Chapter 1
Introduction
The referral
1.1
On 12 December 2013, the Senate referred, on the recommendation of the
Selection of Bills Committee, the provisions of the Migration Amendment Bill
2013 (the Bill) to the Senate Legal and Constitutional Affairs Legislation
Committee for inquiry and report by 12 February 2014.[1]
1.2
The Bill was introduced in the House of Representatives on 12 December 2013,
by the Hon Scott Morrison MP, Minister for Immigration and Border Protection.[2] The Bill
seeks to amend the Migration Act 1958 (the Act) to address a number of
recent court and administrative tribunal decisions which have affected the
interpretation of key provisions of the Act. These decisions have impacted on
the Department of Immigration and Border Protection's (the department)
operations including the processing of visa applications made by asylum
seekers.[3]
Rationale for the Bill
1.3
The Bill has three schedules that address distinct issues. Accordingly,
the context of, and rationale for, each schedule is considered in this chapter
separately.
Schedule 1 – When decisions are made and finally determined
1.4
Part 7 of the Act provides a process of merits review of particular visa
decisions (including protection visas) made by the department in the Refugee
Review Tribunal (RRT).
1.5
In accordance with section 430 of the Act, when the RRT makes its
decision on review, it must prepare a written statement. In accordance with
section 430A, the RRT must notify both the applicant and the secretary of the
department of its decision on review by providing a copy of the written
statement prepared under section 430.
1.6
Subsection 5(9) of the Act provides that an application under the Act is
finally determined when either:
-
a decision on an application is not (or no longer) subject to a
form of review; or
- a decision that has been made on an application was subject to
some form of review but the period within which a review may be instituted has
ended.
1.7
Recent decisions by the Full Federal Court of Australia in Minister
for Immigration and Citizenship v SZQOY[4]
and Minister for Immigration and Citizenship v SZRNY[5] have
interpreted when a decision on review by the RRT is finally determined. In SZRNY,
the Full Federal Court found that an application within the meaning of
subsection 5(9) of the Act, is not 'finally determined' unless the RRT has
notified its decision to both the applicant and the department in accordance
with section 430A.
1.8
These decisions of the court depart from the interpretation that has
been applied by the department, that once a review decision was made, the
application was finally determined. The department had taken the view that
whether or not the RRT had correctly notified the review applicant and the
secretary of the department did not affect when a decision was finally determined.
1.9
The department argued that the judgement in SZRNY is 'highly
problematic' for the RRT and also has implications for decisions on review by
the Migration Review Tribunal (MRT).[6]
The department argued that as a result of the court's decision in SZRNY,
if the MRT or the RRT makes an error in notifying either the review applicant
or the secretary of the department of its decision, the application is not
finally determined and continues to be subject to merits review. Understanding
when a decision is finally determined is critical for administrative certainty.
For example, ascertaining when an application is finally determined is crucial
for the department to correctly remove individuals from Australia under section
198 of the Act.
1.10
The Bill seeks to provide administrative certainty by clarifying:
-
that a visa refusal, cancellation or revocation decision by the
minister or his delegate is taken to be made on the date on which the order is
made and not when the decision is communicated to the applicant or former visa
holder;
-
the MRT and RRT's powers of review are exercised when a decision
on review has been made, and once made it cannot be re-opened or varied; and
-
that where review of a decision on an application has been
sought, it will be considered to be finally determined when the MRT or the RRT
has made its decision[7],
and not when the decision is communicated to the applicant or the department.
Schedule 2 – Bar on further
applications for protection visas
1.11
In March 2012, amendments to the Act introduced a statutory framework
for considering complimentary protection claims for a protection visa. Complimentary
protection refers to Australia's non-refoulement obligations under the
International Covenant on Civil and Political Rights (the ICCPR), the Second Optional
Protocol to the International Covenant on Civil and Political Rights Aiming at
the Abolition of the Death Penalty, and the Convention on the Rights of the
Child (the CRC). The 2012 amendments provided for a combined protection visa
assessment process of both Australia's obligations under the Refugees
Convention and Australia's complimentary protection obligations.
