High Court decision, changes to the General Skilled Migration points test, Regional Protection Framework, Gabe Watson
Thursday, 11 November 2010
Doorstop interview, Sydney
Chris Bowen: I thought I'd talk about two things before taking your questions. Firstly, as you are aware, the High Court has today handed down its decision in relation to the processing of refugee claims in Australia. It's important to note what the High Court has not done: the High Court has not found that the excision of certain islands in Australia is unconstitutional; the High Court has not in any way cast judgement on the mandatory detention regime in Australia. The High Court have found that refugee assessments and Independent Merits Reviews are subject to judicial appeal, judicial review in certain circumstances. They would go to procedural fairness and potentially to other legal questions.
I've of course been briefed on this finding this morning; I'll be receiving further briefings from the Solicitor-General and the department of Immigration over the course of today. I will be recommending to my Cabinet colleagues an appropriate response in coming weeks. It's important that we recognise that this is a significant judgement; it has significant ramifications. It needs to be worked through in a methodical and calm manner which is what I'll be doing in coming weeks and making recommendations to my Cabinet colleagues.
I'm also today announcing significant reforms to Australia's General Skilled Migration program. I'm announcing reforms to the skills test, the points test. For too long, a small number of occupations have been able to dominate the skills test, the points test. I'm announcing today that we are abolishing the use of particular occupations for the purpose of that test. For too long, we've had the situation that a Harvard graduate, in say Environmental Science, with extensive work experience would not qualify for skilled migration to Australia but somebody who nominates a 60-point occupation with a small amount of work experience would. These are significant reforms that I'm announcing today. They continue the work of my predecessor, Senator Evans, in ensuring we have a migration program and particularly, a skilled migration program, which is driven by the needs of Australia's labour market as opposed to the desire of particular people to migrate to Australia.
Happy to take questions.
Journalist: What sort of significant ramifications do you envisage flying from this decision?
Bowen: Well obviously, as I say, Paul, these are issues to be worked through. But it's a significant judgement, it's an important judgement; it's a judgement which has the potential to elongate the amount of time it takes to process refugee claims. That's what I mean by having significant ramifications.
Journalist: How could procedural fairness be missed? I mean, that's a very basic thing, isn't it?
Bowen: Well, of course this Government introduced the Independent Merits Review to introduce more fairness into the system. Over and above an RSA, we then have an Independent Merits Review. The High Court has made findings about two particular cases; I'll be looking closely at those findings and making recommendations to my Cabinet colleagues about an appropriate response.
Journalist: [inaudible]
Bowen: Well, it's the law of the land, it's a High Court Decision; of course I accept it.
Journalist: Does this mean they have to, in practical terms, stay at Christmas Island longer to see if a decision made is going to be subject to judicial review?
Bowen: If an avenue of appeal was taken up, then yes it certainly has the potential implication that people would be in detention for longer as those appeals are worked through.
Journalist: [inaudible]
Bowen: Well, it's too early to say.
Journalist: The court seems to be making it clear that the problem here is holding offshore applicants in detention. If you are willing to release them as all other refugee applicants are released, there would be no problem. Is the Government going to consider releasing offshore applicants from detention?
Bowen: No, and with respect, David, I'm not sure I agree with that analysis but I'm working through the court case of course and taking the advice of senior counsel.
Journalist: Do you expect that, is it likely that you will have to put bills into the Parliament to amend this situation or to sort of rebuild offshore processing in some way? Will it require the passage of new legislation?
Bowen: Paul, I'm not in a position to rule in or out legislative responses. I'll be working through the implications and making recommendations to my Cabinet colleagues. Of course, it's important to note that this is a High Court finding in relation to the legislative framework established by the previous Government but whether that requires a legislative response is something I'm not yet prepared to rule in or out.
Journalist: Will you continue processing claims or will you have to suspend claims until you –
Bowen: No, no, we'll continue processing claims.
Journalist: [inaudible] from the Howard Government and not changing it the whole time that you've been in power?
Bowen: I don't think that's a necessary characterisation. It's been a regime that's been in place under governments of both persuasions and now I will examine whether any further changes are necessary.
Journalist: Is the court saying anything more than 'onshore and offshore applicants for refugee protection have to be processed equally fairly, full stop'?
Bowen: Well, clearly the High Court has said that offshore applicants should have the capacity for judicial review in some circumstances. That brings offshore applicants closer to the situation for onshore applicants, that's correct.
Journalist: Do the courts have the resources to administer this if all of these cases can be subject to judicial review?
Bowen: Well, of course that's a matter primarily for the Attorney-General and I'll be working closely with him on our response, of course. It cannot be assumed that every single refugee case will go to appeal. The High Court, in my understanding, based on preliminary advice, has said that judicial appeal should be available in some circumstances.
Journalist: Can you tell me roughly how many failed asylum seekers you have in the system now and how many of those you think may have access to –
Bowen: Well, in terms of people who have failed at both stages of the process, that is refugee assessment and Independent Merits Review, that's about 145. Of course, there are more people at various stages in that process who may have had a negative first assessment and are currently going through the Independent Merits Review.
Journalist: Does the decision make the whole idea of offshore processing pointless?
Bowen: No. Of course, one of the things I've sought advice on is implications for both regional processing and offshore processing. The preliminary advice to me is it does not have significant implications for regional processing, but of course I'll be seeking further advice.
Journalist: Sorry, just on that point. When you say it doesn't have significant implications for regional processing, do you mean that if you were to set up East Timor as planned, that this High Court judgement wouldn't apply in any way?
