This chapter examines the key issues raised in relation to the Migration Legislation Amendment (Regional Processing Cohort) Bill 2019 (the bill), including:
whether the purpose of the bill has been adequately explained;
the scope and implementation of the bill;
the ministerial power to lift the visa application bar when deemed to be in the public interest; and
Australia's international legal obligations, with particular reference to human rights concerns.
The chapter concludes with the committee's view and recommendation.
Purpose of the bill
As noted in chapter 1, the stated purpose of the bill is to reinforce the government's policy that people who travel to Australia by boat would never be settled in Australia. As outlined by the Department of Home Affairs (the department), the bill:
…is designed to strengthen measures to make it difficult for people smugglers, to deter potential illegal immigrants from attempting needless dangerous voyages and to encourage people to pursue regular migration pathways.
Some submitters and witnesses questioned whether the government has sufficiently explained the need or rationale for the bill. In particular, concerns were raised that the bill is unjustified and disproportionate as it imposes a lifetime visa ban on a small defined cohort of people in order to send a message to deter people attempting to reach Australia. The Asylum Seeker Resource Centre (ASRC) submitted:
It is important to note that this Bill disproportionately and unlawfully penalises people of a certain cohort, being boat arrivals who happened to enter Australia after an arbitrary date. The proposed ban on entering Australia is punitive, particularly given its severity (a permanent ban on entry) for any purpose and irrespective of the personal circumstances of individual refugees. This unlawfully and cruelly targets and discriminates against a particular group of people.
It was also argued that the bill is unnecessary because the Migration Act 1958 (Migration Act) already contains extensive powers and safeguards to ensure that visas are obtained legitimately. Refugee Legal explained that 'a legal mechanism for deterring travel by boat and preventing circumvention of Australia’s migration laws currently exists' through the operation of the legislative bars in sections 46 and 46A of the Migration Act which prevent non–citizens who arrive in Australia by boat from applying for a valid visa without the permission of the minister.
This view was shared by the Kaldor Centre for International Refugee Law, the Peter McMullin Centre on Statelessness, and Professor Ben Saul who submitted that the minister already has the power to determine the granting of visas:
People who are currently in Nauru or PNG, and those who have been brought back to Australia for medical or other purposes, are 'transitory persons' under the Migration Act 1958 (Cth) (Act). Section 46B of the Act already prohibits them from making a valid visa application in Australia unless the Minister deems it 'in the public interest' to allow them to do so. People who have been or will be resettled elsewhere (including in the United States, Canada, and any other future resettlement countries) are also subject to Australia's existing migration laws. They do not have an automatic right to enter and remain in Australia, and the Minister already has broad authority to exclude certain people.
The Australian Human Rights Commission (the AHRC) also noted that the minister already has a range of powers under the Migration Act to refuse visa applications in various circumstances. The commission argued it is unclear why these existing powers are insufficient to achieve the bill's objectives.
The department explained the current legal standing for members of the regional processing cohort who wish to apply for a visa. Individuals who are unlawful maritime arrivals (UMAs) and are currently in Australia are subject to an existing bar on applying for a visa under sections 46A or 46B of the Migration Act, unless the minister lifts the bar. The bar that exists under sections 46A and 46B only applies to applications made within Australia; it does not apply to people within that cohort who may have returned home, resettled in another country or are in a regional processing country.
The department outlined the process that would be in place if the bill is passed:
It will extend the same type of bar with the same type of ability for the minister to lift the bar for applications for a visa made from this cohort. This is a smaller cohort. It's defined as smaller than the UMAs, because it's made the distinction in relation to children under the age of 18 at the time that they were transferred to a regional processing country. It will not only have the existing bar that applies; this will be a bar that mirrors that, if there's an application made in the future from within Australia, but, equally, it will not distinguish where you are when you make your application for a visa. So, if you are in another country and you seek to come to Australia— you apply for a visa—you will not be able to make a valid application unless the minister lifts the bar.
