Schedule 1: Amendments relating to maritime powers
Submitters to the inquiry expressed concerns regarding the provisions
set out in Schedule 1.
These concerns were not limited to particular provisions and were aimed at the
collective effect passing the amendments would have on operations carried out
on the high seas.
As noted by the Refugee Council of Australia:
...these amendments aim to give the Minister for Immigration
extraordinary powers to detain people at sea (both within Australian water and
on the highs seas) and to transfer them to any country or even a vessel of
another country that the Minister chooses, without scrutiny from either Parliament
or the Courts.
As with other Schedules to the Bill, submitters expressed concerns
regarding the Government's decision to clarify the scope of its obligations
under international law.
The Human Rights Law Centre argued that the provisions aimed at broadening
maritime enforcement powers may lead to the Government choosing not to comply
with international law.
The Law Council of Australia (LCA) shared these concerns and noted that
these provisions 'increase the likelihood that the exercise of powers under the
Maritime Powers Act will violate Australia's obligation to respect the
sovereignty of other states'.
The LCA also questioned whether the new powers allowing for the removal and
detention of a vessel or aircraft either inside or outside the migration zone
were contrary to human rights law and amounted to arbitrary detention.
Of most concern to some submitters was the proposed removal of
procedural fairness guarantees and the limitations on the court's ability to
invalidate executive actions.
The Refugee and Casework Service (RACS) argued that the lack of judicial
oversight and Parliamentary scrutiny was particularly
Irrespective of any view of the relevance of international
law obligations, RACS believes that the Committee should exercise extreme
caution in relation to legislation that proposes to allow the prolonged
detention of any person in the absence of Parliamentary or judicial oversight.
The department addressed the majority of these concerns in its
submission to the inquiry.
In addressing the concerns raised regarding the extension of the Minister's
power, the department stated that:
These amendments do not seek to create new powers beyond what
is already available to maritime officers- instead, they clarify the intended
operation of those powers and their relationship with other law. Limited new
powers are provided to the Minister personally to ensure that the executive has
appropriate oversight of matters significant to Australia's sovereignty,
national security and overarching national interests.
The department also clarified what matters would constitute national
...the term "national interest" has a broad meaning
and refers to matters which relate to Australia's standing, security and
interests. For example, these matters may include governmental concerns related
to such matters as public safety, border protection, national security, the
prevention of transnational and organised crime, defence, Australia's economic
interests, Australia's international obligations and its relations with other
countries. Only the Executive arm is appropriately and adequately placed to
make assessments about what is often a complex range of diverse considerations
The department also provided justification with regards to proposed
sections 22A and 75A which provide that a failure to consider international
obligations will not invalidate the exercise of certain powers under the Maritime
Parliament did not legislate to make international
obligations a relevant consideration, as a matter of domestic law, for the
exercise of maritime powers. These amendments put this beyond doubt. The
Government remains committed to Australia's international obligations,
including non-refoulement obligations and the obligations arising under the
United Nations Convention on the Law of the Sea. New sections 22A and 75A
do not absolve Australia of its obligation to comply with international law,
and the Government does not resile from responsibility for actions take under
the Maritime Powers Act. However, it is the Government's position that
it is the Executive Government which is best placed to decide how to comply
with these obligations, particularly in light of the full range of
considerations surrounding operation activities at sea.
At the public hearing, departmental officials reiterated that the
introduction of these provisions does not mean that the Government will not
comply with international law:
The government's compliance with our international
obligations is of course made up of various factors, some of which is provided
for in the legislation, some is provided for in policy and some is provided for
in practice. Whilst these provisions are dealing with the manner in which we
deal with asylum seekers, you need to look at the total practice of the
government in meeting its international obligations. It is quite clear in the
explanatory memorandum—it is stated on several occasions—that the government
has no intention of breaching its international obligations, in particular the
In its submission, the department clarified that none of these provisions
would result in vessels being left at sea or people put in dangerous
New subsections 69(2) and (3) and new section 75C have
attracted criticism as apparently allowing the "abandonment" of a
vessel on the high seas, and allowing the trespass into other countries'
territorial sea. This is incorrect. These amendments are intended to make it
clear that a destination need not be in a country (which, when read with
the definition of 'country' in section 5, includes that country's territorial sea
or, where relevant, archipelagic waters). The Government's policy relating to
Suspected Illegal Entry Vessels is to remove them to a place outside
Australia's contiguous zone where it is safe to do so. The professional
mariners of the Royal Australian Navy and the Marine Unit of the Australian
Customs and Border Protection Service view the safety of life at sea as their
highest duty as mariners. An extraordinary amount of work goes into ensuring
that operations take place in safety, and not a single life has been lost at
sea as a result.
