Migration Act Proposed Amendments

Not content with the Migration Act in its current form, the Government continues to put forward changes designed to increase the power of the Minister and further constrain avenues available to asylum seekers and refugees. Our Asylum Seeker and Refugee Action Group has considered these bills and asks you to contact your local members of Parliament to oppose the proposed changes to the Migration Act.  If you have a Coalition member of the Federal Parliament, you could urge them to rethink these Bills. If you have a local or nearby ALP member of the Federal Parliament, you could contact them, or one of the NSW ALP or Green Senators—to urge them to maintain their opposition to the following bills. Two of these Bills have been passed by the House of Representatives but, so far, been rejected or delayed by the Senate (the third of the Bills listed below has not yet passed the House of Representatives): 

 The Migration Amendment (Visa Revalidation and Other Measures) Bill 2016,

The Migration Legislation Amendment (Regional Processing Cohort) Bill 2016,

The Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016 Provisions. 

 These bills contain shameful features which would undermine the rights, not only of asylum seekers and of recognised refugees, but of permanent residents and temporary visa holders across the board.  They give unprecedented, non-compellable, non-reviewable powers to the Minister for Immigration and Border Security. 

 Full details of objections to these bills are made in submissions made by the Law Council of Australia or by the CCL and minority reports by ALP senators and by Green senators on the Legal and Constitutional Committee of the Senate (LEGCON):  http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries

1.  The Migration Amendment (Visa Revalidation and Other Measures) Bill 2016.

 If passed, the bill would enable the Minister for Immigration to select a class of persons possessing any kind of visa he nominates, ‘however described’, [sic] and require them to submit to a revalidation process.  The Minister could make legislative instruments for this purpose.   While the class determination must be presented to Parliament, it would not be subject to disallowance by parliament. 

 The class of persons selected can be determined by any characteristic the Minister chooses, provided it is also restricted to the holders of a class of visas.  People on protection visas with Muslim beliefs could well be targets—but so could permanent residents who have been organised opponents of Government policies.

 The revalidation check then is to determine if there is any adverse information relating to a person who holds a visa.  The “adverse information” can be anything at all (the Bill does not define the term), and it covers activity by a person associated with the visa holder, not just his or her own actions. 

 His determination could be unjustified, done with concealed malice, or with the intent to silence an individual or a group.  (It could probably not be completely arbitrary.) 

 He is not required to give the visa holder the basis for the decision.

He is not required to give the visa holder the right to be heard.

There is no appeal on the merits from the Minister’s decisions.

i.  This proposal is manifestly unfair, to asylum seekers, temporary residents and permanent residents.

ii. It is contrary to the rule of law.

iii. It is contrary to natural justice.

iv. It denies the proper role of parliament; it rejects the supremacy of parliament.

v.  This proposal thus infringes values that are of fundamental importance to Australian society. 

 The Government has repeatedly refused to suggest or accept amendments that would address these issues.  It has also refused to limit the classes of visas to which the Bill refers.

 2.  The Migration Legislation Amendment (Regional Processing Cohort) Bill 2016.

The purpose of this bill is to prevent adults who were taken to a regional processing country (Nauru or Papua New Guinea) from ever receiving a visa to enter Australia.  Though part of its purpose is to bar fraudulent refugee applications (unnecessarily, because there is already ample power to deal with those), it prevents entry for persons who would otherwise meet all the criteria for a visa—skilled migrants, partners, parents, children, employer sponsored entrants, tourists—purely because they were sent to one of the two centres. 

It gives the Minister the personal, non-compellable power to relax the restrictions if it is “in the public interest”, undefined. A decision not to make a decision is not reviewable. 

The bill arbitrarily discriminates against the cohort on the basis of their mode of arrival, which they may have had little choice over. The bill contravenes numerous human rights and international obligations to which Australia is a signatory. 

It will have the effect of splitting families and preventing family reunions, even for temporary purposes such as funerals or visits to dying relatives, contrary to Australia’s international obligations.

 It will have severe effects on the mental health of refugees, who already are vulnerable because of their past experiences, including those inflicted by Australia.

 The bill acts retrospectively, because it applies to people who were transferred to Manus Island or Nauru any time after July 19, 2013. 

 It is contrary to the Article 31 of the Refugee Convention, which prohibits penalising people seeking asylum for their mode of entry to a country of refuge.  Because it splits families, it violates Articles 3(1) and 10(1) of the Convention on the Rights of the Child, Article 10(1) of the International Covenant on Economic, Social and Cultural Rights, and Article 21(1) of the International Covenant on Civil and Political Rights.

 It is a purely punitive attack on people who have suffered persecution, not needed to stop boats (since they have already stopped).  It solves nothing.

3.  Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016 (Provisions)

The stated purpose of this bill is to provide parallel procedures for the Administrative Appeals Tribunal’s (AAT’s), review of migration and of protection decisions, following the abolition of the Migration Review Tribunal and of the Refugee Review Tribunal and the transfer of their functions to the new Migration and Refugee Division (MRD) of the AAT.

 That is an innocent enough aim.  However, the bill will have the consequence at the same time of diminishing the fairness of the procedures for asylum seekers. 

 A.  The Bill restricts access to information which may be crucial for obtaining a fair decision.  By removing section 362A, it denies to applicants the right to see all of the written material given to or produced to the AAT for the purposes of its review.  Adverse information must be given (required, as the Explanatory Memorandum notes, by sections 359A and 359AA).  But access to neutral and positive material is essential for an applicant to prepare a full case. (It might involve correcting a misinterpretation or elaborating material, especially if the support given to the applicant in the first case was incompetent, or otherwise unsatisfactory.)  The Department’s response to questions it took on notice, averring that sections 359A and 359AA are adequate, ignores (or possibly disregards) this crucial difference. 

 B.  The Bill continues restrictions on representation of asylum seekers.  Legal counsel are prevented from speaking on behalf of their clients, who with limited English or poor understanding of the procedures will often not be able to represent themselves competently.  This is a recipe for bad decisions, and ultimately deaths. 

 C.  The Bill removes subsection 357A of the Migration Act--the requirement that the AAT deal with cases in a way that is fair and just. 

 D.  The Bill removes the automatic right of an applicant to request an interpreter, leaving it up to the Tribunal to determine that one is needed. 

 E.  The bill will prevent review by the Federal Circuit Court of a decision to dismiss an application.

 We should oppose these bills. The more pressure we can apply through communications from constituents (especially written, rather than by email) the better.

Dr Martin Bibby, Convenor, Asylum Seekers and Refugee Action Group