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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (STREAMLINING VISA PROCESSING) BILL 2019
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration, Citizenship,
Migrant Services and Multicultural Affairs, the Hon. David Coleman MP)
Migration Amendment (Streamlining Visa Processing) Bill 2019
OUTLINE
The Migration Amendment (Streamlining Visa Processing) Bill 2019 (the Bill)
amends the Migration Act 1958 (the Act) to enable the Minister to specify
groups of visa applicants who are required to provide one or more personal
identifiers to make a valid application.
A biometric (termed 'personal identifier' in the Act), is a unique
identifier that is based on individual physical characteristics, such as a
facial image or a set of fingerprints, which can be digitised into a
biometric template for automated storage and checking. Once 'anchored' to a
person's biographic information, such as name, nationality and date of
birth, a biometric adds significantly to verifying that a person is who
they claim to be, and to linking an individual to security, law
enforcement, and immigration information.
The Department's biometric program has been progressively introduced over
time. It commenced in 2006 with collecting facial images and fingerprints
of illegal foreign fishers, and was extended in 2010, when the Department
commenced collecting facial images and fingerprints from offshore visa
applicants in specified higher risk locations and onshore protection
claimants.
It was further progressed in 2012, when the Department commenced collecting
facial images and fingerprints from non-citizens refused entry at
Australia's international airports.
In 2015, the Migration Amendment (Strengthening Biometrics) Act 2015
simplified the provisions relating to the collection of personal
identifiers and expanded the Department's personal identifier collection
capabilities. The 2015 Act introduced section 257A as a broad discretionary
power to collect one or more personal identifiers, intending that it be
used in targeted circumstances.
The current legislative framework now needs to be further updated to
provide Departmental officers with the tools to more effectively meet
current threats and to keep pace with advances in biometric technology.
Checks of personal identifiers against existing immigration data holdings,
and the data holdings of Australian law enforcement agencies and Five
Country Conference partner countries, have revealed undisclosed adverse
immigration and criminal history information of non-citizens, and
discrepancies in the biographic information provided by non-citizens.
These amendments will allow the Government to take advantage of these
information holdings and overcome practical difficulties in requesting and
obtaining personal identifiers from non-citizens, by requiring personal
identifiers to be provided up front in the visa application process.
Personal identifiers are more accurate than document-based checks of
biographic details, such as name, date of birth and nationality. Obtaining
personal identifiers up front in the application process promotes early
detection and assessment of critical information.
Specifically, the amendments to the Act:
. enable the Minister to specify groups of applicants who are required
to provide one or more personal identifiers to have a valid visa
application;
. render a visa application invalid if the applicant is required to
provide one or more personal identifiers but does not provide them;
and
. enable personal identifiers to be provided either by way of an
identification test, or by another way specified by the Minister.
FINANCIAL IMPACT STATEMENT
These amendments will have a low financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in
relation to the amendments in this Bill and assesses that the amendments
are compatible with Australia's human rights obligations. A copy of the
Statement of Compatibility with Human Rights is at Attachment A.
Migration Amendment (Streamlining Visa Processing) Bill 2019
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short Title
The short title by which the Act may be cited is the Migration Amendment
(Streamlining Visa Processing) Bill 2019.
Clause 2 Commencement
Clause 2 of the Bill sets out the times at which the various provisions of
the Act commence.
Subclause 2(1) provides that each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in
accordance with column 2 of the table. Any other statement in column 2 has
effect according to its terms.
Table item 1 provides that sections 1 to 3 of the Act and anything in the
Act not elsewhere covered by the table will commence on the day on which
this Act receives the Royal Assent.
Table item 2 provides that Schedule 1 will commence on a single day to be
fixed by Proclamation. However, if the provisions do not commence within
the period of 6 months beginning on the day this Act receives the Royal
Assent, they commence on the day after the end of that period.
The note in subclause 2(1) makes it clear that the table relates only to
the provisions of the Act as originally enacted. The table will not be
amended to deal with any later amendments to this Act.
Subclause 2(2) provides that any information in column 3 of the table is
not part of this Act. Information may be inserted in this column, or
information in it may be edited, in any published version of the Act.
There is currently no information in column 3 of the table.
