Refugee Advice and Casework Service
26 March 2015
Migration Amendment (Protection and Other Measures) Bill 2014
The Migration Amendment (Protection and Other Measures) Bill 2014 passed the Senate yesterday. The amendments to the Migration Act contained in the Bill will have a negative impact on the quality and fairness of protection status decision-making in Australia. Most of the changes affect all asylum seekers, irrespective of their mode arrival. The key amendments include the following:
• Shifting the burden of proof entirely upon an applicant for protection, such that asylum seekers are responsible for specifying all particulars of a claim for protection from the outset and decision makers are not required to take active steps to explore whether an asylum seeker is entitled to refugee status. This amendment takes Australia well below international standards in relation to effective refugee status determination procedures.
• Introducing a new requirement that the Refugee Review Tribunal (RRT) draw an adverse inference on credibility where new evidence or claims are provided to the RRT that was not already provided in the initial application, unless a reasonable explanation is provided for the delay. This applies irrespective of the RRT’s view of the relevance or genuineness of the evidence or claim.
• Introducing a new requirement that if an asylum seeker is unable to provide proof of identity or has provided a document suspected to be non-genuine, the visa application must be refused, unless there is a reasonable explanation and the asylum seeker takes reasonable steps to evidence their identity. In these circumstances, a protection visa application must be refused even where there is in fact no doubt about the applicant’s identity or need for protection.
• Removing from the grounds for the grant of a protection visa that a person is a member of the same family unit as a person who has already been found to be a refugee. This amendment will affect refugees in Australia who currently hold a protection visa and who have an immediate family member (such as a spouse or child) who is also in Australia and who has subsequently applied for, or who wants to apply for, a protection visa. The family member will no longer have any right to remain in Australia on the basis of their family relationship.
RACS considers that these amendments will create real injustice for some applicants and significantly increase the risk of Australia failing to comply with its international obligations. Despite this, RACS welcomes the removal of the part of the Bill that would have elevated the risk threshold for complementary protection. By requiring an asylum seeker to demonstrate a very high probability of harm on return, this amendment would have undermined the ability of the protection visa application process to give effect to Australia’s non-refoulement obligations under the Convention Against Torture and the International Covenant on Civil and Political Rights.
RACS gave evidence at the public hearing of the Senate Legal and Constitutional Affairs Legislation Committee’s inquiry into the Bill in September 2014. Our detailed concerns with the provisions of the Bill are described in RACS’ submission to the inquiry, available on the Committee’s website.
The amendments will take effect following Royal Assent. The Bill’s progress can be seen here.
Please note: This factsheet contains general information only. It does not constitute legal or migration advice. If you need legal or migration advice about your specific situation, please contact RACS. RACS gives telephone advice on Tuesdays and Thursdays from 10am to 11.30am. RACS is entirely independent of the Department of Immigration. All assistance is free. This factsheet was prepared in March 2015.
GPO Box 2107, Sydney NSW 2001 T: 02 9114 1600 F: 02 9114 1794 Level 12, 173- 175 Phillip St, Sydney NSW 2000 E: admin@racs.org.au W: www.racs.org.au
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