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New immigration laws play to the worst in our country

Speeches in Parliament
Penny Wright 27 Nov 2014

Senator WRIGHT (South Australia) (18:39):  As the Australian Greens spokesperson on legal affairs, I rise to oppose the passage of the Migration Amendment (Character and General Visa Cancellation) Bill 2014. I do this on the grounds that it hands unprecedented power to the immigration minister and puts Australia at risk of breaching a number of fundamental human rights, including freedom from arbitrary detention and freedom of association. The bill also creates a perpetual environment of legal uncertainty for visa holders in Australia, subjecting them to the possibility of visa cancellation on the basis of an extremely wide executive discretion that, in most cases, cannot be subjected to meaningful review. I am joined by some of the most credible legal voices in Australia when I call on the Senate not to pass this harmful legislation.


The government has not articulated why these changes are necessary. We are not talking about a small tweaking of the legislation; we are talking about broad and sweeping changes that have the potential to harm a great number of people. This is part of this government's agenda to instil fear in the Australian community and to play to the worst in our country, rather than to the best. It is a part of their shameful agenda to break the hopes and spirits of those who come to us fleeing persecution. It is not only at odds with our obligations under international law; it is also at odds with who we can be as a nation-a generous, accepting, welcoming and diverse nation. I worry about this government's legacy into future years and the seeds of fear and division they are sowing. I fear that we will all reap this crop and I fear that the damage that they are doing to our social fabric will not be easily repaired.

This is complex legislation with far-reaching consequences, so it is important to consider exactly what this bill does. As currently drafted, the migration act contains a range of powers that allow the immigration minister to cancel a person's visa if he or she poses a risk to the safety of the Australian community. These already include powers to cancel or refuse visas on the grounds that the applicant or visa holder fails what is called the 'character test'. Currently, a person does not pass the character test if they have a substantial criminal record; a conviction for immigration detention offences; an association with persons suspected of engaging in criminal conduct or with past and present criminal or general conduct; or if they pose a significant risk of particular types of future conduct. Currently, the minister may also refuse to grant or may cancel a person's visa if he or she reasonably suspects that the person does not pass the character test and the minister is satisfied that the refusal or cancellation is in the national interest. This power can only be exercised by the minister personally.

The proposed amendments in this bill will change this situation drastically, further expanding the already broad scope of the character test by broadening the power to refuse to grant or cancel a visa. If passed, this bill will increase the circumstances in which a person would fail the already broad character test; make visa cancellation mandatory in certain circumstances where a person is suspected of failing the character test; increase the minister's powers to cancel visas for providing incorrect information; give the minister further, wide-ranging personal powers to cancel a visa where a person does not meet the character test, a person gives incorrect information in relation to a visa or a circumstance relevant to the grant of the visa no longer exists. These ministerial powers would not able to be reviewed on their merits. These powers may even, in some circumstances, go against decisions of independent tribunals that are based on the examination of evidence and finding on the basis of merit, including certain findings of fact.

The cancellation or refusal of visas on character grounds are serious matters.

They might mean that a person would be deported to another country or subjected to immigration detention. For asylum seekers-people seeking protection from persecution-in Australia, the cancellation or refusal of a visa on character grounds can result in indefinite detention.

Many of these issues were explored by the 2013 Background paper from the Australian Human Rights Commission which reviewed the human rights issues raised by section 501 of the Migration Act governing the refusal and cancellation of visas. The commission's paper outlines the risk that people who are refused visas or those whose visas are cancelled may be subject to arbitrary detention and family separation. The Australian Greens are concerned that, if enacted, this bill has exactly this potential for harm.

But it is not just applicants for protection visas whose lives will be affected by the changes proposed in this bill. The proposed amendments will also apply to people who have resided in Australia for a long time-sometimes, from childhood. In many cases, Australia is the only nation, the only home, they have ever known.