Clause 3 Schedules
Clause 3 of the Bill provides that legislation that is specified in a
Schedule to this Act is amended or repealed as set out in the applicable
items in the Schedule concerned, and any other item in a Schedule to this
Act has effect according to its terms.
The purpose of this clause is to clarify that Schedule 1 to the Bill sets
out the amendments to the Act, and that the particular provisions mentioned
in that Schedule are amended in accordance with the particular items in
that Schedule.
Schedule 1 - Amendments
Migration Act 1958
Item 1 Subsection 46(2A)
This item repeals current subsection 46(2A) and replaces it with new
subsections 46(2A), (2B), (2C) and (2D).
The purpose of new subsection 46(2A) is to establish that, if an
application for a visa is made by a person who is included in a specified
class of visa applicants, the applicant must provide the one or more
specified personal identifiers in a specified way, for their application to
be valid. All of the above specifications are to be included in the
legislative instrument made under new subsection 46(2B).
If an applicant cannot, or refuses to, comply with this requirement, their
application will be invalid and cannot be considered further, in accordance
with subsection 47(3) of the Act.
The note at the end of the provision makes it clear that sections 258B to
258G of the Act, which relate to the provision of personal identifiers,
apply to the requirement introduced by this item.
New subsection 46(2B) provides the Minister with the ability to make a
legislative instrument, to determine that visa applicants in a specified
class must provide one or more specified types of personal identifiers in
one or more specified ways.
This instrument-making power will be used to determine to whom the
requirement to provide the one or more personal identifiers applies, what
must be provided, and in what way. When linked with new subsection (2A),
this requirement to provide personal identifiers becomes a visa application
validity requirement.
The intention is that the way in which groups of applicants will be
specified is highly flexible, whether it be by specified circumstances of
the applicants, such as country of residence, or the class of visa being
applied for, or a combination of different factors such as these.
The different types of 'personal identifiers' that can be required are
consistent with the current use of the term 'personal identifier'
throughout the Act. There is not an intention to amend, in any way, the
definition or understanding of 'personal identifier'.
By virtue of its location in Part 2 of the Act, and in accordance with Item
20 of the table in section 10 of the Legislation (Exemptions and Other
Matters) Regulation 2015, any instrument made under new subsection 46(2B)
will be non-disallowable. Current section 46A of the Act, and surrounding
provisions, are located in Subdivision AA of Division 3 of Part 2 of the
Act, which deals with 'applications for visas'. As this new provision
relating to a requirement to provide personal identifiers relates to how a
person is to make a visa application, and more broadly to the 'arrival,
presence and departure of persons', it is appropriately located in Part 2
of the Act.
New subsection 46(2C) outlines what a legislative instrument under new
subsection 46(2B) may specify in relation to the class of applicants, the
different types of personal identifiers and the way in which the personal
identifiers are to be provided.
The broad nature of new paragraph 46(2C)(a) reflects the policy intention
that personal identifiers can be required from a group of applicants,
however defined, in any specified circumstances. Although the words of
paragraph 46(2C)(a) deal with 'classes', it is not intended to limit
subsection 33(3A) of the Acts Interpretation Act 1901 (the note at the end
of new subsection 46(2C) refers).
The flexibility about what classes of applicants, however described or
categorised, can be required to provide a personal identifier will enable
the Department to collect personal identifiers from specific cohorts in
response to emergent risks based on specified circumstances, recent events,
and detected or realised threats. This model will more fully enable the
Department to contribute to the national security effort in securing
Australia's border and protecting the Australian community.
New paragraph 46(2C)(b) allows the legislative instrument to require
different types of personal identifiers from different classes of visa
applicants. This flexibility will allow the instrument to, for example,
specify a class of applicants, in a certain set of circumstances (applying
from a particular country), who are required to provide one or more
personal identifiers (a photograph and fingerprints), and another class of
applicants, who may be applicants for the same visa as above, who have a
different set of circumstances (applying from a different country to above)
who are required to provide a different type of one or more personal
identifiers (just fingerprints).
New paragraph 46(2C)(b) provides that any type or types of personal
identifier listed in subsection 5A(1) of the Act, or prescribed in the
Migration Regulations under paragraph 5A(1)(g), can be required from a
person. The Department's policy intention is, that there should not be any
limitations on the type of personal identifier, as defined in subsection
5A(1), which can be specified for a class of persons by the instrument.