Schedules 2 and 3: Introduction of new types of visas and changes to visa
Both schedules 2 and 3 of the Bill make changes to Australia's current
visa regime. Submitters were most concerned with the provisions in Schedule 2
which allow for the re-introduction of Temporary Protection Visas (TPVs) and
the introduction of Safe Haven Enterprise Visas (SHEVs).
A number of witnesses at the public hearing argued that TPVs were not a
suitable long-term solution for refugees.
Mr Khanh Hoang, from the ANU College of Law, argued that TPVs are
discriminatory and are inconsistent with the broad objectives of the refugee
Temporary protection is usually provided by states to address
situations that do not squarely fall within the convention or where people are
fleeing from generalised violence or other emergency situations. It is the
practice of most states to grant permanent protection to those who are found to
be convention refugees.
By contrast, the TPV effectively discriminates against people
who come by boat and who have been found to be refugees by ensuring that they
will never be granted a permanent protection visa. If we want to talk about
certainty for people then we say that the temporary protection visa and the
safe haven enterprise visa do the exact opposite of providing certainty.
The Refugee Council of Australia argued that there is no justification
for introducing TPVs on the basis of deterrence and that it will lead to
numerous families being separated:
Families who are known by the government to be experiencing
the impacts of persecution will be separated indefinitely. The family member in
Australia will be trapped: having to decide whether to remain safely here, away
from the place where it is accepted that they will face persecution, while
other family members are highly unsafe, or to return at great risk to
While acknowledging the need to process the vast number of asylum claims
that have yet to be assessed, the Law Council also noted that TPVs are
inconsistent with its own asylum seeker policy:
If TPVs are to be reintroduced, to be consistent with
international obligations, the Law Council would support them as only
constituting a form of 'bridging visa' while people await the determination of
their claim. However, they should not be supported as the final outcome once an
individual has been found to engage in protection obligations.
Submitters also were opposed to the introduction of SHEVs.
The ANU College of Law argued that the SHEV does not provide a durable solution
The requirement to work three and half years without income
support is particularly onerous. In addition, we query how likely it is that
SHEV holders would be eligible for permanent skill[ed] or family visas. These
visas require applicants to obtain a high level of English, have their skills
recognised by professional bodies and often require high visa application fees.
The Refugee Council of Australia expressed concerns that the eligibility
criteria for SHEVs is to be specified by way of delegated legislation:
...under Section 46AA(2)(a)(b), the legislation stipulates that
a valid application for a SHEV cannot be made without the Government first
prescribing criteria by regulation. The amendments in the Bill do not specify a
timeframe for the introduction of this regulation. As the legislation does not
require the Minister to introduce the regulations necessary to bring the SHEV
into existence, the legislation does not guarantee that TPV-holders will have
access to SHEVs, as the decision about when or whether to introduce the
regulations will rest with the Minister.
In its submission, the department stated that 'TPVs strike an
appropriate and effective balance between the provision of safety from persecution
and the removal of an incentive for illegal arrivals'.
The Department argued that it is this element of discouragement that makes it
necessary for the granting of temporary as opposed to permanent protection
The department also highlighted that asylum seekers would not be
returned to their home country under any circumstances while they continued to
engage Australia's protection obligations.
In his second reading speech, the Minister provided clarification on
eligibility criteria for SHEVs:
IMAs granted a SHEV will be required to confine themselves to
designated regions (either a State or Territory government, local government,
or employer can request to be designated), identified through a national
self-nomination process. The visa will be valid for five years, and like the
TPV will not include family reunion or the right to re-enter Australia. SHEV
holders will be targeted to designated regions and encouraged to fill regional
job vacancies and will have access to the same support arrangement as a TPV
The department noted that 'the SHEV will come into effect in April 2015
following necessary amendments to the Migration Regulations 1994'.
At the public hearing, departmental officials noted that the Minister was still
undertaking consultation with stakeholders in relation to SHEV visas:
...the requirements for the SHEV are the same as for a
temporary protection visa, insofar as it is a protection visa and the person
holding it needs to have been assessed to be a refugee. The complicated part of
it is in the pathway to other visas, which is obviously what the intent of the
visa is for. The complicated part of that is in articulating the definition of
regional Australia... and also what accesses to social services count towards
meeting the requirements for the visa or not. We need to come up with a very
clear list of that.
In response to questions from the committee regarding the operation of
SHEVs, the department has provided a detailed fact sheet which has been
published on the committee's website. The committee thanks the department for
providing this fact sheet.
Schedule 4: Fast track assessments
As noted in Chapter 2, Schedule 4 would—if passed—insert a new
'fast track review process' for reviewing refused protection visa applications.
Submitters emphasised the importance of merits review in refugee status
pointing to departmental statistics that show that, when it comes to
applications for protection visas, up to 87% of first instance rejections are
overturned on review.
Submitters were concerned, however, that the fast track régime would
'truncate the refugee status determination process by removing safeguards that
operate to ensure each claim is fairly and carefully assessed on its merits'.
