Additional comments from the Australian Democrats
The majority report contains many positive suggestions
and recommendations which we support.
However, before more piecemeal changes are made to the administration of
the Migration Act in response to ongoing problems that have been identified
through this Inquiry, I believe there is an urgent need for a complete review
of the entire Migration Act.
More piecemeal actions attempting to patch up a flawed
system runs the risk of more complexities and inconsistencies. The evidence to this Inquiry has been
valuable, but it has not been able to fully canvas the operation of many
sections of the Migration Act.
The 'culture problems' within the Department of
Immigration have now been widely acknowledged, but efforts to address it can
not fully succeed just through administrative restructuring. This Inquiry has again demonstrated that the
migration law itself inevitably impacts on the culture of how it is
administered and enforced, and without significant changes to that law, some of
the same problems that have been identified in inquiry after inquiry will
inevitably continue to occur.
Following the introduction of the Migration Legislation Amendment Act 1989, the
complexity and harshness of the legislation has been continually increasing,
with the Executive and the Senate regularly adopting a wide range of
changes. Whilst most of these amendments
to the Migration Act have been aimed
particularly at asylum seekers and refugees, it has impacted on the fairness,
adequacy and administration of the entire Migration
Act, with more and more power being placed in the hands of the Minister and the
Department, more restrictions placed on the powers of the Courts and a
continual reduction in the rights of those who are subjected to the Migration
Act and its Regulations.
It is my view that the widely acknowledged problems
with the culture of the Immigration Department stems in significant part from
the innate unfairness and restrictions on due process, as well as the
complexity, built into much of the Migration Act.
There have been many harmful changes made to the
Migration Act and Regulations since 1989.
A good starting pointing for improving the law would be to examine these
changes with an eye to whether reversing them would help undo the negative
impacts on the culture of how our migration laws are administered. Attention
should especially be paid (but not limited) to assessing the consequences and
impacts of the following measures:
The Migration Reform Act and a range of other
amendment Bills from 1992 which introduced mandatory detention into immigration
law, along with a number of other restricting measures, including the introduction of the insidious practice of billing of people for
their detention costs.
The Migration Legislation Amendment
(Strengthening of Provisions Relating to Character and Conduct) Act 1998, which
toughened the existing provisions in the Migration
Act enabling the refusal or cancellation of visas on character grounds.
Specific warnings were made at that time about what these changes could mean
for the culture of how our immigration law would be administered.
to Migration Regulations, Statutory Rules 109 of 1997 which imposed the 45 day
rule severely restricting support for many asylum seekers in the community, as
well as a
$1,000 fee for unsuccessful appeals to the Refugee Review Tribunal.
The Migration Amendment Regulations in Statutory
Rules No. 210 of 1998, which brought in the termination of work rights for
asylum seekers with an unsuccessful RRT
The Migration Legislation Amendment Bill (No.2)
1998, which prevented legal advice or assistance from HREOC being offered to
people in immigration detention unless a specific request is made by the
The introduction of Temporary Protection Visas,
contained in Migration Amendment Regulations 1999 (No. 12), Statutory Rules
1999 No. 243.
The Migration Legislation Amendment (Temporary
Safe Haven Visas) Bill 1999, which created a class of visa known as a
‘temporary safe haven visa’ which prevented holders from applying for a
protection visa or any other type of visa while in Australia, and from seeking
merits review or judicial review of decisions by the Minister.
The Migration Amendment (Excision from Migration
Zone) Act 2001. This amendment created a
separate visa application regime to apply to people who arrive in Australia at
places that are excised from the migration zone.
The Migration Amendment (Excision from Migration
Zone) (Consequential Provisions) Act 2001.
This amendment further restricted the rights of people who arrive in
areas excised from the Australian migration zone. It also amended the Migration Regulations to
create a new restrictive class of refugee and humanitarian visa for dealing
with temporary movements of persons seeking asylum.
The Migration Legislation Amendment Act (No.1)
2001. This amendment restricted access
to the courts for judicial review of migration decisions. It did this by
preventing class actions in migration matters before the Federal and High
Courts, by changing the requirements for standing in the Federal Court and by
introducing time limits for original applications to the High Court in
The Migration Legislation Amendment Act (No.6)
2001, which re-defined certain key terms used by the Federal Court and the
Refugee Review Tribunal (RRT) in determining refugee status, aimed at narrowing
the eligibility for protection visas.
The Migration Legislation Amendment (Judicial
Review) Act 2001, which introduced a privative clause mechanism, intended to
severely restrict access to Federal and High Court judicial review of
administrative decisions made under the Migration
Legislation Amendment (Immigration Detainees) Act 2001 which introduced tighter
restrictions on access to detainees.
The Migration Legislation Amendment
(Transitional Movement) Act 2002 enabled some non-citizens to be brought to
Australia temporarily whilst preventing them from being able to apply for any
form of visa, including a protection visa, while in the country.
The Migration Legislation Amendment (Procedural
Fairness) Act 2002 excluded the common law rules of procedural fairness, and
attempted to make it explicit that the procedures set down in the statute are
all that decision makers must comply with.
