Complementary protection: open and accountable or 'opening the floodgates'

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Complementary protection: open and accountable or 'opening the floodgates'

Posted 11/07/2013 by Michael Klapdor

Media reports have suggested that the decision by the Full Federal Court in the case of SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 has ‘exposed an embarrassing loophole’ in current migration law that could ‘leave the door open to thousands of asylum seekers who have already been rejected as refugees’. While the decision is significant in that it allows for a further protection visa claim to be made by an individual who has previously had a claim rejected, the characterisation of the decision as potentially ‘opening the floodgates’ is dubious. At issue is not whether there are loopholes allowing for questionable claims for protection to be made, but the processes Australia engages to fulfil its protection obligations arising under international law.

The Federal Court decision relates to recent changes to the Migration Act 1958 which introduced a statutory regime for assessing claims that might engage Australia’s non-refoulement (non-return) obligations under various international human rights treaties such as the Convention Against Torture and the International Covenant on Civil and Political Rights. These obligations are referred to as ‘complementary protection’ in that they are in addition or complementary to the protection obligations for refugees that arise under the 1951 Refugee Convention as amended by the 1967 Protocol. Under these other treaties, Australia can have an obligation to not return people to their country of origin if they would face serious violations of their human rights on return, even if they fail to meet the Refugee Convention’s definition of ‘refugee’.

Prior to 2012, there was no mechanism within the Migration Act enabling the Department of Immigration and Citizenship (DIAC) to assess, at first instance, claims that might engage Australia’s non-refoulement obligations under treaties other than the Refugee Convention. Claims for complementary protection could only be decided by the Minister personally after an applicant had exhausted all avenues for being granted a protection visa as a refugee. The Migration Amendment (Complementary Protection) Act 2011 established a process by which protection visa applicants would first have their claims considered against the Refugee Convention criteria and then, if not found to be refugees, against new complementary protection criteria. Applicants unsuccessful against the complementary protection criteria have equivalent administrative review rights as those seeking protection under the Refugee Convention. The former Minister for Immigration and Citizenship, Chris Bowen, set out the kind of circumstances that could engage Australia’s non-refoulement obligations and see a protection visa issued:
Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:
- the arbitrary deprivation of life
- having the death penalty carried out
- being subjected to torture
- being subjected to cruel or inhuman treatment or punishment; or
- being subjected to degrading treatment of punishment.
Irregular maritime arrivals are unable to lodge a protection visa application unless permitted to do so by the Minister. If they have not being granted permission to lodge a claim, these asylum seekers will be subject to the regional processing system.

The SZGIZ case referred to in the media concerned a Bangladeshi citizen whose March 2005 application for a protection visa was refused. The Refugee Review Tribunal upheld the refusal. Under the Migration Act, the man was prohibited from making a further application for a protection visa unless the Minister permitted such an application ‘in the public interest’ (under section 48B of the Act). The Minister rejected subsequent requests from the man to be permitted to make another application or to use the Minister's discretionary powers under section 417 of the Migration Act to make a more favourable decision. In October 2012, lawyers acting on behalf of the Bangladeshi man made a new protection visa application on the basis of the new complementary protection grounds introduced by the amending Act described above. DIAC considered this application invalid, because section 48A of the Migration Act prohibits a second application for a protection visa in the absence of Ministerial intervention under section 48B. The lawyers sought a review in the Federal Magistrates Court were unsuccessful. They then appealed to the Full Federal Court.

The Federal Court ordered that the Minister must consider the second application for a protection visa according to the law. The Court found that section 48A of the Act did not prohibit the man’s second application for a protection visa as it was made on the basis of a different criterion from that made in 2005. Under the Court’s construction of the relevant legislation, the application on the grounds of complementary protection obligations was not a ‘further application’ to that made on the grounds of the Refugee Convention’s protection obligations. Therefore, it was not prohibited under section 48A. The Minister put forward a different construction of the legislation and may appeal the decision.

Media reports on the decision seem mistaken in saying that the Court had ‘handed back a protection visa’ to the man. The Court ordered only that the man’s most recent application for such a visa be considered under the processes set out in the Migration Act. While the decision has been described as exposing a ‘loophole’ in the legislation, its main implication is allowing some asylum seekers to access the same processes as those introduced for more recent applicants by the 2012 amendments to the Migration Act.

As noted in the Bills Digest for the amendments, the introduction of a formal system of complementary protection in Australia was a change in the manner in which Australia adhered to its existing non-refoulement obligations rather than an expansion of its international obligations. The new system certainly has costs in terms of the resources required to assess protection claims and review decisions but it has not necessarily opened the door to a flood of dubious claims. What it has done is brought a previously discretionary, hidden and unchecked system of assessing complementary protection into the open with the aim of making it more efficient and accountable.

For further information on complementary protection see:

Elibritt Karlsen, Migration Amendment (Complementary Protection) Bill 2011, Bills digest, 79, 2010–11, Parliamentary Library, Canberra, 2011.

Elibritt Karlsen, Complementary protection for asylum seekers: overview of the international and Australian legal frameworks, Research paper, 7, 2009–10, Parliamentary Library, Canberra, 2009.

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