This was said to create an 'inherent risk...that an applicant with legitimate
claims will nevertheless fail and be returned' to an 'appreciable risk of
serious human rights abuses such as targeted killings and torture'.
It was argued that this risk was heightened by the other fundamental changes
made by the Bill,
other migration legislation currently before the Parliament,
the removal of all funding for the Immigration Advice and Application
Assistance Scheme in respect of people who arrive in Australia without a valid
visa, and the replacement of that scheme with 'a handful of short brochures'.
Reviews conducted by the
Immigration Assessment Authority
Submitters were concerned that reviews conducted by the Authority would
not be sufficiently robust because:
applicants would be required to 'provide a complete statement of
their claims for protection during their first engagement with an officer of
but there are many legitimate reasons why applicants might not disclose all
relevant information in their application. These could include:
a lack of knowledge of what information is relevant (particularly
to the new definition of 'refugee' that the Bill seeks to insert into the Migration
a lack of access to documentation;
a lack of legal advice and understanding of the Australian legal
a lack of education, literacy and English language skills;
mental illness, including that brought on by torture or trauma;
a lack of trust in government officials caused by persecution
that they may have suffered at the hands of the government in their home
the process excludes recognised procedural fairness guarantees,
such as the right to be heard, to present and challenge evidence and
conclusions, and to clarify misunderstandings;
the process does not involve a hearing, which will make it very
difficult for the Authority to evaluate the decision-maker's conclusions about
the applicant's credibility;
because the Authority is not able to receive further information
(except in undefined 'exceptional circumstances'),
it risks missing crucial factual developments that bear on the applicant's
claim for protection, including changes of circumstances in their home country;
the Authority's objective would be to provide a review that is
'efficient and quick'.
It would not, unlike the Migration Review Tribunal and the Refugee Review
Tribunal, be required to provide a review that is 'fair' and 'just'. 
This was said to be 'sacrificing accuracy of decision making for speed';
if an application were remitted for reconsideration because the
Authority found that the applicant was entitled to be granted a protection
visa, the Minister would be under no obligation to grant one.
In addition, the Australian Human Rights Commission expressed concern
that there is no limit to the classes of person that could become subject to
the fast track review process. The Minister would be able to expand the
categories of applicant subject to fast track review without Parliamentary
oversight and could, by this process, ultimately replace the Refugee Review
The department responded to many of these concerns in its submission to
the inquiry. It explained that the fast track régime
...has been designed to deter abuse of the review system
through the late presentation of claims that could reasonably have been
presented earlier, particularly where this is done in order to prolong failed
asylum seekers’ stay in Australia. It is consistent with the amendments in the
Migration Amendment (Protection and Other Measures) Bill 2014 which clarify the
responsibility of asylum seekers to specify the particulars of their claim,
deliver the consistent message that it is extremely important to provide
sufficient evidence and information to establish protection claims upfront, and
will create an effective, efficient process.
In relation to concerns that fast track reviews will not respect due
process, the department submitted that:
'Fast track applicants will have the opportunity to articulate
their claims in a full and confidential interview with a specially trained
Onshore Protection decision‐maker';
'Given the short period of time elapsing between a refused
decision being referred by the department to the [Authority] and a review being
completed (expected to take two weeks) and the resultant limited period in
which an applicant’s circumstances could change during that time, it is
anticipated that the [Authority] will very rarely exercise its power to seek
new information of its own volition while reviewing a case'.
Applicants excluded from the
Submitters also expressed concern about the range of people who would be
excluded from the fast track process and would not have access to any kind of
merits review. These concerns included:
that the Minister would be able to exclude people from the fast
track process (and prevent them accessing any form of merits review) based
merely on a suspicion;
in relation to people thought to have had protection refused in
Australia or elsewhere, that they may still be a genuine refugee. There might,
for example, have been a material change in circumstances between applications
for protection or the prior refusal may have been in a country that does not
observe the same assessment procedures and standards as Australia;
in relation to people who were thought to have made a 'manifestly
unfounded claim', that this phrase is not defined and is 'capable of an
infinite variety of arbitrary and subjective interpretations';
in relation to people who are thought to have used a bogus
document without reasonable explanation, that—although the Bill does recognise
that asylum seekers may need to rely on bogus documents to flee
persecution—'[i]t is unclear how the asylum seeker is in a position to judge
the point in time at which the facilitation of safe passage has ended and the
first opportunity to resile from a bogus document has arrived'.
Furthermore, 'first instance decision-makers often decide that documents are
false or fraudulent without any evidence from experts'.
Specific concerns were raised about the Minister's non-reviewable power
to expand the class of people excluded from the fast track review process. The
Australian Human Rights Commission noted that there is no limit to the people
who could be excluded from any form of merits review and that 'the Minister
could ultimately entirely prevent any recourse' to merits review.
