Bills Digest no. 70 2009–10
Migration Amendment (Complementary Protection) Bill
2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date
introduced: 9 September
2009
House: House of Representatives
Portfolio: Immigration and
Citizenship
Commencement:
Sections 1 to 3 of
Schedule 1 commence on the day of Royal Assent. Items 1 to 16, 18
and 19, and 21 to 34 of Schedule 1 commence on a day to be fixed by
Proclamation or six months after the day of Royal Assent which ever
is the sooner. Items 17 and 20 commence immediately after the
afore-mentioned provisions commence.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of the Migration
Amendment (Complementary Protection) Bill 2009 (the Bill) is to
amend the Migration Act 1958 (the Migration Act) to
introduce a statutory regime for assessing claims that may engage
Australia s non-refoulement (non-return) obligations under
various international human rights treaties (otherwise known as
complementary protection). The Bill proposes to assess such claims
under a single integrated protection visa application process which
means applicants that are found not to be refugees but owed
protection on complementary protection grounds will be granted
permanent protection visas with the same conditions and
entitlements as refugees.[1] In turn, unsuccessful applicants (that is, applicants
found not to be owed protection) will have the same administrative
and judicial review rights as persons seeking protection under the
1951 Convention relating to the Status of Refugees (read in
conjunction with the 1967 Protocol relating to the Status of
Refugees) (together, the 1951 Refugee Convention).[2]
In the 2009-10 Budget, the Government announced that it would
implement a system of complementary protection for people to whom
Australia has non‑refoulement (non‑return)
obligations under international human rights treaties, other than
the 1951 Convention Relating to the Status of Refugees
.[3]
There is no internationally accepted
definition of complementary protection . The term is not a term of
art defined in any international treaty or domestic
legislation.[4]
However, the term broadly describes protection obligations arising
under international law. Such obligations are in addition or
complementary to, the protection obligations that arise under the
1951 Refugee Convention which provides protection to refugees, as
defined.[5]
The obligation to provide protection to people that do not
satisfy the Convention definition of refugee but are nonetheless in
need of protection on the basis that they face serious violations
of their human rights if returned to their country of origin has
been said to mainly stem from two treaty-based sources of
international law.[6]
Namely Article 3 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT) which expressly
prohibits removal to another State where there are substantial
grounds for believing that a person would be in danger of being
subjected to torture.[7] The second is Articles 6 and 7 of the International
Covenant on Civil and Political Rights (ICCPR) which have been
defined as precluding removal to torture or cruel, inhuman or
degrading treatment or punishment; or to a place where a person may
be arbitrarily deprived of their life.[8]
There is currently no mechanism within the Migration Act that
enables the Department of Immigration and Citizenship to assess, at
first instance, claims that may engage Australia s
non-refoulement obligations under such treaties. Rather,
claims are currently decided by the Minister for Immigration and
Citizenship personally using a non-compellable, non-transparent and
non-reviewable process. This determination process has been
described as being administratively inefficient on the basis that
applicants must apply for a visa for which they are not eligible
and exhaust merits review before their claim can be considered by
the Minister.[9] The
second reading speech also acknowledges that the ministerial
intervention process does not provide sufficient guarantee of
fairness and integrity for decisions .[10]
For further background information on complementary protection,
including the basis for reform, see the Parliamentary Library s
research
paper entitled Complementary Protection for Asylum Seekers
overview of the international and Australian legal frameworks
.[11]
The Senate Standing Committee for the Scrutiny of Bills
considered the Bill and commented on the drafting of
proposed subsection 36(2A) (item
13) which is the provision which lists the five grounds or
matters upon which complementary protection may be granted. The
Committee was of the view that the provision, beginning with the
words the matters are was inelegant and provided little context or
description .[12]
The Minister for Immigration and Citizenship disagreed with the
Committee s comments noting that the meaning of proposed subsection
36(2A) would be quite clear when read in the context with section
36 of the Migration Act. In response to the Committee he
stated:
If the Bill were to pass as proposed, I am of
the view that taking section 36 of the Act in its entirety, the
reader would grasp the context of proposed subsection 36(2A),
despite it beginning with the opening words The proposed matters
are . I note that this language links back to proposed paragraph
36(2)(aa) (to be inserted by item 11 of the Bill) that ends with
because of a matter mentioned in subsection (2A) .[13]
On the issue of whether proposed subsections 36(2B) and
(2C) (item 13) trespass unduly on rights and liberties,
the Committee noted that it is clearly a matter of policy whether
these provisions, which in effect exclude protection, strike the
appropriate balance with protecting the Australian community. The
Committee was of the view that further consideration of these
issues should be left to the Senate as a whole.[14]
The provisions of the Bill were referred to the Senate Legal and
Constitutional Affairs Legislation Committee (Senate Committee) for
inquiry and report by 16 October 2009.[15] Details of the inquiry are at the
inquiry webpage. The Committee was chaired by Senator Crossin
(Australian Labor Party) and the Deputy Chair was Senator Barnett
(Liberal Party).
