation Sovereign Borders, which was the
cornerstone of its asylum policy prior to the election.[7] A military-led, border
security operation, led by Lieutenant-General Angus Campbell, Operation
Sovereign Borders commences on 18 September 2013. At the first Operation
Sovereign Borders media briefing on 23 September 2013, Immigration
Minister Scott Morrison states that the Government would be moving to transfer
all ‘illegal’ maritime arrivals to Manus Island or Nauru within 48 hours of
their arrival.[8]
- 3 October 2013 — the Minister for Immigration and Border
Protection announces a further 500 Syrian refugees would be resettled in
Australia.[9]
- 17 October 2013 — the Coalition Government makes an amendment to
the Migration Regulations 1994 providing for the re-introduction of Temporary
Protection Visas (TPVs). Under this amendment, Temporary Protection
(Subclass 785) visas would be the only protection visa available to people who:
- are
unauthorised maritime arrivals as described in the Migration Act 1958
- otherwise
arrived in Australia without a visa or
- were
not immigration cleared on their last arrival in Australia.[10]
Under the Regulation, any
application for a protection visa by a person in the above categories which was
not decided prior to 18 October 2013 would only be eligible for a TPV, not a
permanent protection visa. The intention was to ensure that the approximately 30,000
asylum seekers who arrived by boat already in Australia (who were not subject
to offshore processing) could not be granted a permanent visa.[11]
- 18 October 2013 — a disturbance
occurs on Manus Island between members of the Royal Papua New Guinea
Constabulary (RPNGC) mobile police squad and Papua New Guinea Defence Force
(PNGDF) military personnel outside the offshore processing centre (OPC)
perimeter.[12]
- 20 October 2013 — the media reports that the Immigration Minister
‘has instructed Departmental and detention centre staff to publicly refer to
asylum seekers as ‘illegal’ arrivals and as ‘detainees’, rather than as clients
... [and to] call all people who arrive in Australia by boat ‘illegal maritime
arrivals’’.[13]
- 21 October 2013 — keynote speech to the Migration Institute of
Australia (MIA) national conference by the Immigration Minister outlining
his priorities.[14]
- 25 October 2013 — the Immigration Minister visits Malaysia. Key outcomes included:
- ‘An Australian-Malaysian Joint Working Group on Transnational Crime to
be established, replacing the Working Group on people smuggling and trafficking
in persons, and providing a vehicle for joint border security operations and
capability development. The first meeting of the new working group will take
place early next year at the latest.
- A commitment on a series of joint Australia-Malaysia operations
involving the Department of Immigration and Border Protection (DIBP), Customs,
and the Australian Federal Police together with parallel agencies in Malaysia
on air, land and sea borders in the months ahead. Australian immigration
officials will work directly with the Ministry of Home Affairs to assist, plan
and prepare for these operations.
- Malaysia's proposed Memorandum of Understanding on transnational crime
will be progressed by Minister Morrison for implementation, in consultation
with colleagues including the Attorney-General.
- The Malaysian government has agreed to review visa on arrival
arrangements for Iraqi and Syrian nationals and expressed support to graduate
the existing biometric data exchange pilot program from its current infant
phase to an expanded operational phase’.[15]
- 17 November 2013 — the Prime Minister announces that Australia
will give two patrol boats to Sri Lanka.[16]
- 21 November 2013 — the Immigration Minister announces that two
Australian Customs and Border Protection Service (ACBPS) officers would be
posted to US Customs and Border Protection (US CBP) to strengthen joint
intelligence capabilities and engagement between the two agencies. ACBPS and US
CBP also agree to establish a formal strategic partnership in 2014.[17]
- 2 December 2013 — the Greens and Labor vote in the Senate to disallow
the Regulation that reintroduced TPVs.[18]
- 4 December 2013 — in response to the Senate disallowance of the Regulation
reintroducing TPVs, the Immigration Minister announces that he would place a cap
of 1,650 on the number of protection visas which could be issued in
2013–14 (which was the number that had been granted prior to the swearing in of
the Coalition Government).[19]
This meant that no more onshore protection visas could be granted (to either
IMAs or non-IMAs) in 2013–14. However, this legislative instrument was
subsequently revoked by the Government on 19 December 2013.[20]
- 14 December 2013 — the Government amends the Migration Regulations
(through the Migration Amendment (Unauthorised Maritime Arrival) Regulation
2013) to introduce a new criterion for the grant of a protection visa.
This amendment was subject to disallowance. The amendment aimed to implement
the Government's intention that persons who arrive in Australia without visas
would not be granted permanent protection. The changes to the Regulations meant
that a permanent protection visa could only be granted to a person who:
- held
a visa that was in effect on their last entry into Australia
- was
not an unauthorised maritime arrival and
- was
immigration cleared on the applicant's last entry into Australia.[21]
- 14 December 2013 — the Government amends the Migration
Regulations to introduce a Code of Behaviour for asylum seekers living
in the community on a bridging visa E (BVE).[22]
This meant that asylum seekers released from detention on a BVE would be
required to sign the code of conduct prior to being granted a BVE, and any
asylum seeker on a BVE who breached the code of conduct would be liable to having
their BVE cancelled and being returned to detention.
- 16 December 2013 — it was reported that the Government had
disbanded the Immigration Health Advisory Group (IHAG), a panel of
experts advising the Immigration Department on issues relating to health and
well-being in the immigration detention environment. Rather than a panel of
experts, there would now be one advisor. The previous Chair of IHAG, Dr Paul
Alexander, accepted the role of the independent health advisor. The Immigration
Department stated that this decision was made by the Department, not the
Minister.[23]
- 20 December 2013—the Australian Customs and Border Protection
Service (ACPS) reports on internal reviews into three maritime incidents
north of Christmas Island to determine whether operational policies and
procedures were followed.[24]
2014
- 9 January 2014 — Family stream visa applications sponsored
by permanent visa holders who arrived by boat are to be given the lowest
processing priority from January 2014. ‘This means their applications will not
be processed for several years’, according to a statement from the Immigration
Department.[25]
- 10 January 2014 — the media reports instances of asylum boat ‘turnarounds’
whereby boats are returned to Indonesia by Australian authorities.[26]
- 14 January 2014 — detention facility closures are
announced at Scherger, Port Augusta Immigration Residential Housing and Leonora
Alternative Place of Detention. Pontville, which had been empty since September
2013, was also to close.[27]
- 3 February 2014 — Australian Human Rights Commission (AHRC) announces an inquiry into children in detention.[28]
- 6 February 2014 — the Refugee Council of Australia claims that
the Government had begun to grant Temporary Humanitarian Concern visas
(subclass 786) to refugees who entered Australia by boat as an alternative to
granting TPVs.[29]
- 6 February 2014 — the Government announces that it would
deliver two retired Australian Customs and Border Protection Bay Class vessels
to Malaysia by mid-2015 ‘to assist in countering maritime people
smuggling in the region’.[30]
- 17–18 February 2014 — a series of incidents of rioting,
unrest and injury occur on Manus Island, including one death and multiple
injuries to asylum seekers.[31]
- 19 February 2014 — the Minister acknowledges a breach
of privacy, which occurred through an immigration detention
statistics report released on the DIBP website on 11 February 2014 that
inadvertently provides access to personal data not intended for publishing.[32]
- 21 February 2014 — Immigration Minister announces a review of the Manus Island incidents of 17–18 February.[33] The Secretary
of DIBP later confirms in Senate Estimates there would be a review of the Manus
Island incidents led by former Attorney-General’s
Department Secretary Robert Cornall and
also a review of the detention statistics privacy breach.[34] On 5 March 2014
the Senate passes a motion establishing an inquiry by the Legal and
Constitutional Affairs References Committee into the incidents on Manus Island
from 16 to 18 February 2014.[35]
- 23 February 2014 — media reports that the Australian Government
has asked the Cambodian Government to consider resettling refugees from
Australia.[36]
- 25 February 2014 — media report that the company that had been
managing the facility on Nauru since September 2012, Transfield, would
take over from GS4 in managing the facility on Manus Island.[37] After a transition period Transfield
commenced full responsibility for the Manus facility service provision,
including welfare services previously provided by the Salvation Army, on
29 March 2014.[38]
- 28 February 2014 — MOU for policing at Northern Territory immigration
detention facilities, between DIBP, the Australian Federal
Police and the Northern Territory Police, is extended.[39]
- 2 March 2014 — monthly Joint
Ministerial Forum is established between Australia and PNG to
directly oversee implementation of the Regional Resettlement Arrangement (RRA)
between the two countries.[40]
- 5 March 2014 — media reports that PNG will prioritise the
processing of asylum-seekers with ‘weak’ claims, saying failed refugees could
be dealt with ‘easily’.[41]
- 5 March 2014 — media reports that charges against more than 20
asylum seekers over a riot at Nauru’s detention centre in 2013 have been
withdrawn. Nauru’s newly installed Fijian magistrate, Ropate Cabealawa, was due
to hear from 61 asylum seekers facing ‘riot’ and ‘unlawful assembly’ charges.
The charges related to a riot at the Nauru Regional Processing Centre
which the Nauruan government stated resulted in about $60 million worth of
damage.[42]
- 5 March 2-14 — Ukrainian nationals authorised to apply for
temporary stay visas due to the unrest in their home country.[43]
- 6 March 2014 — a protection visa cap (of 2,773) for
asylum seekers who arrive by boat is reinstated (the cap was originally
introduced and then revoked in December 2013).[44]
The High Court delivers two judgements on 20 June 2014 finding that the Minister’s
instrument to be invalid.[45]
- 27 March 2014 — the Senate votes to disallow the Migration
Amendment (Unauthorised Maritime Arrival) Regulation 2013 which would deny permanent
protection visas to asylum seekers arriving by boat.[46]
- 31 March 2014 — as promised during the election campaign,
unauthorised boat and air arrivals no longer have access to the Immigration
Advice and Application Assistance Scheme (IAAAS) as of 31 March 2014.
Additional support will be available to those who are considered vulnerable,
including unaccompanied minors.[47]
- 3 April 2014 — media reports that two thirds of the asylum
seekers on Manus Island have had their initial refugee status interviews
conducted.[48]
- 2 April 2014 — inaugural Joint Ministerial Forum meeting between
Australia and PNG.[49]
- 9 April 2014 — media reports that the Nauru Government had
prevented the UNHCR from inspecting the offshore processing centre.[50]
- 11 April 2014 — a meeting of the Joint
Ministerial Forum to oversee the implementation of the regional processing
and resettlement partnership between Australia and Nauru was held in
Sydney.[51]
- 11 April 2014 — media reports of a suicide attempt by a Tamil
asylum seeker in the community on a bridging visa (who had set himself
alight on 9 April 2014).[52]
- 11 April 2014 — media reports that two Syrian asylum seekers were
refusing food in the offshore processing centre on Manus Island.[53]
- 17 April 2014 — media report several cases of dengue fever in the
Nauru facility.[54]
- 22 April 2014 — Indonesian Foreign Minister comments on regional
cooperation, noting that shared responsibility not shifting responsibility
was the way forward.[55]
- 7 May 2014 — media report two more boat ‘turnarounds’
(number 8 and 9). The passengers from both boats are returned to Indonesian
waters in a single boat.[56]
- 8 May 2014 — the Minister announces that Inverbrackie
detention facility in South Australia will close by the end of 2014.[57]
- 9 May 2014 — the creation of an Australian Border Force (ABF)
is announced in a speech to the Lowy Institute by the Minister for Immigration
and Border Protection. The details of an election commitment to merge Customs
into DIBP are also outlined.[58]
- 13 May 2014 — Budget 2014–15 immigration-related measures
are outlined in detail in the following Budget Review articles:
- 13 May 2014 — Refugee Council of Australia core funding ceases.[60]
- 22 May 2014 — the first refugees (13) from the Nauru Offshore
Processing Centre are settled in Nauru.[61]
- 23 May 2014 — media reports that the New Zealand
Government would not rule out transferring asylum seekers to third countries.
New Zealand’s statement, released by the Human Rights Commission, was: ‘New
Zealand does not want to disregard this as an option if circumstances change.
Any use by New Zealand of offshore processing centres would require
legislative amendment’.[62]
- 25 May 2014 — media reports on boats attempting to arrive in New
Zealand.[63]
- 30 May 2014 — media reports of a confidential health report
produced by medical experts for the bilateral Joint Advisory Committee on Regional
Processing Arrangements in Nauru, outlining risks for women and children being
detained on Nauru.[64]
- 1 June 2014 — the Minister refers to the death of a Sri Lankan
national in the community on a bridging visa who suffered serious burns in
Geelong on 31 May 2014.[65]
- 2 June 2014 — media reports of unrest and injury on Christmas
Island.[66]
- 6 June 2014 — media reports of sexual assaults on Nauru.[67]
- 17 June 2014 — Caucus motion from MPs, Melissa Parke and Anna
Burke, proposing that Labor abandons the policy of offshore processing
is defeated on 17 June 2014.[68]
- 18 June 2014 — challenge to offshore processing judgement delivered.
The High Court declares the Australian Government’s offshore processing
arrangements to be valid.[69]
- 20 June 2014 — High Court delivers two judgements finding that
the Minister’s instrument capping the number of protection visas that
may be granted in a specified financial year to be invalid.[70]
- 21 June 2014 — media reports ‘return packages’ of $10,000
are being offered to Lebanese asylum seekers in PNG and Nauru. Other
offers reportedly include $7,000 to Iranians, $4,000 to Afghans and $3,300 to Nepalese,
Burmese and Sudanese .[71]
- 22 June 2014 — a refugee who had been settled in Nauru accidentally
drowns.[72]
- 1 July 2014 — media reports that an asylum seeker who lost his
right eye during the unrest inside the Manus detention centre in February
is taking legal action against the Australian Government and the
security firm G4S for alleged failures in their duty of care.[73]
- 2 July 2014 — media reports that a Sri Lankan navy vessel
was heading towards a mid-ocean meeting with Australian authorities to take
custody of Sri Lankan national asylum seekers who had almost reached
Christmas Island from India before being intercepted. Sri Lankan passengers
from two boats (one originating from India with about 150 on board and one from
Indonesia with about 50 on board) were allegedly being screened by phone and
transferred to a Sri Lankan navy vessel.[74]
- 3 July 2014 — launch of the Australian
Customs and Border Protection Service's (ACBPS) Strategic Border Command.[75]
- 5 July 2014 — more media reports of boats headed for New
Zealand.[76]
- 7 July 2014 — a ministerial press release confirms that 41 Sri
Lankan nationals (37 Sinhalese and 4 Tamils) had been handed over to the
Sri Lankan Navy on 6 July 2014 after undergoing an ‘enhanced screening’
process.[77]
One passenger was ‘screened in’ (meaning the enhanced screening process
identified protection issues that may have engaged Australia’s obligations) and
referred for further determination, but the individual chose voluntary return,
not transfer to Nauru or Manus. There was no mention at the time of the
remaining passengers from the boat originating from India with 157 on board.
- 7 July 2014 — Justice Crennan of the High Court makes an
order precluding action by the Minister or his delegates, particularly naval
personnel, from removing the plaintiffs into the custody of the Sri Lankan
Government, particularly naval personnel, at least until 4.00 pm the following
day.[78]
- 9 July 2014 — media reports increasing rates of self-harm
in the immigration detention network.[79]
- 14 July 2014 — National Border Targeting
Centre launched.[80]
- 14 July 2014 — media report that transfers from
Christmas Island to Nauru continue.[81]
- 22 July 2014 — permanent protection visa granted to Ethiopian stowaway
(who was the plaintiff from one of the 20 June High Court rulings).[82]
- 24 July 2014 — media reports that India is unlikely to
accept back any Sri Lankan nationals on the intercepted boat.[83]
- 25 July 2014 — Minister announces that the remaining 157 Sri
Lankan asylum seekers who departed from the Port of Pondicherry in India would be transferred
to the Australian mainland (Curtin Detention Centre).[84] These passengers are
counted as the first boat arrival for 2014.
- 26 July 2014 — Law firm Maurice Blackburn filed class action
proceedings in the Supreme Court of Victoria on behalf of injured asylum
seekers who have been held in detention on Christmas Island during the period 26
August 2011 until 26 August 2014. The class action is brought on behalf of
asylum seekers who have been detained on Christmas Island and have
suffered an injury or exacerbation of injury due to the Government’s failure to
provide adequate health care. It seeks compensation for injuries as well
as court orders that the Government and the Minister for Immigration provide
the medical care that injured asylum seekers require. The lead plaintiff in the
class action is a six year old girl.[85]
- 30 July 2014 — media reports of protests on Nauru.[86]
- 2 August 2014 — the Minister announces that the 157 Sri Lankan
asylum seekers in detention in Curtin, including up to 50 children, had
declined to speak to Indian consular officials and had been transferred to
Nauru.[87]
- 4 August 2014 — the Immigration Minister, Scott
Morrison, reportedly calls for a reinterpretation of the Refugee
Convention arguing the framework outlining countries’
obligations to those fleeing persecution is being used ‘as a tool by people
smugglers to basically run death voyages’.[88]
- 6 August 2014 — media reports that Department of Defence
documents had been obtained claiming that asylum seekers injured on board a boat
as it was turned around in January 2014 by Navy personnel had burnt
their hands while attempting to light a fire in the engine room.[89]
- 17 August 2014 — the Minister outlines the 2013–14 Humanitarian
Program outcomes and the Government’s planned allocations for 2014–15.[90] The
announcement includes 4,400 places set aside in the 2014–15 financial year for
people fleeing the crisis in Syria and Iraq, with another 4,500 places
identified over the following three years.