Similarly, in relation to the Minister's power to issue conclusive
certificates to prevent decisions in individual cases from being reviewed, there
were concerns that that this 'could potentially empower the Minister to
prohibit merits review of all decisions refusing to grant a protection visa'.
In relation to these concerns, the department noted that:
It is the Government’s policy that if refused fast track
applicants are found to have put forward claims that indicate they have
previously been refused protection, already have protection available elsewhere
or have unmeritorious claims, prompt resolution of their status should be a
The Department also submitted that:
Excluding these applicants from merits review will stop
unmeritorious claims being considered by the [Authority] which could otherwise
lead to delays in departure and an inefficient and costly use of resources. As
the majority of [irregular maritime arrival] cases in the backlog relate to
people from known refugee producing countries, the percentage of cases expected
to fall under the definition of an excluded fast track review is small. The
vast majority of refused cases are expected to be reviewed by the [Authority].
It is the Government’s position that there are sufficient
procedural safeguards in place for ensuring all fast track applicants are
afforded an opportunity to have their claims determined in an open and transparent
assessment process while ensuring priority is given to identifying applications
that present legitimate claims and in turn, asylum seekers who require
The introduction of a different process for dealing with
unmeritorious claims will not curtail a fast track applicant’s ability to seek
protection, nor their ability to access judicial review. Rather, these measures
will place further emphasis on the importance for all protection visa
applicants to fully and truthfully articulate all of their protection claims at
the earliest possible opportunity.
Finally, many submitters expressed the view that the fast track review
process would, in fact, slow down the assessment process because it would give
rise to a backlog of judicial review applications in the High Court.
At the public hearing, representatives of the Law Council of Australia
...the proposed amendments—especially the removal or
restriction of merits review—are likely to lead to more judicial review applications
to the High Court. This will undoubtedly lead to further inefficiencies,
thereby conflicting with the bill's stated intention and prolonging the process
of determining Australia's protection obligations.
[A]t the moment, the courts show quite a degree of deference
to the [Refugee Review Tribunal's] fact-finding processes because they have a
set of reasons, they know there is a process that is undertaken—an
interview—and there is at least a level of interaction.
suspect what you will find under this new process is that those comforts to the
courts will no longer be there, so the courts may be more ready to intervene
and grant judicial review, which will just start the whole process again.
Schedule 5: Australia's obligations under international law
As noted in the previous chapter, Schedule 5 would—if passed—amend
the Migration Act to explicitly provide that Australia's non-refoulement
obligations are irrelevant to the removal of unlawful non-citizens under
section 198 and to replace references to the Refugees Convention with a
new statutory definition of 'refugee'.
Irrelevance of non-refoulement obligations to removal
In relation to the first proposed change, submitters expressed concern
that it does not accord with Australia's non-refoulement obligations
under the Convention.
They argued that it would increase the risk of people being returned to a real
risk of harm, particularly in the case of asylum seekers who had been excluded
from the fast track review process.
The department submitted that the amendment did nothing more than
re-establish the 'historical understanding' that the obligation to remove under
section 198 was 'unconstrained by reference to Australia's international
Australia will continue to meet its non-refoulement obligations
through other mechanisms and not through the removal powers in section 198 of
the Migration Act. For example, Australia's non-refoulement obligations
will be met through the protection visa application process or the use of the
Minister's personal powers in the Migration Act, including those under
sections 46A, 195A or 417 of the Migration Act.
Submitters disagreed that this was sufficient, arguing that:
unauthorised maritime arrivals may only make a visa application
if the Minister—in his or her discretion—allows one to be made;
other legislation before the Parliament proposes removing non-refoulement
obligations under treaties other than the Refugees Convention from Australia's
protection visa scheme;
the fast track review régime will increase the risk that people
are wrongly found not to be refugees; and
the powers that the department points to are discretionary,
non-compellable and non-reviewable. They do not need to be exercised fairly, or
Furthermore, some submitters pointed out that the obligation to remove
in section 198 ' requires removals to be carried out in a range of
circumstances, including where people may not have applied for visas or had
their protection needs considered through a visa process at all'.
Statutory definition of 'refugee'
In relation to the codification of the definition of 'refugee',
submitters expressed concern that this was inconsistent with Australia's
obligations. This was because the creation of an 'independent and self-contained
statutory refugee framework'
was said to be inconsistent with article 42 of the Convention (which prohibits
Australia from departing from the definition of 'refugee' in article 1)
and with the principles of treaty interpretation more generally.
