Senate

Supplmentary Explanatory Memorandum relating to sheet JC575

(Circulated by authority of the Minister for Immigration, Citizenship and Multicultural Affairs, the Hon. David Coleman MP)

Attachment A - Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018

These government amendments are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018 (the Bill) amends the Migration Act 1958 (the Migration Act) to create a new visa application bar at section 46A(2AA) which will prevent non-citizens who were taken to a regional processing country after 19 July 2013 (the 'designated regional processing cohort') from making a valid application for an Australian visa. The amendments also makes a number of associated amendments to the Migration Act and the Migration Regulations 1994 (Migration Regulations) to give effect to the intention to prevent visa applications being made by this cohort.

The proposed bar would apply to unauthorised maritime arrivals (UMAs) who:

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after 19 July 2013 have been taken, or are taken in future, to a regional processing country under section 198AD of the Migration Act; and

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were or are at least 18 years of age on the first or only occasion after 19 July 2013 when taken to a regional processing country.

The government amendments also amends section 46B of the Migration Act to include an additional visa application bar for transitory persons who, after 19 July 2013, have been taken, or are taken in future, to a regional processing country under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013. These provisions allow a person to be taken to a regional processing country in circumstances where they have not first entered Australia.

These new application bars will apply to visa applications made both in Australia and outside Australia.

The designated regional processing cohort includes non-citizens currently in Nauru and Papua New Guinea under regional processing arrangements, those who have returned home or been removed to their home country, those who have been resettled in a third country, and transitory persons in Australia (who are already subject to statutory visa application bars).

The regional processing centres in Papua New Guinea (PNG) and Nauru are central elements of the Government's border protection strategy. Preventing UMAs in the designated regional processing cohort from applying for a visa to enter Australia will strengthen the Government's ability to reduce the risk of non-citizens circumventing Australia's migration laws. It will also prevent non-citizens undermining the Australian Government's return and reintegration assistance packages and resettlement arrangements. The measure is also consistent with the Regional Resettlement Arrangement between Australia and Papua New Guinea (PNG), which was signed on 19 July 2013. The effect of this arrangement was that any UMA entering Australia after this date, who is found to be a refugee, would be resettled in PNG or another participating regional processing country. These people would not be resettled in Australia. This is aimed at further discouraging persons from attempting hazardous boat journeys with the assistance of people smugglers and encouraging them to pursue regular migration pathways instead.

In recognition of the fact there may be circumstances where it is desirable to allow a non-citizen in the designated regional processing cohort to apply for a visa, the proposed legislative amendments will include flexibility for the Minister for Immigration and Border Protection to personally lift the bar where the Minister thinks it is in the public interest to do so. This may include cases where individual circumstances justify special consideration or to ensure that Australia's international obligations are met.

In addition, the amendments prevent grant, by operation of law, of Special Purpose Visas to members of this cohort and also prevent applications to be deemed to have been made by members of this cohort. A waiver is available in these instances that can be used to take account of individual circumstances that justify special consideration, relevant international obligations and other instances in which it is appropriate for the person to be granted a visa or be deemed to have made an application.

Human rights implications

This Statement of Compatibility addresses the potential human rights implications that may result from these government amendments. Some human rights contain express limitation clauses which set out the specific parameters within which these rights may be limited. These clauses include prescribed purposes that may justify the limitation of the right, such as national security, public order, public health, public safety, public morals, and the protection of the rights and freedoms of others. These government amendments are aimed at maintaining the integrity of the migration program.

Respect for the family and children

Rights relating to respect for the family and children are contained in Articles 17(1), 23(1), and 24 of the International Covenant on Civil and Political Rights (ICCPR).