This ability to require different types of personal identifiers from
different classes of applicants, within a legislative instrument, will
greatly assist in identifying particular cohorts and personal identifiers
for integrity, efficiency and national security reasons.
New paragraph s46(2C)(c) provides that a legislative instrument made under
new subsection 46(2B) may specify how the one or more personal identifiers
are to be provided.
These ways of providing a personal identifier are consistent with the
terms of current subsection 257A(5) of the Act. Furthermore, current
sections 258B to 258G of the Act are being amended as part of this Bill to
ensure they apply to how personal identifiers are provided under new
subsection 46(2A). As such, when an authorised officer or an authorised
system carries out an identification test, the relevant provisions around
how those tests are carried out will continue to apply.
New subparagraph 46(2C)(c)(ii) replicates the ability (contained in
current paragraph 257A(5)(b) of the Act) to require that a personal
identifier be provided by another way that is specified in the legislative
instrument. This will provide the Minister the ability to require a person
to provide personal identifiers in a way that is not an identification test
carried out by an authorised officer or authorised system. The instrument
will specify the 'other way' the personal identifiers are to be provided.
There are circumstances where it is not practical or efficient for personal
identifiers to be provided by way of an identification test carried out by
an authorised officer or an authorised system. This reflects various
provisions currently in the Act that allow for personal identifiers to be
provided in a way other than by an identification test.
New subsection 46(2D) provides that, in circumstances where a visa
applicant is in immigration detention, other than questioning detention,
and has provided one or more personal identifiers under Division 13AA of
Part 2 of the Act while in detention, they are taken to have complied with
the requirement under new subsection (2A).
The intention of this provision is to set out when immigration detainees
are not required to provide personal identifiers, consistent with existing
section 258A of the Act.
Item 2 Subsection 258B(1)
This item amends current subsection s258B(1) so that, before an authorised
officer carries out an identification test on a person for the purpose of
section 257A, or new subsection 46(2B), the authorised officer must inform
the person of any matters prescribed in the Migration Regulations 1994.
This is a consequential amendment to ensure that the provisions which apply
to information to be provided before an identification test is carried out
for the purpose of section 257A of the Act also apply to identification
testing for the purpose of new subsection 46(2B).
Item 3 Subsection 258D(1)
This is a consequential amendment to ensure that any regulations which
prescribe the manner in which identification tests are to be carried out on
a person under current section 257A of the Act also apply to testing under
new subsection 46(2B).
Item 4 Subsection 258D(2)
This is a consequential amendment to ensure that any regulations which
prescribe the procedure and requirements that apply if a personal
identifier is provided under current section 257A of the Act, other than by
way of an identification test, also apply to new subsection 46(2B).
Item 5 Section 258E
This is a consequential amendment to ensure that the provisions relating to
the general rules for carrying out identification tests under section 257A
of the Act also apply to testing carried out for the purposes of new
subsection 46(2B).
Item 6 Section 258F
This is a consequential amendment to ensure that the provisions in current
section 258F of the Act relating to the requirement to provide, or the
provision in a particular way of, a personal identifier also apply to new
subsection 46(2B). Section 258F makes it clear that such provisions are not
of themselves taken to be either cruel, inhumane or degrading, or a failure
to treat a person with humanity and with respect for human dignity.
Item 7 Section 258F
This is a consequential amendment to ensure that the provisions in current
section 258F of the Act stipulating that nothing in the Act authorising a
requirement to be made for the purposes of current section 257A also apply
to new subsection 46(2B). Section 258F makes it clear that nothing in the
Act authorises a requirement to be made to provide a personal identifier in
a cruel, inhumane or degrading way, or in a way that fails to treat a
person with humanity and with respect for human dignity.
Item 8 Application of amendments
This item provides that the amendments made by this Schedule apply in
relation to an application for a visa made on or after the commencement of
the Schedule; that is, the amendments are prospective and have no impact on
valid visa applications made prior to the commencement of these provisions.
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
Migration Amendment (Streamlining Visa Processing) Bill 2019
This Bill is 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
Through amendments to the Migration Act 1958 (the Act) this Bill enables
the collection of personal identifiers (as defined in subsection 5A(1) of
the Act) to be a prerequisite to making a valid visa application. If an
applicant refuses to provide their personal identifiers then they cannot
make a valid visa application and it cannot be considered, in accordance
with subsection 47(3) of the Act.