It was also suggested that the proposed definition is narrower than—and
therefore inconsistent with—the definition in the Convention for a number of
It was first argued that, although international law does recognise that
a person may be refused protection if they are able to avoid persecution by
relocating to another part of their home country, such 'internal relocation'
must be reasonable. Whatever internal relocation is reasonable must be assessed
on a case-by-case basis. By removing the reasonableness requirement and
requiring applicants to show that their persecution extends to all areas of
their home country, proposed subsection 5J(1)(c) was said to be
inconsistent with Australia's obligations and was said to risk forcing people
to relocate to places where they have no family, ethnic, cultural or linguistic
ties if they cannot meet what the UNHCR has described as an 'impossible burden'.
Second, it was suggested that, although it is true that a person may be
refused protection if there is effective state protection in their home
country, proposed subsection 5J(2)(a) lowers the bar from the protection
that would be available to the applicant to the protection that might
be available and 'require[s] decision-makers to conclude that no person
from a country with a functioning criminal justice system can ever have a
well-founded fear of persecution'.
Third, it was argued that there is no basis in the Convention for
expanding the concept of effective protection to include that which is provided
by non-state actors (such as warlords, peacekeepers or private security
services), as proposed subsection 5J(2)(b) seeks to do.
Fourth, there was said to be no requirement in proposed subsection 5J(2)
that the protection (whether from the State or non-state actors) be 'stable
effective or durable'.
Fifth, it was argued that the prospect, enlivened by proposed
subsection 5J(3), that a person could be refused protection on the basis
that they could take reasonable steps to modify their behaviour and avoid
persecution—including by acting discreetly—is not consistent with the existing
Australian case law and the UNHCR's position that persons should not be
'expected or required to suppress their political or religious views or other
protected characteristics to avoid persecution'.
The sixth reason why the proposed definition of 'refugee' was said to be
narrower than the definition in the Convention was that the definition of
'particular social group consisting of family' in proposed section 5K,
which precludes family as a social group capable of being persecuted where the
original family member was targeted for a non-Convention reason, has been
criticised by the United States Court of Appeals as 'erecting artificial barriers
to asylum eligibility'.
Finally, the definition of 'particular social group other than family'
in proposed section 5L was said to be narrower than is permitted in the
Convention because it is limited to groups that have shared characteristics
that are 'innate', 'immutable' or 'fundamental'. It could exclude, therefore,
'private entrepreneurs in a socialist State, wealthy landowners targeted by
guerrilla groups, members of a labour union or students', all of which are
currently considered social groups the persecution of which can give rise to
Submitters also opined that the detailed and extensive case law on the
Convention's definition of 'refugee' has led to a relatively stable and certain
understanding of the word.
They expressed concern that the new definition would 'almost certainly
encourage litigation for further judicial clarification' of concepts such as
'fundamental', 'innate' and 'immutable'.
In its submission, the department explained that '[i]t is intended that
this framework not be subject to the interpretations of international law by
the Courts, which may seek to expand the scope of the Convention or introduce
interpretations that go beyond what Parliament intended'.
This is intended to create 'a clearer and more transparent framework for
decision makers to use to make more accurate and consistent refugee
Furthermore, the department submitted that:
Currently, the Migration Act only makes direct reference to
an applicant being required to engage Australia’s protection obligations under
the Refugees Convention as a criterion for the grant of a Protection visa. How
a person satisfies this criterion is set out in policy guidance and an
extensive body of complex case law, which is not readily accessible to asylum
seekers or other interested parties. By creating a statutory refugee framework
that sets out a clear, transparent set of criteria asylum seekers will be
better able to identify the circumstances that are required in order for them to
engage Australia’s protection obligations. This will enhance an asylum seeker’s
ability to make and establish their claims for protection in line with the
criteria set out in the Migration Act.
In relation to some of the specifics of the definition of 'refugee' objected
to by submitters, the department explained that:
'the internal relocation principle no longer encompasses a
‘reasonableness’ test which assesses whether it is reasonable for a person to
relocate to another area of the receiving country' because 'Australian case law
has broadened the scope of the ‘reasonableness’ test to take into account the
practical realities of relocation such as diminishment in quality of life or potential
'[t]he breadth of [the current approach to social groups other
than family] has led to long lists of increasingly elaborate potential
particular social groups being drawn for the purposes of protection visa
applications thereby making implementation of the term complex and difficult
for decision makers to apply';and
in relation to requiring people to modify their behaviour, '[i]t
is the Government’s position that the purpose of the Refugees Convention does
not extend to protecting conduct that might give rise to a false imputation of
an opinion, belief, membership or origin unless either that conduct is an
expression of a Convention related characteristic or it would not be reasonable
for the person to modify their behaviour in the circumstances'.
Schedule 6: Newborn babies
Schedule 6 would—if passed—amend the Migration Act to seek
to ensure that unlawful non-citizen children have the same status and are
subject to the same removal power as their parents.
A number of submitters referred to the high-profile case of Ferouz.
