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senate vote 2014-12-04#13
Edited by
mackay staff
on
2014-12-11 15:11:08
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Title
Bills — Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014; in Committee- Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 - in Committee - Permanent visas for Safe Haven Enterprise Visa holders
Description
<p class="speaker">Sarah Hanson-Young</p><p>by leave—I move Greens amendments (1) and (2) on sheet 7630 together:</p><p class="italic">(1) Clause 2, page 2 (table item 4), omit the table item, substitute:</p>- The majority disagreed with the [Greens amendments](http://www.openaustralia.org.au/senate/?gid=2014-12-04.204.1) to the [Safe Haven Enterprise Visa](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040) (SHEV) introduced by Greens Senator [Sarah Hanson-Young](https://theyvoteforyou.org.au/people/senate/sa/sarah_hanson-young).
- ### What is the Safe Haven Enterprise Visa?
- The [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040) explains that the detail of the SHEV will be put into the migration [regulations](http://en.wikipedia.org/wiki/Delegated_legislation) after this bill is passed so the bill itself doesn't include much information about the visa. However, the Minister has said that:
- > '*... the SHEV will be a temporary visa available to people from the legacy caseload [that is, [asylum seekers](http://en.wikipedia.org/wiki/Refugee#Asylum_seekers) who arrived by boat between August 2012 and December 2013 and haven't been transferred to [Nauru](http://en.wikipedia.org/wiki/Nauru_detention_centre) or [Manus Island](http://en.wikipedia.org/wiki/Manus_Island_Regional_Processing_Centre)] who are found to be refugees, as an alternative to a TPV [[Temporary Protection Visa](http://en.wikipedia.org/wiki/Temporary_protection_visa)], and will be valid for five years. Persons granted a SHEV will be required to live in a ‘designated region’ and encouraged to fill job vacancies in regional areas. ... Visa holders will have the same access to [Medicare](http://en.wikipedia.org/wiki/Medicare_%28Australia%29) and social security as TPV holders, but those who can show they have worked in a regional area without accessing income support for three and a half years will be permitted to apply for other onshore visas, such as family and skilled visas (but not permanent protection visas).*' (Read more in the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040))
- ### What do these amendments do?
- Senator Hanson-Young explained that "[t]hese amendments put a genuine pathway to permanency into the SHEV—exactly what [Mr Palmer](https://theyvoteforyou.org.au/people/representatives/fairfax/clive_palmer) wanted and just like we have heard from the [crossbenchers](http://en.wikipedia.org/wiki/Crossbencher) that they want to see" (see her [whole explanation](http://www.openaustralia.org.au/senate/?gid=2014-12-04.204.1)). In other words, they introduce a way for SHEV holders to apply for a permanent protection visa.
- ### Bill's main idea
- The bill's main idea is to speed up the management of [asylum seekers](http://en.wikipedia.org/wiki/Refugee#Asylum_seekers)' claims and support the Government's policies that stop asylum seekers from coming to Australia by boat (for example, by intercepting the boats and turning them around). It also re-introduces [temporary protection visas](http://en.wikipedia.org/wiki/Temporary_protection_visa) "because the Government is of the view that those who arrive by boat without a valid visa should not be rewarded with permanent protection" (see the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040))
- ### Human rights issues
- Some of the changes made by the bill may go against Australia's [international law](http://en.wikipedia.org/wiki/International_law) obligations. Particularly Australia's [non-refoulement](http://en.wikipedia.org/wiki/Non-refoulement) obligations, which stop Australia from sending people to places where their lives or freedoms are threatened. Australia has these obligations because it signed up to the [Convention relating to the Status of Refugees](http://en.wikipedia.org/wiki/Convention_relating_to_the_Status_of_Refugees), the [International Covenant on Civil and Political Rights](http://en.wikipedia.org/wiki/International_Covenant_on_Civil_and_Political_Rights) and the [United Nations Convention against Torture](http://en.wikipedia.org/wiki/United_Nations_Convention_against_Torture).
- For example, the bill will insert a provision into the *[Migration Act 1958](http://en.wikipedia.org/wiki/Migration_Act_1958)* that says that Australia’s non-refoulement obligations are not relevant to removing people who are not citizens and don't have a visa. The [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040#_Toc401816905) explains that this change would mean courts won't be able to stop the Government from removing people just because it is against Australia’s non-refoulement obligations. In other words, the Government wants to decide how to apply those obligations by itself, without any potential judicial oversight.
- For more about which changes may go against these obligations and how, see the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040).
- ### Background to the bill
- The title of the bill says it is about "resolving the asylum legacy caseload". This refers to the asylum claims made by [asylum seekers](http://en.wikipedia.org/wiki/Refugee#Asylum_seekers) who arrived by boat without a visa between August 2012 and December 2013 and who have not been sent to be processed on [Nauru](http://en.wikipedia.org/wiki/Nauru_detention_centre) or [Manus Island](http://en.wikipedia.org/wiki/Manus_Island_Regional_Processing_Centre). The Coalition Government says this caseload of asylum claims is the result of the previous Labor Government's policies.
- During the 2013 election campaign, the Coalition said it would address this caseload and the changes made in this bill are part of their effort to do this.
- More information on the background to the bill is in the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040#_Toc401816905).