These amendments provide a mechanism for the Minister to specify who must
provide personal identifiers (the class of persons), what personal
identifiers they must provide and by what identification test or other
specified way the personal identifiers must be provided.
As discussed below, these amendments fully retain existing protections
associated with the collection of personal identifiers in the Act, in
particular those relating to privacy and the manner in which personal
identifiers are collected. Nor do these changes expand who may be required
to provide personal identifiers or what personal identifiers may be
requested. This is because under existing section 257A of the Act, the
Minister (or his delegate) has the power to request personal identifiers
from all visa applicants after they have made a valid visa application.
These amendments provide a mechanism for the Minister to specify a group of
visa applicants who must provide one or more specified personal identifiers
in order to make a valid visa application.
The amendments to the Act are not designed to require all visa applicants
to provide personal identifiers in order to make a valid visa application.
Of the group that do need to provide personal identifiers this may not
necessarily be at the application validity stage. It may continue to
operate after visa application lodgement under section 257A of the Act.
Only the class of applicants specified by instrument will be required to
provide specified personal identifiers at the application validity stage.
At this point in time, it is envisaged that the provision of personal
identifiers in order to make a valid application will be required in
relation to some applicants from 2021. This will enable the Department of
Home Affairs to provide a more efficient and convenient visa application
and assessment process. By requiring personal identifiers in order to
lodge a valid application, the Department of Home Affairs removes the need
for additional contact and process after application lodgement.
It is essential that the Department know the true identity of a visa
applicant by anchoring the applicant's biometrics to a single confirmed
identity. The collection of personal identifiers better protects the
Australian community from imposters and people using fraudulent documents
to conduct criminal or terrorist activities. Hence, the collection of
personal identifiers from people seeking to make a valid visa application
strengthens Australia's border security and improves national security. It
also helps to protect visa applicants from identity fraud.
International law does not provide a person with the right to enter a
country of which they are not a national. The collection of personal
identifiers, as a pre-requisite to making a visa application, is essential
to establishing the identity of non-citizens, as checks using personal
identifiers are far more accurate than document based checks of biographic
details such as name and date of birth alone.
Human rights implications
Prospective applicants to which the amendments in the Bill will apply are
able to apply for a visa either overseas or within Australia. Generally,
Australia owes human rights obligations only to those persons within its
territory and/or jurisdiction. As such, the following analysis of the
human rights implications of the amendments relate only to applicants
applying for the relevant visas whilst in Australia.
The following human rights are engaged:
The right to freedom from unlawful or arbitrary interferences with privacy
Article 17 of the International Covenant on Civil and Political Rights
(ICCPR) provides that:
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.
2. Everyone has the right to the protection of the law against such
interference or attacks.
The UN Human Rights Committee has recognised the measures regulating
migration are in accordance with the aims and objectives of the ICCPR,
stating that 'The Covenant does not recognise the right of aliens to enter
or reside in the territory of a State party. It is in principle a matter
for the State to decide who it will admit to its territory [...] Consent
for entry may be given subject to conditions relating, for example, to
movement, residence and employment' (CCPR General Comment 15, 11 April
1986). The Committee goes on to say, however, that 'in certain
circumstances an alien may enjoy the protection of the Covenant even in
relation to entry or residence, for example, when considerations of non-
discrimination, prohibition of inhuman treatment and respect for family
life arise.'
Pursuant to Article 17(1) of the ICCPR, an interference with an
individual's privacy must have a lawful basis. The collection of personal
identifiers is already lawful at domestic law under the Act. As discussed
above, the Bill simply makes the provision of personal identifiers
mandatory for specified applicants in order to make a valid visa
application, without the need for the Minister to request this of each
applicant.
Existing safeguards applied to the Department's collection of personal
identifiers will continue to apply, namely the Australian Privacy
Principles contained in the Commonwealth Privacy Act 1988 and the
requirements in Part 4A of the Act which provides for a range of rules and
offences relating to the access, disclosure and use of identifying
information. This is consistent with the UN Human Rights Committee General
Comment 16. The Committee states that the gathering and holding of
personal information using information technology must be regulated by law
and that effective measures must be taken to ensure that the information
collected is not accessed by persons who are not authorised by law to
receive, process or use it. Additionally, the safeguards in section 258E
of the Act which requires that an identification test (the test used to
obtain a personal identifier - section 5 of the Act) be carried out in a
manner which affords reasonable privacy to a person, will continue to apply
for the provision of personal identifiers for the purposes of subsection
46(2B).