Scope and implementation
According to departmental data, the affected cohort comprises 3,127 individuals who have been transferred to regional processing countries between 19 July 2013 and 30 June 2019. Included in this total number are 333 children who would not be subject to the legislative bar, bringing the total number of affected individuals down to 2,794. The department also advised that individuals in this cohort are currently residing in a number of locations. As at 20 August 2019, 1,084 individuals (of the 3,127 total) are in Australia on medical transfer or accompanying a family member on medical transfer.
Amnesty International drew attention to how the bill may impact the individuals currently in Australia:
The impact on over 1000 people in Australia, brought back for medical treatment and other reasons, has also not been fully considered, given the population of this cohort has grown substantially since the Bill was first proposed. The safety, protection and medical care of these people is not considered in the Bill and could be read to suggest they are not in danger of being suddenly deported. No protections are in place to ensure this extremely vulnerable group will not be subject to further human rights violations.
With particular reference to the 1,084 people transferred to Australia for medical treatment, witnesses described them as being 'in limbo' as a result of the bill. The ASRC advised the committee:
Many of them are on bridging visas. Some are in closed detention; some are in alternative places of detention, as well as in community detention. If this law were passed, what it would mean is that it would only be through the exercise of ministerial discretion that any of that group could hold any visa or apply for any visa. The alternative consequence is then detention and removal from Australia under Australian law, which is a mandatory provision. So people that couldn't be removed due to Australia's nonrefoulement obligations could potentially end up facing indefinite immigration detention in practice; whereas, under law, it is the legal consequence that they would in fact need to be refouled, in breach of Australia's obligations under the refugee convention.
When asked to comment on whether the 1,084 transferees currently in Australia for medical treatment are in 'legal limbo', the department disputed that characterisation:
As I say, I disagree with the characterisation of being in legal limbo. These people will take up settlement options elsewhere because they will not be settled in Australia, and it will be clear that they are unable to make a valid application for a visa unless the minister lifts the bar. I do not see that that is a legal limbo; I see that is a fairly clear and objective statement of what the legislation will do.
On the matter of Australia's non-refoulement obligations, the department stated:
The Government recognises that these non-refoulement obligations…are absolute and does not seek to resile from or limit Australia's obligations. Any person who is in the designated regional processing cohort and who is in Australia now or in the future will not be removed from Australia in breach of Australia’s non-refoulement obligations.
Submissions also noted that the broad scope of the lifetime ban would prohibit valid applications for any visa type or category. Evidence referred to possible future scenarios whereby people who are part of the regional processing cohort who may wish to come to Australia for 'investment, employment or cultural purposes' would be automatically barred from applying for an Australian visa. The AHRC posited that the measures in the bill 'go beyond' the stated objective to codify existing government policy:
Not only would the Bill prevent people in the 'regional processing cohort' from resettlement in Australia, but it would also prevent them from applying for any type of Australian visa in the future, including tourist, visitor or business visas.
Liberty Victoria argued that the imposition of a lifetime ban on this cohort is discriminatory and would be inconsistent with Australia's international obligations. Australia's international legal obligations are discussed later in this chapter.
Regarding concerns relating to the lifetime ban prohibiting future visa applications, the department stated:
…any visa, regardless of the period of its validity, provides access to Australia. This goes to giving effect to the government's policy intent here, which is the layered approach to providing a deterrent to people getting onto boats. Any further disincentive helps to make that deterrent stronger.
Provisions to apply from 19 July 2013
The measures in the bill would apply to individuals who have been taken to a regional processing country since 19 July 2013. Concerns were raised that these amendments 'would operate retrospectively to impose a statutory penalty on individuals based on past events that occurred when that penalty did not exist or was even proposed'. Submissions, including from the Law Council of Australia and Liberty Victoria, emphasised that the retrospective operation is contrary to basic rule of law principles.
The Law Council submitted:
With respect to asylum seekers who arrived or attempted to reach Australia by boat without authorisation, the Bill is arbitrary, since not all such people, even among those arriving after 19 July 2013, have been taken by Australia to a regional processing country. Those who were taken, were taken upon the initiative of the Australian government, meaning that one of the key grounds identifying persons to whom the Bill relates is dependent on an action of the Government which is outside the control of the individual.