- 19 August 2014 — the Immigration Minister announces
that the Government has approved new support arrangements for families
and young children enabling their supported release into the community on bridging
visas (BVEs) if they arrived by boat prior to 19 July 2013. Those who
arrived after 19 July 2013 remain subject to offshore processing. The
Minister’s press release states that the arrangements ‘extend the care and
support that is provided in community based residential detention to those
released on bridging visas’.[91]
- 20 August 2014 — media reports that some staff working in
detention centres on Christmas Island are also experiencing mental
health issues.[92]
- 25 August 2014 — release of Minister’s opening statement to the National
Inquiry into Children in Immigration Detention wherein he states ‘This system is not without its faults ... There have
been periods where the system has been exposed to tremendous stress and
weaknesses have been exposed ... In each case we have moved to address those
weaknesses as they have been identified. In most cases, we have been able to
move on and improve the situation, but the one response that has had the
greatest impact to remove the stress on the system that creates these
weaknesses is to ensure that more people and importantly more children are not
being added into the network by stopping the boats ... Nobody, and especially nobody in this government,
wants to see children in detention if it can be avoided’.[93]
- 5 September 2014 — Minister reports on the death of an
adult male from the Manus Offshore Processing Centre (OPC) who had been
transferred to Australia for medical treatment on 27 August.[94]
- 10 September 2014 — in a speech to the National Press Club,
the Minister suggests that TPVs could be utilised for those asylum
seekers who arrived by boat between 19 July and 31 December 2013.[95]
- 18 September 2014 — the Immigration Minister, Scott Morrison,
reported that in addition to the boat arrival with 157 Sri Lankan
nationals on board in July 2014, 12 boats, with 383 people on board, had
been ‘turned back’ at sea between 19 December 2013 and 20 May 2014.[96]
- 23 September 2014 — a formal OECD complaint is
lodged against multinational security contractor G4S for allegedly failing to
meet international standards and committing serious human rights violations in
relation to conditions and abuse of asylum seekers detained at the Manus
Regional Processing Centre.[97]
- 25 September 2014 — the Migration
and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy
Caseload) Bill 2014 is introduced proposing a
suite of significant changes to existing laws.[98]
- 26 September 2014 — the Cambodian Government agrees
to resettle refugees from Nauru on a voluntary and permanent basis after the
Australian and Cambodian Governments sign a Memorandum of Understanding
(MOU) in Phnom Penh.[99] The first four refugees are
transferred from Nauru to Cambodia in June 2015.[100]
- 2 October 2014 — Michael Pezzullo is appointed the new Secretary
of DIBP, commencing 13 October 2014.[101]
- 3 October 2014 — the Minister announces
an independent review into allegations of inappropriate conduct
by contracted service providers at the Nauru Offshore Processing Centre.
The review is to be led by former integrity commissioner, Philip Moss.[102]
- 6 October 2014 — Medical Journal of Australia article
written by doctors with experience of detainee health issues on Christmas
Island discusses the ethical dilemmas for health professionals working in
detention centres.[103]
- 9 October 2014 — an MOU is signed between the Immigration
Department, the Australian Federal Police and the New South Wales Police Force,
defining the role of the police during incidents in immigration
detention facilities in NSW.[104]
- 20 October 2014 — the media reports that due to a lack of public
support, the Prime Minister of Papua New Guinea has instructed the
preparation of new refugee resettlement policy.[105]
- 22 October 2014 — Independent MP, Andrew Wilkie, requests
the Office of the Prosecutor of the International Criminal Court to
initiate a proprio motu, in accordance with Article 15(1) of the Rome
Statute, into crimes against humanity perpetrated by members of the Australian
Government against persons arriving in Australian waters who are seeking
protection. The allegation was that members of the Australian Government are
committing the following acts contrary to Article 7 (Crimes Against Humanity)
including: imprisonment and other severe deprivation of physical liberty in
violation of fundamental rules of international law; deportation and other
forcible transfer of population; and other intentional acts causing great
suffering, or serious injury to body and mental and physical health.[106]
- 22 October 2014 — media reports that the Minister has issued ‘conclusive
certificates’ under paragraph 411(3)(b) of the Migration Act to
prevent refugees granted temporary (humanitarian concern) visas being
granted permanent protection visas and accessing merits review on national
interest grounds.[107]
- 4 November 2014 — PNG Minister for Foreign Affairs and
Immigration issues a media release advising that the National Executive Council
(NEC) had approved action to facilitate the registration and naturalization of West
Papuan refugees living in PNG. The Minister also stated the NEC had also
approved for him to start making final decisions on the refugee status of
asylum seekers at the Manus Regional Processing Centre. These people will not
yet be permanently settled, rather the Government would ‘conduct a
comprehensive program of public awareness raising and consultation about
refugee settlement before developing a new National Refugee Settlement Policy
for Cabinet’s endorsement’.[108]
- 6 November 2014 — Australia and Nauru Government agreement that
the Regional Processing Centre on Nauru will transition to an open
centre model in early 2015.[109]
- 11 November 2014 — a Detention Assurance Team (DAT) is set
up within DIBP to strengthen assurance oversight of the integrity and
management of immigration detention services. DAT will operate
independently from service providers and management arrangements and will
undertake investigations and support inquiries.[110]
- 12 November 2014 — the Australian Information Commissioner
releases its report investigating a privacy breach after access to
personal information of approximately 10,000 asylum seekers was briefly made
available on the DIBP website via a statistical report on the immigration
detention population in February 2014.[111]
- 12 November 2014 — the Papua New Guinea Government hands
down its first positive refugee status determinations to ten asylum
seekers.[112]
- 15 November 2014 — a boat carrying 38 Sri Lankan nationals
is intercepted near Cocos Islands. The passengers were assessed in person (not
by phone) by protection officers under an enhanced screening process. In one
case a referral for a refugee determination was recommended and the individual
was to be transferred to an offshore processing centre. The other 37
individuals were transferred or ‘turned back’ at sea to Sri Lankan
authorities on 26 November 2014.[113]
- 18 November 2014 — the Minister announces that asylum seekers
registered with UNHCR in Indonesia on or after 1 July 2014 would
no longer be eligible for resettlement in Australia.[114] In response, Labor
expresses its concerns and notes that the announcement raises serious questions
about the implementation of Australia’s humanitarian program.[115]
- 24 November 2014 — Mr Andrew Goledzinowski is announced as
Australia’s Ambassador for People Smuggling Issues.[116]
- 29 November 2014 — media reports of sexual assaults and
incidents of self-harm in the processing centres on Nauru and Manus Island.[117]
- 29 November 2014 — Myanmar and Australia sign a five year
Memorandum of Understanding (MOU) to assist Myanmar to ‘facilitate its
increasing number of travellers while promoting compliance with entry and stay
requirements, ultimately leading to stronger borders’.[118]
- 3 December 2014 — Navy personnel interviewed by the media
report experiencing post-traumatic stress disorder from border
protection operations.[119]
- 3 December 2014 — the Minister announces that on the passing of
the Migration and Maritime Powers Legislation Amendment
(Resolving the Asylum Legacy Caseload) Bill 2014, the Government would
increase the Humanitarian Program in the next Budget to
16,250 in 2017–18 and 18,750 in 2018–19 at a cost of $100 million.[120]
- 4 December 2014 — on the last scheduled
parliamentary sitting day for the year, the Government tables a report in
Parliament on the regional processing arrangements for unauthorised maritime
arrivals. The report provides details of the accommodation, education and
health arrangements in the offshore processing centres; and also provides statistics
on the asylum caseloads, including final determinations on Nauru.[121]
- 5 December 2014 — the Migration and Maritime
Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014
passes the Senate. The Bill broadens the maritime enforcement powers used to
intercept and turn boats around; reintroduces Temporary Protection Visas
(TPVs); introduces a new class of temporary protection visa, valid for five
years, to be called a Safe Haven Enterprise Visa (SHEV); introduces a fast
track review process for those who arrived on or after 13 August 2012;
states that Australia’s non-refoulement obligations are irrelevant for
the purposes of removing non-citizens and removes references to the 1951 Refugee
Convention; expands the definition of ‘unauthorised maritime arrival’ to
include babies born in Australia; enables the Minister to limit or
‘cap’ the number of protection visas that can be granted in a financial
year; and removes the obligation on the Minister or the Refugee Review
Tribunal (RRT) to make a decision on a protection visa within 90 days.[122] In his
second reading speech, Shadow Minister for Immigration and Border Protection,
Richard Marles, noted that Labor was open to the question of turning back
boats, but would be opposing the legislation due to several concerns, including
the proposed introduction of Temporary Protection Visas (TPVs).[123] The
Bill passed with the support of the majority of cross-benchers including
Senators Xenophon, Muir, Lazarus, Wang, Leyonhjelm, Day (Senators Lambie and
Madigan and the Australian Greens voted against the passage of the Bill).[124]
- 11 December 2014 — Senate Legal and Constitutional Affairs
References Committee releases its report into the Incident at the Manus
Island Detention Centre from 16 February to 18 February 2014.[125]
- 12 December 2014 — announcement that the last of the detainees
had departed Inverbrackie detention facility in preparation for its
closure.[126]
- 12 December 2014 — announcement that temporary visas available to
Ukrainian nationals wishing to remain due to unrest in their home
country would be extended.[127]
- 17 December 2014 — the Minister opens a resettlement facility
on Manus Island and announces that a further 40 refugee status
determinations have been signed, bringing total determinations to 50.[128]
- 18 December 2014 — the Minister announces that 31 babies born
to IMAs who were transferred from Nauru to Australia before 4
December 2014 would be allowed to remain in Australia and have their
protection claims assessed as part of the legacy caseload as a result of an
agreement reached with Senator Ricky Muir.[129]
- 21 December 2014 — the Minister announces that all children on
Christmas Island had been transferred to the mainland, consistent
with the Government's commitment following the passage of legislation to
resolve the asylum legacy caseload. A total of 194 people in family groups,
including 94 children were transferred on three charter flights to Bladin Point
facility in Darwin until arrangements could be made to release them into the
community.[130]
- 21 December 2014 — Peter Dutton is appointed Minister
for Immigration and Border Protection after a Cabinet reshuffle.[131]
2015
- 14 January 2015 — media reports on a visit by Australian and
Cambodian officials to Nauru following the agreement between the Australian
and Cambodian Governments to resettle refugees from Nauru on a
voluntary and permanent basis made in September 2013.[132]
- 16 January 2015 — the new Minister acknowledges that transferees
were engaged in a protest in the Manus Regional Processing Centre and a
number were self-harming.[133]
- 22 January 2015 — media reports that one Iranian and one
Pakistani who had been found to be refugees had moved into temporary
accommodation as part of a first step by the Government of PNG to settle
them.[134]
- 28 January 2015 — the Minister reports on 15 boat turnarounds
or ‘turnbacks’ since 19 December 2013 when the practice commenced.[135]
- 9 February 2015 — the Minister reports on a further boat
‘turnback’ intercepted North-West of Cocos Island on 9 February 2015. The
four passengers were returned to Sri Lankan authorities.[136]
- 10 February 2015 — Australian Customs and Border Protection
Vessel (ACV) Arnhem Bay given to Malaysia.[137]
- 11 February 2015 — the Australian Human Rights Commission (AHRC) National
Inquiry into Children in Immigration Detention report is tabled.[138]
- 19 February 2015 — the Minister visits Nauru and
acknowledges progress made by the Government of Nauru to move towards an open
model in the regional processing centre.[139]
- 5 March 2015 — media reports that the Australian Government would
replace the orange lifeboats used in boat turnbacks with ten
custom-made Vietnamese-built boats resembling south-east Asian fishing
vessels, commissioned for this purpose.[140]
- 13 March 2015 — the Minister announces that the first refugees
from Nauru are about to be relocated and resettled in Cambodia.[141]
- 26 March 2015 — a Senate Select Committee on the Recent
Allegations relating to Conditions and Circumstances at the Regional Processing
Centre in Nauru is established to inquire into and report on the
responsibilities of the Commonwealth Government on the management and operation
of the Regional Processing Centre in Nauru.[142]
- 19 April 2015 — media reports the turnaround or ‘turnback’
of a boat carrying Vietnamese asylum seekers.[143] On 5 May 2015 the Minister
confirms that 46 Vietnamese nationals were returned to Vietnamese authorities.[144]
- 6 May 2015 — members of the UN Subcommittee on the Prevention
of Torture visit Nauru and call on the Government of Nauru to set up
an independent monitoring body to ensure Nauru meets its obligations.[145]
- 9 May 2015 — the Minister announces that the Department has
established a Child Protection Panel to provide independent advice on
child protection in immigration detention and regional processing centres (RPCs).
The Panel will work to strengthen policies and procedures to ensure the ongoing
safety and welfare of children in immigration detention and RPCs and will
advise the Secretary on the response of the Department and its service
providers in relation to their child protection frameworks. The Panel’s work
will include reviewing allegations back to 2008 to ensure they have been
handled appropriately by the Department and service providers.[146]
- 12 May 2015 — Budget 2015–16: the Minister confirms that
the Humanitarian Program intake would remain at 13,750 for 2016–17,
increasing to 16,250 in 2017–18 and 18,750 in 2018–19.[147] Other immigration-related
measures are outlined in the following Budget Review articles:
- 14 May 2015 — Parliament passes legislation amalgamating
the Social Security Appeals Tribunal (SSAT) and the Migration Review
Tribunal and the Refugee Review Tribunal with the Administrative Appeals
Tribunal (AAT).[149]
- 14 May 2015 — the Prime Minister of Papua New Guinea
delivers an address to the Lowy Institute in which he discusses some of the challenges
the Government faces settling refugees in PNG.[150]
- 15 May 2015 — UN High Commissioner for Human Rights, Zeid Ra’ad
Al Hussein, reports that thousands of Rohingya and Bangladeshi migrants and
asylum seekers are stranded at sea in the Bay of Bengal. The Commissioner
notes that many are being pushed back: ‘I am appalled at reports that
Thailand, Indonesia and Malaysia have been pushing boats full of vulnerable
migrants back out to sea, which will inevitably lead to many avoidable deaths.
The focus should be on saving lives, not further endangering them’.[151]
- 20 May 2015 — the Minister re-launches the Council on Asylum
Seekers and Detention.[152]
- 28 May 2015 — media reports that invitations to asylum seekers on
bridging visas (the ‘legacy caseload’) to apply for Temporary Protection
Visas through a fast track process has begun.[153]
- 29 May 2015 — media reports that the number of people being held
in immigration detention centres after having their visas cancelled, including
those cancelled on character grounds, is increasing.[154]
- 1 June 2015 — the Department releases a discussion paper seeking
views on a proposed model for a Community Support Programme to replace the
existing Community Proposal Pilot which commenced on
1 June 2013, providing up to 500 places within the offshore component
of the Humanitarian Program. Proposed visa application charges for the sponsors
under this program were approximately $30,000 for a family of five.[155]
- 4 June 2015 — the first four refugees are transferred from Nauru
to Cambodia.[156]
- 5 June 2015 — the UNHCR announces it requires $13 million to
respond to the needs of asylum seekers arriving by boat in Southeast Asia.[157]
- 24 June 2015 — a parliamentary inquiry on the payment of cash or other inducements by
the Commonwealth of Australia in exchange for the turn back of asylum seeker
boats is established.[158]
- 26 June 2015 — the Minister announces that the first Australian
Border Force Commissioner is to be Mr Roman Quaedvlieg.[159]
- 1 July 2015 — the new operational arm of the Department of
Immigration and Border Protection, Australian Border Force (ABF), is
launched.[160]
- 23 July 2015 — UNHCR (Canberra) issues its position on interception
and turn back of boats carrying asylum seekers noting that requests for
international protection should be considered within the territory of the
intercepting state; individuals who seek asylum must be properly and
individually screened for protection needs; and actions to intercept and turn
back boats carrying asylum seekers are contrary to the spirit of the 1951
Refugee Convention.[161]
- 25 July 2015 — Labor's humane and compassionate asylum seeker
policy is released.[162]
The policy confirms Labor’s support of offshore
processing and includes boat turnbacks as a policy option ‘to
ensure that people smugglers are denied the opportunity to offer any incentive
to vulnerable people to board unsafe boats to make the dangerous journey to
Australia by sea. Provided it can be done so safely, a future Labor Government
will retain the option of turning boats around ...’.[163]
- 27 July 2015 — media reports that a group of approximately 46 Vietnamese
passengers who arrived by boat near Dampier off the coast of Western Australia
on 20 July 2015 are returned to Vietnam (a boat ‘takeback’).[164]
- 1 August 2015 — media reports on the death of an Afghan
asylum seeker from a suspected heart attack at Yongah Hill immigration
detention centre in Western Australia.[165]
- 6 August 2015 — the Minister announces there had been 20 boat
‘turnbacks’ with 633 people on board since December 2013.[166]
- 19 August 2015 — media reports that Super fund, Hesta, sells its
stake in Transfield due to human rights violations in offshore
processing centres.[167]
- 22 August 2015 — media reports of more sexual assaults on Nauru.[168]
- 4 September 2015 — the Government appoints Mr Robert Cornall as
the new Independent Reviewer of Adverse Security Assessments.[169]
- 6 September 2015 — the Government announces it would provide
further assistance to people fleeing conflict in Syria and Iraq, but
that the Humanitarian Program intake would not be increased.[170]
- 7 September 2015 — the ALP announces it would accept an
additional 10,000 refugees fleeing the conflict in Syria if elected.[171]
- 9 September 2015 — the Government announces an increase to the
Humanitarian Program for 2015–16 with an additional 12,000 places for
refugees fleeing conflict in Syria and Iraq.[172]
- 14 September 2015 — Malcolm Turnbull is sworn in as Prime
Minister and a new Coalition ministry is announced on 20 September 2015.[173]
- 18 September 2015 — asylum seekers on Manus Island in PNG
write to the new Prime Minister requesting assistance.[174]
- 18 September 2015 — media reports many Syrian refugees
will be resettled in regional areas.[175]
- 25 September 2015 — media reports Prime Minister Turnbull’s
comments that there has been no change to Coalition policy and asylum
seekers on Manus Island and Nauru will never be resettled in Australia.[176]
- 25 September 2015 — the UN Special Rapporteur on
the human rights of migrants cancels visit to Australia over protection
concerns, access to offshore centres and concerns over the provisions of the Border
Force Act 2015.[177]
- 25 September 2015 — media reports that over 22,000 asylum seekers
on bridging visas (the ‘legacy caseload’) had been granted work
rights since January 2015.[178]
- 25 September 2015 — UNHCR publishes seven reasons
explaining the mass movement of Syrians towards Europe.[179]
- 5 October 2015 — following an agreement between the Australia and
Nauru Governments in November 2014, the Regional Processing Centre on Nauru
moved to an open centre model. It was also announced by the Nauru
Government that all remaining asylum seekers in the centre would have their
protection claims processed within a week.[180]
- 6 October 2015 — media reports that the Australian Government may
be negotiating with countries other than Cambodia (such as the Philippines)
to pursue additional resettlement options for refugees.[181]
- 7 October 2015 — the Government of the Republic of Nauru
publishes a media release stating that refugees in Nauru ‘are in
no physical danger and stories of locals attacking them are largely fabricated
to further political agendas and influence the Australian Government’.[182]
- 12 October 2015 — media reports that doctors at
Melbourne’s Royal Children’s Hospital are refusing to discharge a woman and her
baby if they are to be returned to Nauru.[183]
- 13 October 2015 — the Government of the
Republic of Nauru publishes a media release stating that the Nauru
Police Force has conducted a full investigation into allegations made by a 26
year-old Somali woman that she was raped and bashed by two men inside a
cave in the Ewa district on 21 August 2015 and noting (as detailed by a
physician at the Republic of Nauru Hospital) ‘there was no laceration or
obvious bruising on the anterior body. There were no lacerations or bruising
around the vaginal region and a spermatozoa test on the victim after a vaginal
swab proved negative’. The investigating officer recommended to the Department
of Public Prosecutions that the case be closed due to insufficient evidence. A
similar recommendation was made by the Prosecutor.[184]
- 18 October 2015 — media reports the death of an asylum
seeker on a bridging visa who allegedly takes his own life.[185]
- 26 October 2015 — Journalist with The Australian, Chris Kenny is
the first journalist in nearly two years to be given permission to visit
Nauru. His article ‘Nauru: sifting truth from spin’ is published on 26
October 2015.[186]
- 27 October 2015 — media reports the death
of another asylum seeker on a bridging visa who reportedly takes his own life
at Brisbane airport.[187]
- 27 October 2015 — the Office of the High Commissioner for Human
Rights (OHCHR) releases a statement expressing concerns over ‘a growing number
of sexual assault and rape allegations since Australia restarted its
policy of transferring asylum seekers to Nauru for processing in 2012’.[188]
- 31 October 2015 — media reports that the Australian government is
considering resettling refugees from Manus Island and Nauru in Kyrgyzstan.[189]
- 8 November 2015 — Minister for Immigration and Border Protection,
Peter Dutton, indicates that Australia might consider offering further
assistance to Syrian and Iraqi refugees in the future in addition to the
12,000 the Government had committed to resettle.[190] At time of writing, the
Government had not advanced this any further.