In addition to requiring a lawful basis for limiting the right to privacy,
Article 17 prohibits arbitrary interference with privacy. Interference
which is lawful may nonetheless be arbitrary where that interference is not
in accordance with the objectives of the ICCPR and is not reasonable in the
circumstances. The UN Human Rights Committee has interpreted the
requirement of reasonableness in terms that any interference with privacy
must be proportional to the end sought and be necessary in the
circumstances.
The restriction on the privacy of persons whose information is collected is
aimed at the legitimate goal of ensuring the integrity of Australia's visa
system and the protection of the Australian community, including by
detecting those visa applicants who are persons of concern. This measure
enables the department to identify visa applicants as soon as practicable,
who are attempting to represent themselves as a particular person, but who
are someone else.
In light of the UN Human Rights Committee's views outlined above, the
requirement to provide personal identifiers in order to make a valid visa
application, is clearly aimed at a legitimate purpose within the framework
of the ICCPR.
Whether the measure is reasonable or proportional to the purpose to be
achieved requires an assessment of the need to mitigate particular risks.
Recent border and terrorism-related events worldwide illustrate the need
for measures to strengthen community protection. In the immigration
context this means greater scrutiny of visa applicants and critically,
being certain that the identity presented by a visa applicant is their true
identity.
The collection of personal identifiers enables the Department to establish,
with greater certainty, the identity of a visa applicant. Once this is
done, the Department can then utilise the personal identifiers to initiate
law enforcement checks to ascertain if the visa applicant has a criminal
history, the extent of that history (if applicable), and whether the visa
applicant poses a criminal risk to the Australian community. Similarly,
security checks enable identification of those applicants who pose a risk
to national security such as from terrorist activities.
The risk these amendments seek to address in the current heightened
security environment, is from people seeking to apply for and be granted a
visa to Australia to engage in terrorism or undertake criminal conduct.
The ability to undertake more accurate checks based on the collected
personal identifiers earlier in the assessment of a visa application will
allow the Department to more efficiently manage and mitigate the risks.
The collection of personal identifiers and associated checks utilising
these, provides necessary integrity in the management of Australia's visa
program. It also provides a basis for the Australian community to have
confidence in the integrity of our immigration system.
The right to privacy is not absolute and the ability to collect and use
personal identifiers such as a photograph of a person's face, is necessary,
reasonable and proportionate to achieve the legitimate objective of
accurately identifying a visa applicant thereby maintaining the integrity
of Australia's visa system and protecting the Australian community. This
measure is therefore compatible with Article 17 of the ICCPR.
The right to equality and non-discrimination
Article 2 of the ICCPR provides that a party to the Covenant undertakes:
'to respect and to ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social
origin, property, birth or other status.'
To the extent that these amendments single out non-citizens rather than
citizens this is permissible in that immigration controls remain within the
remit of sovereign states. The UN Human Rights Committee stated in General
Comment 18 that:
'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.'
Section 4 of the Act provides, 'The object of the Act is to regulate, in
the national interest, the coming into, and presence in, Australia of non-
citizens' In that sense the purpose of the Act is to differentiate on the
basis of nationality between non-citizens and citizens. As noted above, the
UN Human Rights Committee has recognised in the ICCPR context that 'It is
in principle a matter for the State to decide who it will admit to its
territory' (CCPR General Comment 15, 11 April 1986).
To advance its object, subsection 4(3) of the Act provides for non-citizens
and citizens to be required to provide personal identifiers for the
purposes of this Act or the regulations. The authority to collect personal
identifiers in order to lodge a valid visa application means that the
Minister is able to establish or verify a person's identity as quickly as
possible after lodgement of a visa application.
The determination of which class of visa applicants must provide personal
identifiers in order to make a valid application does target certain non-
citizens. This determination is based on factors including: Australia's
national security and fraud risks in visa caseloads (informed by objective
information such as the Department's collection and analysis of statistics
and intelligence information) and practical considerations such as the
availability of personal identifier collection facilities. At this point
in time, the Department does not have personal identifier collection
facilities in every country of the world, hence the need to target certain
groups based on the objective assessment of national security and fraud
risks. The collection of personal identifiers is necessary to achieve the
legitimate goal of protecting the Australian community through a well-
managed visa program.
