Dissenting Report
Senator Sarah Hanson-Young
Migration Amendment Bill 2013 [Provisions]
Introduction
1.1
The Migration Amendment Bill 2013 [Provisions] seeks to amend
Australia’s rigorous refugee determination process by overturning a number of
High and Full Federal Court decisions. The amendments proposed are inconsistent
with Australia’s international obligations, do not afford procedural fairness
and further entrench the current practice of indefinitely detaining men, women
and children who have been found to be genuine refugees, but deemed a security
threat by the Australian Security Intelligence Organisation (ASIO).
1.2
Overwhelmingly the majority of submissions made to the committee on this
Bill were not supportive of the proposed changes and concluded that the Bill
should not proceed.
1.3
The Australian Greens do not support the Bill as it is just another step
by the government to limit the protection avenues for refugees who are in
genuine need of Australia’s assistance. The amendments fail to address the long
standing criticisms held regarding the processing of asylum seeker claims in
Australia and are contrary to Australia’s international obligations.
Schedule 1: When decisions are made
and finally determined
1.4
The amendments proposed in the Bill seek to overturn a decision of the
Full Federal Court which determined that the Refugee Review Tribunal (RRT) and
the Migration Review Tribunal (MRT) ought to have the ability to revisit their
own decision up to the point where the applicant and the secretary have been
notified of the terms of the decision.
1.5
As argued by the Refugee Advice and Casework Service (RACS) in its
submission, the amendments:
...fetter decision makers by preventing the reconsideration of
a decision, [which] could create situations where formality takes precedence
over fairness.[1]
1.6
Evidence heard by the committee outlined circumstances where new
information or claims may come before the committee in the later stage of the
decision making process. These documents or developments are necessary for the
Tribunal to consider in order for them to make a correct and preferable
decision.
In the view of Justice Barker:
there is no compelling reason in public policy why the RRT
should not have the ability to recall the reasons for recording a decision
arising from the review process under the Act before it has been communicated
to a party....after all, the whole point of the review process is to ensure that
good and fair decisions are made in the course of the public administration of
the Act in this difficult area of decision making.[2]
1.7
When procedural fairness is afforded the RRT and MRT have the ability to
consider this information and revise their decision if necessary. The
Australian Greens believe that any amendments to the contrary would be
inconsistent with the aims of the Tribunal to provide a review process which is
fair, just, economical, informal and quick.
Schedule 2: Bar on further
applications for protection visas
1.8
The amendments outlined in Schedule 2 seek to circumvent a decision by
the Full Federal Court which determined that a person could make a subsequent
claim for protection on the basis that the application relied on a different
criterion.
1.9
The amendments proposed reject the importance of procedural fairness and
due process by precluding a number of people from having their claims processed
on complementary protection grounds, as now contained in section 36 of the
Migration Act.
1.10
In the view of the UNHCR:
....the practical effect of the statutory bar is to prevent
further applications for protection visas in circumstances where the
complementary protection criteria did not exist at the time when the earlier
application was refused or cancelled.[3]
1.11
Australia is party to the International Covenant on Civil and Political
Rights, the Convention Against Torture and other Cruel and Inhuman or Degrading
Treatment or Punishment, and the Convention on the Rights of the Child and must
fulfil its obligations by protecting those people who may not qualify as a
refugee under the 1951 Convention but are in need of protection based on
non-refoulement obligations.
1.12
Whilst the Department stated that it was 'not that these people did not
get any consideration of their complementary protection claims; they got them
considered just in a different way'[4],
it is important to note, as outline by many of the submitters to the inquiry,
this was not an adequate process for determining complementary protection
claims as the decision resided with the Minister and the determinations were
non-reviewable and non-compellable.
1.13
As stated by the UNHCR 'it is preferable to provide a legislative basis
for ensuring that a person will not be returned to a place where he or she may
suffer 'significant harm'' and 'it is important to afford procedural fairness
to the person concerned who is unable to appeal the Minister’s decision.'[5]
1.14
The Australian Greens believe that the proposed statutory bar on further
applications for protection is just another step by the government to limit the
protection avenues for refugees who are in genuine need of Australia’s
assistance. Those who have not fulfilled the requirements under the Refugee
Convention however may have substantiated claims for protection under the
aforementioned international human rights instruments, should be given the
ability to apply on complementary grounds.
Schedule 3: Security Assessments
1.15
The amendments proposed by Schedule 3 of the Bill fail to address the
longstanding criticisms of the ASIO security assessment process and instead
further entrench a process that has led to the indefinite detention of
approximately 50 refugees, including 5 children.
1.16
These amendments are unnecessary, fail to provide adequate appeal
rights, entrench the practice of indefinite detention, and breach Australia’s
international obligations.
The amendments are unnecessary
1.17
As highlighted by a number of submitters to the inquiry, including the
RACS and the Refugee Council of Australia (RCOA), Section 501 of the Migration
Act already sets out broad provisions relating to the Minister's power to
refuse to grant, or cancel an individual’s visa based on character. The RCOA
submitted that 'existing legislation has proved sufficient to deny visas to
these individuals.'[6]
1.18
Further, the UNHCR highlights that:
....the 1951 Convention contains specific provisions which
allow states to protect their right to safeguard national security, while at
the same time protecting the rights of refugees.[7]
The amendments fail to provide
adequate appeal rights which leads to the indefinite detention of genuine
refugees
1.19
The changes fail to provide a person with adequate review avenues should
they receive an Adverse Security Assessment (ASA) which results in the
indefinite detention of approximately 50 men, women and children.