The Migration Amendment (Duration of Detention)
Act 2003 prevented and limited courts from issuing interim orders for the
release of immigration detainees. The Bill was introduced to prevent
interlocutory or interim orders for the release of detainees whether or not in
the context of broader judicial review proceedings. This has been prompted by
several cases where such release has been ordered by the Federal Court, for
example Al Masri's Case.
The Migration Amendment (Detention Arrangements)
Act 2005 prevented the courts from issuing interim orders for the release of
Numerous submitters to the inquiry also expressed
concern at the unnecessary complexity of the legislation for migration agents
and lawyers, let alone unrepresented asylum seekers and other visa applicants
to navigate through.
There are currently 88 visa classes set up under the Migration Act 1958,  and contained within this are
147 Visa subclasses.
I strongly support the recommendation made by the
Committee that a system of complementary protection be introduced into the
Migration Act. I believe that it is
essential that additional safeguards ensuring the protection of fundamental
human rights are reflected in the Migration Act.
However, in absence of this I recommend the following:
That the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT), the Convention on the
Rights of the Child (CROC) and the International Convention on Civil and
Political Rights (ICCPR) be enshrined into domestic law to give legally
enforceable protection to asylum seekers and others at risk of being deported
or returned to unsafe situations.
Differences from the majority report
I have a divergence in views with the following
Temporary Protection Visas (TPVs)
The Democrats moved in the Senate in 1999 to prevent
the introduction of TPVs, but did not get support from others. I believe the concerns we expressed then have
clearly been vindicated. The TPV has
been shown to be unjust to refugees, prolonging the state of limbo they are
subjected to and significantly affecting their ability to settle and rebuild
The lack of access to family reunion is particularly
harsh and harmful to refugees, and also is against the interest of the wider
Australian community, as it makes it far more difficult for refugees to be able
to settle, adapt and contribute effectively to their new country.
Once asylum seekers have been granted refugee status,
they should have permanent protection rather than having to present their cases
again. This is especially cruel and
unjust for those caught under the 7 day rule, who have to live with the
prospect of potentially never being eligible for permanent protection.
Bridging Visa E (BVEs)
People on this visa face conditions that force them to
rely solely on private charity, with NGOs, churches or ad-hoc community groups
often providing the basic needs such as food and shelter.
The committee has recommended that work rights be given
to those on BVEs. I support this, but
are concerned that there is no mention of provisions for Medicare. Numerous submitters have noted that those on
BVEs are often in urgent need of medical attention and medication. This applies particularly for those who have
been released from detention, as many have been heavily reliant on medication
while in detention in order to cope in the environment. To then be denied Medicare assistance when
they are released on BVEs is a counter-productive and irrational policy.
It is reprehensible that the system which caused their
dependence on medication does not provide for continuing medical entitlements,
which is often enough very expensive and needed on a regular basis.
Abolish Temporary Protection Visas, the 7-day rule, the
45-day rule and the prevention of access to assistance which currently applies
for Bridging Visa Es.
I support the committee's recommendations in regards to
resettlement issues particularly with respect to the increasing numbers of
refugees from Africa and acknowledge the Government's
increased uptake and funding in this area.
However, I believe the following should also be noted:
Pre-embarkation information for Humanitarian
intake: - there is a great inconsistency in understanding among people coming
from different countries about the situation and services they will be offered
in Australia, and information seems to vary greatly from country to
country. It is evident that blanket
processes do not work. Rather, information should be tailored to the situation
and the people involved and it must dovetail with post-arrival information when
they arrive. The information also needs
to be provided in culturally appropriate ways to ensure that it is as
meaningful as possible.
Post-arrival issues: - under the SHP, settlement
under the IHSS should be expanded further than just the initial 6 months. While recent improvements are welcome, more
needs to be done, as 6 months is often an inadequate timeframe. Many migrants
need more time to acclimatize to foreign system of education, health and life
in Australia. The nature of changing
demographics and countries of origin also mean there is often a significant lag
before the service-providers can adapt to the new cultures they are dealing
with – different languages, sensibilities and new cultures. A sub group within this group which are
suffering a distinct lack of specialised response/services are women arriving
under the Woman At Risk category. Many
of these women have fled from oppressive situations where they have been
systematically abused and raped.
There must be uniformity in information given as part
of pre-embarkation orientation, as well as a proper system of ensuring that
migrants fully understand the terms involved in their settlement.
That the initial settlement services provided under
IHSS be extended to 12 months.
That service providers are given regular and updated
cultural training session and briefings in order to cope with the divergence of
cultures that they are servicing.
Appropriate interpreters should also be available.
That current services for women arriving under the
Women at Risk be reviewed immediately to ensure an adequate delivery of
Other assistance to migrants
An aspect of Australia's
modern migration program is the huge increase in people arriving on temporary
residency visas. Some of these visas
apply for prolonged periods and can involve migrants whose level of English is
not of a high level. 
Consideration be given by federal, state and territory
governments to the long-term benefits of ensuring appropriate assistance is
available to all people who are residing in Australian on long-term temporary
visas, as well as those on permanent visas.
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