The Senate Committee received 36 submissions but rather
unusually held no public hearings. The Committee review process was
undertaken in a short period of time the Bill was referred to the
Committee on 9 September 2009 and submissions were to be received
shortly thereafter (28 September 2009). A brief
report was subsequently tabled on 19 October 2009.[16] The Senate Committee
considered the issues in the Bill in 12 pages and noted that the
constrained circumstances of this short inquiry meant they were not
able to investigate some of the issues in any great detail.[17] It subsequently made
only three recommendations relating to the content of the Bill
which are discussed in further detail under the heading main
provisions . Significantly, the Senate Committee ultimately
recommended the Bill be passed, subject to the three
recommendations. In reaching this view, the Senate Committee
concluded that:
The committee is mindful that the community
would expect claims of the type and gravity dealt with in this Bill
to be dealt with through a process that affords natural justice and
access to independent merits review. On the whole, the committee
considers that this Bill achieves that outcome.[18]
Key domestic and international human rights bodies have
recommended that Australia introduce a formal system of
complementary protection. These include (amongst others), the
Refugee Council of Australia, the United Nations High Commissioner
for Refugees (UNHCR), the United Nations Committee against Torture
(UNCAT), and the United Nations Human Rights Committee
(HRC).[19] Other
stakeholders that have previously expressed support for reform in
this area are too numerous to mention.[20]
The Senate Committee noted that the Bill was widely supported by
submitters, particularly in relation to its central aim of reducing
the need for the use of Ministerial intervention powers .[21] Submitters were also
generally supportive of the proposed single integrated protection
visa application process and the granting of the equal entitlements
to that of refugees.[22] Notwithstanding, the Committee noted that some
submitters were of the view that aspects of the Bill were
sub-optimal while others were of the view that the Bill represented
a valuable step forward but fell short of meeting Australia s
obligations .[23]
These issues are discussed in greater detail below under the
heading of key issues and main provisions .
The Age newspaper reported that
the Coalition will oppose complementary protection in the
Senate. Three Liberal Senators who were members (and participating
members) of the Senate Committee inquiring into the Bill submitted
a dissenting report in which they recommended that the Bill not
proceed.[24]
Broadly speaking they were of the view that the Bill is
unnecessary, counterproductive and risks being represented as yet
another softening of Australia s immigration laws .[25] In particular, they
are opposed to the passage of the Bill on the basis that:
- the existing Ministerial intervention process is a safeguard
that has been in place for decades a tried and proven system
- there is no evidence that the Ministerial intervention process
has been anything other than effective
- primary decisions will be appealable which in turn will
lengthen the time in which cases remain unresolved and exacerbate
an already fraught situation
- codification risks curtailing discretion otherwise available to
help genuine refugees languishing in camps around the world ,
and
- the Bill will encourage the lodgement of non-refugee protection
applications and the making of false asylum claims .[26]
The Shadow Minister for
Immigration and Citizenship the Hon. Dr Sharman Stone was also
reported as stating that the existing intervention powers are
adequate.[27] In a
media release issued prior to the introduction of the Bill the
Shadow Minister stated:
Apparently a departmental decision not to grant
complementary protection will be appealable, meaning that it may
take many months, if not years for the matter to be resolved. In
the meantime, the applicant may be able to access work rights or be
fully supported, Dr Stone said. The potential for a floodgate
of new, non-refugee, protection applications will be opened if
lessons from the past are not learnt, she said.
If the Government accepts that complementary
protection should apply to those who have come from a country in
the grip of a civil war Sri Lanka for example the potential numbers
could be immense.[28]
It remains to be seen whether Liberal Senator Judith Troeth (who
will not be re-nominating for pre-selection when her term expires
in June 2011) will oppose the Bill in the Senate. Senator Troeth
recently crossed the floor to vote for the Government s abolition
of detention debt Bill and reportedly indicated that she had been
willing to do the same to support the abolition of the 45 day
rule.[29]
The Australian Greens policy is that they would replace
the current system of humanitarian visas (granted only by the
Immigration Minister after rejection as a refugee) with an open,
accountable humanitarian visa process incorporating a humanitarian
review tribunal .[30] Senator Hanson-Young, who replaced Senator Ludlum as a
member of the Senate Committee, submitted additional comments in
which she stated:
While the Greens are indeed supportive of the
need to introduce a complementary protection scheme, to finally
bring Australia in line with other Western countries in meeting our
core human rights and protection obligations, under international
law, beyond that of the Refugee Convention, we remain
concerned that the Bill, in its current form, does not explicitly
address all of the holes in our overall protection
framework.[31] [Emphasis added].
