Strengthening our Borders with the Migration Amendment Bill 2014 - 16 March 2015

Senator McGRATH: It gives me pleasure to speak on the Migration Amendment (Protection and Other Measures) Bill 2014. The coalition went to the last election with a promise to build a safe and secure Australia. A key part of this—

Senator Cameron: It went with a lot of promises—lots of promises.

Senator McGRATH: Madam Acting Deputy President, it has started already. That is a record for Senator Cameron. That was 20 seconds.

Senator O'Neill: Senator McGrath will ignore the interjections, and Senator Cameron will abide by the standing orders of the Senate.

Senator Cameron: Let's hear about all your promises.

Senator McGRATH: Madam Acting Deputy President, I cannot ignore Senator Cameron. He is the light on my hill sometimes. But I am happy to talk about promises, because we went to the election promising to stop the boats, which we have stopped, and we went to the election promising to get rid of the carbon tax; we got rid of the carbon tax. We promised to get rid of the mining tax and we promised to get the budget under control. That is what we are doing at the moment except for the rambunctious behaviour of the Labor Party and their rather quirky approach to good fiscal and economic management.

Senator Cameron interjecting—

Senator McGRATH: As much as I would love to have a good chat with Senator Cameron, I think we should focus today on the coalition's commitment to stop the boats. The coalition went to the last election and the 2010 election to stop the boats, because we wanted to build a safe and secure Australia. This included a package of policy measures we took to the last election and included turning back the boats where safe and the reintroduction of temporary protection visas, which were previously very successful in stopping the boats during the term of the Howard government.

Despite being opposed by Labor and the Greens at every turn, this government's strong stance has been an excellent success to date in stopping the boats, preventing deaths at sea and getting children out of detention. We are building a safe and secure Australia.

Senator Cameron interjecting—

Senator McGRATH: We have had some interjections here, but I am very happy for them to talk about Labor's record and the Greens' record when they were in government. They do not want to talk about their record when they were in government. For Labor and the Greens, for the period between 2007 and 2013 they have a collective amnesia about what happened with border protection and building a safe and secure Australia. It was Labor and the Greens under the Rudd-Gillard-Rudd governments that weakened Australia's borders and caused an influx of people smuggling and boats arriving on Australia's shores. Labor pursued 11 immigration policies while they were in government. Tony Abbott, Scott Morrison and Peter Dutton have led the government's charge to build a safe and secure Australia—

Senator O'Neill: I remind you to call the gentlemen you just mentioned by their proper titles.

Senator McGRATH: I take your point—the Prime Minister and the relevant ministers. The most excellent Prime Minister Tony Abbott and his most excellent ministers have pursued fantastic policies to build a safe and secure Australia; but, sadly, despite the government's success, Labor and the Greens continue to refuse to support the only policy package that is actually getting children out of detention.

When Labor came to office in 2007, there were no children in detention. There were none. There were zip, there were zero, there were null, there were nil. There were no children in detention. Children in detention under Labor and the Greens peaked at 1,992. In 2007, when Labor came to power, there were no children in detention, but at the peak under the Labor-Greens government there were just under 2,000 children in detention. What I am hearing at the moment are the interjections from Labor in terms of why they are not proud but suffering collective amnesia as to why there were 2,000 children in detention under the Rudd-Gillard-Rudd governments.

In August 2013, just before this coalition government came to power, there were 1,743 children in detention. Today, thanks to the policies of the coalition government and support from crossbench senators, there are no children in detention on Christmas Island and under 120 children in detention on the mainland. I agree with the previous speaker, Senator Canavan, that none of us wish to see children in detention, which is why when the Howard government lost office in 2007 there were zero children in detention. So I am sometimes perplexed by Labor's approach to securing our borders considering their failures between 2007 and 2013. These statistics more than anything highlight the hypocrisy of Labor and the Greens when it comes to border protection.

The Migration Amendment (Protection and Other Measures) Bill 2014 seeks to build upon the coalition's successful border protection policies, in particular those introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, which for ease we will just call RALC and which was passed on the final sitting day of last year. RALC reintroduced temporary protection visas. This was about getting children out of detention on Christmas Island and introduced the fast-track system amongst other measures.