The right to physical integrity and freedom from cruel, inhuman or
degrading treatment
Article 7 of the ICCPR provides that:
'No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.'
Article 9 of the ICCPR provides that:
'everyone has the right to liberty and security of person.'
Under a new power in subsection 46(2B), if an applicant is required to
provide one or more specified personal identifiers, those personal
identifiers must be provided in one or more specified ways. Further
paragraph 46(2C)(c) provides that the way in which a personal identifier
must be provided through either or both of an identification test (carried
out by an authorised officer or an authorised system), or in another
specified way. The procedures for carrying out an identification test are
established in sections 258B to 258G, and these sections will apply to
people required to provide personal identifiers under new subsection
46(2B). In particular, sections 258E and 258F are designed to be
compatible with Articles 7 and 9 of the ICCPR. Section 258E provides the
rules for carrying out an identification test, including circumstances that
afford reasonable privacy to a person. Further, section 258F provides that
the carrying out of an identification test must not be done in a cruel,
inhuman or degrading manner, or in a manner that fails to treat a person
with humanity and respect for human dignity.
Under subsection 46(2B) there is no power to compel the provision of
personal identifiers. If a person decides not to provide a personal
identifier/s it will not result in the use of any force. Rather it is the
individual's choice.
Where the Department of Home Affairs or its contracted agencies, known as
service delivery partners (SDPs) collects fingerprints, it primarily uses
scanning technology, which involves placing fingers and/or thumbs on a
scanning/capture device. That is, an image is captured of a person's
fingerprints as they place their fingers on the flat surface of a scanning
device. This technology is non-invasive, and requires no physical contact
with a departmental officer or authorised person. There is no physical
contact involved other than the placing of fingers/thumbs on a flat scanner
surface. The collection process takes minutes only.
The Department of Home Affairs has engaged SDPs to collect biometrics on
its behalf since 2010. The long standing arrangements with SDPs are
contract-based, and SDPs must meet high integrity standards for the
management of the personal information of clients set by the Department of
Home Affairs under contract.
Rights of the Child
Collecting personal identifiers, such as a photograph and fingerprints in
some cases where the secondary applicant is a child, in order to make a
valid application, will act as a disincentive for people seeking to traffic
children into Australia. Fingerprints provide a unique capability to
accurately identify individuals that is not possible using a facial image,
particularly if the person is a minor. Unlike a facial image, which is
subject to considerable change as a person ages into adulthood,
fingerprints are relatively stable throughout a person's lifetime. As the
utility of collecting personal identifiers rests on a foundation of
accurate identification, fingerprints are a superior identity assurance
measure than a facial image.
Effectively establishing identity immediately following lodgement of a visa
application provides an important mechanism to establish a single
biometrics based identity of a visa applicant, including children. It also
enables earlier identification of children who may be at risk of
trafficking and smuggling. Requiring personal identifiers in order to
provide a valid application by certain children may also act as a
disincentive to people seeking a visa to move a child into Australia
without the consent, or the knowledge of one or more parents, such as to
avoid court rulings in a foreign country relating to child custody matters.
In this circumstance it is firmly in the child's best interest that
personal identifiers be provided.
Article 3(1) of the CRC requires that the best interests of the child are
treated as a primary consideration in all actions concerning children.
While the best interests of the child are a primary consideration, they are
not the primary consideration, and may be outweighed by other
countervailing considerations including the protection of the Australian
community from children who are persons of concern, (such as if they have
been radicalised overseas) immediately following visa application
lodgement.
Article 16 of the CRC is drafted in similar terms to Article 17 of the
ICCPR and prohibits the arbitrary or unlawful interference with the privacy
of the child. The considerations are similar to those outlined in the
general privacy discussion above.