- 8 November 2015 — media reports of unrest on Christmas
Island after the death of an Iranian asylum seeker.[191]
- 10 November 2015 — media reports that Labor MP, Melissa
Parke, puts forward a motion to the Labor Caucus calling on the Government
to abolish detention on Nauru and Manus Island unless greater human rights
standards are met.
An amended motion commits a future Labor Government to ensuring that
‘the conditions of offshore processing meet with human rights standards and
negotiate with PNG and Nauru for independent oversight of these facilities and
calls on the government to do the same’.[192]
- 13 November 2015 — media reports that a female refugee and her
three children are released from Villawood Immigration Detention Centre after
being detained for over three years due to an adverse ASIO security
assessment.[193]
- 13 November 2015 — according to media reports, three of the ten Vietnamese
fishing boats purchased by the Australian Government (as an alternative to
the orange lifeboats used in the past) had been used to return (turnback)
asylum seekers to Indonesia.[194]
- 15 November 2015 — the Senate refers an inquiry to
the Standing Committee of Privileges on whether any false or misleading
evidence was given to the former Select Committee on the Recent Allegations
relating to Conditions and Circumstances at the Regional Processing Centre in
Nauru.[195]
- 20 November 2015 — media reports on a boat intercepted
at Christmas Island and turned back to Indonesia—the first boat to arrive
in Australian waters since June 2014. Reports of the passengers on board a boat
provided by Australian authorities later emerge in West Timor.[196]
- 22 November 2015 — the Secretary General of the United Nations
expressed his concerns over the conditions in Australia’s offshore processing
centres and encouraged the Prime Minister of Australia to reconsider the
Operation Sovereign Borders regime.[197]
- 26 November 2015 — media reports that a fifth male refugee is
resettled in Cambodia.[198]
- 3 December 2015 — Shadow Minister for Immigration and Border
Protection, Richard Marles, makes a speech noting that ‘to really
resolve the fate of the bulk of asylum seekers on Manus Island and Nauru there
needs to be a credible third country option negotiated by the Australian
Government’.[199]
- 31 December 2015 — the OSB monthly update for December states
that there had been 23 boat turnbacks with 685 people on board since
December 2013.[200]
2016
- 1 January 2016 — Filippo Grandi elected by the UN General
Assembly to be the 11th United Nations High Commissioner for Refugees.
He was elected on 1 January 2016 to serve a five-year term, until
31 December 2020.[201]
- 5 January 2016 — media claims that there have been three boat
turnbacks since Malcolm Turnbull became Prime Minister in September 2015.[202]
- January 2016 — media reports that offers by the New Zealand
Government to resettle 150 refugees a year from PNG and Nauru
(negotiated by the Gillard Government in 2013) continue to be declined by the
Coalition Government.[203]
- February 2016 — a ‘Let them stay’ grass roots campaign
builds momentum in support of 267 asylum seekers, including several babies,
facing return to Nauru after medical treatment in Australia. Church leaders
also offer sanctuary and several State Premiers and the Chief Minister of the
ACT offer accommodation and support.[204]
- 19 February 2016 — the Nauru Government announces changes
to visitor visas for Australians and New Zealanders entering Nauru as a result of some journalists allegedly ‘dishonestly entering Nauru on
false documentation’.[205]
- 19 February 2016 — media reports that the Coalition Government is
in the process of negotiating resettlement options for refugees in PNG
and Nauru with several countries, including Malaysia, Indonesia and the
Philippines.[206]
- 21 February 2016 — media reports that two male Syrian refugees
who had spent three years in Nauru had been resettled in Canada
after a family reunification visa application had been accepted.[207]
- 3 March 2016 — in an address to the National Press Club, the
Prime Minister of Papua New Guinea, Peter O’Neill, states that ‘Manus
Island refugee centre is a problem that I inherited from the previous
government ... it has done a lot more damage for Papua New Guinea than anything
else’.[208]
- 8 March 2016 — media reports that two refugees resettled in Cambodia
from Nauru had returned to their country of origin (Iran). Of the five refugees
resettled, two reportedly remain after this return and one earlier return to
Myanmar.[209]
- 10 March 2016 — media report on an alleged boat ‘takeback’.
According to the reports six Bangladeshi passengers and two Indonesian crew
members were rescued from a sinking vessel by Australian authorities and
returned to Indonesia.[210]
- 12 March 2016 — the ‘Let them stay’ grass roots campaign
continues to build momentum with over 100 churches in Australia prepared
to offer sanctuary to the 267 asylum seekers facing return to Nauru.[211]
- 18 March 2016 — the Minister for Immigration and Border
Protection states that, since December 2013, twenty five boats carrying 698
people had been turned back (25 boat turnbacks) and 57 potential people
smuggling ventures had been disrupted.[212]
- 22–23 March 2016 — the Sixth Ministerial Conference of the Bali
Process on People Smuggling, Trafficking in Persons and Related
Transnational Crime is held in Bali, Indonesia.[213]
- 4 April 2016 — the Minister announces that there are no children
in onshore immigration detention centres (this statement does not
refer to children and their families held under community detention
arrangements).[214]
- 21 April 2016 — media reports that a boat is intercepted
by the Sri Lankan Navy and the passengers returned to Sri Lanka.[215]
- 26 April 2016 — PNG Supreme Court unanimously finds the detention of refugees and asylum seekers in the
Australian-funded processing centre on Manus Island to be unconstitutional.[216]
- 27 April 2016 — the PNG Prime Minister, Peter
O’Neill, announces that the Manus Island immigration detention will close, and
Australia must make new arrangements for the 850 asylum seeker and refugee men
held there.[217]
- 29 April 2016 — media reports on the death in a Brisbane
hospital of an Iranian asylum seeker, critically injured from a self-immolation
incident on Nauru.[218]
- 2 May 2016 — The Minister confirms that a woman critically
injured in another self-immolation incident on Nauru is transferred
to Australia for medical treatment.[219]
- 2 May 2016 — UNHCR issues a statement saying ‘UNHCR
undertakes regular visits to offshore processing sites to monitor the situation
of refugees and asylum seekers, including on seven separate occasions to Nauru since
2012 ... Despite efforts by the Governments of Papua New Guinea and Nauru,
arrangements in both countries have proved completely untenable ... UNHCR's
principal concern today is that these refugees and asylum-seekers are
immediately moved to humane conditions with adequate support and services’.[220]
- 3 May 2016 — during the 2016–17 Budget the Government
announces that, over a four year period, it will close Perth Immigration
Residential Housing, Maribyrnong Immigration Detention Centre (IDC) and
Blaxland compound at Villawood IDC; and not renew the lease for Wickham Point
Alternative Place of Detention (APOD) after it expires in November 2016.[221] Immigration-related
measures are outlined in further detail in the Budget Review article: ‘Immigration
and border protection overview’.[222]
- 4 May 2016 — media reports on a boat arrival near Cocos
Island carrying asylum seekers who are later returned to Sri Lanka.[223]
- 5 May 2016 — media reports that a fourth refugee resettled to Cambodia
from Nauru leaves the country for Iran (only one refugee reportedly remains).[224]
- 12 May 2016 — media reports that asylum seekers and refugees are
no longer in detention on Manus Island, according to a Papua New Guinea
immigration official who has said they have freedom to leave the centre.[225]
- 20 June 2016 — the Australian television show A Current Affair
is given rare access to film on Nauru and interview asylum seekers and
refugees. Story presented by Caroline Marcus entitled ‘An exclusive
look inside Nauru’.[226]
- 25 May 2016 — media reports that, if elected, one of the first
acts of a Labor Prime Minister will be to engage with the UNHCR to identify resettlement
countries for refugees from the offshore processing centres in
PNG and Nauru, including traditional resettlement countries such as Canada.[227]
- 22 June 2016 — the Prime Minister confirms that 21 passengers on
board a boat intercepted in the Timor Sea are returned to Vietnam.[228]
- 27 June 2016 — in a medical journal article, health
professionals contracted to provide medical services in offshore processing
centres describe the treatment of asylum seekers as torture.[229]
- 1 July 2016 — New Zealand media reports that PNG‘s Chief Justice
Sir Salamo Injia has issued PNG Immigration a two-week deadline for the
remaining asylum seekers on Manus Island to be processed. The court also
insisted that asylum seekers now be called ‘residents’, after the recent Supreme
Court ruling.[230]
- 22 June 2016 — Prime Minister Malcolm Turnbull confirms that a
total of 28 boats have been turned back carrying 734 people since the commencement of ‘Operation Sovereign
Borders’ on 18 September 2013.[231]
Key policy
developments
Operation Sovereign Borders
During the 2013 election period the Coalition announced that
a military-led, whole-of-government response, known as Operation Sovereign
Borders (OSB), would be introduced to coordinate the Coalition’s offshore
processing and anti-people smuggling measures.[232] On 18 September 2013 (the
same day as the new Coalition Government was sworn in) the Abbott Government
implemented Operation Sovereign Borders (OSB), its military-led border security
operation, led by Lieutenant-General Angus Campbell. At the first OSB media
briefing on 23 September 2013 Immigration Minister Scott Morrison stated that,
under OSB, the Government would not be commenting on ‘operational matters’ but
would be moving to transfer all ‘illegal’ maritime arrivals to Manus Island or
Nauru within 48 hours of their arrival.[233]
On 9 May 2014 the Minister for Immigration and Border
Protection, Scott Morrison, announced in a speech to the Lowy Institute that an
Australian Border Force (ABF) would be created within DIBP. The ABF would
operate as ‘a single frontline operational border agency, to enforce our
customs and immigration laws and protect our border’.[234]
The details of an election commitment to merge the Australian Customs and
Border Protection Service (ACBPS) into DIBP were also outlined—‘Having
established a strong platform within the Australian Customs and Border
Protection Service, it will then cease to exist on July 1 2015 and be
superseded by the Australian Border Force’.[235]
The ABF’s Strategic Border Command was
launched on 3 July 2014 to ‘monitor movements in real time and support
effective decision-making, enhancement of surveillance capabilities and the
acquisition of six vessels suitable for inshore and coastal operations to
support remote area patrols’.[236] On 14
July 2014 the Strategic Border Command’s National
Border Targeting Centre was launched —‘a 24/7 operations centre,
bringing together nine border, law enforcement, national intelligence and
regulatory partner agencies to analyse and target high-risk passengers and
cargo within the Strategic Border Command’. [237]
On 1 July 2015 the Department’s new operational arm,
Australian Border Force (ABF), was officially launched and Customs merged with
DIBP. The ABF absorbed the operational responsibilities previously held by both
agencies (such as intercepting prohibited imports, conducting immigration
compliance activities and maintaining immigration detention facilities) and would
‘continue the mission of Operation Sovereign Borders’.[238]
Boat
turnbacks
Prior to the election, the then Leader of the Opposition,
Tony Abbott, stated that within a week of taking office he would instruct the
Australian Navy to turn back boats carrying asylum seekers and prevent them
from entering Australian waters or arriving onshore.[239]
On coming to power in September 2013, the Abbott Government
immediately implemented this policy, but made it clear that it would not be
providing any information on successful ‘on-water disruptions’ such as boat ‘turnbacks’
or ‘take-backs’, for operational reasons.[240]
The Government defined ‘turnbacks’ as ‘the safe removal of
vessels from Australian waters, with passengers and crew returned to their
countries of departure’; and ‘take-backs’ as a transfer (often at sea)
of passengers and crew to another sovereign authority (for example, the Sri
Lankan Navy).[241] During these ‘on-water’ operations, passengers usually undergo an ‘enhanced
screening’ process designed to identify whether anyone has a protection need
before the vessel is returned.[242]
According to the Department’s statistics, no
asylum seekers have been transferred to an offshore processing facility (or
screened-in) since December 2014.[243]
Although information on turnbacks and take-backs since then
has been sporadic, on a few occasions the Government has released information
on some of the OSB ‘on-water’ activities that have occurred.[244] For example:
- 19 December 2013 — the first successful boat turnback by the
Abbott Government took place.[245]
- 15 January 2014 — the Australian Customs and Border Protection
Service purchased a number of large (orange) lifeboats ‘to achieve the aims of
Operation Sovereign Borders’.[246]
- 18 September 2014 — in addition to a boat arrival with 157 Sri
Lankan nationals on board in July 2014, 12 boats (with 383 people on board) were
turned back at sea between 19 December 2013 and 20 May 2014.[247]
- 28 January 2015 — there were 15 boat turnbacks since 19 December
2013.[248]
- 9 February 2015 — another boat was intercepted north-west of
Cocos Island on 9 February 2015. The four passengers were returned to Sri
Lankan authorities (a take-back).[249]
- 5 May 2015 — a boat carrying 46 Vietnamese nationals was returned
to Vietnamese authorities (a take-back).[250]
- 6 August 2015 — there were 20 boat turnbacks or take-backs with
633 people on board since December 2013.[251]
- 31 December 2015 — the OSB monthly update for December stated
that there had been 23 boat turnbacks with 685 people on board since December
2013.[252]
- 18 March 2016 — since December 2013 there were 25 boat turnbacks
carrying 698 people.[253]
- 22 June 2016 — Prime Minister Malcolm Turnbull confirmed that a
total of 28 boats had been turned back carrying 734 people.[254]
Offshore processing and settlement
During the 2013 election period the Coalition confirmed that
offshore processing would remain under an Abbott Government.[255] With the subsequent
election of the Coalition Government in September 2013, offshore processing,
including the tougher measures introduced previously by the Rudd Government in
July 2013, remained in place.[256]
Between July 2013 (when the previous Government announced
that all, not some, maritime asylum seekers would be transferred to an offshore
processing centre) and April 2014, the numbers of people being accommodated
offshore rose to just under 2,500 in April 2014. Since then the numbers of
people at the centres have gradually declined.[257]
Key developments relating to the Government’s offshore
processing regime include:
- 22 May 2014 — the first refugees (13) from the Nauru Offshore
Processing Centre were settled in Nauru.[258]
- 18 June 2014 — challenge to offshore processing judgement delivered.
The High Court declared the Australian Government’s offshore processing
arrangements to be valid.
