Dissenting report by Senator David Pocock

Introduction

1.1During the introduction of this Bill and this inquiry, the Government and the Department of Home Affairs (the Department) have both rightly noted that protecting the integrity, strength and fairness of our migration system is critical to ensuring social cohesion and community safety.

1.2It is important to this aim that the Government has the power to remove from Australia any person who has exhausted all avenues to remain in Australia, and to whom Australia does not owe refugee protection obligations.

1.3It is true that we must make our migration system better, stronger and fairer.

1.4However, this Bill fails to achieve that goal.

1.5This Bill has the potential to criminalise people who are exercising their right to judicial review, who have been subjected to an unfair application process, orwho are the family members of Australian citizens and permanent residents or have other compelling reasons to remain in Australia.

1.6It also has the potential to punish Australian citizens for the actions of foreign governments.

1.7These failures risk an erosion of community confidence in our migration system, which may make it more difficult to remove people who genuinely should be required to leave.

‘Exhausted all avenues’

1.8It is clear from the submissions to this inquiry that legal experts are unanimous in their assessment—this Bill provides the Minister with broad powers to give ‘removal pathway directions’ to people who have not exhausted all avenues to remain in Australia.

1.9There are no safeguards in the Bill preventing these directions from being given to people who are exercising their right to judicial review, or who are seeking ministerial intervention due to compelling and compassionate circumstances.

1.10This view is expressed by the Law Council of Australia in response to a written question on notice from Senator Paul Scarr:

[T]he way the provision is drafted would not prevent a person who is on a Bridging Visa E (BVE) on departure grounds being removed if the individual had judicial review proceedings in progress or a ministerial intervention request unanswered, as the operation of the relevant power is only dependent on the bridging visa the individual holds.

The Law Council does not consider this to be a principled approach to restricting the cohort affected by the Removal Bill to individuals who have ‘exhausted all avenues to remain in Australia’.[1]

1.11In addition to the above analysis of the Law Council of Australia, theDepartment has provided their own confirmation of this oversight. Inresponse to my questions in the public hearing, the Legal Group Manager of the Department noted that the Department would be at risk of injunction if the Minister were to give ‘removal pathway directions’ to a person with a matter before the court. However, neither the Legal Group Manager nor her colleagues were able to point to any provision in the Bill that prevents this.[2]

1.12During a previous public hearing on 26 March 2024, I also asked about protections for people who have compelling and compassionate reasons to remain in Australia, for example, due to the risk of family separation. TheDepartment responded that applicants could make a request for ministerial intervention, but conceded that there is nothing in the Bill that prevents ‘removal pathway directions’ being given to them while this request is pending.[3]

1.13It is clear from evidence given in this inquiry that the powers in the current form of the Bill go far beyond the Government’s stated aim of providing itself with the means of removing people from the country who have ‘exhausted all avenues to remain in Australia’.

1.14This overreach risks a significant harmful impact on individuals, the Australian community and the overall integrity of our migration system. It is likely to erode the confidence of both applicants and the community in the fairness of decisions to pursue the removal of failed applicants from Australia, and it risks criminalising people who are simply exercising their right to a review of their migration decisions or to maintain their family unity.

Integrity and fairness

1.15There are no safeguards in the Bill preventing ‘removal pathway directions’ from being given to those who have been subject to the flawed ‘Fast Track’ refugee status determination process, therefore, there is a grave risk that these directions may be given to people to whom Australia owes protection obligations, or where there are compelling circumstances that warrant them remaining in Australia.

1.16As noted by the Asylum Seeker Resource Centre:

People subjected to the unjust Fast Track process who were refused a protection visa have not had an opportunity for a fair assessment of their protection claims. For example, the IAA [Immigration Assessment Authority] was refusing protection visa applications for Afghans from minority groups in the weeks leading up to the return of the Taliban. From2015 to 2023, 37% of IAA decisions reviewed by the courts were found to be unlawful, noting that many people would not have been able to access judicial review or legal representation, meaning the number of unlawful decisions is likely to be considerably higher. This demonstrates that thousands of people seeking asylum have had their protection claims unfairly refused by the IAA.[4]

1.17These failures have been well-recognised by the Government, who opposed Fast Track when in opposition,[5] went to the 2022 election with a promise to abolish Fast Track,[6] and have laws before the Parliament that would do so.[7]

1.18However, the Government has still chosen to apply the provisions of this Bill to those who have been subject to Fast Track (the legacy caseload). This could result in criminal penalties for genuine refugees who refuse to make arrangements to leave Australia.

1.19Even setting aside the significant problems of unfairness and lack of access to tribunal review under Fast Track, for people where there has been a significant change in circumstances in their country of origin due to the length of time taken to process their applications (for example, people from Afghanistan, Iran and Sudan), there is still no provision for their protection from ‘removal pathway directions’. Their only avenue is to make a request for ministerial intervention, which does not protect them from the operation of this Bill.

