Login / Join
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.”
...