The AHRC considered that the bill would have retrospective application that adversely affects the human rights of individuals in the cohort and furthermore:
Unlike those who are taken to a regional processing country in the future, those already subject to regional processing were never placed on notice that they will be barred for life from making a valid application for an Australian visa.
The department advised that the retrospectivity of the new bars was made clear in the bill's explanatory memorandum:
This is to prevent members of the designated regional processing cohort from circumventing the Government's policy by making a visa application before the Act commences.
The department explained that the bar applies to individuals transferred to regional countries after 19 July 2013:
… because those persons have been on notice following an announcement made by former Prime Minister Kevin Rudd on that date that they will never be settled in Australia. The bar will also apply prospectively to applications made by this cohort of persons after the legislation commences, whether they are inside or outside Australia.
The complexity and cost of implementing the bill was raised during the course of the inquiry. The Law Council suggested that implementing the bill would 'likely…be costly given that the bar is applied for life to the cohort, and given that it applies to all visa types'. The ASRC observed:
Implementation of the lifelong ban will be cumbersome and expensive and require modifications of every single hard-copy and electronic visa application format and constant identification and vetting of this group for the duration of their life.
Broader implementation issues were also highlighted by the Law Council:
Further, the implementation of the Bill is likely to be subject, to an extent, to the agreement and cooperation of other states. Refugees recognised on Nauru hold temporary visas which are extended upon the agreement of the Government of Nauru. If Nauru were to withdraw from that agreement, Australia's non-refoulement obligations (among others) may compel it, notwithstanding the Bill, to transfer refugees there back to Australia. This would result in their indefinite detention, at significant expense and in breach of human rights including the right to freedom from arbitrary detention, and past experience suggests that this may lead to serious mental health impacts. In any event, refugees recognised in regional processing countries remain in need of durable solutions. If those are not provided by the regional processing country and Australian visas are barred, then the support of third countries to provide settlement must be sought.
The bill would confer a power on the minister to permit a member of the designated regional processing cohort, or a group of persons within the designated regional processing cohort, to make a valid application for a visa if the minister considers that it is in the public interest to do so. The department advised that the ministerial power would allow a valid application for a visa on a case by case basis, thus ensuring consideration of the individual circumstances of the case, including relevant international obligations and the best interests of affected children. Furthermore:
This may include the Minister allowing an application from a medical professional or a leading international researcher (who has been resettled from a regional processing country to a third country) where it would be in the public interest to do so.
With particular reference to Australia's international law obligations, the Kaldor Centre for International Refugee Law argued that the ministerial power should not be conferred in the manner set out in the bill:
The point is that such powers should not be conferred in that way, especially when what we are talking about are international obligations, which are commitments. More important than that, they are international obligations that go to the very core of safety and the protection of life of very vulnerable people, including children. Matters of such serious import need to be enshrined in carefully considered legislation with guidance on how such decisions should be made. That's not only to assist the minister; it [is] to assist the country in knowing that we have decisions that are made in a predictable way, in a consistent way and in a clear way, and to assist those who are affected by these powers to get a better understanding of the process that they are subject to, what the outcomes might be and what their futures might hold.
Others raised concern that the bill does not offer any guidance as to the meaning of 'public interest'. The Law Council argued that, because 'public interest' is not defined, 'its content is therefore susceptible to different interpretation by different Ministers on opaque grounds'. Liberty Victoria emphasised the broad nature of the ministerial power and noted that there are no 'statutory constraints' on how they wish to apply the power which means that 'they can really apply it in any which way they can characterise the public interest or the national interest'. Liberty Victoria also noted that there is 'no way to trigger or force the minister to exercise these powers in a positive or negative manner'.
The Law Council highlighted that the ministerial power is personal,
non–compellable and subject to limited review. The minister would have wide discretion to vary, revoke or change any decision. Concerns about procedural fairness were also raised by the Law Council:
The Law Council considers that procedural fairness may be undermined in the exercise of Ministerial discretions with limited transparency or review, leading in some instances to unjust outcomes with no reasons provided for adverse decisions.
The NSW Council for Civil Liberties argued that there would be limited review avenues available:
What particularly concerns us is the lack of appeal to a court on the merits. It's not possible, when the minister has this kind of discretion, to go to a court or a tribunal and have the minister be found to have made a mistake…people have a moral entitlement to be able to demonstrate those mistakes to a court of law or to a legal tribunal.
