'We're not going to allow people who have sought to come by boat to come to Australia through a backdoor and we are not going to allow sham marriages to facilitate that.' — Peter Dutton
The Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 passed the House on 10 November and is now in the Senate. If passed, it means that anyone who was aged 18 and entered Australia as an 'unauthorised maritime arrival' after 19 July 2013 and was taken to Nauru or Manus Island would be forever blocked from applying for any visa to come to Australia.
The statutory bar could only be lifted personally by the Minister if they think 'it is in the public interest to do so'. There are already five statutory bars preventing asylum seekers who are in Australia from lodging any visa, unless the Minister permits them to do so. The decision to lift the bar is the Minister's only, it cannot be delegated to a bureaucrat.
There already is a bar on applications for visas for those deported under s200 for criminal matters or those whose visas are cancelled on character grounds. However this is the first time that a statutory bar will be created for a life ban, regardless of the person's citizenship or the visa they are seeking simply because they arrived in Australia by boat after a certain date.
In a press conference Dutton said the purpose was to prevent sponsorship for sham marriages. This was odd because there is already considerable law to deal with this issue. Firstly, it is already a criminal offence to falsely apply to sponsor someone as a spouse. Secondly there are a number of strict requirements for both sponsors and the visa applicants to meet in order for a partner visa to be granted.
The family program has 57,400 places, with probably around 65-75 per cent of those visas being for fiancé visas and partner visas and dependents. Therefore on a conservative estimate the Department assesses around 35,000 fiancé or partner visa applications every year for genuineness already. If the Department has doubts, they will commonly interview applicants. Given this process already exists, why do you need to prevent anyone accessing it if they wish to come to Australia to be with their partner?
When asked, the Minister claimed 'this government won't tolerate the law being subverted, we're not going to allow the system to be gamed because that is unfair on others who are waiting in queues'.
What queues? There is no limit on the partner visa category, unlike the refugee visa category. People are not in queues because the processing time differs from country to country, and may also depend on the complexity or the documentation in a case.
"The laws to assess these applications exist and one wonders why the Minister does not trust his own officers to make a decision on the alleged 'sham marriages' under the existing laws. This change is purely punitive."
The partner visa process is not straight forward, and certainly not cheap. Just the visa application fee is $6865, making it one of the more expensive visa applications. A skilled visa for example is $3600. This is without other costs such as medicals. It is a two stage process: a temporary visa is granted first and then, two years after the application was lodged, you can be considered for the permanent visa. The genuineness of the relationship has to be reassessed at the end of the second stage in order to get a permanent visa. The Department has produced a 59 page information booklet about these visas.
So given all these existing checks and hurdles, why have a ban at all? The change would only affect about 2000 people; the other 35,000 who came by boat before 19 July 2013 or were not sent to Nauru and Manus Island are not affected. This illustrates that the true intention of the Bill is to yet further punish the people we dumped on our poor Pacific neighbours.
The Bill also creates other statutory bars to prevent applications for say visitor visas, student visas or business visas, even from those holding passports from countries to which we give priority processing. This includes all the EU, Canada, the USA, Japan, South Korea and a few other countries. New Zealanders just need to present their passport to enter Australia, and declare they have no criminal convictions to be allowed to enter and stay forever if they so desire.
However under this drastic change, regardless of what happens to the 'cohort' in the future, or if they become citizens of another country — if they ever what to visit Australia, they will need the personal intervention of the Minister to even apply for a visa. This is a lifetime ban. There is no relationship between seeking asylum on or after 19 July 2013 and years later seeking to be sponsored as a partner, or a skilled migrant.
Someone may meet the protection visa criteria as a refugee, or maybe the skilled visa criteria. Maybe they will later meet the partner visa criteria. The laws to assess these applications exist and one wonders why the Minister does not trust his own officers to make a decision on the alleged 'sham marriages' under the existing laws. This change is not needed and is purely punitive.
So an Australian citizen who has a partner who came on a boat in the 'Regional Processing Cohort' will be unable to even sponsor their partner unless the Minister lets them. If they have children, then the children will be Australian citizens, and presumably prevented from being reunited in Australia unless the Minister lets them.
In the House of Representatives, there were strong speeches opposing the Bill from Independents such as Cathy McGowan and Andrew Wilkie. As the Member for Indi stated: 'It is poor legislation because it is discriminatory, and it seems hugely unfair ... It is legislation based on fear and punishment.'
Kerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers and member of the board of the IARC .