As explained by the Law Council of Australia:
Ferouz’s parents are stateless (Rohingyas from Myanmar) and
were sent to Nauru, contrary to medical advice after a doctor examined his
mother on Christmas Island and alerted the Department to her high risk
pregnancy. Ferouz’s mother was flown to the Australian mainland shortly after
arriving in Nauru, and Ferouz was born in Brisbane. As such, he has an
Australian birth certificate and has spent every day of his life in Australia.
Maurice Blackburn, a law firm that currently 'acts for around 100 babies
who were born in Australia to parents who are [unauthorised maritime arrivals]
and/or transitory persons' and who 'are currently held in detention on
Christmas Island and on the Australian mainland',
explained that, if Schedule 6 is passed:
- All 100 babies would be retrospectively deemed to be
[unauthorised maritime arrivals], because their parents entered Australia by
- All 100 babies would therefore retrospectively lose their
right to apply for a permanent Protection Visa.
- All 100 babies “must” be taken to Nauru or Manus “as soon
as reasonably practicable”. Some may qualify for SHEVs or/TPVs under other
amendments proposed in the Bill, but only if the Minister allows the babies and
their parents to apply for protection here in Australia.
- At least 16 of these 100 babies would be retrospectively
deemed to be transitory persons, because their parents have previously been
detained on Nauru and/or Manus.
- At least these 16 babies would not be eligible for
TPVs/SHEVs under other amendments proposed the Bill, as their parents have been
brought to the mainland from Nauru or Manus, and the Minister has said that he
will not be allowing these babies and their families to apply for protection in
Australia. If the amendments are passed, there is no way that these babies and
their families could remain in Australia.
- Around 31 of these 100 babies, who “must” be taken to
Nauru or Manus, are eligible to apply for Australian citizenship...These babies
“must” be taken to Nauru or Manus, unless they are granted Australian
citizenship. Even if they are granted Australian citizenship, their families
“must” be taken to Nauru or Manus as a result of the Ferouz amendments.
Submitters expressed concern about the general policy stance taken by
Schedule 6. In particular, they expressed views that:
babies born in Australia should not be taken to regional
processing centres that are not equipped to deal with them. Doing so is not in
their best interests and 'has significant impacts on the full physical
emotional and cognitive development of children and young people, extending
long into their post detention futures';
Schedule 6 'creates other risks of family separation by deeming
a baby born in Australia to be an 'unauthorised maritime arrival' if only one
parent is an 'unauthorised maritime arrival'';
Schedule 6 penalises children for the decisions made by
Concerns were also expressed about the fact that these provisions apply
retrospectively to children who have already been born.
The department explained in its submission that '[i]t has long been the
case in Australian immigration law that newborn children are given the same
visa status as their parents at birth'.
In terms of both preventing asylum seeker families from
applying for permanent visas and making them subject to offshore processing, it
is important to maintain consistency of migration status within the family
unit, where this is possible. Nomenclature is less important than the need for
children to have a migration status that is consistent with that of their
parents, where this is possible.
It has also been argued that, as newborn children did not
make the decision to travel to Australia illegally, they should not be
“punished” for this, and that classifying them as UMAs is not a deterrent to
their arrival. These measures are not intended to punish or deter newborn
children. Rather, they assist in maintaining family unity and in implementing a
number of the Government’s migration policies.
The committee also expressed some concern about the retrospective
application of these provisions. The department responded to these concerns in
explaining why the provisions are necessary:
The rationale for giving these measures retrospective
application is to clarify the government’s existing position and the intention
of the legislation, which is that children of unauthorised maritime arrivals
(UMAs), born in Australia, are already included within the existing definition
of UMA in the Migration Act.
Although the amendments operate retrospectively, they do so
to explicitly capture those persons the legislation is already intended to
Upon commencement of the amendments, it will be clear that
children born in Australia or in a Regional Processing Country (RPC) to at
least one UMA parent are UMAs and have always been UMAs. It will remain the
case, however, that if a child born in Australia has an Australian citizen or
permanent resident parent the child will be an Australian citizen by birth.
It is also necessary to ensure that all UMAs, regardless of
the date of their arrival, have a migration status consistent with their
children, as far as possible. This will mean that, if a UMA is to be removed
from Australia, the UMA’s removal will not be frustrated because a non-UMA
child family member makes a valid application for a visa, solely for the
purpose of frustrating this removal. Delivering consistency of migration status
between a parent and a new born child is a long standing approach taken in many
circumstances within the Migration legislation.
Any prior visa application made by children affected by these
amendments will be taken to have been made invalidly, where the Minister did
not expressly allow it. Ensuring that such applications will be taken to have
been made invalidly upon the commencement of the amendments will also remove
the incentive for applications to be lodged on behalf of the Australian-born
children of UMAs prior to the commencement of the amendments.