1.20As pointed out by Women’s Legal Services Australia, this issue also applies to people where issues related to family violence have arisen since a person had their claims assessed. As they explained:

Women’s Legal Services regularly assist women who have experienced family violence with protection visa applications where previous claims of family violence and gender-based harm have not been raised by applicants themselves or the family violence has occurred following a primary or merits review decision and the applicant is seeking Ministerial Intervention to make another application and raise these claims.[8]

1.21Their view is that the Bill as currently drafted risks exposing victim-survivors of family violence and their children to serious harm, family separation, criminalisation and discrimination, along with exposing them to the risk of further gender-based violence.[9]

1.22Further, the Australian Human Rights Commission pointed out:

Many Bridging E visa holders who are finally determined as part of the ‘legacy caseload’ have been in Australia for upwards of 10 years. They are likely to have established strong ties in Australia, and may even have partners and children here.[10]

1.23The Fast Track system has also resulted in families having different refugee status determination outcomes, as evidenced by Mrs Betia Shakiba, anAustralian permanent resident who gave evidence to the inquiry:

Twelve years ago I came to Australia with my family of four, including myself, my father, my mother and my small brother, who was six years old at the time. We arrived as a cohesive family unit seeking safety and a better future. However, the system failed to recognise my mother as the heart of our family, denying her protection under the unfair fast-track system without considering the best interests of her children. For the past decade she has been stuck in limbo waiting for her case to be heard in the Federal Court and repeatedly appealing to the Department of Home Affairs for fair treatment. The fast-track process has neglected her, and now, with the looming threat of this bill, she faces the possibility of being deported or being sent to prison for simply being with her children in Australia, potentially leading to her separation from me.[11]

1.24Again, there are no protections in the Bill for people in this situation.

1.25The Bill as drafted has the potential to separate families or criminalise individuals for not making arrangements to leave their families, particularly where some members are Australian citizens or permanent residents.

1.26It has the potential to criminalise young people for not making arrangements to leave who, due to delays and unfairness in their family’s refugee status determination process, have lived most of their lives in Australia.

1.27It is clear from the evidence that the powers in this Bill go much further than, and are in fact contrary to, the Government’s stated aims of improving the integrity and fairness of our migration system.

Protracted processing times

1.28Frontline services tell us that the longer a person remains in Australia, and the more time they spend in immigration detention, the more difficult it is likely to become to remove them from Australia should it be found appropriate to do so. The impact of immigration detention on mental health is well-evidenced, contributing to ongoing PTSD, depression, mental health related disability and other severe mental health issues.[12]

1.29Any of these factors can create practical and legal barriers, which contribute to a person ‘be[ing] unable or unwilling to cooperate with their own deportation: poor mental health, language barriers, a need to remain with family or a genuine fear of what awaits them if they are deported’.[13]

1.30As the Kaldor Centre for International Refugee Law explained:

[T]he most effective approach to facilitating removals consistently with international law is to ensure that refugee status determination procedures are both fast and fair. The longer a person has been in Australia, the greater the legal and practical barriers to removal. At the same time, where an applicant feels they have not had an opportunity to have their protection claims fairly assessed, the more reluctant they may be to accept voluntary removal from the country. To the extent that certain non-citizens who do not have protection needs continue to refuse to cooperate with their removal, such situations are better resolved on an individual basis, according to the specific reasons for refusal, rather than blanket criminal provisions.[14]

1.31The provisions in this Bill could impose criminal sanctions on people who are either seeking to remain in Australia for legitimate reasons related to the protracted length of their processing time, or who, for health or other reasons, simply cannot comply with removal pathway directions.

1.32The minimum mandatory sentencing contained in proposed subsection 199E(2) would require a 12-months minimum sentence to be imposed on a person found guilty of offences in the Bill, which would restrict the ability of the courts to consider these reasons in sentencing decisions.

Australia’s migrant community

1.33This Bill seeks to punish not only those who refuse to cooperate with their removal from Australia, but also the broader Australian migrant community.

1.34The powers in the Bill would provide the Minister with the power to designate a ‘removal concern country’, and to bar visa applications from those nationalities, with limited exceptions for humanitarian visas and immediate family (narrowly defined).

1.35This inquiry received submissions from 20 different migrant community groups expressing opposition to the Bill, including the Federation of Ethnic Communities Councils of Australia, who stated that ‘[t]he discriminatory nature of the Bill [also] risks marginalising existing communities from the banned countries within Australia, undermining the Government’s efforts to support and promote social cohesion’.[15]

1.36As noted by the Law Council of Australia:

It will have a punitive effect on nationals from those countries who are seeking to apply for an Australian visa from overseas who would otherwise meet the visa criteria. The families in Australia will also be affected. Ifenacted, this discriminatory measure would represent a disturbing departure from Australia's longstanding system of merit based consideration of every individual visa application.[16]

1.37From the evidence of the representatives of community organisations who appeared at the inquiry, the reaction from their communities has been one of horror. As explained by the Zimbabwe Australia Community Association, theconfusion and distress is immense. Ms Haatsari Marunda explained that she has received calls asking:

[I]f there is a wedding tomorrow, and Zimbabwe is a designated country, what happens? Are my parents going to come? Are my aunties and uncles going to come? What is going to happen to my family?' Worse, if there is a funeral tomorrow, if we are a designated country, who is going to attend the funeral if the whole country is banned? But not just funerals. What about a graduation? Christmas celebrations?[17]

1.38It is simply not fair to punish Australia’s migrant communities for the actions of foreign governments, particularly when there is evidence that recalcitrant countries may not be moved by these types of sanctions,[18] and may retaliate in ways detrimental to trade, tourism, or international law enforcement.