This bill seeks to amend the Migration Act 1958 to increase efficiency and enhance integrity in the onshore refugee and complementary protection status determination status and is necessary for RALC to work efficiently. This bill clarifies the responsibilities of asylum seekers to provide and substantiate claims in relation to protection visas so that, if they do not cooperate with the government to establish their identity, they will not be given the benefit of a protection visa. This strong stance is in line with the law in other comparable nations such as the United States, United Kingdom and New Zealand. The bill will enable the Refugee Review Tribunal to draw an unfavourable inference about the credibility of claims or evidence raised by a protection visa applicant for the first time at the review stage. Currently, non-genuine asylum seekers can game or play the system by presenting new claims or evidence to bolster their original unsuccessful claims, causing significant processing delays for other, genuine applicants. Under this change, the incentive will be for all applicants to present all of their documentation and evidence at the first instance rather than seeking to have multiple bites of the cherry.

The bill will also create grounds to refuse a protection visa application where an applicant refuses or fails to establish their identity, nationality or citizenship. Establishing an applicant's identity is vital for making a decision to grant or refuse a visa. An individual's identity, nationality or citizenship can have a direct bearing on whether they engage Australia's protection obligations. These measures make it clear that Australia expects protection visa applications to be made in good faith and that presenting bogus documents for the purpose of establishing identity will result in refusal of a protection visa application unless the applicant has a reasonable explanation.

The bill also restores the 'more likely than not' threshold for complementary protection. This was originally Labor Party policy when they introduced the complementary protection provisions back in March 2012. But, yet, in another display of hypocrisy on border protection, because of their collective amnesia of the period between 2007 and 2013 Labor are now opposed to the measure—one which they actually argued for in the full Federal Court when they were in government. The coalition government are not seeking to raise the threshold but merely to return it to the level which was set by Labor.

To be clear though, the bill makes no change to the threshold applied to the refugee convention and the fast-track process established by the RALC cannot operate fully unless a number of technical amendments in the bill are passed. Without the bill passing, the majority of the illegal maritime arrival backlog, which is approximately 22,000, living in the community on a bridging visa do not fit the definition of a fast-track applicant and cannot be processed as such. In all of this, the government are committed to ensuring Australia's compliance with its international obligations under the refugee convention, the International Covenant on Civil and Political Rights and the Convention against Torture.

The statement of compatibility with human rights which accompanies the bill addresses relevant human rights issues for each measure. I propose to look in detail at a couple of the measures in the bill. This bill is intended to improve the integrity of the consistency of decision making and prevent exploitation of the protection visa determination process, including the merits review system, by applicants not genuinely pursuing a protection claim.

The amendments in this bill send a clear message that asylum seekers have certain responsibilities. For instance, they are responsible for establishing their identity, nationality or citizenship wherever it is possible to do so. They are also responsible for making comprehensive claims to protection supported by evidence as soon as possible. The measures will apply to all asylum seekers regardless of their mode of arrival.

These amendments are necessary to ensure continued public confidence in Australia's capacity to assess claims for asylum and to support the Australian community's expectations that asylum claims are made in good faith. They are an effective response to the evolving challenges in the asylum seeker case load, recent judicial decisions and the management of the backlog of illegal maritime arrivals. It must be stressed that the bill is consistent with Australia's international obligations under the refugee convention, the International Covenant on Civil and Political Rights and the Convention against Torture.

In terms of procedural fairness, decision makers must act in good faith to fully assess protection visa applications and afford procedural fairness to asylum seekers in accordance with the codes of procedure in the Migration Act. Decision makers are also provided with guidance to be aware of the special needs of vulnerable applicants and to ensure appropriate support and consideration is provided. For instance, the department's procedures advice manual, gender guidelines and refugee law guidelines, assist in assessing claims from vulnerable applicants, including women and applicants with an intellectual disability. Vulnerable applicants include unaccompanied minors, survivors of torture or trauma and applicants who are physically or mentally incapable of taking full responsibility for their claims.

I want to go to clause 5AAA of the bill. The purpose of this provision is to strengthen the integrity of Australia's processes for assessing protection claims. Early and full presentation of claims allows refugees to be recognised at the earliest opportunity. Proposed clause 5AAA clarifies and clearly communicates responsibilities with regard to protection claims and supporting evidence by stating existing responsibilities on the face of the legislation. This measure puts a basic responsibility of an asylum seeker beyond doubt by stating it on the face of the legislation.