Given what is at stake, the government needs to make the case for why the existing visa cancellation powers in the Migration Act-which have been widely criticised for already being excessive-need to be changed. They are yet to make this case. If the government wants to make these broad and sweeping changes, the onus is on them to explain how the existing laws are not working and why each of the proposed changes is a necessary and proportionate response, given the serious impacts such powers have on the rights and freedoms of people living in Australia. As many commentators-including some who made submissions to the inquiry into the impacts of this legislation-have emphasised, the government has completely failed to make this case. No independent evidence or research has been made public that illustrates the need for these changes.

Although the explanatory memorandum says that the amendments aim to limit risk to the Australian community and to better capture visa holders who raise integrity concerns, it actually fails to set out why these amendments are a proportionate response to the harm that the bill seeks to avoid. It is a mere assertion.

The bill significantly expands the role for personal ministerial decision-making powers over visa cancellation and refusal-one individual; few checks and balances. The bill gives power to the minister to override any tribunal decisions, including those made through the Administrative Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal in relation to decisions not to cancel or not to refuse visas.

In addition, the bill proposes to exclude natural justice requirements from the exercise of ministerial powers. 'Natural justice' is really just another way of saying 'a duty to act fairly-to not be biased and to make sure someone has a fair hearing before making a decision'. Why would the minister's powers need to exclude this requirement? This is an unnecessary expansion of the minister's powers and undermines the integrity of the visa cancellation and refusal system. It puts those who are not yet citizens-or non-citizens who are permitted to be in Australia-at a perpetual risk of visa cancellation. As the Law Institute Victoria has submitted, this confers:

... on the Minister and his delegates a disproportionate amount of power to be exercised at any time at their discretion. In effect permanent residency is no longer permanent.

The situation is made worse by the introduction of mandatory cancellation provisions. At present, even if a person fails the character test they will not have their visa cancelled unless the minister, or a delegate, exercises a discretion to cancel. In considering whether to exercise this discretion, the minister may then take into account the particular personal circumstances of the visa holder, and without any action by the minister the visa will not be cancelled. This bill reverses the current position. Under this bill, all visas will be cancelled without notice in cases where a person is serving a full-time sentence of imprisonment for any offence, however minor, and the minister or their delegate is satisfied that the person has a 'substantial criminal record'. If the bill is passed, it is likely the minister will develop a blanket decree as to what constitutes a 'substantial criminal record', and there will be no opportunity for a visa holder to offer any other mitigating factors or explanations as to why the offence occurred.

Such a decision to cancel will be not reviewable by the Administrative Appeals Tribunal. So for a person whose past experience of trauma, torture or persecution may have contributed to the offence they have committed there will be no discretion; the cancellation of their visa will be mandatory.

Why on earth would the government need to go this far, when the minister can already intervene to cancel visas if the grounds warrant it? It is just another example of punitive overreach.

In addition, this bill provides that a person will not pass the character test where they have been assessed by ASIO as, directly or indirectly, a risk to security, or in circumstances where an 'Interpol notice' has been issued and is in force in relation to the person:

... from which it is reasonable to infer that the person would present a risk to the Australian community ...

What is concerning about these provisions is that they effectively give up to ASIO the minister's duty to assess the risk posed by a person, without the minister or the person affected even being permitted to look at the reasons for the negative assessment. It is a case of, 'Take it on trust'-because ASIO never get things wrong, do they?

Of course this is especially worrying, because there is a real risk that ASIO's information, and, in particular, Interpol notices, can be wrong-and, indeed, have been wrong in the past, just as the Law Institute Victoria pointed out in their submission on this bill. They described the 2013 case of Egyptian asylum seeker Sayed Ahmed Abdellatif:

In Mr Abdellatif's case, it was found that an Interpol 'Red Notice' issued in relation to him at the request of the Egyptian government contained baseless information that he had been convicted of 'serious terrorism charges including murder and explosives possession.' Commenting on Mr Abdellatif's case, former Minister for Immigration Brendan O'Connor observed that Interpol notices were 'often wrong' and routinely contained false information, citing notices that had been issued in the past against Australian citizens in error.

And if we need any clear example about how governments or agencies or courts can get things wrong, we need look no further than the case of Australian journalist Peter Greste, still languishing in an Egyptian jail after a trial that excited condemnation from observers all around the world for its inadequacy, with the inexplicable verdict of guilty based on no credible evidence.