- 1 August 2014 — by the end of July 2014 the Government of Nauru
had completed 168 Refugee Status Determinations, of which 131 were positive
(processing began on 19 March 2013).[259]
- 26 September 2014 — the Cambodian Government formally agreed to
resettle refugees from Nauru on a voluntary and permanent basis after the
Australian and Cambodian Governments signed a Memorandum of Understanding (MOU)
in Phnom Penh.[260]
- 6 November 2014 — the Australian and Nauru Governments agreed
that the Regional Processing Centre on Nauru would transition to an open
centre model in early 2015.[261]
- 12 November 2014 — the PNG Government handed down its first
positive refugee status determinations to 10 asylum seekers (processing began on
8 July 2013).[262]
- 17 December 2014 — the Minister opened a resettlement facility on
Manus Island and announced that a further 40 refugee status determinations had
been signed, bringing the total number of determinations in PNG to 50.[263]
- 22 January 2015 — media reported that one Iranian and one
Pakistani who had been found to be refugees had moved into temporary
accommodation as part of a first step by the Government of PNG to settle them.[264]
- 13 March 2015 — the Minister announced that the first refugees
from Nauru were to be relocated and resettled in Cambodia.[265]
- 4 June 2015 — the first four refugees were voluntarily transferred
from Nauru to Cambodia for resettlement.[266]
- 5 October 2015 — following an agreement between the Australia and
Nauru Governments made in November 2014, the Regional Processing Centre
on Nauru moved to an open centre model.[267]
- 7 October 2015 — the Government of the Republic of Nauru published
a media release stating that refugees in Nauru ‘are in no
physical danger and stories of locals attacking them are largely fabricated to
further political agendas and influence the Australian Government’.[268]
- 15 October 2015 — the Government of Cambodia began to integrate
the first group of refugees for resettlement in the community after
transferring them from transit accommodation.[269]
- 22 November 2015 — the Secretary General of the United Nations
expressed his concerns over the conditions in Australia’s offshore processing
centres and encouraged the Prime Minister of Australia to reconsider the
Operation Sovereign Borders regime.[270]
- January 2016 — media reported that offers by the New Zealand
Government to resettle 150 refugees a year from PNG and Nauru (negotiated by
the Gillard Government in 2013) continued to be declined by the Coalition
Government.[271]
- 3 March 2016 — in an address to the National Press Club, the
Prime Minister of Papua New Guinea, Peter O’Neill, stated that ‘Manus Island
refugee centre is a problem that I inherited from the previous government ... it has
done a lot more damage for Papua New Guinea than anything else’.[272]
- 26 April 2016 — PNG Supreme Court unanimously found
the detention of refugees and asylum seekers in the Australian-funded
processing centre on Manus Island to be unconstitutional.
- 27 April 2016 — media reported that the Manus
Island immigration detention would close, and Australia must make new
arrangements for the 850 asylum seeker and refugee men held there.[273]
- 2 May 2016 — UNHCR issued a statement saying ‘... arrangements in
both countries have proved completely untenable ... UNHCR's principal concern
today is that these refugees and asylum-seekers are immediately moved to humane
conditions with adequate support and services’.[274]
- 5 May 2016 – media reported that a fourth refugee resettled to Cambodia
from Nauru leaves the country and only one refugee reportedly remained in
Cambodia.[275]
- 12 May 2016 — media reported that asylum seekers and refugees were
no longer in detention on Manus Island, according to a Papua New Guinea
immigration official who stated they were free to leave the centre.[276]
- 1 July 2016 — media reported that PNG‘s Chief Justice had issued
PNG Immigration a two-week deadline for the remaining asylum seekers on Manus
Island to be processed. The court also insisted that asylum seekers now be
called ‘residents’, after the recent Supreme Court ruling.[277]
- 9 June 2016 — official statistics released by the DIBP indicated
that 541 refugees on Manus Island had received a positive final determination
as at 31 May 2016 and in Nauru 1194 asylum seekers had received a decision
resulting in 915 persons being found to be refugees and 279 receiving a
negative outcome.[278]
Temporary protection
In October 1999, the Howard Government formally introduced
the practice of offering temporary, not permanent, protection for asylum
seekers who had arrived unauthorised by boat and had been found to be refugees.
However, in May 2008 the Rudd Government honoured an election commitment and
abolished the Temporary Protection Visa (TPV) category for asylum seekers and
granted permanent protection to those still in the country on these visas
(around 1,000 at the time).[279]
Before the 2013 election the Coalition consistently stated
that, under an Abbott Government, TPVs would be reintroduced as a deterrence
measure and issued to any unauthorised asylum seeker arrival found to be a
refugee onshore (that is, had not been transferred to an offshore processing
centre). After coming to power in September 2013, the Coalition promptly began
the process of re-introducing TPVs.[280]
However, the process proved to be problematic and lengthy. The
key developments are documented below:
- 18 October 2013 — the new Abbott Government registered the Migration
Amendment (Temporary Protection Visas) Regulation 2013.[281]
This Regulation provided for the re-introduction of TPVs. However, on 2 December 2013
the Australian Greens and ALP voted in the Senate to disallow the Regulation.[282]
- 4 December 2013 — in response to the Senate disallowance of the
regulation reintroducing TPVs, the Immigration Minister announced that he had
placed a limit or cap of 1,650 on the number of protection visas which could be
issued in 2013–14 (which was the number which had been granted prior to the
swearing in of the Coalition Government).[283]
This meant that no more permanent protection visas could be granted to any asylum
seekers in 2013–14. The visa cap was achieved through legislative instrument
under section 85 of the Migration Act, which was not subject to
disallowance.[284]
However, this decision was subsequently revoked by the Government on 19
December 2013.[285]
- 14 December 2013 — the Government registered the Migration
Amendment (Unauthorised Maritime Arrival) Regulation 2013.[286]
This Regulation amended the Migration Regulations 1994 to introduce a new visa
criterion so that a permanent Protection visa could be granted to an
unauthorised maritime arrival. However on 27 March 2014 the
Australian Greens and ALP voted in the Senate to disallow the Regulation.[287]
- January 2014 — the Immigration Department issued a factsheet
informing asylum seekers that ‘illegal arrivals who had lodged a protection
visa application would have their application refused because the law had changed
and they could not be granted a permanent protection visa. Those who were found
to engage Australia’s protection obligations and satisfy all other requirements
would be offered access to a temporary humanitarian concern visa’.[288]
As the fact sheet explains, a temporary humanitarian concern visa was valid for
up to three years but persons issued with this type of visa could not apply for
a permanent visa upon expiration. Also, this visa did not enable family members
to be brought from overseas. A person could not apply for a temporary
humanitarian concern visa, they must be invited to accept grant of this visa by
the Minister. If the Minister decided to grant this visa, the person would first
be invited to accept a temporary humanitarian stay visa (normally valid for seven days) which would then enable the
grant of a temporary humanitarian concern visa.[289]
However, on 11 September 2014, the High Court unanimously held invalid the
grant by the Minister of a temporary safe haven visa to the plaintiff, which
had the effect of precluding him from making a valid application for a
protection visa.[290]
This judgment is discussed further below under the heading ‘Case law’.
- 6 March 2014 — the Immigration Minister announced that he had
placed a limit or cap of 2,773 on the number of permanent Protection visas
which could be issued in 2013–14.[291]
The visa cap was again achieved through legislative instrument under section 85
of the Migration Act, which was not subject to disallowance. However, on
20 June 2014, this legislative instrument was subsequently found to invalid by
the High Court in two concurrently heard matters: Plaintiff M150 of 2013 v
Minister for Immigration and Border Protection and Plaintiff S297/2013 v
Minister for Immigration and Border Protection.[292]
- June 2014 — the Immigration Department issued a fact sheet
informing asylum seekers that the immigration Minister ‘will decide whether to
grant a permanent protection visa to illegal arrivals on a case-by-case basis,
after personally considering their individual circumstances. If the minister
decides that it is not in the ‘national interest’[293]
to grant a permanent protection visa in a specific case, he or she may issue a
conclusive certificate relating to his decision. If he or she does, their
decision that it is not in the national interest to grant this visa cannot be
reviewed by the RRT... Illegal arrivals refused a permanent protection visa under
the national interest criterion will not be subject to removal from Australia
and will have their protection needs met through other means, such as a
temporary visa’.[294]
- 10 September 2014 — in a speech to the National Press Club, the
Minister suggested that TPVs could be utilised for those asylum seekers who
arrived by boat between 19 July and 31 December 2013.[295]
- 25 September 2014 — the Migration
and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy
Caseload) Bill 2014 was introduced. [296]
This Bill proposed a suite of changes to the existing laws including: reintroduction
of TPVs, introduction of a new class of five year temporary protection visa (a
Safe Haven Enterprise Visa); introduction of a fast track review process for
some IMAs; introduction of a power to enable
the Minister to limit or ‘cap’ the number of protection visas that can be
granted in a financial year; removal of the obligation on the Minister or the
RRT to make a decision on a protection visa within 90 days; and insertion of a
provision that provides that certain applications for permanent protection
visas be taken to be applications for temporary protection visas.[297]
On 5 December 2014 the Asylum Legacy Caseload Bill passed
both houses of Parliament.[298]
Thus, TPVs were officially reintroduced on 16 December 2014, being the day
after the Bill received Royal Assent.
- 22 June 2015 — 17 people had been granted a TPV from a potential
caseload of about 30,000 by June 2015.[299]
TPV holders are eligible to stay for a period of three years, may work or study
and have access to Medicare and certain other benefits.[300]
- 4 April 2016 — media reports that 849 of the ‘asylum legacy’
caseload of about 30,000 had been granted TPVs as at March 2016.[301]
Fast-track processing of
asylum claims
Prior to the 2013 federal election, the then Opposition
announced that a future Coalition Government would introduce a broader
screening process that would apply to all boat arrivals by establishing ‘a new fast
track assessment and removal process based on the United Kingdom's Detained
Fast Track system to have protection claims assessed, immigration status
resolved and removals undertaken as quickly as possible’.[302]
As promised, the Coalition Government introduced
a new ‘fast track’ processing system for certain caseloads with the
commencement of the Migration and Maritime Powers Legislation
Amendment (Resolving the Asylum Legacy Caseload) Act 2014 on 18 April 2015. Although not a great deal of information was
provided on the details of the fast-track process, it was clear that asylum
seekers who arrived on a valid visa would continue to have access to
Australia’s refugee status determination process, while those who arrived
unauthorised by boat on or after 13 August 2012 but before 1 January 2014 were now
subject to a ‘fast track’ assessment process if:
- they had not been taken to a regional processing country
- they had been invited by the Minister to make a valid application
for a protection visa (that is, the Minister has exercised his personal
discretion and lifted the subsection 46A(2) bar which prohibits them lodging a
visa application) and
- the application was lodged with the Department after 18 April
2015.
The Minister also has the power to specify additional
classes of persons to be ‘fast track applicants’ which has been done on a
number of occasions. For example, to the approximately 1,000 UMAs transferred
to a regional processing country prior to 19 July 2013 but who were
progressively returned to Australia to create capacity for transferees
following former Prime Minister Rudd’s announcement on 19 July 2013 that all
UMAs would be processed offshore; for infants born on or after 1 January 2014
to UMA parents who were subject to fast track processing; and of course, to
children (and their immediate family members) born in Australia during the
period 6 November 2013 and 5 December 2014 whose parents had entered Australia
by boat after 19 July 2013 and who were subsequently taken to Nauru. This last
category of fast track applicants arose out of an agreement reached between the
Minister and former Senator Ricky Muir in the lead up to the passage of the Migration and Maritime Powers Legislation Amendment (Resolving the
Asylum Legacy Caseload) Act 2014.[303]
Fast track applicants have no access to merits review
through the Migration and Refugee Division of the Administrative Appeals
Tribunal (AAT).[304]
Instead they now have access to a more limited review process conducted by an
independent office within the Migration and Refugee Division of the AAT—the
Immigration Assessment Authority (IAA).
Some asylum seekers (classified as ‘excluded fast track
review applicants’) are not eligible to have their adverse fast track primary
decision reviewed by the IAA. These persons include those who:
- come from ‘safe third countries’ or have ‘effective protection’
in another country
- previously entered Australia and made a protection visa
application which was refused or withdrawn
- made an unsuccessful claim for protection in another country
- made an unsuccessful claim for protection with the Office of the United
Nations High Commissioner for Refugees in another country
- provided ‘without reasonable explanation’ a ‘bogus document’ in
support of their application or
- made, in the opinion of the Minister, a ‘manifestly unfounded’
claim.
A ‘manifestly unfounded claim’ is
defined to include a claim that:
- has no plausible or credible basis
- is not able to be substantiated by any objective evidence (if the
claim is based on conditions, events or circumstances in a particular country)
or
- is made for the sole purpose of delaying or frustrating the fast
track applicant’s removal from Australia.[305]
The IAA undertakes a limited form
of merits review by conducting reviews ‘on the papers’. This means that with
limited exceptions, it can only consider the material that was before the
Department when it made its primary decision. There is no hearing.
While the IAA has no legal obligation to do
so, it may get, request or accept new information that was not before the
Department. If an applicant gives the IAA new information, the IAA can
also only consider that information if the applicant can show that the new
information:
- was not, and could not, have been provided to the
Department before it made its decision to refuse the protection visa or
- is credible personal information which was not
previously known and, had it been known, may have affected how the applicant’s
protection claims were considered by the Department.
In limited circumstances, the IAA may invite
an applicant to comment on the new information via an interview (conducted over
the telephone) or in writing. The review process is expected to take 6 weeks to
complete, or longer if new material is to be considered.[306] The IAA can affirm the decision
to refuse the applicant a protection visa, or remit the matter back to the Immigration
Department for reconsideration with directions, including that the referred
applicant is a ‘refugee’ within the meaning of subsection 5(1) of the Migration
Act. The IAA has no power to grant a protection visa. Those who receive an
adverse decision will have access to judicial review.
As at 20 February 2016, the Department had
received 2,841 visa applications to be processed under the fast track process
(8,105 invitations letters had been sent out). The Department had refused 41
applications and the IAA had completed 19 reviews (affirming the Department’s
outcome in 11 decisions and remitting eight decisions back to the Department
for reconsideration).[307]
Key legal developments
Legislation
Government initiated legislation—Bills
Migration Amendment (Regaining
Control over Australia’s Protection Obligations) Bill 2013
On 4 December 2013 the Government introduced the Migration
Amendment (Regaining Control over Australia’s Protection Obligations) Bill 2013
into Parliament.[308]
The primary purpose of the Bill was to amend the Migration Act 1958 (Migration
Act) to remove the statutory regime for assessing claims that may engage
Australia‘s non-refoulement (non-return) obligations arising under
international human rights treaties, other than the 1951 Convention Relating
to the Status of Refugees and its 1967 Protocol (the Refugees
Convention).
The Bills
Digest examines the Bill (as introduced) in further detail.[309]
The Senate Legal and Constitutional Affairs Committee recommended that the Bill
be passed without amendment.[310]
This Bill was never brought on for debate in the Senate and was discharged from
the Senate Notice Paper on 15 October 2015. The Immigration Minister noted:
The government has considered the concerns raised by the Parliament
and its relevant committees on certain aspects of the Bill. On balance the
government considers that the best way forward is for the complementary
protection provisions to remain in the Migration Act but be modified slightly
as per the terms of this Bill [Migration Amendment (Complementary Protection
and Other Measures) Bill 2015].[311]
Migration Amendment Bill 2013
On 12 December 2013, the Government introduced the Migration
Amendment Bill 2013.[312]
The purpose of the Bill was to amend the Migration Act to:
- resolve questions about the day and time at which certain
decisions of the Minister (or his, or her delegate) are taken to be finally
made and at which decisions of the Migration Review Tribunal (MRT) and Refugee
Review Tribunal (RRT) are made and become final
- ensure that, once an application for a protection visa has been
refused, or a protection visa has been cancelled, a person cannot apply for a
protection visa on any other ground while in the migration zone
- make it a criterion for the grant of a protection visa in section
36 of the Migration Act that the applicant is not assessed by the
Australian Security Intelligence Organisation to be directly or indirectly a
risk to security within the meaning of the Australian Security Intelligence
Organisation Act 1979 (ASIO Act).
The Bills
Digest examines the Bill (as introduced) in further detail.[313]
The Senate Legal and Constitutional Affairs Committee recommended that the Bill
be passed without amendment.[314]
The Bill passed both houses on 14 May 2015 (without
amendment) and became Act
no. 30 of 2014.[315]
Migration Legislation Amendment
Bill (No. 1) 2014
On 27 March 2014, the Government introduced the Migration
Legislation Amendment Bill (No. 1) 2014.[316]
The purpose of the Bill was to amend the Migration Act to:
- clarify the restriction and scope on applying for further visas
- ensure that an application for a bridging visa does not prevent
the removal of a detainee who is otherwise eligible for removal
- enable debt recovery from all persons convicted of people
smuggling and illegal foreign fishing
- clarify and restrict the role of authorised recipients
- enable greater use of material and information obtained through a
search warrant and
- clarify the scope of the procedural fairness requirements.
The Bills
Digest examines the Bill (as introduced) in further detail.[317]
The Senate Legal and Constitutional Affairs Committee recommended that the Bill
be passed without amendment.[318]
The Bill passed both houses on 3 September 2014 (without
amendment) and became Act
no. 106 of 2014.[319]
Migration Amendment (Protection
and Other Measures) Bill 2014
On 12 December 2013, the Government introduced the Migration
Amendment (Protection and Other Measures) Bill 2014.[320]
The purpose of the Bill was to amend the Migration Act to most
significantly:
- clarify that it is the non-citizen and not the Minister who has
the responsibility to specify all particulars of a protection claim and provide
sufficient evidence to substantiate such claims
- create grounds to refuse a protection visa application when an
applicant refuses or fails to establish their identity, nationality or
citizenship, and does not have a reasonable explanation for doing so
- create grounds to refuse a protection visa application when an
applicant provides bogus documents to establish their identity or either
destroys or discards identity evidence, or has caused that evidence to be
destroyed or discarded
- clarify that a family member of a protection visa holder cannot
be granted a protection visa on the basis of being a family member if they
apply after the initial visa has been granted
- provide that the Refugee Review Tribunal (RRT) must draw an
unfavourable inference with regard to the credibility of claims or evidence
that are raised for the first time before it if the review applicant has no
reasonable explanation to justify why those claims and evidence were not raised
before the primary decision was made by the Department
- clarify Australia’s interpretation of the likelihood of harm and
the types of harm necessary to engage Australia’s non-refoulement obligations
which will apply to certain ‘protection obligation’ determinations made under
the Act, the regulations, administrative processes and so forth, irrespective
of whether the assessment is conducted as a result of a visa application
- change the test for assessing complementary protection claims and
raise the requisite threshold for return
- broaden the operation of the statutory bar that precludes
unauthorised maritime arrivals (UMAs) from lodging valid visa applications by
providing that UMAs who have been granted a bridging visa or a prescribed
temporary visa will also be precluded from applying for a visa
- broaden the powers of the Principal Member of the Migration
Review Tribunal (MRT) and the RRT to issue ‘practice directions’ to applicants
and their representatives (including migration agents and legal practitioners)
about the procedures they are to follow in relation to proceedings
- broaden the powers of the Principal Member of the MRT and RRT to
issue ‘guidance decisions’ which Members of the Tribunal must comply with
unless satisfied that the facts or circumstances of the decision under review
is clearly distinguishable from the guidance decision
- enable a Tribunal Member to provide an oral (as opposed to a
written) statement of reasons when they make an oral decision and
- enable the MRT and RRT to dismiss an application where an
applicant fails to appear before the Tribunal after being invited to attend.