Senator Hanson-Young subsequently made six recommendations. In
brief, these were as follows:
- that section 36(2A) be amended to include all of the rights in
which Australia has non-refoulement obligations under
international law
- that the phrases necessary and foreseeable and irreparably
harmed be deleted from the Bill
- the words and it will be carried out with regard to the death
penalty be deleted from paragraph 36(2A)(b)
- that the Government reassess the exclusion criteria
- that section 46A of the Migration Act be repealed to enable
offshore entry persons to lodge visa applications, and
- that the Government identify, as a priority, options for the
resolution under the Migration Act, through enacting legislation
that provides official recognition and protection for stateless
people within Australia .[32]
Speaking recently to the
ABC on the case of two failed asylum seekers from Kenya
fearing female genital mutilation if returned, Independent
Senator Nick Xenophon is reported to have stated:
I think it's interesting that the proposed laws
that the Federal Government has put up in the Parliament, in terms
of complementary protection which would give protection to this
women, haven't yet been passed.[33]
The Sydney Morning Herald recently reported that Family
First Senator Steve Fielding was undecided on the new
measures.[34]
In the 2009-10 budget, the Government stated that it would
provide $4.8 million (including capital of $0.2 million
for information technology changes) over four years to implement a
system of complementary protection.[35] The Explanatory Memorandum notes that
the proposed amendments will have a low financial impact and that
costs will be met from within existing resources of the
Department.[36]
The Senate Committee identified seven main issues from the
written submissions it received. Broadly speaking they were as
follows:
- the complexity of the test and/or the difficulty in meeting it,
particularly the requirement that a person be at risk of
irreparable harm [37]
- the distinction in the Bill between personal and generalised
violence, and the intention of the Bill to disqualify applications
on the basis of risk to a person not being personal
- the apparent unworkability of the death penalty provision which
required that the death penalty will be carried out
- the imposition of an additional intention criterion in the
definitions of cruel or inhuman treatment or punishment and
degrading treatment or punishment and the splitting up of the
definitions
- the inconsistency of proposed subsection 36(2C) with the
non-derogable provisions of the CAT and ICCPR
- the undesirability of quantified terms of imprisonment in the
existing statutory definition of serious offence , and
- the exclusion of Statelessness from the protection
framework.[38]
These issues will be discussed in further detail below.
Existing section 5 of the Migration Act is the interpretation
section. Items 1, 2, 3, 5 and 8 insert five new
definitions into subsection 5 (1) of the Act. The following terms
will now be defined:
- Covenant
- cruel or inhuman treatment or punishment
- degrading treatment or punishment
- receiving country , and
- torture .
Item 1 defines Covenant as the International
Covenant on Civil and Political Rights.
Item 2 defines cruel or inhuman treatment or
punishment as an act or omission by which:
- severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person
- pain or suffering, whether physical or mental, is intentionally
inflicted on a person:
- for the purpose of obtaining from the person or from a third
person information or a confession
- for the purpose of punishing the person for an act which that
person or a third person has committed or is suspected of having
committed
- for the purpose of intimidating or coercing the person or a
third person
- for a purpose related to a purpose mentioned above
- for any reason based on discrimination that is inconsistent
with the Articles of the Covenant, or
- pain or suffering, whether physical or mental, is intentionally
inflicted on a person for any other reason so long as, in all the
circumstances, the act or omission could reasonably be regarded as
cruel or inhuman in nature.
However, it does not include an act or omission that is not
inconsistent with Article 7 of the Covenant; or arising only from,
inherent in or incidental to, lawful sanctions that are not
inconsistent with the Articles of the Covenant .[39] According to the Explanatory
Memorandum, the purpose of expressly stating what cruel or inhuman
treatment or punishment does not include is to confine the meaning
to circumstances that engage a non-refoulement obligation
.[40]
Item 3 defines degrading treatment or
punishment as an act or omission that causes, and is intended to
cause, extreme humiliation which is unreasonable, but does not
include an act or omission:
- that is not inconsistent with Article 7 of the Covenant;
or
- that causes, and is intended to cause, extreme humiliation
arising only from, inherent in or incidental to, lawful sanctions
that are not inconsistent with the Articles of the Covenant.
