Migration Amendment (2014 Measures No. 1) Regulation 2014 [F2014L00286]


Migration Amendment (2014 Measures No. 1) Regulation 2014 [F2014L00286]

Portfolio: Immigration and Border Protection
Auhtorising legislation: Migration Act 1958
Last day to disallow: 26 June 2014 (Senate)

Purpose

1.1        Amends the Migration Regulations 1994 requirements relating to public interest criterion 4020, English requirements for applicants of the Subclass 457 (Temporary Work (Skilled)) visa, requirements in Part 202 of Schedule 2 and provisions dealing with disclosure of information under regulation 5.34F.

Committee view on compatibility

Requirements for assessment of limitations on human rights

1.2        In the committee's view, the human rights assessment provided in the statement of compatibility for the regulation is inadequate to support the committee's task of examining legislation for compatibility with human rights.

1.3        The committee's usual expectation is that, where a proposed measure appears to limit human rights, the accompanying statement of compatibility provide an assessment of:

  • whether and how the limitation is aimed at achieving a legitimate objective;
  • whether and how there is a rational connection between the limitation and the objective; and
  • whether and how the limitation is proportionate to that objective.

1.4        The committee notes that the standard applied to these considerations must be high. A legitimate objective is one that addresses an area of public or social concern that is pressing and substantial enough to warrant limiting rights.[1]

1.5        It follows that, to demonstrate that a limitation is permissible, legislation proponents must provide reasoned and evidence-based explanations of why the measures are necessary in pursuit of a legitimate objective.

1.6        Having identified that the measures are aimed at a legitimate objective, it must still be shown that they are likely to be effective in achieving that objective (that is, are rationally connected to their objective). In other words, unless the proposed measure will actually go some way towards achieving that objective, the limitation of the right is likely to be impermissible.

1.7        Finally, having established that measures are likely to be effective to achieve their stated objective, assessments must demonstrate that they are a proportionate means of achieving that objective. In other words, measures may nevertheless be impermissible because of the severity of their effect on individuals or groups. It is therefore essential that statements of compatibility identify:

  • any safeguards and protections which allow that limitation to apply as narrowly and flexibly as possible;
  • any procedures for monitoring the operation and impact of the measures;
  • any avenues for a person to seek review of the application and impacts of the measures.

1.8        The committee also notes that seeking to justify a limitation on human rights by reference to general matters such as national security, integrity of the system or public expectation is insufficient. The committee's usual expectation where a limitation on rights is proposed, is that the statement of compatibility provide a detailed and context-specific assessment of whether the measure is reasonable, necessary and proportionate to the pursuit of a legitimate objective.

Amendments relating to public interest criterion 4020 – legitimate objective

1.9        Schedule 1 of the regulation amends public interest criterion (PIC) 4020, which applies to 80 classes of onshore and offshore visa for students and skilled, temporary and family migrants.

1.10      Prior to the making of the regulation, PIC 4020 allowed for a visa to be refused where the visa applicant had given the minister (or relevant authority) a bogus document or information that was false or misleading in relation to the application for the visa. Following the amendments to PIC 4020:

  • a visa must not be granted to a person unless the minister is satisfied as to their identity;
  • where an applicant is refused a visa under PIC 4020 on identity grounds, a ten-year exclusion period for the grant of another visa now applies; and
  • the minister no longer has any discretion to waive the requirements of PIC 4020.