The Bills
Digest examines the Bill (as introduced) in further detail.[321]
The Senate Legal and Constitutional Affairs Committee recommended that the Bill
be passed without amendment.[322]
The Bill passed both houses on 25 March 2015 with
amendments and became Act
no. 35 of 2015.[323]
Migration Amendment (Character and
General Visa Cancellation) Bill 2014
On 12 December 2013, the Government introduced the Migration
Amendment (Character and General Visa Cancellation) Bill.[324]
The purpose of the Bill was to amend the Migration Act to:
- provide for mandatory cancellation of the visa of a person who is
serving a prison sentence, where the Minister is satisfied that the person
fails the character test as they have a substantial criminal record or have
been found guilty of a sexually based offence involving a child
- broaden the power to refuse or cancel visas by including
additional grounds on which a person will not pass the character test
- provide that a person does not pass the character test if there
is a ‘risk’ (rather than the current ‘significant risk’) that they would pose a
danger to the Australian community
- amend the definition of ‘substantial criminal record’ so that a
person sentenced to terms of imprisonment totalling 12 months or more (rather
than the current two years) will not pass the character test
- allow the Minister to set aside decisions by a delegate or a
Tribunal and cancel a visa if the Minister thinks it is in the national
interest
- enable the Minister to require heads of state or territory
agencies to disclose personal information that
relates to a particular person or a person included in a class of persons
- expand the grounds on which a visa may be cancelled under the
general visa cancellation power
- expand the Minister’s personal powers to cancel a visa on section
109 or 116 grounds
- provide a mechanism to revoke a cancellation in certain
circumstances and
- allow
the Minister to substitute their own decision for a decision of a Tribunal or a
delegate.
The Bills
Digest examines the Bill (as introduced) in further detail.[325]
The Senate Legal and Constitutional Affairs Committee recommended that the Bill
be passed without amendment.[326]
The Bill passed both houses on 26 November 2014 and became Act no. 129 of 2014.[327]
Migration and Maritime Powers
Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014
On 25 September 2014 the Government introduced the Migration
and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy
Caseload) Bill 2014.[328]
The purpose of the Bill was to change the way Australia manages and processes
asylum seekers by amending the Maritime Powers Act 2013 to: provide clarity and consistency in relation to powers to detain
and move vessels and people; clarify the relationship between the Act and other
laws; and provide for the Minister to give directions about the exercise of
maritime powers.
The Bill also amended the Migration Act
1958 to: introduce temporary protection for those
who engage Australia’s non-refoulement obligations and who arrive in
Australia without authorisation; create the authority to make deeming
regulations; create the Safe Haven Enterprise Visa class; introduce a fast
track assessment process and remove access to the Refugee Review Tribunal
(RRT); establish the Immigration Assessment Authority within the RRT to
consider fast track reviewable decisions; clarify the availability of removal
powers independent of assessments of Australia’s non-refoulement
obligations; codify Australia’s interpretation of its protection obligations
under the Refugees Convention; clarify the legal status of children of
unauthorised maritime arrivals and transitory persons; and enable the Minister
to place a statutory limit on the number of protection visas granted.
The Bills
Digest examines the Bill (as introduced) in further detail.[329]
The Senate Legal and Constitutional Affairs Committee recommended that the Bill
be passed with amendment.[330]
The Bill passed both houses on 5 December 2014 and became Act no. 135 of 2014.[331]
Australian Citizenship and Other Legislation
Amendment Bill 2014
On 23 October 2014 the Government introduced the Australian
Citizenship and Other Legislation Amendment Bill 2014.[332]
The purpose of the Bill was to amend the Australian
Citizenship Act 2007 to: extend good character
requirements; clarify residency requirements and related matters; clarify the
circumstances in which a person’s approval as an Australian citizen may or must
be cancelled; clarify the circumstances in which the minister may defer a
person making the pledge of commitment to become an Australian citizen; clarify
the circumstances in which a person’s Australian citizenship may be revoked;
enable the minister to specify certain matters in a legislative instrument;
enable the use and disclosure of personal information obtained under the Migration
Act or the migration regulations; make technical amendments; and amend the Migration
Act to enable the use and disclosure of personal information obtained under
the Australian Citizenship Act 2007 or the citizenship regulations.
The Bills
Digest examines the Bill (as introduced) in further detail.[333]
The Senate Legal and Constitutional Affairs Committee recommended that the Bill
be passed without amendment.[334]
This Bill lapsed upon prorogation of the 44th
Parliament.
Australian Border Force Bill 2015 and
the Customs and Other Legislation Amendment (Australian Border Force) Bill 2015
On 25 February 2015 the Government introduced the Australian
Border Force Bill 2015[335]
and the Customs
and Other Legislation Amendment (Australian Border Force) Bill 2015.[336]
The purpose of the Australian Border Force Bill was primarily to establish the
statutory office and role of the Australian Border Force (ABF) Commissioner;
provide for the exercise of powers of the commissioner and the ABF employees;
provide for the issue of binding written directions in relation to the
administration and control of the ABF and the department respectively, and the
performance of functions or exercise of powers; provide the ability to require
immigration and border protection workers to undergo alcohol and prohibited
drug screening tests; establish secrecy and disclosure provisions; and provide
for the management of serious misconduct by employees.
The purpose of the Customs and Other Legislation Amendment
(Australian Border Force) Bill 2015 was primarily to bring the DIBP within the
jurisdiction of the Australian Commission for Law Enforcement Integrity and
under a targeted integrity testing regime; provide the DIBP with access to
investigative powers currently available to Customs; allow the ABF Commissioner
to declare that specified provisions of Work Health and Safety Act 2011
do not apply, or apply subject to modifications; amend the Migration Act
to allow the ABF Commissioner to exercise certain powers under the Act.
The Bills
Digest examines the Bills (as introduced) in further detail.[337]
The Senate Legal and Constitutional Affairs Committee recommended that the
Bills be passed without amendment.[338]
Both Bills passed both houses on 14 May 2015 and became Acts
no. 40 and 41 of 2015.[339]
Migration Amendment (Maintaining
the Good Order of Immigration Detention Facilities) Bill 2015
On 25 February 2015 the Government introduced the Migration
Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill
2015. [340] The purpose
of the Bill was to insert a statutory framework into the Migration Act for
the use of force in specified circumstances within Australian immigration
detention facilities. It also sets out
complaint mechanisms and inserts a bar on commencing legal proceedings against
the Commonwealth unless the powers are not exercised in good faith (though the
original jurisdiction of the High Court is expressly retained).
The Bills
Digest examines the Bill (as introduced) in further detail.[341]
The Senate Legal and Constitutional Affairs Committee recommended that the Bill
be passed subject to amendment.[342]
This Bill lapsed upon prorogation of the 44th
Parliament.
Migration Amendment (Regional Processing
Arrangements) Bill 2015
On 24 June 2015 the Government introduced the Migration
Amendment (Regional Processing Arrangements) Bill 2015.[343]
The purpose of the Bill was to amend the Migration Act to provide retrospective
statutory authority (through the insertion of section 198AHA) for the
Commonwealth to provide assistance to other countries to carry into effect
arrangements for the processing and management of unauthorised maritime
arrivals who have been taken to regional processing countries, including the
expenditure of Commonwealth money on these arrangements.
The Commonwealth would subsequently rely on section 198AHA
as statutory authority for the Executive to give effect to the arrangement made
between the Commonwealth and the Government of Nauru before the High Court in Plaintiff
M68-2015 v Minister for Immigration and Border Protection.[344]
The Bill passed both houses, the day after, on 25 June 2015
and became Act no.
104 of 2015.[345]
Migration and Maritime Powers Amendment
Bill (No. 1) 2015
On 16 September 2015 the Government introduced the Migration
and Maritime Powers Amendment Bill (No. 1) 2015.[346]
The purpose of the Bill was to amend the Migration Act to:
- ensure that when an unlawful non-citizen is in the process of
being removed to another country and the removal is aborted, or the person does
not enter the other country, and is thus returned to Australia, then that
person has a lawful basis to return to Australia without a visa
- ensure that when such a person returns to Australia they will be
taken to have been continuously in the migration zone so that they will be
precluded from making a valid application for certain visas
- improve consistency in the character related provisions,
following recent amendments to the Migration Act
- provide that the events described in sections 82, 173 and 174 of
the Migration Act that cause a visa that is in effect to cease will, as
a general rule, cause a visa that is held, but not in effect, to be taken to
cease
- clarify that a person who has previously been refused a
protection visa application that was made on their behalf cannot make a further
protection visa application and
- ensure that the Administrative Appeals Tribunal (AAT) can review
certain character or security based decisions to refuse to grant a protection
visa to a ‘fast track applicant’.
The Bill would also amend the Maritime Powers Act 2013 to confirm that powers under
the Maritime Powers Act are able to be exercised in the course of
passage through or above the waters of another country in a manner consistent
with the 1982 United Nations Convention on the Law of the Sea.
The Bills
Digest examines the Bill (as introduced) in further detail. [347]
The Senate Legal and Constitutional Affairs Committee recommended that the Bill
be passed without amendment.[348]
The Bill passed the Senate on 23 November 2015 with amendments. The
House of Representatives did not consider the Senate amendments.[349]
This Bill lapsed upon prorogation of the 44th
Parliament.
Migration Amendment (Complementary
Protection and Other Measures) Bill 2015
On 14 October 2015, the Government introduced the Migration
Amendment (Complementary Protection and Other Measures) Bill 2015.[350]
The purpose of the Bill was to amend the Migration Act to align the
complementary protection statutory framework with the statutory refugee
framework, as amended by the Migration and Maritime Powers Legislation
Amendment (Resolving the Asylum Legacy Caseload) Act 2014. More explicitly,
the Bill will amend the Act to provide:
- protection is only available where the real risk of significant
harm relates to all areas of a receiving country
- protection is not available if an applicant could take reasonable
steps to modify their behaviour so as to avoid a real risk of significant harm
(other than modification that would conflict with their innate or immutable
characteristics or which is fundamental to the person’s identity or conscience)
- protection is only available where the real risk of significant
harm is faced by a person personally, rather than being an indiscriminate risk
of harm faced by the population generally in a receiving country
- protection is only available if effective protection measures are
not available to an applicant through State or non-State actors in a receiving
country and
- the ability of the Minister for Immigration and Border Protection
to preclude merits review will be expanded to include an unsuccessful
complementary protection applicant on character grounds.
The Bills
Digest examines the Bill (as introduced) in further detail.[351]
The Senate Legal and Constitutional Affairs Committee recommended that the Bill
be passed with amendments.[352]
This Bill lapsed upon prorogation of the 44th
Parliament.
Migration Amendment (Character Cancellation
Consequential Provisions) Bill 2016
On 10 February 2016 the Government introduced the Migration
Amendment (Character Cancellation Consequential Provisions) Bill 2016.[353]
The purpose of the Bill is to reintroduce statutory amendments similar to those
initially introduced by Schedule 2 of the Migration and Maritime Powers
Amendment Bill (No. 1) 2015 to amend the Migration Act to give full
effect to the Migration Amendment (Character and General Visa Cancellation)
Act 2014 in relation to mandatory visa cancellation-related powers and the
lawful disclosure of non-citizens’ identifying information where a non-citizen
is suspected of being of character concern.
For completeness, Schedule 4 of the Migration and Maritime
Powers Amendment Bill (No. 1) 2015 was also subsequently reproduced in Schedule
6 of the Customs
and other Legislation Amendment Bill 2016.[354]
The Bills
Digest examines the Bill (as introduced) in further detail.[355]
The Senate Legal and Constitutional Affairs Committee recommended that the Bill
be passed without amendment.[356]
Both Bills lapsed upon prorogation of the 44th
Parliament.
Regulations and other legislative instruments
Migration Amendment (Subclass 050 and Subclass 051 Visas)
Regulation 2013
This Regulation
commenced on 29 June 2013.[357]
The purpose of the Regulation was to amend the Migration Regulations 1994 to:
create a discretionary power to cancel a Bridging E (Class WE) visa (BVE) held
by a person who is convicted of, or charged with, an offence in Australia or
another country, or who is the subject of an Interpol notice relating to criminal
conduct or to threat to public safety; create a discretionary power to cancel a
BVE where the Minister has been advised by an agency responsible for the
regulation of law enforcement or security in Australia that the holder is under
investigation by that agency and the head of that agency has advised the
Minister that the holder should not hold a BVE; create a new discretionary visa
condition to, when imposed, prohibit a person who has been granted a BVE from
engaging in criminal conduct.
Migration Amendment (Temporary Protection Visas)
Regulation 2013
This Regulation
commenced on 18 October 2013.[358]
The purpose of the Regulation was to amend the Migration Regulations 1994
to establish new arrangements for dealing with people who have arrived in
Australia without visas and claimed protection. In particular the Regulation
reintroduced Temporary Protection (Subclass 785 (Temporary Protection)) visas
(TPVs), to be the only protection visa available to people who, put simply:
- are unauthorised maritime arrivals
- otherwise arrived in Australia without a visa or
- were not immigration cleared on their last arrival in Australia.
On 2 December 2013 Senator Hanson-Young of the Australian
Greens successfully moved a motion in the Senate to disallow the Regulation.
The motion had the support of the Opposition.[359]
Determination of Granting of Protection Class XA Visas in
2013/2014 Financial Year (IMMI 13/156)
This Instrument
commenced on 4 December 2013.[360]
The purpose of the Legislative Instrument was to determine, pursuant to section
85 of the Act, the maximum number of visas that may be granted in the financial
year 1 July 2013 to 30 June 2014 for Protection (Class XA) visas at 1650.
Under section 44 of the Legislative Instruments Act 2003
the Instrument was exempt from disallowance. However, this Instrument was
subsequently revoked by the Minister through Revocation of IMMI
13/156 ‘Granting of Protection Class XA Visas in 2013/2014 Financial Year’
(IMMI 13/159), which commenced on 20 December 2013.[361]
Migration Amendment (Unauthorised Maritime Arrival)
Regulation 2013
This Regulation
commenced on 14 December 2013.[362]
The purpose of the Regulation was to amend the Migration Regulations 1994 to
introduce a new visa criterion so that a permanent Protection visa can only to
be granted to a person who, put simply,:
- held a visa that was in effect on their last entry into Australia
- is not an unauthorised maritime arrival and
- was immigration cleared on their last entry into Australia.
On 27 March 2014 Senator Hanson-Young of the Australian
Greens successfully moved a motion in the Senate to disallow the Regulation.
The motion had the support of the Opposition.[363]
Migration Amendment (Bridging Visas—Code of Behaviour)
Regulation 2013
This Regulation
commenced on 14 December 2013.[364]
The purpose of the Regulation was to amend the Migration Regulations 1994 to
establish an enforceable code of behaviour for Bridging E visa (BVE) holders.
In particular the Regulation:
- creates a Public Interest Criterion (‘PIC’) that requires certain
applicants for a BVE to sign a code of behaviour to be eligible for the grant
of the BVE. The PIC applies to applicants for BVEs who are over 18 and hold, or
previously held, a BVE granted by the Minister under section 195A of the Act.
Where the BVE holder has signed a code of behaviour, the Regulation also
creates a visa condition that requires the holder to abide by the code of
behaviour that they have signed. The actual code of behaviour is specified by
the Minister in an instrument (see immediately below).
- prevents a person whose BVE has been cancelled due to criminal
conduct or a breach of the code of behaviour from applying for a further BVE.
The Regulation also prevents a person who previously held a visa that has been
cancelled on one of the following grounds from applying for a further BVE:
- persons
convicted of, or charged with, an offence in Australia or another country or
- persons
who are the subject of an Interpol notice relating to criminal conduct or
public safety threats or
- persons
who are under investigation by an agency responsible for the regulation of law
enforcement or security.
On 14 July 2014 Senator Hanson-Young of the Australian
Greens unsuccessfully moved a motion in the Senate to disallow the Regulation.
The motion did not have the support of the Opposition.[365]
Code of Behaviour for Public Interest Criterion 4022
(IMMI13/155)
This Instrument
commenced on 14 December 2014.[366]
The purpose of the Instrument was to specify the wording of a code of behaviour
that an applicant must sign, to meet the requirements of public interest
criterion 4022. This includes expectations relating to:
- compliance with the laws of Australia
- values that are important to Australian society and
- co-operation with the department in regard to the resolution of
an applicant’s status.
The Instrument operates to specify, for applicants seeking
to satisfy the criteria for the grant of a Subclass 050 Bridging (General)
visa, the required wording of the code of behaviour.