The proposed definitions of cruel or inhuman treatment or
punishment and degrading treatment or punishment (items 2
and 3), in effect requires that the perpetrator of the
harm must have intended to cause the harm or the consequences of
the harm. The Senate Committee noted that submitters contended that
the imposition of an additional [intention] criterion is
inconsistent with Australia s international human rights
obligations .[41]
For instance, Associate Professor McAdam from the University of New
South Wales (and internationally renowned specialist on
complementary protection) asserted that the intention requirement
imposes a higher test than international law and comparative
jurisprudence in the European Court of Human Rights, EU Member
States and Canada .[42]
In addition, Associate Professor McAdam queried why the Bill
proposed to separate cruel or inhuman treatment or punishment from
degrading treatment or punishment which she submitted was contrary
to international practice which is to regard these forms of harm as
part of a sliding scale or hierarchy, of ill-treatment . This has
meant that Courts and Tribunals elsewhere have not needed to
determine precisely where a violation falls within the range of
proscribed harms.[43]
Interestingly, the current guidelines used to explain the
circumstances in which the Minister for Immigration and Citizenship
may intervene does not separate cruel or inhuman treatment or
punishment from degrading treatment or punishment nor do they
require that the person responsible for the harm to have intended
to cause the harm.
The significance of these definitional issues can not be
overstated. They will not only be the basis upon which protection
is granted or refused, they will consequently determine Australia s
adherence to its international obligations. However, due to the
constrained circumstances of the short inquiry the Senate Committee
did not have the opportunity to investigate these issues in any
detail. It simply noted the Department of Immigration and
Citizenship s written assertion that the definitions are consistent
with current international law and made no recommendation/s to
amend or review the definitions.[44]
Item 5 defines receiving country as a country
of which the non-citizen is a national, or if the non-citizen has
no country of nationality the country of which the non-citizen is a
habitual resident. The latter is to be determined by sole reference
to the law of the relevant country.
Item 8 defines torture as an act or omission by
which severe pain or suffering, whether physical or mental is
intentionally inflicted on a person:
- for the purpose of obtaining from the person or from a third
person information or a confession
- for the purpose of punishing the person for an act which that
person or a third person has committed or is suspected of having
committed
- for the purpose of intimidating or coercing the person or a
third person
- for a purpose related to a purpose mentioned above, or
- for any reason based on discrimination that is inconsistent
with the Articles of the Covenant.
However, it does not include an act or omission arising only
from, inherent in or incidental to, lawful sanctions that are not
inconsistent with the Articles of the Covenant.
Though not discussed in the report of the Senate Committee, it
is worth noting that Associate Professor McAdam recommended that
this definition of torture also be amended to accurately reflect
the Article 1 CAT definition of torture because there are small,
but potentially significant, differences in the way that the Bill
sets out the definition of torture .[45]
The current guidelines used to explain the circumstances in
which the Minister for Immigration and Citizenship may intervene
simply states that one of the factors in assessing whether a case
involves unique or exceptional circumstances includes where there
are substantial grounds for believing that a person may be in
danger of being subject to torture if returned to their country of
origin, in contravention of the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment .[46] The guidelines
expressly refer to the Article 1 definition of torture and do not
attempt a reformulation.
Items 4, 6 and 7 transfer and make minor
consequential amendments to three existing definitions in the Act.
Namely:
- non-political crime (currently in existing section 91T of the
Act)
- serious Australian offence (currently in existing subsection
91U(2) of the Act), and
- serious foreign offence (currently in existing subsection
91U(3) of the Act).[47]
Items 16 to 19 make consequential amendments to
existing section 91T of the Act. Items 20 to 23
make consequential amendments to existing section 91U of the
Act.
Existing paragraph 36(2)(a) sets out a criterion for a
protection visa. Namely, that the applicant for the visa is a
non-citizen in Australia to whom the Minister is satisfied
Australia has protection obligations under the Refugees Convention
as amended by the Refugees Protocol .[48] Item 11 inserts
proposed new paragraph 36(2)(aa) which sets out an
alternative or subsequent criterion for a protection visa for
complementary protection claimants. Being, a non-citizen in
Australia (other than a refugee) to whom the Minister is satisfied
Australia has protection obligations because the Minister has
substantial grounds for believing that as a necessary and
foreseeable consequence of the person being removed that there is a
real risk they will be irreparably harmed. The harm must be for
reason of a matter listed in proposed new subsection 36(2A).
