Chapter 5
Key Issues – Schedule 3
5.1
This chapter discusses the key issues raised in submissions and evidence
in respect of Schedule 3. The chapter concludes with the committee's view on
Schedule 3 of the Bill.
Key issues identified by submitters and witnesses
5.2
All 12 submissions received by the committee provided substantive
comment on Schedule 3 to the Bill. Many submitters expressed concerns about
Schedule 3, including:
-
the lack of appeal rights for refugees who receive an adverse
security assessment (ASA) from ASIO,
-
the reality of indefinite detention for refugees with ASAs, and
-
the necessity of the proposed amendments given existing
provisions in the Migration Act 1958 (the Act).
5.3
These three issues are examined in this chapter separately. Finally,
this chapter examines the current arrangements for independent reviews of ASAs
for refugees.
5.4
Before considering these issues in detail, the committee notes that the
amendments in Schedule 3 do not seek to directly legislate on the first two
issues which were raised by submitters and are therefore not directly within
the Terms of Reference for this Inquiry. The amendments in Schedule 3 would
reinstate in legislation a regulation (PIC 4002) found by the High Court
to be inconsistent with the Act. The Bill itself would not legislate for
indefinite detention of refugees. Similarly, the rights to appeal ASAs are
dealt with in the Australian Security Intelligence Organisation Act and
not the Migration Act.
5.5
Nevertheless, the committee accepts that these issues may be relevant to
an examination of the broad protection visa framework. This was explained by submitters
to the inquiry:
The amendment to s 36 (protection visas) virtually
inscribes the former regulation into the Act without confronting any of the
widely identified defects of the present system, and risks creating further
defects of its own.[1]
Lack of appeal rights for
non-citizens
5.6
Submissions from Amnesty International Australia and the Human Rights
Law Centre[2]
noted that Schedule 3 of the Bill expressly excludes decisions to refuse to
grant (or cancel) protection visas on security grounds from review by the
Refugee Review Tribunal (RRT). These submissions also noted that whilst
Australian citizens and permanent and special purpose visa holders are able to
seek merits review of ASAs by ASIO in the Administrative Appeals Tribunal
(AAT), protection visa applicants are denied those rights of review.[3]
5.7
In its submission to the inquiry, the United Nations High Commissioner
for Refugees (UNHCR) expressed views similar to many submitters when it noted:
its concern that a refugee who has received an adverse
assessment has very limited legal avenues to contest a negative assessment and
is not afforded procedural fairness or natural justice.[4]
5.8
UNHCR confirmed that it is particularly concerned that existing
processes around ASAs do not:
provide a basis on which an affected person is able to assess
and, if necessary, contest a negative assessment.[5]
5.9
A number of submitters including the Human Rights Law Centre and RACS
suggested that refugees should have the same appeal rights with respect to ASAs
as Australian citizens. In evidence before the committee, Mr Ali Mojtahedi
suggested:
....it is certainly our position that the AAT is well placed to
consider merits review. It has a security division. It can take steps to keep
certain evidence confidential. It can close its doors to the public. There is
no reason that the AAT should not have the opportunity to consider review
of a decision.[6]
5.10
Similarly, Mr Daniel Webb from the Human Rights Law Centre suggested:
...protecting national security is not compromised by allowing
a refugee to appeal an adverse ASIO assessment...We say that just because ASIO
says someone is a risk does not mean that that person should not be able to
challenge that finding through an authoritative, independent process that
safeguards confidential information and everything like that. Such a process
already exists for everyone other than refugees.[7]
5.11
Whilst the UNHCR supported the AAT having jurisdiction to review the
ASAs of refugees, in its submission to the committee, it noted that:
...the use of classified information is a complex area of law
where an appropriate balance between national security and international
protection must be found. UNHCR understands that in matters of national
security, the preservation of sources of information and methods of
intelligence gathering may need to be protected from public scrutiny.[8]
5.12
The UNHCR expressed its preference for a process that would allow 'some
meaningful opportunity to challenge the assessment in appropriately compelling
cases'.[9]
5.13
The department explained the rationale for not extending appeal rights
to refugees:
The amendments further create certainty and promote
efficiency by confirming that the MRT, RRT and Administrative Appeals Tribunal
(AAT) will not have the power to review a decision to refuse to grant or to
cancel a protection visa on the basis of an adverse security assessment by ASIO
that the applicant for, or holder of, a protection visa is a risk to security.[10]
5.14
Moreover, the department expressed the essential national security
imperative of the arrangements as:
The amendments ensure that to meet community expectations,
the government must not only have the ability to act decisively and
effectively, wherever necessary, to protect the Australian community, but also
to have the legislative basis to refuse or cancel a protection visa for those
noncitizens who are a security risk.[11]
The reality of indefinite detention
for refugees with adverse security assessments (ASAs)
5.15
The committee heard evidence from the President of the Australian Human
Rights Commission, Professor Gillian Triggs on the numbers and circumstances of
refugees currently subject to indefinite detention:
There are currently about 50 refugees—that is, people who
have been assessed as refugees—with adverse security assessments who face
indefinite and, potentially at least, lifetime detention. There are also five
young children of parents with adverse assessments who are detained.[12]
5.16
Professor Gillian Triggs further explained to the committee:
For several years the commission has raised serious human
rights obligations about the situation faced by this group, including the lack
of review rights and indefinite detention.[13]
5.17
The Law Council, Human Rights Law Centre and Victorian Foundation for
Survivors, amongst others, expressed similar concerns.[14]
5.18
The committee also heard evidence from Dr Ida Kaplan, of the Victorian
Foundation for Survivors of Torture, as to the effect of indefinite detention
on refugees:
We have very serious concerns about their mental health. They
are in very poor mental health, and that is continuing to deteriorate with
time. The most prominent mental health effects in that regard are depression,
anxiety and trauma related symptoms.[15]
5.19
The department acknowledged the practical link between the amendments in
Schedule 3 and the indefinite detention. However, the department suggested to
the committee that indefinite detention 'is a separate policy issue of the
government'[16]
from the amendments proposed in Schedule 3. From the perspective of the
department:
They are separate policy decisions about whether a person who
has an adverse security assessment should be in held detention or should be in
community detention or should be on a temporary visa. All this legislation is
about is the government's position that a person who is owed protection but who
has an adverse security assessment should not be granted a permanent protection
visa.[17]
5.20
The committee accepts this point.