Other submitters were concerned that the provisions in the bill to allow ministerial discretion would be an 'inadequate safeguard'. The Brisbane Immigration Transit Accommodation Visitors Group was concerned that 'ceding all power to any Minister creates a dangerous and anti-democratic situation'.
The administrative burden of the minister being personally involved in visa decisions was also discussed. The Law Council suggested that this personal ministerial involvement is costly and lacks transparency. The ASRC described the ministerial discretion as impractical and not a good use of the minister's time. Refugee Legal similarly described the ministerial power as 'impractical' and a 'job description problem' as it gives 'one person in the country the call, the personal power, on this when ordinarily in our country there is a decision-making process under administrative law'.
When discussing the personal non-compellable ministerial power to lift the bar, the department noted that the bill mirrors other personal non-compellable powers 'vested in the minister in the Migration Act' which have been 'accepted as an appropriate exercise of the power':
So the fact that there is a non-compellable bar that is able to be lifted, the bar itself and the public interest considerations of the minister have been accepted by the courts as an appropriate mechanism to consider these types of cases.
The department also advised that once the minister engages 'in the consideration of whether to lift the bar, that consideration is judicially reviewable'. The department further explained that the ability of the minister to lift the bar ensures 'a flexible approach for individual cases that helps legislation to meet its other obligations'.
International legal obligations
Evidence to the inquiry highlighted concerns that the bill is inconsistent with Australia's international legal obligations, with particular reference to the International Covenant on Civil and Political Rights (ICCPR), the Refugee Convention and the United Nations Convention on the Rights of the Child.
Submitters and witnesses disputed the statement contained in the explanatory memorandum confirming that the bill is compatible with human rights.
The department advised that 'it is the Government's view that the proposed amendments are consistent with Australia's obligations under international law'. In particular:
The measures contained in the Bill are compatible with the right to equality and non-discrimination, the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, the Refugees Convention and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
At the public hearing, several witnesses highlighted the efficacy and importance of Australia fulfilling its human rights obligations. The following sections summarise issues raised about particular aspects of Australia's international legal obligations.
Discrimination based on mode of arrival
With reference to Australia's obligations under article 26 of the ICCPR, the AHRC observed that the proposed permanent visa ban would apply to a specific group of asylum seekers 'based on their mode of arrival in Australia and date of transfer to a regional processing country' which would result in differential treatment of asylum seekers. Such differential treatment 'may engage the prohibition on discrimination on the basis of 'other status' under article 26 of the ICCPR'.
Similarly, the ASRC argued that the bill 'unlawfully discriminates against people, based on the time and mode of their arrival to Australia, in breach of article 31 of the Refugee Convention.
The department acknowledged that the 'continued differential treatment of a group of non-citizens…could amount to a distinction on a prohibited ground under international law on the basis of 'other status', but emphasised the government's view that this continued differential treatment is for a legitimate purpose and is 'based on relevant objective criteria for identifying people in the affected cohort and is reasonable and proportionate in the circumstances'.
The department also referred to legal advice that has been given to the government consistently since the late 1990s that the phrase inserted into article 31 'spoke very much of a sanction relating to the mode of arrival, not a sanction more indirectly related to a person who arrives by that mode'. In addition, the committee was advised:
So the argument that the government accepts and has been advised on is that a textual interpretation of the convention, and the debate that led to the clause being included, is that a penalty based on the mode of arrival really only relates to whether someone is being criminally prosecuted and criminally penalised for that mode of arrival—so whether they have been fined or subject to a criminal sanction for entering illegally—as opposed to the broader interpretation [noted by submitters]…
Further to this, the department stated:
We say it doesn't discriminate in relation to race or religion. We say that the cohort is objectively identified and clearly identified, and it's not based on personal characteristics, so it doesn't offend in that way. As to the differential treatment of who is in the cohort amounting to a distinction, the government is of the view that, if it's for a legitimate purpose—that purpose has been clearly articulated; it's on relatively objective criteria and it is reasonable and proportionate…
Potential separation of families
The Kaldor Centre, the Peter McMullin Centre on Statelessness, and Professor Ben Saul submitted that Australia has obligations under the Convention on the Rights of the Child 'to ensure that children are not separated from their parents against their will' and that applications to enter or leave Australia for the purpose of family reunification be dealt with in a 'positive, humane and expeditious manner'. It was noted that although the bill does not target children directly:
…its application is likely to be inconsistent with Article 10(1) of the Convention on the Rights of the Child, and it could be used to exile their parents and other members of their immediate families. For any person subject to the Bill with family members already in Australia, a permanent ban would flagrantly violate…provisions of international law. Australian law would entrench the division of families, which is already an issue of great concern, and could result in parents being permanently separated from their children.