Though this Bill does not technically create a sequential order
in which claims must be assessed, a refugee would not satisfy the
complementary protection criterion. The second reading speech notes
that protection claims under the Refugee Convention will continue
to be considered first only protection visa applicants who are
found not to be refugees will have their claims considered under
the new complimentary protection criteria .[49]
As previously mentioned, the Senate Committee noted that the
great majority of submitters criticise[d] the complexity of the
test and/or the difficulty in meeting it .[50] Associate Professor McAdam submitted
that the problem with the proposed test was that it combined
international and regional tests and additional ones drawn from
other human rights documents which are not meant to be used
cumulatively. In her view this made the test in proposed
paragraph 36(2)(aa) confusing, unworkable and inconsistent
with comparable standards in other jurisdictions .[51]
The Committee was persuaded that the test was too restrictive
and subsequently recommended that proposed paragraph
36(2)(aa) and all related paragraphs where the same words
are used, be amended by omitting the words 'irreparably harmed' and
replacing them with the words 'subject to serious harm'.[52]
The current guidelines used to explain the circumstances in
which the Minister for Immigration and Citizenship may intervene
contain varying standards of proof depending upon the context. For
example, there must be substantial grounds for believing that a
person may be in danger of being subject to torture if returned,
and a non-refoulement obligation arises under ICCPR if the
person would as a necessary and foreseeable consequence of their
removal face a real risk of violation of rights under Articles 6
and 7 of the ICCPR or face the death penalty.[53] The retention of these varying
standards of proof (substantial grounds, necessary and foreseeable
consequences, real risk), which differ from the standard of proof
used in the assessment of refugee claims (well founded fear) may
not only prove to be problematic for decision-makers at the primary
and review levels but will arguably result in extensive
litigation.[54]
Item 12 inserts proposed new paragraph
36(2)(c) which mirrors existing paragraph 36(2)(b). It
enables family members of the same family unit of a person who is
owed protection obligations arising from proposed new paragraph
36(2)(aa) and who holds a protection visa to remain in
Australia.
Item 13 inserts proposed new
subsections 36(2A), (2B) and (2C). As
previously mentioned, the irreparable harm that a non-citizen is at
real risk of suffering must arise because of a matter mentioned in
proposed new subsection 36(2A). These matters are
that the person:
- will be arbitrarily deprived of their life (36(2A)(a))
- will have the death penalty imposed on them and it will be
carried out (36(2A)(b))
- will be subjected to torture (36(2A)(c))
- will be subjected to cruel or inhuman treatment or punishment
(36(2A)(d)), or
- will be subjected to degrading treatment or punishment
(36(2A)(e)).
The Senate Committee noted that a number of submitters
recommended that proposed section 36(2A) be
amended to expressly incorporate Australia s
non-refoulement obligations arising under the Convention
on the Rights of the Child (CRC).[55] Though the non-refoulement obligations
arising under the ICCPR may be implied under the CRC, submitters
argued that the Committee on the Rights of the Child had expressly
recognised that the non-refoulement obligation is not
limited to Articles 6 and 37 and therefore this should be reflected
in the Bill.[56]
The Australian Human Rights Commission (AHRC) similarly emphasised
the need for the Bill to more broadly protect the rights of
children under the CRC in danger of serious harm.[57]
The current guidelines used to explain the circumstances in
which the Minister for Immigration and Citizenship may intervene
make express reference to the CRC. It states that one factor that
might be relevant in assessing whether a case involves unique or
exceptional circumstances are circumstances that may bring
Australia s obligations as a party to the Convention on the Rights
of the Child into consideration .[58] It then cites Article 3 which contains the best
interests of the child principle.
The Senate Committee did not comment on this issue or make any
recommendation to expand or amend proposed subsection
36(2A) in this regard.
Under the Bill, statelessness alone will not form the basis upon
which a protection visa will be granted. However, the protection
visa framework will provide protection to stateless persons in
cases where there is a real risk of harm on return that engages
Australia s non-refoulement obligations .[59]
According to the second reading speech, the Government:
is committed to ensuring that other stateless
cases are not left in the too hard basket [It] is acutely aware of
past failures to resolve the status of stateless people in a timely
manner. The Minister for Immigration and Citizenship is
committed to exploring policy options that will ensure
that those past failures are not repeated.[60] [Emphasis added].
The Senate Committee noted general acceptance of this position,
and strong support for the implementation of new options [61]
The Senate Committee noted that a number of submitters pointed
out the apparent unworkability of the provision, querying how it is
possible to know whether the death penalty will or will not be
exacted in the future .[62] The Committee essentially agreed with submitters noting
that the provision could cause problems for decision-makers and the
judiciary in carrying out their duties, due to the difficulty in
establishing categorically that a death sentence will be carried
out .[63] It
subsequently recommended that proposed paragraph
36(2A)(b) be amended to substitute and it will be carried
out with and it is likely to be carried out .[64]
Proposed new subsection 36(2B) outlines three
circumstances when a real risk will be deemed not to
exist. These circumstances are if the Minister is satisfied
that:
- it would be reasonable for the person to relocate to another
area of the country where the risk of harm would not exist
(36(2B)(a)) or
- the person could obtain protection from the authorities within
the country such that there would not be a risk of the person being
harmed (36(2B)(b)), or
- the risk faced by the person is faced by the population of the
country generally and not by the person personally
(36(2B)(c)).