1.20
Many of the submitters, including the UNHCR and Amnesty International
Australia, were very concerned about the limited abilities to contest a
negative ASIO assessment and therefore be afforded procedural fairness or
natural justice.[8]
1.21
As submitted by the Australian Lawyers Alliance:
The rule of law is applicable to all persons in Australia,
regardless of their citizenship status. To deem an individual unworthy of
access to justice as a result of their maritime means of arrival.....does not
accord with the standards of natural justice.[9]
1.22
As it currently stands, Australian citizens and permanent visa holders
are able to seek merits review of adverse ASIO assessments, but protection visa
applicants are not afforded these same rights.[10]
1.23
The Joint Select Committee on Australia’s Immigration Detention Network,
Chaired by Mr Daryl Melham MP and Senator Sarah Hanson-Young, stated in its
report that 'there is no compelling reason to deny non-residents the same
access to procedural fairness' as Australian residents.[11]
1.24
In its final report the Committee made a number of recommendations to
afford refugees with ASAs an opportunity to appeal the grounds of their
assessment and therefore their indefinite detention. The committee resolutely
rejected the indefinite detention of people without any right of appeal.[12]
1.25
The Committee recommended that the Australian Government and ASIO should
establish and implement periodic reviews of adverse refugee security
assessments to ensure that genuine refugees were not subject to indefinite
detention.[13]
1.26
The Committee went on to recommend that the Australian Security
Intelligence Organisation Act should be amended to allow the Security
Appeals Division of the Administrative Appeals Tribunal to review ASIO security
assessments of refugees and asylum seekers.[14]
1.27
It is the view of the Australian Greens that these recommendations
should be adopted by the government to ensure procedural fairness is afforded
and the practice of indefinite detention is ended.
1.28
The Greens welcomed the announcement in late 2012 of the Independent Reviewer
as an important acknowledgement that, under current Australian law, there is no
fair legal process for refugees to find out the reasons of their ASA or
challenge the merits of the ASA. The Australian Greens acknowledge the work of
the Hon Margaret Stone in reviewing a number of ASIO ASAs, however, the Greens
share the unanimous concerns of the witnesses that appeared before the inquiry
that the Independent Reviewer has no binding powers to amend an ASA, or indeed
any mandate over deciding whether refugees who are subject to an ASA must
reside.
1.29
While the Greens accept that Recommendation 2 of the majority report is
a step in the right direction it is important that there are legislative
changes to ensure that the powers of the Independent Reviewer are binding and
enforceable.
1.30
To address the recommendations the Australian Greens introduced the Migration
and Security Legislation Amendment (Review of Security Assessments) Bill in
2012 to put in place a fair legal process for the 50 refugees and their children
who are currently stranded in indefinite immigration detention due to an ASA.
1.31
An inquiry into the Bill exposed wide support from witnesses including
Civil Liberties Australia, the Australian Human Rights Commission, Victoria
Legal Aid and the Asylum Seeker Resource Centre. A number of expert bodies
supported the passage of the Bill as a starting point but remarked that the
Bill could be amended to go even further in giving rights and fair process to
refugees in this predicament, including Professor Ben Saul, the Law Council of
Australia, the Refugee Council of Australia and Humanitarian Research
Partners. These groups attested that the Bill was imperative as a first step
to reform.
1.32
Despite overwhelming support for the Bill it has yet to be supported in
the Parliament.
The amendments breach international
obligations
1.33
In August last year, the UN Human Rights Committee found that Australia
was in breach of its international obligations and had committed 143 human
rights violations, including articles 7 and 9(1) of the ICCPR, by indefinitely
detaining 46 refugees, including children, due to ASAs.[15]
1.34
The Human Rights Law Centre further highlights that the:
....detention of a refugee following an adverse assessment
risks violating article 9 of the ICCPR as there are insufficient effective
judicial oversight and review mechanisms.[16]
1.35
Amnesty International Australia also highlights possible breaches of
articles 3 and 37B of the Convention on the Rights of the Child as a result of
5 children currently being indefinitely detained due to their parents receiving
ASAs.[17]
Conclusion
1.36
The Migration Amendment (Provisions) Bill 2013 seeks to amend
Australia’s rigorous refugee determination process by overturning a number of
High and Full Federal Court decisions.
1.37
It is clear that this Bill will further distance Australia from our
obligations to provide protection to those in desperate need. The amendments
proposed are inconsistent with Australia’s international obligations, do not
afford procedural fairness and further entrench the current practice of
indefinitely detaining men, women and children who have been found to be
genuine refugees.
1.38
The Australian Greens depart from the recommendation of the majority
report and conclude that the Bill should not proceed on basis of the arguments
outlined above.
Recommendation 1:
The Australian Greens recommend that this Bill not
proceed.
Recommendation 2:
The Australian Greens recommend that the government put
in place a legislative framework to underpin the power, authority and role of
the Independent Reviewer of Adverse Security Assessments.
Recommendation 3:
The Australian Greens recommend that the government
urgently adopted the recommendations made by the Joint Select Committee on
Australia’s Immigration Detention Network, in particular;
Recommendation 27
That the Australian
Government and the Australian Security Intelligence Organisation establish and
implement periodic, internal reviews of adverse Australian Security
Intelligence Organisation refugee security assessments commencing as soon as
possible.
Recommendation 28
That the Australian Security
Intelligence Organisation Act be amended to allow the Security Appeals Division
of the Administrative Appeals Tribunal to review the Australian Security
Intelligence Organisation security assessments of refugees and asylum seekers.
Senator Sarah Hanson-Young
Australian Greens, SA
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