Article 17 ICCPR

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Article 23 ICCPR

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 24 ICCPR

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

In addition, Article 3 of the Convention on the Rights of the Child (CRC) provides:

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Further, article 10 of the CRC provides:

1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

These government amendments will introduce a statutory bar preventing certain non-citizens who were taken to a regional processing country from making a valid application for a visa to come to or remain in Australia. Where the non-citizen has family members who have been granted a visa to enter or remain in Australia, this may result in separation, or the continued separation, of a family unit. However, the proposed legislative amendments will include flexibility for the Minister for Immigration and Border Protection personally to 'lift' the bar where the Minister thinks it is in the public interest to do so. This consideration could occur in circumstances involving Australia's human rights obligations towards families and children, allowing a valid application for a visa on a case by case basis and in consideration of the individual circumstances of the case, including the best interests of affected children. In addition, such matters can be considered when deciding to exercise the waiver to allow a Special Purpose Visa to be granted by operation of law, or to allow an application for certain subclasses of visa to be deemed to have been made.

The Government takes all matters concerning families and children seriously. Consideration of the individual circumstances of applicants and their relationships with family members allows the Government to ensure that it acts consistently with the above CRC and ICCPR obligations.

In addition, the visa application bar does not apply to persons who were under 18 at the time they were taken to a regional processing country. This recognises that children may not be able to make decisions on their own behalf and may have been subject to regional processing through the decisions of their parents to travel illegally to Australia by boat.

Australia's non-refoulement obligations

Australia has obligations under the ICCPR and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) not to return a person to a country in certain circumstances.

Article 3(1) of the CAT states:

No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

Articles 6 and 7 of the ICCPR also impose on Australia an implied non refoulement obligation. Article 6 of the ICCPR states:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Article 7 of the ICCPR states:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

The Government recognises that these non-refoulement obligations are absolute and does not seek to resile from or limit Australia's obligations. Any person who is in the designated regional processing cohort and who is in Australia now or in the future will not be removed from Australia in breach of Australia's non-refoulement obligations.

Right to equality and non-discrimination

These government amendments will exclude a cohort of non-citizens who have previously arrived in Australia as a UMA or attempted to enter Australia by boat and been taken to regional processing country, or who are taken to a regional processing country in the future, from applying for a visa to enter or remain in Australia. The bar will continue to apply to non-citizens in this cohort after they achieve third country settlement or citizenship.

Article 26 of the ICCPR states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The continued differential treatment of a group of non-nationals (namely, the designated regional processing cohort) could amount to a distinction on a prohibited ground under international law on the basis of 'other status'.

In its General Comment 18, the UN Human Rights Committee stated:

The Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.

The Government is of the view that this continued differential treatment is for a legitimate purpose and based on relevant objective criteria and that is reasonable and proportionate in the circumstances. This measure is a proportionate response to prevent a cohort of non-citizens who have previously sought to circumvent Australia's managed migration program by entering or attempting to enter Australia as a UMA from applying for a visa to enter Australia. This measure is also aimed at further discouraging persons from attempting hazardous boat journeys with the assistance of people smugglers in the future and encouraging them to pursue regular migration pathways instead.

Right to security of the person and freedom from arbitrary detention

The right to security of the person and freedom from arbitrary detention is contained in Article 9 of the ICCPR.

Article 9 states:

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

These government amendments will is unlikely to result in an increase in the number of non-citizens in Australia who will be ineligible to apply for a visa and subsequently liable for detention under the Migration Act. This is because the non-citizens in Australia to whom the bar will apply are already subject to application bars while in Australia in most circumstances. In any event, the amendments do not limit the ability of the Minister to grant a visa to a person in immigration detention and, combined with the Minister's ability to allow a visa application to be made, will allow person in the affected cohort to be managed in the same way as other unlawful non-citizens. That is, held detention will be maintained only where there is a risk to the safety of the Australian community. Detention in these circumstances is consistent with the above ICCPR obligations.

Conclusion

The measures proposed in the government amendments are compatible with human rights. Any limitations the rights of persons in the designated regional processing cohort are reasonable, necessary, and proportionate to achieving the legitimate aim of maintaining the integrity of Australia's lawful migration programs and discouraging hazardous boat journeys.