While there is nothing in the 1951 Refugee Convention or the
Migration Act that expressly excludes from protection a person who
might reasonably relocate to a safe part of their country,
submitters recognised that such a principle has nonetheless evolved
through Australia s jurisprudence in the refugee determination
context.[65]
However, a number of submitters noted the undesirability of
introducing a statutory internal relocation principle for
complementary protection claimants (contained in proposed
paragraph 36(2B)(a)).[66] As Associate Professor McAdam submitted there is
a danger that codification for one group only may lead to the
development of different tests, which would be highly undesirable
.[67] The UNHCR
similarly considered it preferable for a proper analysis and
assessment of any relocation alternative to evolve through
jurisprudence rather than through specific legislative provision
.[68]
Associate Professor McAdam noted that proposed paragraph
36(2B)(b) may similarly prove to be problematic for
decision-makers because the requirement to assess whether a
complementary protection claimant can obtain protection from the
State could be interpreted as an additional and independent
requirement as opposed to inherent in any assessment of whether a
person will suffer a real risk of serious harm.[69]
The Senate Committee did not comment on these issues or make any
recommendation to amend proposed paragraphs
36(2B)(a) or (b).
The Senate Committee noted that another key concern emanating
from submissions was the distinction in the Bill between personal
and generalised violence, and the intention of the Bill to
disqualify applications on the basis of risk to a person not being
personal .[70]
Though this provision appropriately recognises that even where
risks are very widespread, an individual can still be granted
complementary protection if he or she is personally affected
,[71] submitters
argued that it could potentially be misinterpreted to deny
protection to people it intended to protect.[72] For example, protection could be
denied on the basis that the risk faced by the person could also be
faced by the population generally (such as domestic violence) or
the risk might be real but not directed to the person personally
(potential victims of female genital mutilation).[73]
Accordingly, the Senate Committee recommended that the effect of
proposed paragraph 36(2B)(c) be reviewed with a
view to ensuring it would not exclude from protection people
fleeing genital mutilation or domestic violence from which there is
little realistic or accessible relief available in their home
country .[74] It is
not clear why the Committee s recommendation isolates only two
particular categories of people of potential concern instead of
recommending more broadly that the provision be reviewed with a
view to ensuring it would not exclude people deserving of
protection that might similarly fall through the gaps .[75]
Proposed new subsection 36(2C) outlines the
circumstances in which a person will be deemed ineligible for the
grant of a protection visa on complementary protection grounds. It
provides that a person is taken not to satisfy the criterion of
proposed paragraph 36(2)(aa) if:
- the Minister has serious reasons for considering that
(36(2C)(a)):
- the person has committed a crime against peace, a war crime or
a crime against humanity (as defined in international instruments
prescribed by the Regulations) (36(2C)(a)(i)); or
-
- the person committed a serious non-political crime before
entering Australia (36(2C)(a)(ii)); or
- the person has been found guilty of acts contrary to the
purposes of the United Nations (36(2C)(a)(iii)); or
- the Minister considers, on reasonable grounds, that
(36(2C)(b)):
- the person is a danger to Australia s security (36(2C)(b)(i));
or
-
- the person, having been convicted by final judgment of a
particularly serious crime (including a serious Australian or
foreign offence) is a danger to the Australian community
(36(2C)(b)(ii)).
The Senate Committee noted that several submissions raised the
proposed amendments in subsection 36(2C) and their inconsistency
with [the ICCPR and CAT] .[76] The Committee noted that according to the Explanatory
Memorandum, alternative case resolution solutions will be
identified to ensure Australia meets its non-refoulement
obligations to persons deemed ineligible for grant of a protection
visa by virtue of this proposed provision.[77]
Though numerous submitters and indeed the Senate Committee
itself queried the actual substance of such alternative solutions ,
the Senate Committee appeared to give their somewhat qualified
support to the proposed exclusion provision based on the limited
written material available to it. It simply noted that the
Government would appear to be adopting a fair and measured approach
.[78]
Item 14 repeals existing subsections 36(4) and
(5) relating to the protection obligations owed to refugees, though
these subsections are reproduced in a slightly different drafting
format in proposed new paragraph 36(4)(a) and
subsection 36(5) so that they are consistent with
the wording of proposed new paragraph 36(4)(b) and
subsection 36(5A).
