Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (CTH)

Yesterday (25 September 2014), the Federal Government introduced the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, in an effort to support the Government‘s key strategies for combatting people smuggling and managing asylum seekers both onshore and offshore.

Purpose of the Bill

The measures in this Bill are a continuation of the Government‘s protection reform agenda and make it clear that there will not be permanent protection for those who travel to Australia illegally. The measures will support a robust protection status determination process and enable a tailored approach to better prioritise and assess claims and support the removal of unsuccessful asylum seekers.

The Bill fundamentally changes Australia‘s approach to managing asylum seekers by: 

• clarifying and strengthening Australia‘s maritime enforcement framework to provide greater clarity to the ongoing conduct of border security and maritime enforcement operations; 
• allowing only temporary protection to those who engage Australia‘s non-refoulement obligations and who arrived in Australia illegally; 
• creating a different processing model for protection assessments which acknowledges the diverse range of claims from asylum seekers, helping to resolve protection applications more efficiently; 
• deterring the making of unmeritorious protection claims as a means to delay an applicant‘s departure from Australia; 
• supporting a more timely removal from Australia of those who do not engage Australia‘s protection obligations; and
• codifying in the Migration Act Australia‘s interpretation of its protection obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention).

Specifically, the Bill amends the Migration Act to: 

• introduce Temporary Protection visas (TPVs) as a visa product for unauthorised arrivals, whether by air or by sea, who are found to engage Australia‘s protection obligations; 
• create a new visa class to be known as Safe Haven Enterprise Visa (SHEV); 
• explicitly authorise the making of regulations that deem an application for one type of visa to be an application for a different type of visa; 
• clarify that the application bars in sections 48, 48A and 501E of the Migration Act also apply in relation to persons in the migration zone who have been refused a visa or held a visa that was cancelled, in circumstances where the refused application or the application in relation to which the cancelled visa was granted earlier was an application that was taken to have been made by the person;
• allow for multiple classes of protection visas;
• include a definition of protection visas; 
• create an express link between certain classes of visas that are provided for under the Migration Act (including Permanent Protection visas and Temporary Protection visas) and the criteria prescribed in the Migration Regulations in relation to those visas; 
• create a new fast track assessment process and remove access to the Refugee Review Tribunal (RRT) for fast track applicants, who are defined as unauthorised maritime arrivals (UMAs) who entered Australia on or after 13 August 2012 and made a valid application for a protection visa; and other cohorts specified by legislative instrument;
• require the Minister to refer fast track reviewable decisions to the Immigration Assessment Authority (the IAA) which will conduct a limited merits review on the papers and either affirm the fast track reviewable decision or remit the decision for reconsideration in accordance with prescribed directions or recommendations; 
• create discretionary powers for the IAA to get new information and permit the IAA to consider new information only in exceptional circumstances; 
• provide the manner in which the IAA is to exercise its functions, notify persons of its decisions, give and receive review documents and disclose and publish certain information and enable the Principal Member of the RRT to issue practice directions and guidance decisions to the IAA; 
• establish the IAA within the RRT, and provide that the Principal Member of the RRT is to be responsible for its overall operation and administration and specify delegation powers and employment arrangements to apply to the Senior Reviewer and Reviewers of the IAA; 
• clarify the availability of the removal powers independent of assessments of Australia‘s non-refoulement obligations; 
• remove most references to the Refugees Convention from the Migration Act and replace them with a new statutory framework which articulates Australia‘s interpretation of its protection obligations under the Refugees Convention; 
• clarify, with retrospective effect, that children born to unauthorised maritime arrivals under the Migration Act either in Australia or in a regional processing country are also UMAs for the purposes of the Migration Act;
• clarify, with retrospective effect, that children born to transitory persons either in Australia or in a regional processing country are also transitory persons for the purposes of the Migration Act; 
• ensure that children born in Australia to a parent who is a transitory person can also be taken to a regional processing country; 
• clarify, with retrospective effect, that any visa application of the child of a UMA or transitory person is invalid, unless the Minister has allowed the application, or the application of that child‘s parent, to be made; and 
• restore the Government‘s ability to place a statutory limit on the number of protection visas granted in a programme year including repealing of section 65A and section 414A of the Migration Act which require applications for protection visas to be decided in 90 days as well as the associated reporting requirements in section 91Y and 440A, and provide that the requirement for the Minster in section 65 to grant or refuse to grant a visa is subject to sections 84 and 85.

Reaction to the Bill

According to the ABC News:

The proposed legislation has also been criticised as it makes dramatic alterations to the Refugee Review Tribunal processes that will enshrine screening out processes through which asylum seekers are administratively prevented from having their asylum claims processed.

The Bill is currently in the House of Representatives awaiting Second Reading Debate when Parliament resumes on Tuesday 30 September 2014.

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