Migration Amendment (Disclosure of Information)
Regulation 2013
This Regulation
commenced on 14 December 2013.[367]
This Regulation amends the Migration Regulations 1994 to authorise the
disclosure of information, specifically name, residential address, sex, date of
birth and immigration status, of Subclass 050 (Bridging (General)) or Subclass
051 (Bridging (Protection Visa Applicant)) visa holders (BVE holders) to the
Australian Federal Police or the police force or police service of a state or
territory. This disclosure will be authorised by the Minister for Immigration
and Border Protection about individuals or whole classes of such BVE holders.
Granting of Protection Class XA Visas in 2013/2014
Financial Year (IMMI 14/026)
This Instrument
commenced on 6 March 2014.[368]
The purpose of the Instrument was to set, pursuant to section 85 of the Act,
the maximum number of permanent protection visas that may be granted in the
financial year 1 July 2013 to 30 June 2014 at 2,773. Section
86 of the Act provides that, if there is a determination of the maximum number
of visas of a class or classes that may be granted in a financial year, and the
number of visas of the class or classes granted in the year reaches that
maximum number, no more visas of the class or classes may be granted in the
year.
Under section 44 of
the Legislative Instruments Act 2003 the Instrument is exempt from
disallowance.
This Legislative
Instrument was subsequently found to invalid by the High Court in the case of Plaintiff
S297/2013 v Minister for Immigration and Border Protection.[369]
Migration Amendment (2014 Measures No. 1) Regulation 2014
This Regulation
commenced on 22 March 2014.[370]
The purpose of the Regulation was to amend the Migration Regulations 1994 to:
- amend Public Interest Criterion (PIC) 4020 to introduce
requirements relating to a visa applicant’s identity. In particular, the
amendments will allow the Minister to refuse a visa application if the Minister
is not satisfied as to the identity of the visa applicant, with the burden of
proving an applicant’s identity to be on the applicant. These amendments also
provide that, where a visa application is refused on this basis, there is a
10 year period where the applicant and any members of their family unit
are unable to be granted any visa that requires an applicant to satisfy
PIC 4020
- ensure that an applicant for a Subclass 202 (Global Special
Humanitarian) visa who is proposed by a minor who holds, or has held, a
permanent Protection visa or a Resolution of Status visa, is assessed by the
Minister against the same criteria as an applicant who is proposed by an adult
who holds, or has held, such a visa
- insert PIC 4020 into a number of visas to enable a decision‑maker
to refuse the grant of a visa where false or misleading information, such as
fabricated evidence of visa eligibility or personal identifiers, is provided in
association with a visa application
- authorise the disclosure of information of persons covered by
residence determinations to the Australian Federal Police or the police force
or police service of a state or territory. A residence determination is a
determination that provides that a person is to reside at a specified place,
instead of being detained. One of the conditions routinely specified in a
residence determination is that the person covered by it must obey the law. If
the person does not comply with that condition, the Minister may revoke the determination
pursuant to subsection 197AD(1) of the Act.
On 17 July 2014, Senator Hanson-Young of the Australian
Greens unsuccessfully moved a motion in the Senate to disallow the Regulation.
The motion had the support of the Opposition.[371]
Determination of Protection (Class XA) and Refugee
Humanitarian (Class XB) Visas 2014 (IMMI 14/117)
This Determination
commenced on 23 December 2014.[372]
The purpose of the Instrument was to make a determination of the minimum annual
combined number of Protection (Class XA) visas and Refugee (Class XB) visas for
the purposes of section 39A of the Act.
The Instrument operates to specify the Minister’s
determination of at least the minimum total combined number of Protection
(Class XA) visas and Refugee and Humanitarian (Class XB) visas that the
Minister must take all reasonable practicable measures to ensure are granted,
for the financial year commencing 2015 is 13,750 visas; for the financial year
commencing 2016 is 13,750 visas; for the financial year 2017 is 16,250 visas;
and for the financial year commencing 2018 is 18,750.
Migration Legislation Amendment (2016 Measures No. 1)
Regulation 2016
This Regulation commenced on 16 April 2016 (substantive
provisions commenced on dates specified in the instrument).[373]
The purpose of the Regulation is to amend the Migration Regulations 1994 to
(amongst other things) correct an error in the criteria for the Subclass 202
(Global Special Humanitarian) visa by providing that the capacity of the
Australian community to provide for persons such as the applicant, rather than
the applicant individually, must be taken into consideration in deciding
whether there are compelling reasons for giving special consideration to
granting the applicant a permanent visa. Capacity is to be determined by
reference to the number of ‘places’ the government has decided to make
available under the humanitarian programme and the priorities set out in
policy, rather than the capacity to provide for the particular applicant.
Non-government (privately sponsored) legislation
Migration Amendment (Visa Maximum Numbers Determinations)
Bill 2013
On 9 December 2015 Australian Greens Senator Sarah Hanson-Young introduced
the Migration
Amendment (Visa Maximum Numbers Determinations) Bill 2013.[374]
The purpose of the Bill was to amend the Migration Act to provide that determinations made under section 85 (which
determine the number of visas that can be granted in a particular subclass in
any specified financial year) on or after 2 December 2013 be subject to
disallowance by either House of the Parliament. A Parliamentary Library FlagPost
blog examines the Bill (as introduced) in context.[375]
This Bill lapsed upon prorogation of the 44th Parliament.
Migration Amendment (Ending the Nation’s Shame) Bill
2014
On 26 May 2014 Independent MP Andrew Wilkie introduced the Migration
Amendment (Ending the Nation’s Shame) Bill 2014.[376]
The purpose of the Bill was to amend the Migration Act to afford specific rights to asylum seekers. The Bill was removed from the House of
Representatives Notice Paper on 28 October 2014 in accordance with Standing
Order 42.[377]
Migration Amendment (Protecting Babies Born in Australia)
Bill 2014
On 18 June 2014 Australian Greens Senator Sarah Hanson-Young introduced the Migration
Amendment (Protecting Babies Born in Australia) Bill 2014.[378]
The purpose of the Bill was to amend the Migration Act to provide that a person will have been deemed not to have entered
Australia by sea if they entered the migration zone and landed in an aircraft
or if the person was born in the migration zone. The Senate Legal and
Constitutional Affairs Committee recommended that the Bill not be passed.[379]
This Bill lapsed upon prorogation of the 44th
Parliament.
Guardian for Unaccompanied Children Bill 2014
On 16 July 2015 Australian Greens Senator Sarah Hanson-Young introduced the
Guardian
for Unaccompanied Children Bill 2014.[380]
The purpose of the Bill was to establish the Office of the
Guardian for Unaccompanied Non-citizen Children; provide for the appointment,
functions and powers of the guardian; provide for staff, consultants and reporting
requirements; and to amend the Immigration (Guardianship of Children) Act
1946 and Migration Act 1958 to make consequential amendments. The
Senate Legal and Constitutional Affairs Committee recommended that the Bill not
be passed.[381]
This Bill lapsed upon prorogation of the 44th
Parliament.
Australian Security Intelligence Organisation Amendment
(Restoring Merits Review) Bill 2014
On 1 September 2014 Independent MP Andrew Wilkie introduced the Australian
Security Intelligence Organisation Amendment (Restoring Merits Review) Bill
2014.[382]
The purpose of the Bill was to amend the Australian
Security Intelligence Organisation Act 1979 to restore the right of asylum
seekers to access merits review by the Administrative Appeals Tribunal if they
are subject to an adverse or qualified security assessment. The Bill was removed from the House of
Representatives Notice Paper on 3 March 2015 in accordance with Standing Order
42.[383]
Migration Amendment (Humanitarian Visa Intake) Bill 2014
On 25 September 2014 Australian Greens Senator Sarah Hanson-Young introduced
the Migration
Amendment (Humanitarian Visa Intake) Bill 2014.[384]
The purpose of the Bill was to amend the Migration Act
to prevent the preclusion of processing or granting a visa at any time in a
financial year when fewer than 20,000 humanitarian visas have been granted; and
require the minister to present to Parliament quarterly reports setting out the
number of each class of humanitarian visas granted during the previous quarter.
This Bill lapsed upon prorogation of the 44th
Parliament.
Migration Amendment (Mandatory Reporting) Bill 2015
On 12 October 2015 Shadow Minister for Immigration and Border Protection
Labor MP Richard Marles introduced the Migration
Amendment (Mandatory Reporting) Bill 2015.[385]
The purpose of the Bill was to amend the Migration Act
to to enhance the safety of children in immigration detention by
mandating the reporting of child abuse in onshore and offshore immigration
detention facilities. Specifically, the Bill requires staff and contractors to
report any instances of child abuse they observe to the Australian Border Force
Commissioner, who would in turn report the abuse to the relevant authorities (for
example, AFP, Nauruan Police, state/territory police). A Parliamentary Library FlagPost
blog examines the Bill (as introduced) in context.[386]
This Bill lapsed upon prorogation of the 44th
Parliament.
Migration Amendment (Free the Children) Bill 2016
On 2 March 2016 Australian Greens Senator Sarah Hanson-Young introduced the
Migration
Amendment (Free the Children) Bill 2016.[387] The purpose of
the Bill was to amend the Migration Act to:
- provide that children detained under the Act not
be held in immigration detention facilities but instead be placed, along with
their immediate family members or guardians, in community residential housing
for any requisite period of detention
- expand the residence determination process to ensure
that the Minister must, within 30 days, determine that a minor is to reside at
a specified place within the community rather than being held in detention
- expand the scope of protection afforded to
minors held in regional processing countries, by ensuring that the Minister
cannot affect the transfer of minors to any other country that intends to
detain them, and by requiring the immediate return to Australia of any minor
currently held in immigration detention offshore
- strengthen and codify international law within
the Act by ensuring the primacy of the consideration of the child’s best
interests: that minors must only be detained as a matter of last resort and for
the shortest appropriate time possible, not as a matter of first and only
resort as is the current practice.
This
Bill lapsed upon prorogation of the 44th Parliament.
Case law
There have been many notable court judgments relating to
asylum seekers and refugees delivered during the reporting period. These decisions
influenced or have the potential to influence legislative or policy reform.
Following is a brief outline of some of the most significant judgments.
2013
Plaintiff M76/2013 v Minister for Immigration, Multicultural
Affairs and Citizenship[388]
(12 December 2013)
The High Court unanimously declared that an error of law affected the exercise
of power by the Minister to determine whether to permit the plaintiff to make a
valid application for a visa. The error of law was that a Departmental officer,
in deciding not to refer the plaintiff’s case to the Minister for his
consideration of whether to permit the plaintiff to make a valid application
for a visa, acted upon an incorrect view of the law by considering an invalid
regulation (the relevant public interest criterion for a protection visa
contained in the Migration Regulations 1994 (Cth), PIC 4002) to be relevant to
the decision. The High Court referred to its decision in Plaintiff
M47-2012 v Director General of Security,[389]
which had found PIC 4002 to be invalid, to find that the Department’s reliance
on PIC 4002 was an error of law.
The plaintiff also argued that her continued detention was
unauthorised. However, the Court held that, because the Minister, as a result
of the error of law, had not yet completed his consideration of whether to
permit the plaintiff to make a valid application for a visa, the plaintiff’s
detention (being for the purpose of allowing that consideration to be completed
according to law) was authorised by the Act. A majority of the Court,
therefore, found it was unnecessary to decide the plaintiff's constitutional
claim or whether Al-Kateb
v Godwin[390]
should be re-opened.[391]
2014
Plaintiff S156/2013 v Minister for Immigration and
Border Protection & Anor[392]
(18 June 2014)
The plaintiff challenged the validity of sections 198AB and 198AD of the Migration
Act on the ground that neither provision is supported by any constitutional
head of power. Section 198AB provides that the Minister may designate that a
country is a regional processing country. Section 198AD provides that ‘unauthorised
maritime arrivals’ (UMAs) must be taken to a regional processing country. Where
there are two or more regional processing countries, subsection 198AD(5)
provides that the Minister must give a written direction to take a UMA, or a
class of UMAs, to the regional processing country specified in the direction.
The plaintiff also challenged the validity of the Minister’s decision to
designate PNG as a regional processing country under section 198AB (the
designation decision) and the Minister’s decision to give a written direction
to take UMAs to PNG or to the Republic of Nauru (the direction decision).
The High Court unanimously held that sections 198AB and
198AD are valid under the aliens power conferred by subsection 51(xix) of the Constitution.
The provisions operate to effect the removal of UMAs from Australia and are
therefore laws with respect to a class of aliens. The Court also upheld the
validity of the designation decision and the direction decision. It held that
there is nothing in the text or scope of subdivision B of Division 8 of Part 2
of the Migration Act to support the plaintiff's argument that there were
relevant considerations which the Minister was obliged to, but did not, take
into account in making the designation decision.[393]
Plaintiff S297/2013 v Minister for Immigration and
Border Protection & Anor[394]
(20 June 2014)
The High Court unanimously held that the Minister did not have the power under
section 85 of the Migration Act to limit the number of protection visas
that may be granted in a specified financial year. Section 85 of the Migration
Act provides that the Minister may determine the maximum number of visas of
a specified class that may be granted in a specified financial year. Under section
65, the Minister has a duty, after considering a valid application for a visa,
to grant the visa if satisfied that certain conditions are met and to refuse to
grant the visa if not so satisfied. Section 65A imposed a duty on the Minister
to make a decision on protection visa applications within 90 days.
The plaintiff was neither granted nor refused a protection
visa because of an instrument signed by the Minister on 4 March 2014, which
purported to determine the maximum number of protection visas that may be
granted in the financial year ending 30 June 2014. That maximum number having
been reached, the grant of a protection visa to the plaintiff in this financial
year would exceed that limit. The High Court held that the instrument limiting
the number of protection visas was invalid. In light of the time limit imposed
by section 65A, section 85 did not empower the Minister to determine the
maximum number of protection visas that may be granted in a financial year. The
Court ordered that the Minister consider and determine the plaintiff’s application
for a protection visa according to law.[395]
FTZK v Minister for Immigration and Border Protection
& Anor[396]
(27 June 2014)
The High Court unanimously allowed an appeal against a decision of the Full
Court of the Federal Court and held that the Administrative Appeals Tribunal (the
AAT) committed jurisdictional error in affirming the Minister’s decision to
refuse the appellant a protection visa. In refusing the protection visa, the
Minister found that notwithstanding that the appellant was a refugee within the
meaning of Article 1A(2) of the Convention, he was excluded from protection
under the Convention by Article 1F(b) on account of his alleged
involvement in the crimes of kidnapping and murder in the People's Republic of
China in 1996. In the exercise of its review function, the AAT applied Article
1F(b) to affirm the Minister’s decision. The AAT recorded that it was not in
dispute that the crimes alleged against the appellant were serious
non-political crimes for the purposes of Article 1F(b). The AAT was satisfied,
on the basis of several findings, that there were serious reasons for
considering that the appellant had committed serious non-political crimes. The
High Court unanimously held that the reasons of the AAT revealed jurisdictional
error—that is, that the error of law in the AAT’s decision was such that it had
acted outside the scope of its legal authority. The factors relied upon by the
AAT were not logically probative of the appellant having committed one or more
of the crimes alleged. Accordingly, the AAT misconstrued the test it had to
apply.[397]
Plaintiff S4/2014 v Minister for Immigration and
Border Protection[398]
(11 September 2014)
The High Court unanimously held invalid the Minister’s grant of a temporary
safe haven visa to the plaintiff which had the effect of precluding the
plaintiff making a valid application for a protection visa, in circumstances
where the plaintiff’s detention had been prolonged for the purpose of the
Minister considering the exercise of power to allow the plaintiff to make a
valid application for a visa of his choice.
The High Court held that, where a person’s detention is
prolonged for the purpose of considering the exercise of power under subsection
46A(2) (which gives the Minister the power to decide whether to permit a person
to make a valid visa application), other powers given by the Act do not permit
the making of a decision which would foreclose the exercise of the power under
subsection 46A(2) before a decision is made, thus depriving the prolongation of
detention of its purpose. The Court quashed the decision to grant two temporary
visas to the plaintiff.[399]
Minister for Immigration and Border Protection v SZSCA
& Anor[400]
(12 November 2014)
The High Court, by majority, held that the RRT failed to properly address
whether an applicant for a protection visa had a well-founded fear of
persecution. The Tribunal accepted that, if the respondent, a self-employed
truck driver in Afghanistan, was again intercepted by the Taliban on the roads
on which he usually travelled, he would face a real chance of serious harm and
even death for a reason specified in the Refugees Convention. However, the
Tribunal found that the risk of persecution would only arise on some roads,
which could be avoided by the respondent. It therefore concluded that the
respondent did not satisfy the criteria for the grant of a protection visa. The
High Court unanimously held that the Tribunal did not fall into the same error
identified in Appellant
S395/2002 v Minister for Immigration and Multicultural Affairs[401]
(where the RRT failed to consider what might happen if the appellants had
lived openly as a homosexual couple in Bangladesh and others became aware of
their homosexuality). However, it found the Tribunal was required to address the
‘internal relocation principle’—whether a person could reasonably avail
themselves of the real protection of their country of origin by relocating to
another part of that country. In this case, the Tribunal had to consider whether
it would be reasonable to expect the respondent to remain in Kabul and not
drive trucks outside it. A majority of the Court held that the Tribunal had
failed to address that question and it was therefore unable to make a final
determination as to whether the respondent had a well-founded fear of
persecution.[402]
2015
CPCF v Minister for Immigration and Border Protection[403]
(28 January 2015)
A High Court majority held that a claim for damages for false imprisonment
arising out of the plaintiff's detention at sea on a Commonwealth vessel should
be dismissed. The majority of the Court held that subsection 72(4) of the Maritime Powers
Act 2013[404]
authorised a maritime officer to detain the plaintiff for the purpose of taking
him from Australia’s contiguous zone to a place outside Australia, being India.
Subsection 72(4) states that a maritime officer may detain a person on a
detained vessel and take the person, or cause the person to be taken, to a
place outside Australia.