<p class="italic">(2) Schedule 2, page 27 (after line 24), after item 16, insert:</p><p class="italic">16A After section 35A</p><p class="italic">  Insert:</p><p class="italic">35B Purpose of safe haven enterprise visas</p><p class="italic">     It is the intention of the Parliament that unauthorised maritime arrivals who entered Australia by sea after 13 August 2012 and before 19 July 2013 and who satisfy the criteria for a protection visa are to be granted safe haven enterprise visas that:</p><p class="italic">  (a) require them to live in regions of Australia that are suffering from labour shortages; and</p><p class="italic">  (b) allow them to work and study; and</p><p class="italic">(c) give them access to social welfare benefits and services on the same basis as a person who holds a permanent protection visa; and</p><p class="italic">  (d) allow family reunions; and</p><p class="italic">(e) in certain circumstances, may become permanent protection visas.</p><p class="italic">35C Regulations prescribing safe haven enterprise visas must be made</p><p class="italic">(1) Regulations making provision, in accordance with section 35D, for safe haven enterprise visas must be in force at the start of 1 February 2015.</p><p class="italic">(2) If regulations making provision for safe haven enterprise visas in accordance with section 35D are not in force at the start of a day after the end of January 2015, then, on and after that day:</p><p class="italic">  (a) an eligible person (within the meaning of section 35D) may make a valid application for a permanent protection visa despite anything else in this Act, the regulations or the <i>Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014</i>; and</p><p class="italic">  (b) subject to paragraph (a), the application is to be determined under this Act, and the regulations, as in force on 1 November 2014.</p><p class="italic">(3) In applying this Act and the regulations as in force on 1 November 2014 for the purposes of this section and section 35D, disregard any amendment or provision that was made or enacted after that day but purports to have retrospective effect.</p><p class="italic">35D Safe haven enterprise visas</p><p class="italic">(1) Regulations making provision for safe haven enterprise visas must:</p><p class="italic">  (a) provide for safe haven enterprise visas to be granted to any eligible person who satisfies the criteria for a protection visa under this Act, and the regulations, as in force on 1 November 2014; and</p><p class="italic">  (b) provide for safe haven enterprise visas to be valid for 5 years; and</p><p class="italic">(c) provide for safe haven enterprise visa holders to have access to family reunions; and</p><p class="italic">  (d) subject to subsection (2), make it a condition of a safe haven enterprise visa that the holder live in a declared area of Australia while the visa is in force.</p><p class="italic">(2) The regulations must prescribe exceptions to the condition in paragraph (1)(d) for holders of safe haven enterprise visas who cannot, because of age or health or caring responsibilities, reasonably be expected to comply with the condition.</p><p class="italic">(3) The holder of a safe haven enterprise visa is to receive social welfare benefits and services from the Commonwealth on the same basis as a person who holds a permanent protection visa, and the regulations may make such modifications of other Acts and instruments as are necessary to ensure that this occurs.</p><p class="italic">(4) If, for each day in a period of 42 months (or each day in multiple periods that together amount to 42 months), a holder of a safe haven enterprise visa:</p><p class="italic">  (a) complies with the conditions of the visa; and</p><p class="italic">  (b) either:</p><p class="italic">     (i) does not receive social security benefits under the <i>Social Security Act 1991</i>; or</p><p class="italic">     (ii) is covered by an exception prescribed in accordance with subsection (5);</p><p class="italic">then, at and after the start of the day after the end of the period or the last of the periods, as the case may be, the visa is taken to be a permanent protection visa.</p><p class="italic">(5) The regulations must prescribe exceptions for the purposes of subparagraph (4)(b)(ii) for days on which a holder of a safe haven enterprise visa:</p><p class="italic">  (a) is unable to work because of age or health or caring responsibilities; or</p><p class="italic">  (b) is undertaking full-time study (including days on which the visa holder is on a normal break between periods of full-time study).</p><p class="italic">(6) In this section:</p><p class="italic"> <i>  declared area of Australia</i> means an area of Australia that is declared, by legislative instrument, in accordance with the regulations.</p><p class="italic"><i>  eligible person</i> means the following people:</p><p class="italic">  (a) a person who:</p><p class="italic">     (i) became an unauthorised maritime arrival on or after 13 August 2012 and before 19 July 2013; and</p><p class="italic">     (ii) is in Australia;</p><p class="italic">(b) a person prescribed by the regulations.</p><p class="italic"></p><p>These amendments deal directly with the deficiencies of the current SHEV arrangement. The deal between Mr Palmer, Senator Xenophon and Minister Morrison does not include a permanent visa for people at the end.</p><p>If somebody has been found to be a genuine refugee—they have had their assessments, they have had their case looked at and they are given refugee status—and is then put onto a SHEV, a safe haven enterprise visa, and they fulfil the requirements set out in that visa, working for 3½ years in a rural area or studying and not draining welfare, then after the five years why do they not get a permanent visa? If the SHEV is designed as a pathway to permanency once you have proven not just that you are refugee but that you have the good character to be able to rebuild your life and contribute to this country then after you have met the requirements of the SHEV you should be given a permanent visa. Why continue to play a game with people's lives and require them to get a different type of visa, go on to another temporary visa, never really finding that pathway to permanency?</p><p>These amendments put a genuine pathway to permanency into the SHEV—exactly what Mr Palmer wanted and just like we have heard from the crossbenchers that they want to see. That is currently not in the legislation. It was not in the government's amendments as negotiated between Mr Palmer, Senator Xenophon and Minister Morrison. That deal did not include a pathway to permanency. If we accept that that is important, if people prove that they are worthy of being able to stay in this country, let's give them permanency at the end of that SHEV process. That is what these amendments seek to do.</p> <p class="speaker">Kim Carr</p><p>We will be supporting these amendments.</p> <p class="speaker">Michaelia Cash</p><p>The government will not be supporting the amendments.</p><p>The CHAIRMAN: The question is that amendments (2) and (1) on sheet 7630 be agreed to.</p><p></p>
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