Why is this government, so critical of the Greste decision and the findings of the Egyptian court in that case, so ready to rely on red notices issued at the behest of governments or institutions that are so potentially unreliable? And, again, these notices and assessments will cause visas to be revoked-deporting people, destroying lives-without the possibility of a review.

The features of Australian law being expanded by this bill, especially indefinite immigration detention, have consistently been criticised by domestic and international human rights bodies as amounting to arbitrary detention. This bill also seeks to limit the longstanding and fundamental right to freedom of association. Ironically this is one of the traditional rights that Attorney-General Brandis is so fond of citing and extolling, and it is a right that is now increasingly under threat throughout Australia. Under these provisions, a visa can be cancelled or refused on the basis of a person's association with another person who may not have even been convicted of any criminal offence but whom the minister 'reasonably suspects' has been involved in criminal conduct. This test, and in particular its reliance upon 'reasonable suspicion', applies an unacceptably low standard.

The proposed change is not limited to individuals who have been found guilty of criminal conduct by a court. Like many other clauses in this bill it does not require the minister to engage in any meaningful assessment of circumstances or evidence relating to the alleged conduct. As the Law Institute of Victoria has pointed out the minister would have the discretion to cancel the visa of a person in a range of possible scenarios that do not actually pose a risk to the Australian community: entering their usual church where the priest was under investigation for a child sex offence, joining in with a group with no convictions watching a current television series that has been illegally downloaded, or attending a political rally that may turn out to have associations with criminal or terrorist organisations or be attended by others with such associations without any knowledge that that is the case. It could include people who are related to another person in some way but who do not have any involvement in, or connection to, the criminal conduct. It could even potentially be a case where a person 'associates' with someone through being a neighbour or an acquaintance through a sporting club. And so we see here an evolving landscape in Australia, where vague associations are layered upon suspicions and build up a picture that could lead to a totally innocent person having their visa and their right to live in Australia cancelled. The zeal with which this government sets about denying asylum seekers and refugees justice, dignity and respectful treatment in Australia is shameful.

And, yes, there is more. This bill also proposes to allow the minister to cancel a visa if he or she is not satisfied as to the visa holder's identity. The Australian Greens agree that establishing a person's identity is important for upholding the integrity of the migration program; however, the proposed changes do not acknowledge that there may be genuine and legitimate reasons individuals may have difficulties in providing evidence of their identity. The Refugee Advice and Casework Service have pointed out exactly how it has already occurred. They said:

... RACS has several clients who are from the Rohingya ethnic group who, according to the UNHCR, are among the world's most persecuted people. Many Rohingya people have never been issued with any identity documents by the Burmese authorities and Burma (Myanmar) refuses to grant the Rohingya people citizenship, leaving them stateless. Retention of identity documents is a major problem for Rohingyas for both historical and political reasons.

The changes proposed in this bill are unnecessary in light of the broad cancellation powers and processes which are already available to the government to protect the Australian community.

The Australian Greens will not support this bill because overall it makes it far easier for visa holders or applicants to fail the character test. And then it waters down the principles and protections that come from natural justice when the consequences of such a fail are being applied. Even further, this bill dramatically restricts visa holders' human rights and reduces the procedural fairness available to a person who might be subject to these powers. This bill creates a very real risk of arbitrary and indefinite detention for applicants who are seeking protection and effectively renders all visa holders subject to the perpetual risk of visa cancellation.

This bill also expands the discretionary powers of the immigration minister without providing for judicial oversight or sufficient safeguards to protect against misuse or overuse of these expansive powers. In the future, when we look back on how we are treating people who are in Australia and seeking protection or residency, we will see that this has been a dark time. Year by year restrictions are growing, rights are being curtailed, the arbitrary use of powers by the minister and officials is being expanded, and protections, checks and balances are being dismantled. Essentially, this bill has the effect of handing unfettered power to the immigration minister of the day-whoever that is today and in the future-and that is simply unacceptable when we are talking about people's lives. This bill is shameful and should not pass this place. Australia is so much better than this. The Australian Greens oppose this bill in the strongest possible terms.

 

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