Bowen: Well, of course, they're issues that I'm working through but the preliminary advice to me is that the concept of a regional processing centre, a regional processing and protection framework, is not one that's challenged by this judgement. But they are issues I'll be working through with the Solicitor-General and with the Department of Immigration.
Journalist: Have you considered going back to Nauru then on that basis, if East Timor blows out?
Bowen: Well, Nauru has a whole range of challenges, as you well know, Paul, as one of the few people who have actually been to Nauru and seen what state the so-called 'ready' detention centre at Nauru is in, which is one of Mr Morrison's fantasies. It is in many senses a fantasy island. There are a whole range of practical and logistical problems with the detention centre at Nauru, apart from the fact Nauru does not have a functioning Government, apart from the fact that Nauru is not a signatory to the Refugee Convention which would inhibit any positive consideration of a detention facility at Nauru.
Journalist: [inaudible] the two Sri Lankans, where are they now?
Bowen: They are in detention, I understand, and my recollection is at Villawood.
Journalist: [inaudible] asylum seekers are to have access to Australian courts, will the Government facilitate that access?
Bowen: Well, again, that is something I would need to be working through. We do have a set of arrangements in place currently for asylum seekers to have access to legal assistance for their initial claim and for the Independent Merits Review. It would follow, of course, that consideration would need to be given as to the implications as to judicial review.
Journalist: What about deportations? I mean, does this have any implications in terms of deporting failed asylum seekers?
Bowen: Well, as I say, Paul, it does have the potential to elongate the period of time it takes to process. Of course, there are a number of people who we have not deported while we have been awaiting the result of this court case. There are a number of people who have had their claims for asylum rejected at both levels of the process: the initial process and then on Independent Merits Review, and they have not been deported while we were awaiting the result of this court case. What we now need to do is to assess whether any of those people would have appeal rights under this High Court decision and to move to deport them where that is appropriate. And I would certainly, if it's appropriate, if the advice to me is that that's appropriate, I would be moving to do that expeditiously. But of course, we do need to consider the implications of this case, not only for that group of people, but for asylum seekers more generally.
Journalist: There's 145 of them, is that correct?
Bowen: 145 people who have failed both the refugee assessment and the Independent Merits Review.
Journalist: And how many people in the line up at the moment who are waiting for assessment approximately?
Bowen: Well, as you would know –
Journalist: Offshore.
Bowen: Well, across the system and under the offshore system there are a significant number of people who are at the RSA stage and then there's another cohort of people who have failed at the RSA stage and have begun or are in the process of beginning the Independent Merits Review. I can get you the exact numbers in terms of the breakdown between those two groups.
Journalist: Can we get those, because we've asked a couple of times and the department's never given them out.
Bowen: Well, I'm happy to undertake to get you the best answer that we can provide.
Journalist: Minister, the case of Mr Watson, the American national who has just been released from Brisbane –
Bowen: Yes.
Journalist: What's his status?
Bowen: Well, he's currently on his way to the immigration detention centre at Maribyrnong. He does not have a valid visa to be in Australia, therefore he will be in immigration detention. We're in discussions with the United States Government. As you would understand, Australia does not deport people if there is a risk that they will be subject to capital punishment. Now, the Alabama State Administration has given an undertaking to the Queensland Government that capital punishment would not be sought. As a national Government, we need to receive a similar undertaking from the Government of the United States, which we're in the process of seeking from them. Once we have that, then I would take steps to deport him expeditiously to the United States.
Journalist: Would you support his release from detention while that process is happening?
Bowen: He is entitled to make an application to me. The situation is that he is in detention, immigration detention. I envisage that continuing but he is entitled to make application to me which I would then be duty bound to consider.
Journalist: Just on another question, has Andrew Metcalfe been up to East Timor yet? Do we have any more detail on how this offshore processing or this regional solution might work?
Bowen: Mr Metcalfe and Ambassador Larsen are scheduled to visit East Timor in coming weeks, as I announced previously, to further discussions with the Timor-Leste Government.
Journalist: So no more detail?
Bowen: Well, of course we have been working out the proposal for that visit, and when that visit occurs he will be in a position to discuss in further detail the proposal with the Timor-Leste Government at a very high level.
Journalist: Which professions were associated with the inconsistencies?
Bowen: Well, I wouldn't want to target any particular profession, other than to say that it is appropriate that anybody who is highly skilled and who feels that they have a contribution to make to the Australian economy should be able to make that application and not feel inhibited because their particular profession – and it may be a highly skilled and highly sought after profession – is not any arbitrary list.
And what I'm concerned about is that somebody could nominate a particular profession and not have what would be regarded as a high level of qualifications or skills, and just because they've nominated that particular profession or trade be able to have that virtually assure their claim for skilled migration into Australia.
It's possible under the old system to get more than 50 per cent of your points necessary to migrate to Australia just by nominating one of those trades or professions, and I don't think that's a sustainable platform going forward.
Journalist: On Gabe Watson, can you tell us about the document that the Immigration Department officials tried to get him to sign?
Bowen: Mr Watson, my understanding is he had indicated to the department that he was interested in returning voluntarily to the United States. The department did the right thing and provided him with a document to put that in writing, and made sure as part of that process that he was aware of any risk that might go with capital punishment. So they asked him to assure the department that he was fully aware of the risks; that is appropriate. In fact, if the department hadn't done that, you'd rightly be asking me why.
Okay, better go and make the speech. Thanks very much.
See: Index of Speeches and transcripts
URL: http://www.minister.immi.gov.au/media/cb/2010/cb155824.htm
Last update: Wednesday, 15 December 2010 at 10:20 AEST