The necessity of the amendments
given existing provisions in the Migration Act
1958
5.21
A number of submitters to the inquiry, such as the Refugee Council of
Australia (RCOA) questioned the necessity of the amendments in Schedule 3
of the Bill given existing provisions in the Act.
5.22
RCOA submitted that:
In RCOA's view, the Minister's existing powers to refuse or
cancel a visa under Section 501 of the Migration Act 1958 are sufficient
to allow for the refusal or cancellation of a visa for individuals who present
a significant threat to national security or the safety of the Australian
community.[18]
5.23
Noting the approximately 50 people currently in detention who have been
found to be refugees but subject to ASAs, RCOA submitted that:
Existing legislation has proved sufficient to deny visas to
these individuals. RCOA therefore fails to see the need for any additional
restrictions that put out of question any flexibility of approach to individuals
with adverse ASIO assessments.[19]
5.24
The Human Right Law Centre suggested the amendments in Schedule 3 would
in fact go beyond the requirements in section 501 of the Migration Act 1958:
It broadens the test and it makes the process by which that
test is conducted not subject to independent merits review.[20]
5.25
The Human Rights Law Centre further submitted that the Bill would expand
the grounds for exclusion from the grant of a protection visa beyond those
contained in the Refugee Convention.[21]
5.26
As explained in the Explanatory Memorandum to the Bill, the proposed
legislation effectively seeks to restore regulation PIC 4002, by inserting
provisions into the Act. The committee heard evidence from the
department that PIC 4002 was a long standing requirement in order to obtain a
protection visa under migration law:
Not in its current form but, in substance, since 1994, and
there were previous iterations of it even before that. So, it has been around
for a long time. The way that operated, of course, was that if an adverse
security assessment had been made in relation to a person, the criterion was
not met and the visa had to be refused.[22]
5.27
The department also explained in detail why the existing character
provisions were insufficient to protect national security and hence why the
amendments in Schedule 3 were required:
...where the minister is required to use the character
provisions, they do not really meet the national security requirements. The
character provisions, in the way they are drafted, largely look at the behaviour
of a person in the past and therefore whether they are of bad character, as
opposed to security assessments, which can often look at what might be the
behaviour of the person in the future. So they do not necessarily marry
exactly. Also, in relation to the character provisions and the way they work,
even once the minister has made a determination that the person is a bad
character such that the power is enlivened, the discretion is enlivened, there
still is a discretion whereby the minister has to look at all the circumstances
in the case and may even need to look behind the adverse security assessment
and then make a decision about whether it is appropriate to grant a protection
visa or not.[23]
Independent Reviewer of Adverse
Security Assessments
5.28
During the public hearing there was much discussion of the effectiveness
of the Independent Reviewer for Adverse Security Assessments (IRASA).
5.29
The introduction of an IRASA is relatively recent. In October 2012, the
previous government announced an independent review process for refugees who
have been refused a permanent visa as a result of an ASIO ASA. A former federal
court judge, the Hon Margaret Stone was appointed by the Attorney-General as
the IRASA.[24]
The IRASA's role is to review ASIO ASAs given to the Department of
Immigration and Border Protection in relation to people who remain in
immigration detention and have been found by the department to: engage
Australia’s protection obligations under international law, but not be eligible
for a permanent protection visa; or who have had their permanent protection
visa cancelled. The reviewer also has a role to conduct a periodic review of
ASAs for eligible persons every 12 months.[25]
5.30
Many submitters welcomed the appointment of the IRASA as a mechanism for
reviewing ASAs and checking there have been no inadvertent errors.