1.12
As amended in March 2012, section 36(2) of the Act sets out the key
criterion for the grant of a protection visa. The section provides that an
applicant must be a person who:
-
engages Australia's protection obligations under the Refugees
Convention; or
-
engages Australia's protection obligations on the basis that as a
necessary and foreseeable consequence of the person being removed from Australia
to a receiving country, there is a real risk that the non-citizen will suffer
significant harm ('complimentary protection'); or
-
is a member of the family unit of a person who meets either of
the above two criteria.
1.13
Section 48A of the Act prohibits repeat protection visa applications by
persons in the migration zone. In SZGIZ v Minister for Immigration and
Citizenship[8]
the Full Federal Court found that these three separate criterion for a
protection visa under section 36(2) could be used to initiate separate visa
applications. Consequently, the court found that section 48A of the Act does
not prohibit the making of further protection visa applications that rely on
different criterion. Section 48A only prohibits repeated applications under the
same criterion.
1.14
The EM states that as a result of this decision, a non-citizen who first
applied for a protection visa prior to March 2012, and who has no meritorious
protection claims, will potentially be able to make four alternative protection
visa claims before being barred under section 48A.[9]
1.15
According to the EM:
[t]he original policy intention in relation to section 48A
was to prohibit the making of further visa applications by persons who have
already applied for protection and had their application assessed and refused.[10]
1.16
The Bill seeks to amend the Act so that a person who was refused a
protection visa under the Refugee Convention criterion would be unable to make
a further protection visa application on the grounds of complimentary
protection. This amendment would only affect applicants who applied for a
protection visa prior to the 2012 amendments. Applicants since 24 March 2012
have had their complimentary protection claims assessed by the department at
the same time as protection claims under the Refugee Convention.
Schedule 3 – Security assessments
1.17
The third schedule to the Bill seeks to address a recent High Court
decision in Plaintiff M47/2012 v Director-General of Security & Ors.[11] In
this case, the court found that the use of the Public Interest Criterion 4002
(PIC 4002) in the Migration Regulations 1994 were invalid for the
purposes of assessing a protection visa application.
1.18
PIC 4002 states that an applicant for a protection visa must not be
subject to an adverse security assessment from the Australian Security
Intelligence Organisation (ASIO).[12]
Following the decision of the court in M47, the department has been unable to
rely on PIC 4002 and as a result has been required to individually assess
whether each applicant does or does not pass the character test in section 501
of the Act. This has caused delays in processing protection visa applications.
1.19
The Bill would address this issue by amending section 36 of the Act to
insert a specific criterion for a protection visa that the applicant does not
have an adverse security assessment from ASIO. The Bill would also confirm that
the MRT, RRT and AAT do not have the power to review a decision to refuse to
grant (or to cancel) a protection visa on the basis of an adverse security
assessment by ASIO. The Bill would also clarify that the RRT does not have the
power to review a decision into a refusal to grant (or to cancel) a protection
visa on the basis of Article 1F, 32 or 33(2) of the Refugees Convention.
Conduct of the inquiry
1.20
In accordance with the usual practice, the committee advertised the
inquiry on its website. The committee also wrote to relevant organisations
inviting submissions by 13 January 2014. The committee received 12 submissions.
A full list of submissions is provided at Appendix 1.
1.21
The committee held a public hearing in Melbourne on 4 February 2014.
1.22
A list of stakeholders who have evidence to the committee at the public
hearing is provided at Appendix 2.
Structure of the report
1.23
This report considers the Bill as follows:
-
chapter 2 provides a brief overview of the provisions contained
in the bill;
-
chapter 3 discusses the key issues raised in submissions and
evidence in respect of Schedule 1;
-
chapter 4 discusses the key issues raised in submissions and
evidence in respect of Schedule 2; and
-
chapter 5 discusses the key issues raised in submissions and
evidence in respect of Schedule 3.
Acknowledgement
1.24
The committee thanks the organisations and individuals who made
submissions and gave evidence at the public hearing.
Note on references
1.25
References in this report to the committee Hansard are to the proof.
Hansard and page numbers may vary between the proof and the official Hansard
transcript.
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