Other submitters also argued that the bill would negatively impact families. For example, Amnesty International expressed concern that the bill may negatively impact 'a number of families currently split between offshore processing countries and Australia, with children and parents at risk of being permanently torn apart'. The Refugee Council of Australia suggested that the 'greatest impact' of the bill would 'be on those people on Nauru and Manus Island who have been separated from family in Australia'. The ASRC submitted that separating families would extend the effects of the bill beyond the regional processing cohort 'to effectively ban family reunification for these people in Australia, preventing them from rebuilding their lives and leading to severely adverse effects on mental health'.
Liberty Victoria advanced the view that:
[t]he legal and practical effect of the amendments proposed by the Bill would be to deny refugees the right to family unity. In this regard, the amendments would be inconsistent with Australia's international obligations, the international protection system, as well as longstanding Australian government policy.
The AHRC drew attention to recommendations it recently made related to family separation:
The Commission recently recommended that where members of the same family unit are subject to different policy settings due to having arrived in Australia on different dates, the Department of Home Affairs should implement strategies to harmonise their status.
The AHRC was of the view that the bill 'would make it even harder for families separated by different policy settings to ever reunite'.
The Statement of Compatibility with Human Rights included in the explanatory memorandum states:
The Government takes all matters concerning families and children seriously. Consideration of the individual circumstances of applicants and their relationships with family members allows the Government to ensure that it acts consistently with [Convention on the Rights of the Child and International Covenant on Civil and Political Rights] obligations.
As noted earlier, the ministerial power to permit a valid visa application in certain circumstances would provide a mechanism for the minister to consider particular family circumstances and assess the best interests of children in the cohort. The department also provided detail about the Special Humanitarian Program, noting that in terms of permanent resettlement programs, Australia typically ranks in the top three worldwide:
Australia's humanitarian program increased to 18,750 places in 2018-19. That's the level it will be for the next three years. A key component of that program is the Special Humanitarian Program, which gives a wider family group the opportunity to be able to sponsor people in humanitarian need to come to Australia for permanent resettlement. It's worth pointing out that Australia's one of only a small number of countries in the world that operates an annual permanent resettlement program. It ranks very highly.
The committee acknowledges the concerns raised by submitters and witnesses about the bill. However, the committee is of the view that the measures in the bill are necessary, reasonable and proportionate.
Evidence from the Department of Home Affairs emphasised that while the threat from people smuggling is currently suppressed, it has not been defeated and therefore an ongoing and multilayered approach—with a strong deterrence message—continues to be necessary.
The bill is an important part of the suite of measures being implemented by the government in response to this ongoing threat. It is also consistent with a commitment given by the then Labor Prime Minister, the Hon Kevin Rudd, in 2013. The bill is also an important part of the government's ongoing efforts to encourage people to come to Australia via safer, legal migration pathways, to disrupt people smuggling operations and to prevent people from embarking on dangerous boat journeys that can cause future loss of life at sea.
By virtue of the discretionary decision-making afforded to the minister under the bill, the bill contains appropriate safeguards with respect to permitting valid visa applications to be made in certain circumstances. The committee also notes that the personal non-compellable powers vested in the minister under the bill are comparable with other such powers vested in the minister under the Migration Act 1958 which have been accepted as an appropriate exercise of ministerial power.
The committee therefore recommends that the Senate pass the bill.
The committee recommends that the Senate pass the bill.
Senator Amanda Stoker