5.31
Mr Webb from the HRLC expressed the views of many appearing before the
committee with respect to the IRASA when he indicated that:
It is an important step in opening a process that makes profoundly
important decisions, up to some level of scrutiny.[26]
5.32
The Law Council also supported the introduction of the IRASA:
[I]n the absence of any other model, the law council
considers that it provides some opportunity for review—and, indeed, it has on two
occasions led to reassessment which has resulted in two families [being]
removed from detention. It also provides some opportunity to revisit ASIO
security assessments at certain points in time.[27]
5.33
Professor Triggs also highlighted the critical role of the IRASA:
I think it has been extremely helpful to have it. It has
given a level of transparency and openness. To appoint a well regarded former
Federal Court judge to this position gave it, if you like, the gravitas—the
authority—for a review that we found very encouraging. We were very pleased
indeed when this position was appointed.[28]
5.34
A representatives from ASIO, also gave evidence before the committee. They
suggested that whilst ASIO had concerns about the effect of the review
processes on agency resources, that the IRASA process was working well:
...I have personally, as Director - General of Security,
confidence that the process that is currently in operation...is providing me with
an effective, independent review of decisions that we [ASIO] have taken. It
does not force me to change that decision, but in almost every case I have
respected the reviewer's advice.
5.35
Whilst welcoming the establishment of the IRASA, a number of witnesses,
including the Law Council, also highlighted a number of weaknesses in the IRASA
process and suggested it ought be strengthened.
5.36
Mr Webb argued that the appointment of the IRASA does not completely
remedy the inability of refugees to review an ASA from ASIO. Mr Webb suggested:
[The IRASA] does not cure the system of its defects. That is
for a few reasons. One is that the outcome of that independent reviewer process
is an opinion, not a decision—it is a recommendation, it is not binding....
Second, it exists as a creature of policy; it is not legislated. In
theory—although I hope this doesn't happen—it could be dispensed with on a
whim.[29]
5.37
In similar evidence before the committee, Mr Josef Szwarc from the
Victorian Foundation for Survivors of Torture, suggested:
...that appointment is under an administrative arrangement. She
has no powers other than the power to request material. Her recommendations,
insofar as we know them, do not have any power.[30]
5.38
This view was supported by the AHRC:
[T]he non-statutory review mechanism with non-binding
recommendations does not in our view adequately reflect the gravity of the
consequences of an adverse security assessment that I have discussed.[31]
5.39
A number of submitters suggested that the IRASA could be strengthened.
The Law Council was indicative when it argued:
provid[ing] a statutory basis to the existing administrative
appointment of the independent reviewer of adverse security assessments for
refugees—so to codify in legislation the powers of that reviewer and the
procedure that would apply.[32]
Committee view
5.40
The committee acknowledges concerns about the prolonged detention of
refugees with ASAs and their children.
5.41
As mentioned in paragraph 5.20, the committee agrees with the department
that the policy of indefinite detention, however, is a separate policy issue to
the matters currently before the committee. The Bill simply seeks to restore
the effect of the regulation PIC 4002 by inserting a specific criterion
into the Migration Act 1958. This distinction was also accepted by the
AHRC.[33]
5.42
The committee is of the view that most Australians would expect that
under Australian law it is a criterion for the grant of a protection visa that
an individual does not have an ASA from ASIO.
5.43
The committee supports the government's efforts generally and the work
of the department and ASIO, specifically in upholding community safety and
protecting national security. The committee accepts that it is a decision for
government whether to open up ASA's issued by ASIO to non-citizens, including
refugees, to further formal review or appeal mechanisms.
5.44
The committee also supports the excellent work undertaken by the
Hon Margaret Stone in her role of IRASA. The committee believes IRASA has
played a crucial role in ensuring there is an appropriate review of ASAs issued
by ASIO. The committee also notes the evidence that the work undertaken by the
current IRASA has been effective because of her close and productive
relationship with ASIO. The committee accepts the evidence that the IRASA is a
critical safety mechanism given the serious consequences that flow from ASAs
for those found to be refugees.
5.45
The committee notes, however, that the role of the IRASA exists simply
as an instrument of policy. The committee suggests that the government should
consider how the role of the IRASA could be strengthened by having a regulatory
underpinning. This would give the role certainty and credibility befitting the
seriousness of the task.
Recommendation 2
5.46
The committee recommends that the Australian Government consider putting
in place a regulatory framework to underpin the powers, authority and role of
the Independent Reviewer of Adverse Security Assessments.
5.47
On balance, the committee believes that the Bill should be
passed—subject to Recommendations 1 and 2—so as to give the Department of Immigration
and Border Protection administrative certainty regarding the interpretation and
application of the Migration Act 1958.
Recommendation 3
5.48
The committee recommends that the Bill be passed, but urges the
government to seriously and urgently consider the preceding recommendations.
Senator the Hon Ian
Macdonald
Chair
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