If children of UMAs are able to make a valid application for
a permanent protection visa, it renders ineffective the application bars in the
Migration Act, central to achieving a variety of desired policy outcomes
including regional processing. This will likely lead to a difference in
treatment within the family unit if the application bar, preventing the
relevant UMA parents from applying for a permanent protection visa, is not
lifted. Alternatively, if the application bar is lifted to allow all other
members within that family unit to apply for a permanent protection visa, the
Government’s policy position on UMAs would be contradicted to the detriment of
current, successful, anti-people smuggling strategies.
Similarly, the retrospective application of the measures also
clarifies that children of UMAs arriving on or after 13 August 2012 are subject
to transfer to a RPC. This means the Government will not have to consider the
risk of separating a newborn baby from their UMA parents who are subject to
transfer, or alternatively the consequences of keeping the family unit together
in Australia contrary to the Government’s policy position that such UMAs will
not be processed or resettled in Australia. The deterrent effect of that policy
would be reduced if UMAs who have children in Australia were not able to be
transferred for offshore processing.
The retrospective effect of the amendments will not however
affect applications in respect of which the Minister has previously intervened
to allow a valid application to be made. Accordingly, on-hand applications that
the Minister has already allowed to proceed can continue to be assessed.
Potential for statelessness
At present, a stateless child born in Australia is eligible for Australian
The Explanatory Memorandum notes that it is not the government's intention to
alter a child's eligibility for Australian citizenship.
Submitters expressed concern, however, that the obligation to take such a child
to a regional processing country 'as soon as reasonably practicable' could
infringe on the child's ability to apply for Australian citizenship.
Maurice Blackburn, referring to the Ferouz case, submitted that:
In addition to applying for a Protection Visa, Ferouz has
applied for Australian citizenship. His application was made pursuant to
section 21(8) of the Australian Citizenship Act 2007 (Cth), which states
that a person is eligible to apply for Australian citizenship if they are:
- born in Australia; and
- are stateless, meaning they
are not eligible for citizenship in another country.
Ferouz satisfies the criteria set out...above. He was born in
Australia and he is stateless. This is because, as members of the Rohingyan
ethnic minority, the government of Myanmar denies their right to citizenship of
that country. Little wonder the United Nations regards the Rohingyan people as
one of the most persecuted minorities in the world. In total, Maurice Blackburn
acts for around 31 Rohingyan babies who are similarly eligible to apply for
Ferouz submitted his citizenship application in December
2013. Ten months later, and despite several requests for action, the Department
has still not advised the outcome. This is well outside the Department’s normal
Despite being born in Brisbane, and being eligible to apply
for Australian citizenship, Schedule 6 to the Bill – if passed – places Ferouz
at risk of transfer to Nauru unless he is granted citizenship.
Even if Ferouz is granted Australian citizenship, his family
“must” be taken to Nauru or Manus as a result of the Ferouz amendments.
More generally, submitters also expressed concern that newborn children
could be removed from Australia before their birth can be registered.
They explained that '[b]irth registration is an important tool for the
prevention of statelessness because it establishes a legal record of where a
child was born and who his or her parents are'.
Removing children born in Australia before their birth can be registered could
mean that they are at risk of statelessness.
In its submission, the department offered some clarification of the
rights granted to stateless persons to apply for citizenship, and of the
benefits of extending the definition of 'transitory person':
As with other children born overseas, if the child of a UMA
is born in an RPC to an Australian citizen or permanent resident, that child
will be eligible to apply for Australian citizenship by descent. As with other
stateless children born in Australia, stateless UMAs born in Australia are
entitled to apply for, Australian citizenship. For children born in Australia,
an application for citizenship based on statelessness made on behalf of the
child, being a UMA, will be assessed in the same way as all such applications.
The amendments will extend the definition of ‘transitory
children born to UMAs in an RPC; and
children born in Australia to UMAs who have been transferred to
Australia from an RPC.
Such children need to be included in the definition of ‘transitory
person’ to enable them to be brought to Australia for a temporary purpose, such
as to undergo specialist medical treatment or to accompany a parent brought to
Australia for a similar purpose.
Unlawful non-citizens born to air
Furthermore, the Australian Human Rights Commission argued that
Schedule 6 'would not address the anomaly that babies born in Australia to
unlawful non-citizens who arrived in Australia by air would be liable to be
detained and then taken to a regional processing country'.
This anomaly was explained as follows in the Commission's submission to this
committee's inquiry into the Migration Amendment (Protecting Babies Born in
Australia) Bill 2014:
This result [that a non-citizen child born in Australia is
deemed to be an unauthorised maritime arrival] seems to apply regardless of how
the baby's parents came to be in Australia. For example, it appears that if a
woman arrives in Australia by air, overstays her visa and gives birth to a
child who is not a citizen of Australia, then the child will be deemed to have
'entered Australia by sea' and be liable to be detained and then taken to a
regional processing country.