The policy intention is that the instrument specifying who has to provide
personal identifiers in order to make a valid visa for a General Skilled
Migration visa application would require children aged 0 to 4 years to
provide a photograph (where they are a dependent on their parents' main
application for a General Skilled Migration visa), and children aged at
least 5 years to provide a photograph, and fingerprints (also where they
are a dependent on their parents' application) if they were resident in a
specified country where personal identifier collection was available. The
instrument enables the
Department to respond to emerging risks. Collecting fingerprints from
minors aged over five years would assist to identify minors known to
international partners. This policy is entirely consistent with existing
powers to collect personal identifiers under existing section 257A after a
visa application has been made.
The intent is that the collection of personal identifiers from children be
undertaken, when their parents or legal guardian provide their personal
identifiers for collection. In relation to an application for a General
Skilled Migration visa it is not possible for a child to be the primary
applicant and need to provide personal identifiers to make an application
without their parent or legal guardian.
The Government's view is that these legislative measures combined with the
stated policy intent are proportionate to the objectives of protecting the
security of the Australian community, preventing terrorism, preventing the
trafficking of children and maintaining the integrity of the visa system.
The Government's view is that these measures are necessary because personal
identifiers (biometric information) allows a higher level of certainty in
establishing the identity of children than is possible with documents
alone.
Rights of Incapable Persons - Convention on the Rights of Persons with
Disabilities
Australia is a party to the Convention on the Rights of Persons with
Disabilities (the Disabilities Convention). The Disabilities Convention
provides for the same rights as those outlined above, including Article 22,
which provides for an individual's privacy in similar terms to the ICCPR;
Article 14, which provides for liberty and security of persons; and Article
15, which provides relevantly for freedom from cruel, inhuman or degrading
treatment.
It is important to note at the outset that the Department understands that
all persons with a disability are not incapable; any person with a
disability unrelated to their capability to understand and consent to the
collection of personal identifiers will be subjected to the main personal
identifier collection provisions (subject to any appropriate adjustments
which may be necessitated by their disability).
The amendments will provide for the collection of personal identifiers from
a class of persons specified in a legislative instrument, including
incapable persons. In practise, these persons will have had an application
made on their behalf by their legal guardian. Their legal guardian will
also need to make arrangements to have the incapable person's personal
identifiers collected. It is not possible for an incapable person to lodge
a visa application themselves and need to provide personal identifiers to
make an application without their legal guardian.
The policy considerations relating to incapable persons are similar to the
concerns relating to children, as outlined above and in accordance with
current practises adhered to under section 257A of the Act where personal
identifiers are requested of a person with a disability during the
processing of a visa application.
Article 18 of the Disabilities Convention provides for the recognition of
the rights of persons with disabilities to liberty of movement. The
Australian Government recognises these rights, but on the explicit
understanding that the Disabilities Convention does not create a right for
a person to enter or remain in a country of which he or she is not a
national, where these requirements are based on legitimate, objective and
reasonable criteria. The personal identifier provisions will not be
discriminatorily applied to incapable persons (or other persons with a
disability); they will be applied on the same basis as to persons without a
disability.
Insofar as the amendments in the Bill limit the above-mentioned human
rights of incapable persons, including minors, the considerations are not
substantially different from those outlined above. The objectives of
ensuring the security of the Australian community, ensuring the protection
of incapable persons from trafficking, and ensuring the integrity of
Australia's visa system are all legitimate within the framework of human
rights law. The new provisions are reasonable and proportionate to the
objective they seek to achieve, and any adjustments or special
considerations to accommodate and ensure the dignity of persons with a
disability will be implemented in policy. As such, the amendments, when
considered, are compatible with the rights of disabled persons as outlined
in the Disabilities Convention and the other human rights instruments.
Conclusion
These amendments enable personal identifiers to be a requirement to make a
valid visa application for specified visa applicants, without the need to
request them of each visa applicant. They do not expand who has to provide
personal identifiers because under existing section 257A of the Act, the
Minister (or his delegate) has the power to request personal identifiers
from all visa applicants.
Establishing identity immediately following visa application through the
provision of personal identifiers at the time of application, supports the
safety of the Australian community, the safety of vulnerable people, and
the integrity of the visa system. These measures are aimed squarely at
furthering these legitimate goals. The Government's view is that the
measures in the Bill are reasonable, necessary and proportionate to achieve
these legitimate objectives. As such, the Government's view is that these
amendments are compatible with human rights.
The Hon. David Coleman MP, Minister for Immigration, Citizenship, Migrant
Services and Multicultural Affairs