1.39This Bill provides the Minister with extraordinary powers to bar visa applications from entire countries. It is discriminatory and risks harming Australia’s social cohesion by alienating Australia’s migrant community, which is contrary to its stated aims.

Conclusion

1.40There is very little evidence that the provisions in the Bill will successfully facilitate the removal of people who are required to depart Australia. Rather, among the submissions to this inquiry, there is significant evidence that it is in fact the protracted nature of Australia’s migration system that causes the vast majority of the legal and practical barriers to the removal of unsuccessful applicants.

1.41Almost all of the submissions to this inquiry suggest that the Bill is likely to cause harm to individuals, families and the broader Australian community.

1.42Finally, this Bill provides a range of unfettered powers to the Minister, which are unjustified given the evidence that these powers are unlikely to achieve the Government’s stated aims.

1.43That the Senate does not pass the Bill.

1.44That the Government gives access to an expedited re-application process to everyone who has been subjected to the ‘Fast Track system’, including access to merits review in the Administrative Appeals Tribunal or the proposed future Administrative Review Tribunal.

1.45That all future refugee status determinations are conducted in a fast, robust and fair manner with access to both merits and judicial review, and that applicants are not subjected to protracted processing times that contribute to barriers to their removal should they be found not to be owed protection.

1.46Should the Senate choose not to follow these primary recommendations, and passes the Bill, I make the following recommendations:

1.47That the Bill is amended to ensure that, if an applicant has not been eligible for review by the Administrative Review Tribunal or the Administrative Appeals Tribunal (for example, if they are a Fast Track applicant or a transitory person), they may not be given a removal pathway direction.

1.48That the Bill is amended to ensure that where a person’s matter is subject to judicial review or where they have a pending request for ministerial intervention due to compelling and compassionate circumstances, they may not be given a removal pathway direction.

1.49That the Bill is amended to ensure that the immediate family of Australian citizens, permanent residents and stateless persons cannot be given a removal pathway direction.

1.50That the Bill is amended to delete proposed paragraphs 199B(1)(c) and 199B(1)(d), to remove Bridging Visa E holders and the holders of additional classes of visas that may be prescribed in the future from the meaning of removal pathway non-citizen.

1.51That the Bill is amended to remove the proposed subsection 199E(2) relating to a 12-months mandatory minimum sentence.

1.52That the Bill is amended to remove the proposed subsection 199E(4), including paragraphs (a), (b) and (c), relating to exceptions to what is considered a ‘reasonable excuse’.

1.53That the Bill is amended to remove items 3–9 in Schedule 2, relating to the power to revisit protection claims.

1.54That the Bill is amended to ensure that proposed section 199G ‘Visa applications by certain nationals of a removal concern country’ may only be applied to government officials of a removal concern country and their immediate family members.

Senator David Pocock

Participating member

Footnotes

[1]Law Council of Australia, answers to questions on notice from Senator Scarr and Senator Thorpe, 17 April 2024 (received 26 April 2024), p. 6.

[2]Ms Clare Sharp, Department of Home Affairs, Committee Hansard, 15 April 2024, p. 56.

[3]Ms Clare Sharp, Department of Home Affairs, Committee Hansard, 26 March 2024, p. 10.

[4]Asylum Seeker Resource Centre, Submission 59, p. 6.

[5]Tom Stayner, ‘Labor, Greens clash with Morrison government over asylum seekers fast track’, SBS News, 17October 2019.

[6]ALP National Platform as adopted at the 2021 Special Platform Conference, p. 124.

[7]See: Administrative Review Tribunal Bill 2024 & Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023.

[8]Women’s Legal Services Australia, Submission 107, p. 9.

[9]Women’s Legal Services Australia, Submission 107, p. 4.

[10]Australian Human Rights Commission, Submission 68, p. 10.

[11]Mrs Betia Shakiba, Lawyer, Asylum Seeker Resource Centre, Committee Hansard, 15 April 2024, p.26.

[12]Von Wethern et al, ‘The impact of immigration detention on mental health: a systematic review’, BMC Psychiatry, Vol. 18, No. 382, 2018, p. 14.

[13]Human Rights Law Centre, Submission 18, p. 7.

[14]Kaldor Centre for International Refugee Law, UNSW, Submission 11, p. 10.

[15]Federation of EthnicCommunities’ Councils of Australia, Submission 69, p. 5.

[16]Mr Greg McIntyre, President, Law Council of Australia, Committee Hansard, 15 April 2024, p. 12.

[17]Ms Haatsari Marunda, Zimbabwe Australia Community Association, Committee Hansard, 15April2024, p. 39.

[18]Australian Human Rights Commission, Submission 68, p. 20.