1.11      The statement of compatibility for the regulation states that the amendments are aimed at the objective of preventing identity fraud in Australia's visa and citizenship programs. It notes:

[a] identity fraud is...of serious concern because it is the foundation for all checks, including national security and character checks, conducted by the department into the bona fides of individuals applying for a visa to enter Australia; and

[b] all entitlements or benefits (for example, a driver's licence and Medicare card) provided by both Commonwealth and State/Territory agencies, as well as by the private sector, to lawful non‑citizens who have been granted a visa are dependent on the department accurately identifying each person before visa grant.[2]

1.12      The statement of compatibility concludes that the amendments to PIC 4020 are compatible with human rights because, insofar as they limit human rights, they are ' reasonable and proportionate to the objective they seek to achieve, being the prevention of entry and stay of persons who may pose a risk to the Australian community'.[3]

1.13      However, in the committee's view, while the maintenance of the integrity of Australia's immigration system (and related national security considerations) is clearly a legitimate objective, the statement of compatibility does not provide a sufficiently reasoned and evidence-based explanation of why the measures are necessary in pursuit of that objective. For example, it is not clear as to how and to what extent (the previous) PIC 4020 and regulatory framework was inadequate or insufficient to protect against identity fraud, and to what extent identity fraud was occurring.

1.14      The committee is therefore unable to determine, without further information, whether the measures are both necessary, and rationally connected, to their stated objective of system integrity and national security.

Amendments relating to public interest criterion 4020 – proportionality

1.15      As described above, the regulation removed the Minister's discretion to waive the requirements of PIC 4020 in certain compelling circumstances.

1.16      The committee notes that, to the extent that the waiver allowed some flexibility in the application of PCI 4020, the removal of the discretion is directly relevant to an assessment of whether the new measures are themselves accompanied by sufficient safeguards and protections as to be regarded as a proportionate means of achieving their stated objective, and will not be applied in an arbitrary or unfair manner.

1.17      The committee is therefore unable to determine, without further information, whether the measures are proportionate.

Ten-year exclusion period for refusal under PIC 4020 on identity grounds

1.18      The committee's concerns and analysis outlined above are particularly relevant to the introduction of a 10-year exclusion period for an applicant who is refused a visa under PIC 4020 on identity grounds.

1.19      In the committee's view, the exclusion from applying for another visa appears particularly severe in the context of a failure to provide sufficient documents to prove identity rather than an act of falsification (and especially so in cases involving onshore applicants, who will be removed from Australia and effectively barred from returning for 10 years).

1.20      While the statement of compatibility provides some justification for the measure, including that it 'better aligns with the policies of Australia's FCC [Five Country Conference] partners',[4] and that it 'reflects the Government's views of the primacy of accurately identifying non-citizens to the integrity of Australia's migration programme, and is intended to act a deterrent',[5] it is unclear to the committee whether these purposes may be regarded as legitimate objectives and, if so, whether the measure is a proportionate means of achieving those objectives (taking into account any relevant safeguards and protections, as outlined above).

1.21             The committee therefore requests the Minister for Immigration and Border Protection's advice on the compatibility of Schedule 1 of the regulation with human rights and, in particular:

  • whether the measures aimed at achieving a legitimate objective;
  • whether there is a rational connection between the measures and their stated objective; and
  • whether the measures are proportionate to that objective.
Amendments relating to public interest criterion 4020 – quality of law test

1.22      The committee notes that human rights standards require that interferences with rights must have a clear basis in law. This principle includes the requirement that laws must satisfy the ‘quality of law’ test, which means that any measures which interfere with human rights must be sufficiently certain and accessible for people to understand when the interference with their rights will be justified.

1.23      In the committee's view, the requirement for visa applicants to prove their identity are not well defined, with the regulation merely providing that 'the applicant must 'satisf[y] the Minister as to the applicant's identity.'[6] No information on how an applicant may meet this requirement is specified, with the department having an apparently broad discretion to 'consider a range of identity-related documents...as well as individual applicant circumstances'.[7]

1.24      Noting that visa applicants face diverse circumstances and significant differences in relation to the accessibility of personal and public records and documentation, the committee considers that the measure may not meet the quality of law test standards.

1.25             The committee therefore requests the Minister for Immigration and Border Protection's advice on whether the measure, as currently drafted, meets the standards of the quality of law test for human rights purposes.