Existing subsection 36(3) outlines the circumstances in which
Australia will not have protection obligations. Namely,
when a person has not taken all possible steps to avail himself or
herself of a right to enter and reside in, whether temporarily or
permanently and however that right arose or is expressed, any
country apart from Australia, including countries of which the
non-citizen is a national .[79] Proposed new paragraph 36(4)(b)
provides that existing subsection 36(3) does not apply to
a country in respect of which the Minister has substantial grounds
for believing that, as a necessary and foreseeable consequence of
the person availing themself of a right mentioned in subsection
(3), there would be a real risk that the non-citizen would be
irreparably harmed because of a matter mentioned in subsection
(2A).
In addition, proposed new subsection 36(5A)
provides that existing subsection (3) will not apply in relation to
a country if:
- the person has a well-founded fear that the country will return
them to another country; and
- the Minister has substantial grounds for believing that, as a
necessary and foreseeable consequence of the person availing
themself of a right mentioned in subsection (3), there would be a
real risk that they would be irreparably harmed because of a matter
mentioned in subsection (2A) in relation to the other country.
Existing section 48A prohibits a non-citizen who has been
refused a protection visa from making a further application for
protection visa whilst in the migration zone.[80] Item 15 inserts
proposed new subparagraphs 48A(2)(ac) and
(ad) which clarify that application for a
protection visa includes an application for a protection visa on
complementary protection grounds under proposed subsection 36(2A).
It also includes an application, a criterion for which is that the
applicant is a non-citizen in Australia who is a member of the same
family unit as a person to whom Australia has protection
obligations on complementary protection grounds and who holds a
protection visa.
The Migration Act precludes an offshore entry person from
applying for a visa, including a protection visa.[81] However, under the Act, the
Minister for Immigration and Citizenship may permit an application
to be lodged if he personally considers it would be in the public
interest to do so.[82] As the Department s website explains:
It will generally be the case that where such
unauthorised arrivals are assessed as engaging Australia's
protection obligations under the non-statutory refugee status
assessment process, the Minister will lift the bar on making a
valid visa application and they will be allowed to validly apply
for a visa under the Act.[83]
Item 9 is a consequential amendment to
item 10 which inserts proposed
new subparagraph 5A(3)(j)(iii).[84] The effect of this
amendment is to extend the purpose in existing paragraph 5A(3)(j)
to include ascertaining whether an offshore entry person who makes
a claim for protection on complementary protection grounds, had
sufficient opportunity to avail himself or herself of protection
before arriving in Australia.
Items 24 to 29 make minor
amendments to existing section 336F which sets out the
circumstances in which identifying information can be disclosed to
foreign countries. Existing section 336F already makes provision
for protection visa applicants and offshore entry people who make a
claim for protection under the 1951 Refugee Convention. The
proposed amendments seek to incorporate complementary protection
claimants within the operation of the provision. Most
significantly, item 25 inserts proposed
new subparagraph 336F(3)(a)(iii) which provides that
disclosure of identifying information about an offshore entry
person who makes a claim for protection on complementary protection
grounds under proposed subsection 36(2A) is taken not to be
authorised if it is to be disclosed to a foreign country in respect
of which the application or claim is made, or a body of such a
country. Similarly, item 27 inserts
proposed new subparagraph
336F(4)(a)(iii) which provides that disclosure of such
information is taken not to be authorised if the officer making the
disclosure is not reasonably satisfied that the country or body to
which the disclosure is made will not disclose the identifying
information to a foreign country in respect of which the
application or claim is made, or a body of such a country. However,
proposed new paragraph 336F(5)(c)(ca) provides
that subsections (3) and (4) do not apply if an offshore entry
person is found not to be owed protection obligations because they
do not satisfy proposed subsection 36(2A) or is found to be a
person mentioned in proposed paragraph 36(2C)(a) or (b) (
ineligibility for grant of a protection visa ).
Existing section 411 sets out the decisions that are reviewable
by the RRT. Existing paragraphs 411(1)(c) and (d) respectively
provide that a decision to refuse to grant or cancel a protection
visa are RRT-reviewable decisions . Items 30 and
31 clarify that neither a decision to refuse to grant or
cancel a protection visa relying on proposed paragraph 36(2C)(a) or
(b) ( ineligibility for grant of a protection visa ) are RRT
reviewable decisions . Item 33 clarifies that such
decisions are also not reviewable under Part 5 or 7 of the
Migration Act.