The Court found that the power under subsection 72(4) was
not subject to an obligation to afford the plaintiff procedural fairness. The
detention was lawful even though the maritime officer detained the plaintiff in
implementation of a decision by the Australian Government, and without
independent consideration of whether the detention should have taken place. The
detention was also lawful even though, prior to the commencement of the taking
of the plaintiff to India, no arrangement existed between Australia and India
concerning the reception of the plaintiff in India. The majority found it
unnecessary to determine whether the detention could have been authorised by
the non-statutory executive power of the Commonwealth.[405]
Minister for Immigration and Border Protection v
WZAPN; WZARV v Minister for Immigration and Border Protection[406]
(17 June 2015)
The High Court unanimously held that the likelihood of a period of temporary
detention of a person for a reason mentioned in the Refugees Convention
is not, of itself and without more, a ‘threat to liberty’ within the meaning of
s 91R(2)(a) of the Migration Act. The High Court held that the question
of whether a risk of the loss of liberty constitutes ‘serious harm’ for the
purposes of section 91R requires a qualitative evaluation of the nature and
gravity of the apprehended loss of liberty.[407]
Minister for Immigration and Border Protection v WZARH[408]
(4 November 2015)
The High Court unanimously upheld a decision of the Full Court of the Federal
Court of Australia that the respondent, a Sri Lankan Tamil, had been denied
procedural fairness during the independent merits review (IMR) of an adverse
refugee status determination (RSD). WZARH had been initially heard by a
reviewer who told him that she would undertake a re-hearing of his claims. The
reviewer became unavailable to complete the IMR and a second reviewer assumed
responsibility for its completion. WZARH was not informed of the change in the
identity of the reviewer and the second reviewer did not conduct an interview but
based his decision on a consideration of certain materials, including the transcript
and an audio recording of the interview with the first reviewer. The Court held
that procedural fairness required that WZARH be informed that the IMR process had
changed so that he would have an opportunity to be heard on the question of how
the IMR should proceed.[409]
Plaintiff M64/2015 v Minister for Immigration and
Border Protection[410]
(17 December 2015)
The High Court unanimously held that the delegate’s decision to refuse to grant
Refugee and Humanitarian (Class XB) (Subclass 202) visas (‘Subclass 202 visas’)
to the plaintiff's family was not affected by jurisdictional error. The
plaintiff argued that the delegate misconstrued and misapplied subclause
202.222(2) of Schedule 2 to the Migration Regulations 1994, which provides for
the grant of a subclass 202 visa if the Minister is satisfied that there are
compelling reasons for giving special consideration to granting the applicant a
visa. The plaintiff also argued that the delegate unlawfully applied a
Departmental policy that required that the lowest priority be accorded to the
plaintiff's family's application on the basis of the type of visa that the
plaintiff had been granted and the circumstance that he arrived in Australia as
an ‘irregular maritime arrival’. The Court held that subclause 202.222(2)
raises only one criterion for the grant of a visa: namely, that the Minister is
satisfied that there are compelling reasons for giving special consideration to
granting that visa. The capacity of the Australian community to provide for the
permanent settlement of an applicant in Australia and the number of places in
Australia's Special Humanitarian Programme are considerations that may inform
the Minister's state of satisfaction. The Court also held that the departmental
policy was not inconsistent with the Act or Regulations and that it had not
been applied inflexibly.[411]
2016
Plaintiff M68-2015 v Minister for Immigration and
Border Protection[412]
(3 February 2016)
A High Court majority held that section 198AHA of the Migration Act
authorised the Commonwealth’s participation, to the extent that the
Commonwealth did participate, in the plaintiff’s detention. The plaintiff, a
Bangladeshi national who had been taken to Nauru under subsection 198AD(2) of
the Act, commenced proceedings in the original jurisdiction of the High Court
seeking, amongst other things, a declaration that the Commonwealth's conduct
(summarised as the imposition, enforcement or procurement of constraints upon
the plaintiff's liberty, including her detention, or the Commonwealth's entry
into contracts in connection with those constraints, or the Commonwealth having
effective control over those constraints) was unlawful by reason that such
conduct was not authorised by any valid law of the Commonwealth.
The Court held, by majority, that the plaintiff was not
entitled to the declaration sought. The conduct of the Commonwealth in signing
the arrangement relating to persons who have travelled irregularly by sea to
Australia and who Australian law authorises to be transferred to Nauru was
authorised by section 61 of the Constitution (the Executive Power). The
Court further held that the conduct of the Commonwealth in giving effect to these
arrangements (including by entry into the Administrative Arrangements and the
Transfield Contract) was authorised by section 198AHA of the Act, which was a
valid law of the Commonwealth.[413]
Namah v Pato[414]
(26 April 2016)
The PNG Supreme Court unanimously found the detention of refugees
and asylum seekers in the Australian-funded processing centre on Manus Island
to be unconstitutional. Integral to this decision was the requirement in
subsection 42(1) of the PNG Constitution that, except in specified
circumstances, ‘[n]o person shall be deprived of his personal
liberty’. In reaching this decision, the Supreme Court rejected the argument
that the detention of the refugees and asylum seekers on Manus Island (not of
their own accord but as the result of agreement between Australia and PNG),
fell within the exception provided for in paragraph 42(1)(g) of the PNG Constitution
for detention ‘for the purpose of preventing the unlawful entry of a
person into PNG’. The Supreme Court also held to be invalid the
exemption included in the PNG Constitution by the Constitution Amendment (No
37) (Citizenship) Law 2014 for detention ‘for the purposes of holding a
foreign national under arrangements made by PNG with another country ...’.
Specifically, the Court held that, in qualifying an existing constitutional
right (the right to personal liberty), the amendment did not satisfy the
further requirement in section 38 of the PNG Constitution, that it
specify whether or not the detention of asylum seekers could be in the public
interest and reasonably justifiable in a democratic society. The amending
legislation neither specified the purpose of the amendment or the right which
it purported to limit.
Plaintiff S99/2016 v Minister for Immigration and
Border Protection[415]
(6 May 2016)
Justice Bromberg of the Federal Court of Australia held that the Minister has a
duty of care to the applicant (a young African refugee who was raped on Nauru
whilst unconscious and suffering a seizure) to exercise reasonable care to
discharge the responsibility he assumed to procure for her a safe and lawful
abortion. His Honour also held that the proposed abortion for the applicant in
PNG was attended by safety and lawfulness risks that a reasonable person in the
Minister’s position would have avoided. Thus, the procuring of the abortion by
the Minister did not discharge his duty of care. In light of the fact that
there was reasonable apprehension that the Minister would fail to discharge his
duty of care, His Honour issued an injunction to preclude the Minister from
procuring an abortion for the applicant in PNG but did not order the applicant
be brought to Australia.
Key reports and
inquiries
Following is a list of some of the key reports and inquiries
established or completed during the reporting period:
- September 2013 — former Attorney-General’s Department chief
Robert Cornall: Review into allegations of sexual and other serious
assaults at the Manus Regional Processing Centre (commissioned by the
previous Immigration Department Secretary, Martin Bowles) is presented to the
Immigration Department in September 2013 and released on the DIBP website later
in 2013.[416]
- 8 November 2013 — Keith Hamburger Review: Nauru review 2013:
executive report of the review into the 19 July 2013 incident at the Nauru
Regional Processing Centre, DIBP, 2013 is completed and later made available on
the Immigration Department website.[417]
- 27 November 2013 — UNHCR monitoring visit to Manus Island,
Papua New Guinea, 23 to 25 October 2013, report released.[418]
- 27 November 2013 — UNHCR monitoring visit to the Republic of
Nauru, 7 to 9 October 2013, report released.[419]
- 11 December 2013 — Amnesty International releases a report
on Manus: This is breaking people: human
rights violations at Australia’s asylum seeker processing centre on Manus
Island, Papua New Guinea. In May 2014, Amnesty International
releases an update—This is still breaking people:
update on human rights violations at Australia’s asylum seeker processing
centre on Manus Island, Papua New Guinea.[420]
- 5 March 2014 — the Senate passes a motion establishing an inquiry
by the Legal and Constitutional Affairs References Committee into the violent incidents
on Manus Island from 16 to 18 February 2014. The inquiry was to report by 5
December 2014, but the reporting date was extended to 11 December 2014.[421]
- 5 March 2014 — the Senate referred the matter of a Breach
of Indonesian territorial waters to the Foreign Affairs, Defence and Trade
References Committee for inquiry and report.[422] The Committee reported on 27 March 2014.[423] The Government
responded to the report on 27 June 2014.[424]
- 23 May 2014 — the Robert Cornall: Review into the events of
16–18 February 2014 at the Manus Regional Processing Centre is released.[425]
- 3 July 2014 — UNHCR releases: Beyond detention: a global
strategy to support governments to end the detention of asylum seekers and
refugees 2014–2019.[426]
- 30 July 2014 — Australian Churches Refugee Taskforce releases a
report: Protecting the lonely children, recommending the
replacement of the Immigration Minister as the guardian of unaccompanied asylum
seeker children.[427]
- 3 October 2014 — the Minister announces
an independent review into allegations of inappropriate
conduct by contracted service providers and reports of sexual assaults at
the Nauru Offshore Processing Centre. The review is to be led by former
integrity commissioner, Philip Moss.[428]
The resulting Review into recent allegations relating to conditions and
circumstances at the regional processing centre in Nauru (the Moss Report)
is released on 20 March 2015.[429]
- 12 November 2014 — the Australian Information Commissioner
releases a report investigating a privacy breach after access to
personal information of approximately 10,000 asylum seekers was briefly made
available on the DIBP website via a statistical report on the immigration
detention population in February 2014.[430]
- 11 December 2014 — Senate Legal and Constitutional Affairs
References Committee releases its Manus Island unrest report into the Incident
at the Manus Island Detention Centre from 16 February to 18 February 2014.[431]
- 23 December 2014 — the UN Committee against Torture (CAT)
periodic report on Australia is critical of its treatment of asylum seekers,
including mandatory detention, offshore processing and the practice of turning
back boats.[432]
- 11 February 2015 — the Government tables the Australian Human
Rights Commission (AHRC) report: The forgotten children: national inquiry
into children in immigration detention.[433]
- 23 February 2015 — in its 2014–15 annual human rights report, Amnesty
International criticises the Australian Government for its treatment of
asylum seekers.[434]
- 6 March 2015 — a report from the UN Human Rights Council
Special Rapporteur on torture and other cruel, inhuman or other degrading
treatment or punishment states that, ‘by failing to provide adequate
detention conditions; end the practice of detention of children; and put a stop
to the escalating violence and tension at the Regional Processing Centre’, the
Australian Government has ‘violated the right of asylum seekers, including
children, to be free from torture or cruel, inhuman or degrading treatment’.[435]
- 20 March 2015 — the Moss Review: Review into recent
allegations relating to conditions and circumstances at the regional processing
Centre in Nauru (the Moss Report) is released.[436] The Review investigated
allegations of sexual and physical assaults of transferees and confirmed that
at least three incidents had occurred, but that others had not been reported
for cultural reasons.
- 26 March 2015 — the Select Committee on the Recent Allegations
relating to Conditions and Circumstances at the Regional Processing Centre in
Nauru is established by the Senate at the instigation of Senators
Hanson-Young (Greens) and Gallacher (ALP). An interim report from the Select Committee on the Recent Allegations relating
to Conditions and Circumstances at the Regional Processing Centre in Nauru is subsequently tabled on 12 June 2015.[437]
- April 2015 — the UN Office on Drugs and Crime Southeast Asia and
the Pacific releases its report: Migrant smuggling in Asia:
current trends and related challenges.[438]
- 16 July 2015 — Human Rights Watch and Human Rights Law Centre
report alleges that gay men are being mistreated in offshore
processing centres by other detainees.[439]
- 31 August 2015 — the final report from the Select Committee on the Recent Allegations relating to
Conditions and Circumstances at the Regional Processing Centre in Nauru is
tabled: Taking responsibility: conditions and circumstances at
Australia’s Regional Processing Centre in Nauru.[440]
- 28 October 2015 — Amnesty International releases the
report: By hook or by crook: Australia’s abuse of asylum seekers at sea.[441] The
report claims that the Australian Government paid people smugglers (on board a
boat intercepted in May 2015) to turn back to Indonesia.
- 29 October 2015 — the Scanlon
Report 2015 is released. The report notes that
concerns over immigration is at the lowest level recorded by the Scanlon
Foundation surveys and Australians continue to demonstrate a high level of
support for the proposition that 'multiculturalism has been good for Australia'.[442]
- 3 November 2015 — UNHCR releases its report: I am here I
belong: the urgent need to end childhood statelessness.[443]
- November 2015 — No Business in Abuse release their first report: Business
in abuse: Transfield’s complicity in gross human rights abuses within
Australia’s offshore detention regime.[444]
- 15 January 2016 — DIBP releases the Review of
recommendation nine from the Moss Review conducted by Adjunct
Professor Christopher Doogan in June 2015. The review examined the Department’s
decision in October 2014 to remove Save the Children staff from Nauru after
allegations that the staff had actively encouraged protests and unrest. The
Review found that information available at the time did not warrant the
decision to remove staff.[445]
- 20 January 2016 — UNHCR publishes: Protection risks for
women and girls in the European refugee and migrant crisis on the risks
of sexual assault and gender-based violence for migrant and refugee women.[446]
- 28 January 2016 — Human Rights Watch 2016 report critical
of Australia’s offshore processing regime is released.[447]
- 4 February 2016 — Australian Human Rights Commission releases a
report titled: The health and well-being of children in immigration
detention. Report to the Australian Human Rights Commission Monitoring Visit to
Wickham Point Detention Centre, Darwin, NT October 16th–18th 2015.[448]
- February 2016 — UNHCR report: Mixed maritime movements in
South-East Asia 2015.[449]
- 4 May 2016 — an interim report is released from the parliamentary
inquiry on the Payment of cash or
other inducements by the Commonwealth of Australia in exchange for the turn
back of asylum seeker boats (established on 24 June 2015).[450]
- June 2016 — the Australian Women in Support of Women on Nauru (an
organisation formed in 2015) releases its report: Protection denied,
abuse condoned: women in Nauru at risk.[451]
- July 2016 — No Business in Abuse release their second report: Association
with abuse: the financial sector’s association with gross human rights abuses
of people seeking asylum in Australia.[452]
Parliamentary Library publications
The following Parliamentary Library research papers and
quick guides also analyse some of the asylum and refugee law and policy
developments during the period 18 September 2013 to 2 July 2016:
- J Phillips, A
comparison of Coalition and Labor government asylum policies in Australia since
2001, Research paper series, 2016–17, Parliamentary
Library, Canberra, 2 February 2017.
- J Phillips, Boat
arrivals and boat ‘turnbacks’ in Australia since 1976: a quick guide to the
statistics, Research paper series, 2016–17, Parliamentary
Library, Canberra, updated 17 January 2017.
- J Phillips, Australia's
Humanitarian Program: a quick guide to the statistics since 1947, Research
paper series, 2015–16, Parliamentary Library, Canberra, updated 17 January 2017.
-
E Karlsen, Australia’s offshore processing of asylum seekers in Nauru and PNG: a
quick guide to statistics and resources, Research
paper series, 2016–17, Parliamentary Library, Canberra, 19 December 2016.
- E Karlsen, Refugee resettlement to Australia: what are the facts?, Research paper series, 2016–17, Parliamentary Library, Canberra, updated
7 September 2016.
- L Buckmaster and J Guppy, Australian Government assistance to refugees: fact versus fiction, Research paper series, 2014–15, Parliamentary Library, Canberra, updated
11 November 2014.
- In addition, the following
Parliamentary Library FlagPost blog entries were published during the reporting
period:
- H Spinks, A
return to Temporary Protection Visas?, 18 November 2013.
- C Hill, Total
recall: the 2006 Papuan asylum seeker incident and Australia-Indonesia
relations, 20 November 2013.
- E Karlsen, Abolishing free legal advice to asylum seekers - who really pays?, 27 November 2013.
- J Phillips, Coalition
and Labor asylum policies - how do they compare?, 28 February
2014.
- E Karlsen, Temporary Protection by hook or by crook, 4
March 2014.
- E Karlsen, Offshore processing: lessons from the 'Pacific Solution', 15 April 2014.
- E Karlsen, High Court gets another chance to have the final word on regional
processing, 18 June 2014.
- J Phillips, World Refugee Day 2014 - highest levels of displacement since World War
II, 20 June 2014.
- E Karlsen, High Court strikes down Minister's decision to cap permanent visas for
refugees, 25 June 2014.
-
E Karlsen, Permanent residency for Safe Haven Enterprise Visa holders?, 28 November 2014.
- E Karlsen, Minister reports to Parliament on processing arrangements in Nauru and
PNG for 2013–14, 8 December 2014.
- E Karlsen, Developments in refugee law and policy: 2014 in review, 8 January 2015.
- E Karlsen, High Court validates maritime interception powers but watch this space!, 12 February 2015.
- H Spinks, A very big year: asylum claims in industrialised countries reach a new
high in 2014, 31 March 2015.
-
E Karlsen, Is Australia pulling its weight when it comes to the resettlement of
Syrian refugees?, 2 April 2015.
-
E Karlsen, Is Australia any closer to returning failed asylum seekers to Iran?, 30 April 2015.
-
H Spinks, The Department of Immigration: from building the nation to managing the
border, 12 June 2015.
- J Phillips, Highest levels of global forced displacement on record—World Refugee
Day 20 June 2015, 22 June 2015.
- H Spinks, Australia’s response to the Syrian refugee crisis, 8 September 2015.
- E Karlsen, Whistle-blowing under the Border Force Act: three months on, 21 October 2015.
-
H Spinks, Survey
finds strong support for immigration and multiculturalism (but not for asylum seekers
arriving by boat), 29 October 2015.