Best interests of the child

1.26      Under the Convention on the Rights of the Child (CRC), States parties are required to ensure that, in all actions concerning children, the best interests of the child is a primary consideration.[8] 

1.27      This principle requires active measures to protect children's rights and promote their survival, growth, and wellbeing, as well as measures to support and assist parents and others who have day-to-day responsibility for ensuring recognition of children's rights. It requires legislative, administrative and judicial bodies and institutions to systematically consider how children's rights and interests are or will be affected directly or indirectly by their decisions and actions. Any legislative measure that seeks to balance the best interests of the child with other policy considerations must meet the standard criteria for limiting human rights. It must be demonstrated that the measures are aimed at achieving a legitimate objective, and are rationally connected to the achievement of, and proportionate to, that objective.

1.28      Article 10 of the CRC requires that applications for family reunification made by minors or their parents to be treated in a 'positive, humane and expeditious manner'.

Ten-year exclusion period for refusal under PIC 4020 on identity grounds

1.29      The committee notes that the 10-year exclusion period will affect the interests of children, in that children may be removed from Australia and excluded from applying for another visa for 10 years due to no fault of their own. This is because:

...PIC 4020 is a 'one fails, all fails criterion' whereby all applicants for a visa would not be granted a visa if a bogus document or false or misleading information is provided by the department by any of the applicants.[9]

1.30      The statement of compatibility concludes that the measure is 'reasonable and proportionate' and notes that it:

...reflects the Government’s view of the primacy of accurately identifying non-citizens to the integrity of Australia’s migration programme, and is intended to act as a deterrent.[10]

1.31      With reference to the remarks above, in the committee’s view, the statement of compatibility does not provide a sufficiently reasoned and evidence-based explanation of why the measures are necessary in pursuit of their stated objective. For example, it is not clear whether the subordination of the obligation to consider the child's best interests to the objectives of deterrence and policy consistency may be regarded as legitimate objectives in the absence of a reasoned and evidence-based analysis.

1.32      Further, the committee notes that the statement of compatibility does not address the question of whether the measure may be regarded as proportionate (taking into account any relevant safeguards and protections, as outlined above).

Special humanitarian program: requirement that families of minors meet compelling reasons criterion

1.33      Schedule 2 of the regulation removed the concession for unaccompanied minors, which allowed their families to come to Australia under the special humanitarian programme (SHP) without having to meet the compelling reasons criterion.[11] This exemption meant that immediate family members of proposers, who arrived on a Humanitarian (Class XB) visa or were minors, were taken to have met the compelling reasons criterion based on their family connection alone. As a result of the amendment, the family of unaccompanied minors will now need to show that they have humanitarian claims in their own right to be able to join their children in Australia.

1.34      The statement of compatibility for the regulation states that the measure 'merely places those [minor] proposers on equal footing as their adult counterparts...[whose families] are assessed against the four compelling reasons factors',[12] and concludes that the measure is 'necessary, reasonable and proportionate'.[13]

1.35      However, the committee notes the characterisation of the measure as merely placing children on the same footing as 'their adult counterparts' fails to identify the clear effect of the measure as limiting human rights. In the committee's view, the removal of the exemption for the families of children may be regarded as limiting human rights. The committee's usual expectation where measures limiting human rights are proposed is that the accompanying statement of compatibility demonstrates that the measures are aimed at achieving a legitimate objective, and are rationally connected to the achievement of, and proportionate to, that objective.

1.36      While the statement of compatibility states that the obligation to consider the best interests of the child may be outweighed by 'countervailing considerations', such as program integrity and policy consistency, the committee considers that it does not contain sufficient evidence-based reasoning to support an assessment of whether the limitation is permissible in this case.

1.37             The committee therefore requests the Minister for Immigration and Border Protection's advice on the compatibility of Schedule 1 and 2 of the regulation with the obligation to consider the best interests of the child as a primary consideration and, in particular:

  • whether the measures aimed at achieving a legitimate objective;
  • whether there is a rational connection between the measures and their stated objective; and
  • whether the measures are proportionate to that objective.

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