Dissenting Report of the Australian Greens
1.1
The Australian Greens strongly oppose the amendments proposed in the
Migration Amendment (Character and General Visa Cancellation) Bill 2014. The
Bill hands unprecedented power to the Minister of the day to cancel and refuse
to grant a person a visa. This will have serious consequences for everyday
Australians and could result in indefinite detention should the person be
unable to return to their country of origin due to fear of persecution or
serious harm.
1.2
This Bill, among other things:
-
unjustifiably expands the Minister’s discretionary powers;
-
significantly lowers the character test threshold;
-
introduces mandatory visa cancellation without notice to the
individual;
-
makes innocent association with a group a basis for failing the
character test;
-
makes 'reasonable suspicion' the threshold for cancellation or
refusal;
-
bars the access to merits review; and
-
could result in the indefinite detention of individuals.
1.3
Submitters to the inquiry have warned the Senate against the amendments
proposed in this Bill and have recommended that the Bill not be passed.
1.4
The rationales provided by the government are not adequate for making
such drastic changes. Simply stating that the character provisions have
remained unchanged since 1999 is not sufficient, particularly when the current
legislation is far reaching in its ability to revoke or cancel visas.
1.5
The fact that the character provisions have not been changed for some
time does not mean that there is anything inherently wrong with them; rather it
suggests that the current laws have been working more than adequately.[1]
1.6
These amendments will give the Minister unprecedented power to determine
when to refuse or cancel a visa and will bar merits review. In particular the
Minister will have the power to revoke a visa if incorrect information was
provided at the time of application, retrospectively apply the new criteria to
past visa grant decisions and overrule AAT, MRT and RRT decisions. None of
these decisions will be reviewable. Should this Bill pass there will be no
checks and balances in place which may result in incorrect decision being made.
1.7
Provisions to significantly lower the risk thresholds are particularly
concerning. The practical implications of these amendments will see individuals
visas cancelled in circumstances where they may not actually present a risk to
the community, as was the case with Dr Mohamed Haneef.[2]
1.8
The provisions will enable visa cancellation on the grounds of
association, will apply a 'risk' threshold rather than a 'significant risk'
threshold and will also permit the Minister to cancel a visa if he/she
'reasonably suspects' an individual has been involved in criminal activity.
These powers are unnecessary, far too broad and do not offer appropriate safeguards.
1.9
As noted by the Asylum Seeker Resource Centre[3]
and the Refugee Council of Australia[4]
this Bill will have serious implications for asylum seekers and refugees. A
personal decision by the Minister to cancel a visa may result in an individual
facing indefinite detention as, unlike other individuals to whom the broadened
cancellation powers apply, they cannot be removed from Australia due to fears
of persecution or serious harm.
1.10
Similarly, the amendments that will grant the Minister the power to
cancel a visa if he/she is not satisfied of the visas holder's identity or when
incorrect information has been provided at the time of application will
disproportionately affect asylum seekers. These amendments fail to recognise
the realities of fleeing persecution and may result in those in genuine need of
protection being subjected to indefinite detention or returned to danger.
1.11
The amendments will have significant implications on long term
residents. As noted by the ANU College of Law, the decision to expel a 'person
should not be reached in the same way as a decision to refuse to grant a visa.
To treat both situations similar fails to recognise the significant impact of
visa cancellation on a resident, particularly a long term resident'[5]
with family ties and a livelihood in Australia.
1.12
The Australian Greens submit that the amendments proposed in this Bill
are unnecessary and have not been sufficiently justified by the Minister for
Immigration and Border Protection. The amendments hand unprecedented and
unchecked power to the Minister of the day and unreasonably lower the threshold
for visa cancellation or refusal.
Recommendation 1
The Australian Greens recommend that provisions relating to
thresholds for visa refusal or cancellation should require the individual to
pose a significant risk.
Recommendation 2
The Australian Greens recommend that visa cancellation and refusal
decision making processes should be subject to independent merits review.
Recommendation 3
The Australian Greens recommend that in light of the amendments
existing limitations on review of cases of Ministerial discretion should be
reviewed.
Recommendation 4
The Australia Greens recommend that this Bill be opposed by the
Senate.
Senator Sarah Hanson-Young
Australian Greens
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