Proposed clause 5AAA expressly places the responsibility on the asylum seeker to make their case for protection. It clarifies that a claim that a person engages protection needs to be comprehensive and supported to the best of the asylum seeker's ability. This is an existing, basic expectation of the Australian community and the government, as well as a longstanding, general principle of refugee status determination that the burden of proof lies with the asylum seeker.

New clause 5AAA codifies the obligations of an asylum seeker within the Migration Act, consistent with the way in which obligations of a decision maker are codified. Proposed clause 5AAA states, 'The responsibility of a person seeking protection in Australia needs to specify all the particulars of their claim and to provide sufficient evidence to establish the claim.' This responsibility is consistent with an acknowledged, longstanding principle of refugee status determination. According to the UNHCR handbook at paragraph 196:

It is a general legal principle that the burden of proof lies on the person submitting a claim.

There are also responsibilities of the decision maker under clause 5AAA. It clarifies that the minister or their delegate has no responsibility or obligation to assist in making a claim on behalf of an asylum seeker or to assist in establishing that claim. It clarifies that it is not the role of the decision maker to advocate on behalf of a person seeking protection.

The role of the decision maker is to decide whether there is an obligation to provide protection by appropriately investigating and evaluating a claim for protection. The duty to evaluate and ascertain all relevant facts is shared between the applicant and the decision maker, consistent with UNHCR guidelines. The decision maker should ensure the applicant presents the case as 'fully as possible and with all available evidence' to 'assess the applicant's credibility' and 'evaluate the evidence' in order to establish the facts of a case, consistent with the UNHCR handbook at paragraph 205. Decision makers may continue to ask questions, seek clarification and check that a person's claims are consistent with generally known facts and the specific country situation in question. Procedural fairness requirements of decision makers are codified in the act and will continue to apply. Decision makers must act in good faith to fully assess protection visa applications and afford procedural fairness to asylum seekers in accordance with the codes of procedure in the Migration Act.

Any available evidence that supports the specific protection claims made by the applicant is to be presented. Under 5AAA, there is no prescribed list. Detailed, up-to-date country information will be available to decision makers. The minister or delegate needs to be satisfied, based on their assessment of the claims and evidence provided by the applicant, that the visa criteria are met. Consistent with page 40, paragraph 205 of the UNHCR handbook, the applicant is to supply all relevant information in as much detail as necessary for relevant facts to be established. The applicant should:

… make an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence. If necessary he must make an effort to procure additional evidence.

In the time available to me, I will also touch upon sections 91W and 91WA of the Migration Act. The purpose of these provisions is to encourage people seeking protection in Australia to provide documentary evidence of identity, nationality or citizenship wherever possible. While both sections include a refusal power, their primary purpose is not visa refusal but compliance with the objective of establishing, with genuine documents, the refugee's identity, nationality or citizenship. The changes proposed to sections 91W and 91WA are needed to discourage the use of bogus identity documents and the destruction or discarding of documentary evidence of identity, nationality or citizenship by or on behalf of people seeking protection in Australia. These measures are appropriate to the central role that establishing identity, nationality or citizenship plays in granting a protection visa. Establishing identity allows accurate assessment of a person's protection claims, particularly in a time of increased dual and multiple nationalities. These measures also help safeguard the Australian community from people who have committed serious crimes.

Under the existing section 91W, a decision maker may request that an applicant provide documentary evidence of identity, nationality or citizenship. At the time that request is made, the applicant is warned that the decision maker may make an inference

Senator Cameron interjecting—

Senator McGRATH: We have missed Senator Cameron! Senator Cameron must, I think, have been reading some very interesting emails—because the Labor benches were very quiet while we were talking about children in detention. Why did we not have some pithy and witty interjections from the Labor Party then? Where were you?

Senator Cameron interjecting—

Senator McGRATH: What were you saying when children were in detention under Labor? Where were you when those nearly 2,000 children were in detention? Where were Senator Cameron and the Labor Party? Where were they? You know what? They were in power! They were in government! The Labor Party were in power and in government when 2,000 children were in detention. Now we have collective amnesia from the Labor Party. They have this appalling, sanctimonious approach to the 120 children—and the number is going down—we have in detention. This bill should be supported. (Time expired)