The committee also raised concerns regarding the status of a child born
in Australia where one parent has arrived by boat and the other parent is an
Australian citizen. The department clarified that 'as with other children born
in Australia, if the child of a UMA is born in Australia to an Australian
citizen or permanent resident, that child will be an Australian citizen at
The department noted that this specific provision 'is contained within Section
12 of the Australian Citizenship Act 2007, which is unaffected by the
One of three conditions under new subsection 5AA(1A) provides
that “the person [the child] is not an Australian citizen at the time of
birth”, ensuring that this is of paramount importance in consideration of the
status of the child. This is further clarified in a note under that new
subsection (note 4), which directly references section 12 of the Australian
Citizenship Act 2007. That section, in turn provides that when a person is an
Australian Citizen at the time of their birth they are unaffected by this Bill.
The department also advised the committee as why the Bill refers to 'one
parent', as opposed to 'parents':
There are a number of scenarios in which a child may be born
to a parent who is a UMA. The intended objectives of these amendments would not
be achieved if they were limited to the children of two UMA parents. For example,
if a pregnant UMA arrived in Australia and the father of the child did not
travel to Australia, the child born in Australia would not be a UMA if the
definition was limited to children with two UMA parents.
Schedule 7: Caseload management
As noted in the previous chapter, Schedule 7 seeks to:
remove the 90-day period within which decisions on protection
visa applications must be made by the Minister and the Refugee Review Tribunal;
empower the Minister to impose suspensions and caps on visa
processing (including protection visa processing) by non-disallowable
remove provisions that require the Minister to report specified
information about applications for protection visas and decisions made
concerning such applications to Parliament on a regular basis.
Submitters argued against the removal of the 90-day limit and reporting
requirements, pointing to the fact that the Howard government introduced them
on the basis that they would
...enable protection visa application processing to be more
rigorously overseen at all stages of decision making to identify and minimise
the impacts of any factors which could delay finalisation of applications.
The department submitted that the 90-day period
...is an unnecessary regulatory burden that, while it may
provide transparency at one level, duplicates standard protection reporting
which is publically available on the departmental website and provides clear
and easily accessible information and advice on all aspects of protection visa
In relation to the suspension of processing and the capping of the
number of protection visas that can be issued, submitters expressed concern
that such measures 'may lead to prolonged detention as those who fall outside
of the cap [or whose applications are not processed] will have to wait, either
for Ministerial discretion to waive the waiting period, or for the cap to be
lifted in the next calendar year'.
It was noted that 'previous governmental decisions freezing granting of
protection visas has resulted in noticeable increases in self-harming behaviour
and other mental and physical harm to those affected'.
The department explained that these measures will assist with the
appropriate management of the onshore component of the protection visa programme
and will 'help to ensure that only the planned number of visas is granted in a
given year and that there is not a budget overspend for the department or a
range of other agencies with programmes and services associated with the Humanitarian
The committee is grateful for the large number of thoughtful and
detailed submissions that it received. It has considered the concerns that have
been raised. The committee has also considered, however, the fact that the government
has a clear mandate to give full effect to its border protection policies. So
far, those policies have enjoyed a good measure of success in stopping the
boats. One thing that they have been unable to achieve, however, is to clear
the backlog of protection visa applications that have been made by the
unauthorised maritime arrivals that arrived during the previous government's
time in office. The department has estimated that it would take seven years to
process these applications.
The government believes that legislative change is required to clear that
backlog and the committee agrees. It is for that reason that the committee
recommends that the Bill be passed.
The committee believes that there are, however, ways in which the Bill
could be improved.
In relation to the provisions of Schedule 6 that would provide that
the Australian-born children of unauthorised maritime arrivals are themselves
unauthorised maritime arrivals, the committee has noted concerns about the
unintended consequences that could result if the births of such children are
not registered before they are removed from Australia. In the interests of
ensuring that such children are not rendered stateless because they cannot
prove where they were born and who their parents are, the committee recommends
that—as a matter of administrative practice at least—the Department ensures
that the birth registration process is completed before any child born in
Australia is removed to a regional processing country.
In relation to the amendments contained in Schedule 6, the
committee recommends that the Department of Immigration and Border Protection
ensures that the birth registration process is completed before any child born
in Australia is removed to a regional processing country.
The committee is cognisant of the fact that the Bill contains a number
of extraordinary provisions that the government believes are necessary to deal
with the asylum legacy caseload. Because of the extensive powers granted by
these provisions, the committee considers that it would be appropriate for the
measures contained within the Bill to be reviewed by the Government after they
have been in operation for three years so that the Parliament can satisfy
itself that they are operating as intended.
The committee recommends that, if the Bill is enacted, the Government
should review its operation three years after it passes into law.
The committee recommends that, subject to the above recommendations, the
Bill be passed.
Senator the Hon Ian Macdonald
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