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Immigration Daily News Inherent unfairness to be introduced under proposed amendments to s48 restrictions
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Inherent unfairness to be introduced under proposed amendments to s48 restrictions
Vulnerable people with genuine claims will soon be precluded from raising them in a fresh visa application, simply because a previous application which they did not understand and which may have been made by someone else without their permission was refused. There are several amendments proposed in the Migration Legislation Amendment Bill (No. 1) 2014 but the amendments to section 48 remains the most contentious.
Section 48 of the Migration Act 1958 (Cth( (the Act) in general prohibits an individual whose onshore application for a visa has been refused or cancelled from making a further onshore application, with limited exceptions applying to the application ban.
Submissions to the Senate Legal and Constitutional Affairs Legislation Committee opposed the amendments for various reasons including the following (as summarised in the Parliamentary Library Bills Digest 4 June 2014):
- the changes increase the potential for instances of injustice to arise as some vulnerable people will be denied the opportunity to present their claims for asylum in their own right
- the changes will prohibit re-consideration of issues that have been considered in a previous application even though such an application may not have appropriately taken into account the views and capacity of a minor or other vulnerable person
- the changes will adversely affect particularly vulnerable groups of asylum seekers due to factors entirely beyond their control
- the changes could result in unintended consequences such as refoulement
- the changes are not proportionate to the administrative burden on the Department
- the changes raise doubts about Australia’s compliance with international law such as the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities
- the retrospective nature of the changes is not fair for applicants
- the changes are premature and misconceived and
- the Minister’s personal and non-compellable powers under section 48B of the Act to exclude the operation of the provision on public interest grounds is a grossly inadequate safeguard against refoulement for particularly vulnerable people subject to the prohibition in section 48A of the Act.
The Refugee Advice and Casework Service (RACS) provided some scenarios to illustrate the gross unfairness of the proposed legislation which its states unfairly "extends the s48 bar on subsequent applications to individuals who have been refused a protection visa even where they did not know about or understand the nature of the original visa application made on their behalf because of a mental impairment or because they were a minor."
“A 17 year old young man lives independently of his parents in a relationship not approved of by his parents. He is included on a non-meritorious protection visa application by his parents without his knowledge. This application is refused. He only learns of this visa application history when he makes his own visa application in the future, which is deemed invalid.
“A 16 year old girl remains in conflict with her father due to family violence and remains living in a refuge with her mother. She is included in a non-meritorious visa application without her knowledge by her father which is refused. When her mother includes her on a subsequent meritorious visa application as her dependent, she is informed that the application by the daughter is invalid due to the father’s previous application.”
Here’s is the link for further reading: http://parlinfo.aph.gov.au/parlInfo/download/legislation/billsdgs/3205052/upload_binary/3205052.pdf;fileType=application%2Fpdf#search=%22legislation/billsdgs/3205052%22
Comments
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Saturday, 07 June 2014As a Registered Migration Agent I would have assumed that you would at least acknowledge that the amendments only apply to Section 48A (i.e. exclusively protection visa refusals – this is clearly not apparent in your article). Section 48 still fulfills its original purpose of preventing non-citizens from lodging valid visa applications onshore, except for visas of the prescribed class, if they have previously had a visa refused or cancelled onshore.
Once again as a Registered Migration Agent (RMA) I would also assume that you are fully aware of the decision of the Full Federal Court of Australia in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (3 July 2013) and the implications of this decisions for the processing of repeat protection visa (PV) applications. In case you are not aware I will spell it out. The ruling was that anyone with a PV refusal prior to 24/03/2012 can validly apply for a further PV if they apply under an alternative ‘stream’ (e.g. not based on the Refugee Convention). The alternative ‘streams’ are complimentary protection (i.e. an assessment of Australia’s obligations using the other international conventions of which Australia is a signatory) or as the member of a family unit (e.g. had your parent, partner, sibling ect. included you on a PV application that was refused prior to 24/03/2012 you would be eligible to once again apply for PV).
The obvious fact is that the Government is ‘legislating’ their way out of this case law precedent and likely with good reason. The highly uncommon examples that you give in your article should not give way to the massive implications (logistically & economically) of allowing anyone with a PV refusal prior to 24/03/2012 to validly resubmit a PV application. Despite what you may say about DIBP and the competency of its visa processing officers, most persons in this situation have already had the fundamental basis of their protection claims negatively assessed. This decision has then almost certainly been reviewed by the RRT and in a lot of cases appealed further to the exceptionally expensive (and busy) federal court structure of Australia (not that RMA’s have any inappropriate vested interest in this).
Additionally the examples you give indicate that the vulnerable person/child has had a PV refusal and accordingly they would only be barred from lodging further PV application. They would still be eligible (should they meet the other schedule 1 validity requirements) to lodge a non-protection visa application. Accordingly in the worst case scenario they would no doubt be able to lodge an alternative visa application which upon being refused would allow them to obtain merit review and subsequently give them access to the Minister pursuant to s351. Surely then, if their situation was so ‘dire’, ‘unavoidable’ and just plain ‘not their fault’, the Minister would be able to personally correct these circumstances that the legislation did not anticipate.
Immigration blog
Given the impact of last week's changes had on current and potential clients, rushed through with very little advance notice and now this, all I can say we should remind ourselves that our our work is not only limited to the realm of providing immigration advice but also within the realm of advocacy and representation, responding to bills such as this one (and future ones) so that we can provide the best advice and also ensure that there is a high level of procedural fairness and justice, in keeping with our international obligations and our humanity.
Maintaining the integrity of the migration program in relation to sovereingty is important but not at the expense of disadvantaged groups which have less and less rights before the law and historically form part of the Australian narrative; these include illegals, asylum seekers, temporary entrants, residents and citizens by conferral.
The proposed changes in this Bill do not reflect community outrage at a bad law nor is it an appropriate response by government. It very much reeks of frustration by some for not being able to stop asylum seekers from seeking protection in Australia because we really don't want them and it is an opportunistic and political move to please the many uniformed and rather confused constituents about Australia's obligations under the Refugee convention and about our obligations as human beings...
If we go down this path and don't raise issues which are concerning about these changes, no-one is safe here - and I would daresay that if there was a means of legislating for australian born people of parents who are residents or citizen by conferral, we would be looking down at the barrell of that one, too, one day... Fortress Australia is well and truly in full swing.
That said, and this being my personal opinion of course, my professional opinion is that IF WE as practitioners DO NOT properly inform ourselves of these instances, DO NOT RESPOND to these and believe that all we have to do is come up to speed on any changes and advise accordingly, we are doing our clients and ourselves a disservice because, at the end of the day, we are indeed advocates on behalf of our clients and on behalf of the law that we practice.
The provision of migration advice, whether we are lawyers or registered agents, is about advocacy, representaiton and ultimately, justice...