-
E Karlsen, Australia's refugee population: a statistical snapshot of 2013–14, 28 November 2014.
- E Karlsen, Senate agitates for immigration detention reform, 1 December 2015.
-
E Karlsen, 'Politics is the art of the possible', but is Malcolm Turnbull likely
to change the Government's hard- line approach to asylum seekers?, 1 February 2016.
-
E Karlsen, Australia's refugee population: a statistical snapshot of 2014–15, 8 February 2016.
[1]. Liberal Party of Australia and the Nationals, Our plan: real solutions for all Australians; The Coalition's Operation Sovereign Borders policy; The Coalition's policy to clear Labor's 30,000 border failure backlog; The Coalition's policy for a regional deterrence framework to combat
people smuggling; The Coalition's policy to withdraw taxpayer funded assistance to
illegal boat arrivals, Election 2013.
[2]. E Karlsen and
J Philips, Developments
in Australian refugee law and policy (2012 to August 2013), Research
paper series, 2014–15, Parliamentary Library, Canberra, 25 September 2014.
[3]. E Karlsen, Developments
in Australian refugee law and policy 2010–2011, Background note,
Parliamentary Library, Canberra, 12 April 2012.
[4]. E Karlsen, Developments
in Australian refugee law and policy 2007–10: Labor’s first term in office,
Background note, Parliamentary Library, Canberra, 18 October 2010.
[5]. S
Harris‐Rimmer, Recent
developments in refugee and immigration law 2005, E‐brief,
Parliamentary Library, Canberra, October 2005.
[6]. N Hancock, Refugee
law ‐ recent legislative developments, Current issues brief, 5,
2001–02, Parliamentary Library, Canberra, 18 September 2001.
[7]. Liberal Party of Australia and the Nationals, The Coalition’s Operation Sovereign Borders policy, Coalition policy document, Election 2013,
July 2013.
[8]. S Morrison
(Minister for Immigration and Border Protection), Transcript of joint press conference: Operation Sovereign Borders, media release, 23 September 2013.
[9]. S Morrison
(Minister for Immigration and Border Protection), 500 more Syrian refugees to be settled in Australia, media release, 3 October 2013.
[10]. Migration Amendment
(Temporary Protection Visas) Regulation 2013.
[11]. For more
detail see H Spinks, ‘A
return to temporary protection visas?’, FlagPost, Parliamentary Library
blog, 18 November 2013.
[12]. S Morrison
(Minister for Immigration and Border Protection), Incident
on Manus Island update, media release, 20 October 2013.
[13]. B Hall, ‘Minister
wants boat people called illegals’, Sydney Morning Herald, 20
October 2013, p. 15.
[14]. S Morrison
(Minister for Immigration and Border Protection), Address
to the Migration Institute of Australia national conference, Canberra,
21 October 2013.
[15]. S Morrison
(Minister for Immigration and Border Protection), Malaysia
visit reboots cooperation on regional deterrence, media release, 25 October
2014.
[16]. T Abbott (Prime Minister), People
smuggling cooperation with Sri Lanka, media
release, 17 November 2013.
[17]. S Morrison
(Minister for Immigration and Border Protection), Australia
strengthens border protection links with United States, media release,
21 November 2013.
[18]. Australia,
Senate, ‘Migration
Amendment (Temporary Protection Visas) Regulation 2013—Disallowance’, Journals,
4, 2 December 2013, p. 197.
[19]. S Morrison
(Minister for Immigration and Border Protection), Government
acts swiftly to deny people smugglers’ promise of permanent visas,
media release, 4 December 2013; Migration Act 1958 -
Determination of Granting of Protection Class XA Visas in 2013-14 Financial
Year - IMMI 13/156.
[20]. Migration Act 1958 -
Revocation of IMMI 13/156 'Granting of Protection Class XA Visas in 2013-14
Financial Year'.
[21]. Migration Amendment
(Unauthorised Maritime Arrival) Regulation 2013. Note that this Regulation
was disallowed by the Senate on 27 March 2014 (see below).
[22]. Migration
Amendment (Bridging Visas—Code of Behaviour) Regulation 2013.
[23]. Department of
Immigration and Border Protection (DIBP), Clarification
on disbandment of Immigration Health Advisory Group, DIBP website
(archived), 16 December 2013.
[24]. S Morrison
(Minister for Immigration and Border Protection), Internal reviews completed into maritime incidents north of
Christmas Island, media release, 20 December
2013.
[25]. DIBP, Changes to family stream visa processing for applicants
sponsored by illegal maritime arrivals, DIBP website (archived), 9 January 2014.
[26]. B Nicholson, Up to five boats sent back as PM defends secrecy, The
Australian, 10 January 2014, p. 1.
[27]. S Morrison
(Minister for Immigration and Border Protection), Closure
of four detention facilities saves $88.8 million a year, media release,
14 January 2014.
[28]. Australian
Human Rights Commission (AHRC), Inquiry
announced: time to reassess children held in immigration detention,
AHRC website, 3 February 2014.
[29]. Refugee
Council of Australia, Use
of Temporary Humanitarian Concern visas as an alternative to Temporary
Protection Visas, media release, 6 February 2014.
[30]. S Morrison
(Minister for Immigration and Border Protection), Regional
cooperation strengthened - Government announces intention to handover [sic] patrol
vessels to Malaysia, media release, 6 February
2014.
[31]. S Morrison (Minister
for Immigration and Border Protection), Statement
on further incident at Manus Island OPC, media release,
18 February 2014; and Transcript
of press conference, Darwin, 18 February 2014.
[32]. S Morrison
(Minister for Immigration and Border Protection), Unacceptable
breach of privacy, media release, 19 February 2014. The breach was
investigated by the Australian Information Commissioner, with the report
released on 12 November 2014 (see below).
[33]. S Morrison, Manus Island incident; Operation Sovereign Borders, joint review, press conference, transcript, 21 February 2014;
and Manus
Island incident, review into Nauru riot, press conference, transcript,
Sydney, 23 February 2014.
[34]. Senate Legal
and Constitutional Affairs Legislation Committee, Official
committee Hansard, 25 February 2014, p. 21.
[35]. Senate Legal
and Constitutional Affairs References Committee, Incident
at the Manus Island Detention Centre from 16 February to 18 February 2014,
The Senate, Canberra, December 2014.
[36]. L Hunt and L
Murdoch, ‘Liberals look at “Cambodian solution”’, Sunday
Canberra Times, 23 February 2014, p. 12.
[37]. S Whyte, D
Wroe and B Butler, Transfield to employ local staff on Manus, Canberra
Times, 25 February 2014, p. 1.
[38]. Senate Legal
and Constitutional, Answers to Questions on Notice, Immigration and Border
Protection Portfolio, Additional Estimates 2013–14, 25 February 2014, Question
AE14/194 and Question
AE14/296.
[39]. S Morrison, MOU
extended for policing at Northern Territory immigration detention facilities,
media release, 28 February 2014.
[40]. S Morrison
and R Pato (PNG Minister for Foreign Affairs and Immigration), Australia
and PNG to establish monthly joint ministerial forum to oversee implementation
of regional resettlement arrangement, media release, 2 March 2014.
[41]. P Maley, ‘PNG plans quick decisions for “failed” refugees’, The Australian,
5 March 2014, p. 2.
[42]. J Lee, ‘Dozens of charges in Nauru riot withdrawn’, Age, 5 March 2014,
p. 8.
[43]. S Morrison (Minister
for Immigration and Border Protection), Visa
provisions for Ukrainian nationals, media release, 5 March 2014.
[44]. Granting of
Protection Class XA Visas in 2013/2014 Financial Year. Commencement date is
set out in the accompanying Explanatory
Statement; S Morrison, Honouring
our promise to provide more resettlement places to offshore humanitarian
applicants, media release, 6 March 2014.
[45]. See E
Karlsen, High
Court strikes down Minister’s decision to cap permanent visas for refugees,
FlagPost, Parliamentary Library blog, 25 June 2014.
[46]. S Morrison (Minister
for Immigration and Border Protection), Labor
and Greens once again vote to honour people smugglers’ promise, media
release, 27 March 2014; and S Whyte, 'Senate
rejects Scott Morrison's temporary visa attempt',
The Sydney Morning Herald, (online
edition), 27 March 2014.
[47]. S Morrison (Minister
for Immigration and Border Protection), End
of taxpayer funded immigration advice to illegal boat arrivals saves $100 million,
media release. 31 March 2014.
[48]. O Laughland,
‘Manus:
two thirds of asylum seekers have had refugee status interviews’, The Guardian, (online edition),
3 April 2014.
[49]. S Morrison (Minister
for Immigration and Border Protection) and R Pato (PNG Minister for Foreign
Affairs and Immigration), Australia
and PNG inaugural joint ministerial forum to oversee implementation of the
regional resettlement arrangement, media release, 4 April 2014.
[50]. O Laughland,
‘Nauru
blocks UN human rights delegation from visiting island’, The Guardian, (online edition), 9
April 2014.
[51]. S Morrison (Minister
for Immigration and Border Protection) and D Adeang (Nauru Minister for
Justice), Australia
and Republic of Nauru joint ministerial forum to oversee implementation of
regional partnership between Australia and Nauru, media release, 11
April 2014.
[52]. S Whyte and M
Bachelard, ‘Asylum seeker sets himself on fire’, The Age, 11 April 2014, p. 6.
[53]. O Laughland,
‘Two
Syrian asylum seekers refusing food in Manus Island detention centre’, The
Guardian, (online edition), 11 April 2014.
[54]. S Whyte, ‘Dengue
fever outbreak on Nauru infects two asylum seekers’, Sydney Morning
Herald, 18 April 2014, p. 5.
[55]. M Bachelard,
‘Asylum seekers are victims: Indonesia’, The Canberra Times, 22 April 2014.
[56]. M Bachelard,
‘Relations on edge as boats turned back’,
Age, 7 May 2014, p. 2.
[57]. S Morrison (Minister
for Immigration and Border Protection), Coalition
Government will close Inverbrackie detention facility, media release,
8 May 2014.
[58]. S Morrison (Minister
for Immigration and Border Protection), A new force protecting Australia's borders: address to the Lowy
Institute for International Policy, Sydney, 9 May
2014.
[59]. Budget
review 2014–15, Parliamentary Library, Canberra, 2014.
[60]. Refugee
Council of Australia, Government
removes Refugee Council’s core funding, media release, 30 May 2014.
[61]. S Morrison (Minister
for Immigration and Border Protection), First
refugees settled in Nauru, media release, 22 May 2014.
[62]. AAP, ‘UN’s asylum seeker recommendation rejected’, Daily Mail, 23 May 2014.
[63]. M Bachelard,
‘People smugglers' NZ solution’, Age, 25 May 2014,
p. 11.
[64]. O Laughland,
‘Nauru
detention: serious health risks to children revealed in confidential report’,
and ‘Nauru
family health risks: the report in full’, Guardian (Australia), 30
May 2014.
[65]. S Morrison (Minister
for Immigration and Border Protection), Death
of asylum seeker on bridging visa, visas for locally engaged Afghans, transcript
of doorstop interview: Sydney, 1 June 2014.
[66]. S Whyte, Detainees suffer broken bones on Christmas Island, Canberra
Times, 4 June 2014.
[67]. ‘Nauru
cleaner “sexually assaulted” asylum seeker boy’, Guardian (Australia),
6 June 2014; ‘Nauru
sexual assault investigation final report and witness accounts – in full’, Guardian
(Australia), 6 June 2014.
[68]. M Parke, ‘My motion on offshore processing was defeated. Where to
now for Labor?’, Guardian (Australia), 18 June 2014;
and P Landi, ‘Young Labor left back revolt on asylum policy’, Newmatilda.com,
18 June 2014.
[69]. Plaintiff
S156/2013 v Minister for Immigration and Border Protection & Anor (2014)
254 CLR 28; [2014] HCA 22.
[70]. See E
Karlsen, High
Court strikes down Minister’s decision to cap permanent visas for refugees,
FlagPost, Parliamentary Library blog, 25 June 2014.
[71]. S Whyte, ‘Asylum seekers offered $10,000 to leave’,
Canberra Times, 21 June 2014; and ‘Government raised return payments, inquiry told’, Canberra Times, 12 July 2014.
[72]. S Morrison, Accidental
drowning in Nauru, media release, 22 June 2014.
[73]. O Laughland,
‘Detainee
who lost eye in Manus Island violence sues government and G4S’, Guardian
(Australia), 1 July 2014.
[74]. P Taylor and
A Hodge, Sri Lanka set for asylum handover at sea, Australian,
2 July 2014; and S Whyte and S Koutsoukis, Asylum seeker boats being screened at sea, Canberra
Times, 3 July 2014.
[75]. S Morrison, National
Border Targeting Centre launched, media release, 3 July
2014.
[76]. A Hodge and B
Nicholson, ‘NZ
fears it’s a new asylum target’, Australian, 5 July 2014.
[77]. S Morrison, Australian Government returns Sri Lankan people smuggling venture,
media release, 7 July 2014.
[78]. JARK
(representing a class as defined in Paragraph 1 of "Nature of the
Claim" in the Writ of Summons) v Minister for Immigration and Border
Protection and Anor; SAS v Minister for Immigration and Border Protection and
Anor, unreported, High Court of Australia, Crennan J, 7 July 2014, [2014]
HCATrans 148. The following day the Minister’s legal representative gave
the High Court an undertaking that the Government would not take any actions
involving the surrender or delivery of any of the persons in question into the
custody of the government of Sri Lanka, its military, navy, officers, agents or
delegates without giving 72 hours’ written notice: JARK (representing a
class as defined in Paragraph 1 of "Nature of the Claim" in the Writ
of Summons) v Minister for Immigration and Border Protection and Anor; SAS v
Minister for Immigration and Border Protection and Anor [2014]
HCATrans 149 (8 July 2014).
[79]. O Laughland,
‘Self-harm
by asylum seekers has surged since offshore processing – leaked report’,
Guardian (Australia), 9 July 2014.
[80]. S Morrison (Minister
for Immigration and Border Protection), National Border Targeting Centre launched, media release, 14 July 2014.
[81]. R Baxendale
and P Taylor, ‘Asylum airlift ready to resume’, Australian,
14 July 2014.
[82]. O Laughland,
‘Australia grants permanent protection visa to teenager who fled
Ethiopia’, Guardian (Australia), 22 July
2014; and M Gordon, ‘"It has saved my life" - victorious teenager wins
permanent visa’, Canberra Times, 22 July
2014.
[83]. J Koutsoukis,
‘India
will only take nationals off boat’, Canberra Times, 24 July 2014.
[84]. S Morrison (Minister
for Immigration and Border Protection), Operation
Sovereign Borders, transcript of press conference, 25 July 2014.
[85]. Maurice
Blackburn Lawyers, ‘Class
action on behalf of people detained on Christmas Island’, Maurice Blackburn
Lawyers website.
[86]. O Laughland, ‘Nauru
asylum seekers begin peaceful protests as discontent grows’, Guardian (Australia),
30 July 2014.
[87]. S Morrison (Minister
for Immigration and Border Protection), Transfer
of 157 IMAs from Curtin to Nauru for offshore processing, media
release, 2 August 2014.
[88]. D Hurst, Scott Morrison calls for reinterpretation of refugee convention, Guardian (Australia), 4 August 2014.
[89]. P Farrell, ‘Asylum seeker burned hands in attempt to light fire on boat, navy
officer claims’, Guardian (Australia), 6 August
2014.
[90]. S Morrison (Minister
for Immigration and Border Protection), Stopping
the boats to help Iraqis and Syrians, media release, media release, 17
August 2014.
[91]. S Morrison (Minister
for Immigration and Border Protection), Getting
children safely out of detention, media release, 19 August 2014.
[92]. M Gordon and
S Whyte, ‘Asylum
staff hit by mental health crisis’, Sydney Morning Herald, (online
edition) 20 August 2014.
[93]. S Morrison (Minister
for Immigration and Border Protection), Opening
statement to Australian Human Rights Commission National Inquiry into
Children in Immigration Detention, Parliament House, Canberra, 22 August 2014.
[94]. S Morrison, Death
of a transferee, media release, 5 September 2014.
[95]. S Morrison, Restoring
integrity and public confidence in immigration and border protection,
address to the National Press Club, Canberra, 10 September 2014.
[96]. S Morrison (Minister
for Immigration and Border Protection), A
year of stronger borders, media release, 18 September 2014.
[97]. Human Rights
Law Centre, Complaint
of serious human rights abuses lodged against G4S, Australia’s former security
contractor on Manus, media release, 23 September 2014.
[98]. S Morrison
(Minister for Immigration and Border Protection), Restoring
TPVs to resolve Labor’s legacy caseload, media release, 25 September 2014.
[99]. S Morrison
(Minister for Immigration and Border Protection), Refugee
Settlement Arrangement, media release, 26 September 2014.
[100]. DIBP,
Operation Sovereign Borders monthly update: June 2015, DIBP website, 10 July 2015.
[101]. S
Morrison (Minister for Immigration and Border Protection), Appointment
of the Secretary of the Department of Immigration and Border Protection and
CEO of the Customs and Border Protection Service, media release, 2
October 2014.
[102]. S
Morrison (Minister for Immigration and Border Protection), Independent
inquiry into “Nauru allegations”, media release, 3 October 2014.
[103]. J
Sanggaran, G Ferguson and B Haire, ‘Ethical
challenges for doctors working in immigration detention’, Medical
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[239]. T
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[242]. Kaldor
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speed up the processing (and return) of unauthorised maritime arrivals
from Sri Lanka: Senate Legal and Constitutional Committee, Answers to Questions
on Notice, Immigration and Border Protection Portfolio, Budget Estimates
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[243]. E
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[244]. For
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[267]. The
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[270]. Readout
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[281]. Migration Amendment
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[290]. Plaintiff
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[291]. Granting of
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[292]. Plaintiff
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[293]. It
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