Rather, under item 32 an application may be
made to have such decisions reviewed by the AAT (proposed
new paragraph 500(1)(c)). Decisions to refuse to grant or
cancel a protection visa relying on Articles 1F, 32 or 33(2) of the
1951 Refugee Convention are similarly only reviewable by the AAT
under existing paragraph 500(1)(c).[85]
At the May 2009 Budget Estimates hearing, the RRT estimated that
20 per cent of all protection visa cases will require additional
time to consider complementary protection issues :
The Refugee Review Tribunal (RRT) annually
receives a small number of review applications from applicants who
state that their applications have been lodged for the sole purpose
of seeking access to Ministerial intervention on humanitarian
grounds and not Refugee Convention grounds.
The RRT does not maintain statistics on the
number of such cases. However, we estimate that 20 per cent of all
Protection visa cases will require additional time to consider
complementary protection issues. The RRT maintains statistics on
the number of cases that RRT Members refer to the Department for
the Minister s consideration of the exercise of his powers under
section 417 of the Migration Act 1958. 69 referrals were
made in 2007-08 and 54 referrals were made from 1 July 2008 to 30
April 2009.
The RRT will receive additional funding in
2009-10 and out years for additional work to be incurred in
reviewing protection visa applications in which complementary
protection claims are made [86]
With regard to the training of Tribunal Members to assess
complementary protection claims, the Principle Member of the RRT,
Dennis O Brien recently stated:
We have engaged Associate Professor Jane McAdam
from the University of New South Wales, who is currently in Oxford.
She is preparing a training manual for us as we speak. The idea is
that when she returns from Oxford at the end of this year she will
be rolling out some training for members, probably in February or
March. It depends a bit on the progress of the bill and when the
new law comes into force. On the assumption that it may be coming
into force in April, we have broadly worked out that our training
ought to be in February-March.
We have agreed on a price with Associate
Professor McAdam and we can cover that within our existing training
budget.[87]
Item 34 provides that Schedule 1 applies to
protection visa applications made on or after this item commences
or that are not finally determined before the day the item
commences. Finally determined is when either a decision is not, or
is no longer, subject to any form of merits review under Part 5 or
7, or the period within which to apply for such review has
expired.[88]
Concluding comments
There is no denying that the introduction of a statutory
complementary protection regime would be a significant development
for Australia. Not only because it would bring Australia into line
with the rest of the world but also because it would implement the
recommendations of various international and domestic bodies,
including three parliamentary inquiries that have previously
recognised the need for Australia to introduce a formal system of
complementary protection.
That is not to say that this Bill signifies an expansion of
Australia s international obligations. Rather, this Bill simply
proposes to change the manner in which it adheres to its existing
international non-refoulement obligations. It proposes to
do so by enabling claims to be assessed against legally enforceable
criteria at first instance, vesting the decision-making power with
Departmental officers rather than with the Minister personally. It
also proposes to provide the same administrative and judicial
review rights as persons seeking protection under the 1951 Refugee
Convention.
However, the decision to create a statutory basis for assessing
complementary protection claims will undoubtedly have resource
implications for the Department of Immigration and Citizenship
along with the administrative review tribunals and courts vested
with jurisdiction to review such matters. To this end, it is worth
noting that the main criticisms surrounding this Bill appear to
relate to the drafting of the inclusion and exclusion criteria. For
instance, Dr Ben Saul of the University of Sydney is of the view
that the criteria contained in the Bill are poorly drafted as a
result of the inclusion of unnecessary qualifying phrases and far
from creating certainty would invite needless litigation.[89] Associate Professor
McAdam is similarly of the view that the Bill makes the Australian
system of complementary protection far more complicated, convoluted
and introverted than it needs to be .[90]
The proposed criteria differ from the existing ministerial
intervention guidelines that have been used (with slight
variations) for decades by successive Ministers to determine
Australia s non-refoulement obligations. In certain
respects, they are also inconsistent with international law and the
criteria adopted in other comparable jurisdictions. The underlying
rationale for such deviation is arguably to prevent large numbers
of people benefiting or potentially benefiting from Australia s
proposed statutory complementary protection regime. Importantly,
the Department of Immigration and Citizenship does not expect any
significant increase in visa grants as a result of the
Bill.[91]However,
though the criteria as currently drafted may succeed in keeping the
number of beneficiaries or potential beneficiaries low, without
minor amendment, the Bill may in turn ultimately fail to create a
workable and inexpensive statutory regime that will not only adhere
to Australia s international obligations but also prevent
potentially exposing people in genuine need of protection to
refoulement.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2759.
Elibritt Karlsen
24 November 2009
Bills Digest Service
Parliamentary Library
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