Bills Digest no. 79 2010–11
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.
Bills Digest Service
11 March 2011
Migration Amendment (Complementary Protection) Bill 2011
Date introduced: 24 February 2011
House: House of Representatives
Portfolio: Immigration and Citizenship
Commencement: Sections 1 to 3 commence on the day of Royal Assent. Items 1 to 17, 19 and 20, and 22 to 35 of Schedule 1 commence on a day to be fixed by Proclamation or six months after the day of Royal Assent whichever is sooner. Items 18 and 21 commence immediately after the aforementioned provisions commence.
Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bills home page. When Bills have been passed they can be found at the ComLaw website, which is at http://www.comlaw.gov.au/.
The purpose of the Migration Amendment (Complementary Protection) Bill 2011 (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 protection visa application process’ which means applicants that are found not to be refugees but owed protection on complementary protection grounds, will be entitled to be granted protection visas with the same conditions and entitlements as refugees. In turn, unsuccessful applicants (that is, applicants found not to be owed protection) will have equivalent administrative 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.
An earlier version of the Migration Amendment (Complementary Protection) Bill 2011 was first introduced into the House of Representatives on 9 September 2009 during the term of the 42nd Parliament (the 2009 Bill). However, that Bill was not subsequently debated and lapsed on 19 July 2010 when Parliament was prorogued for the 2010 federal election. The current Bill has been re-introduced into the 43rd Parliament and as the Minister for Immigration and Citizenship, the Hon Chris Bowen, says ‘incorporates certain changes to address matters raised in the 2009 report of the Senate Legal and Constitutional Affairs Committee’.
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’.
There is no internationally accepted definition of ‘complementary protection’. The term is not a term of art defined in any international treaty. 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 therein.
There is an obligation under international law 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. This has been said to mainly stem from two treaty-based sources of international law. Firstly, 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. Secondly is Articles 6 and 7 of the International Covenant on Civil and Political Rights (ICCPR) which have been defined by the UN Human Rights Committee 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.
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. The second reading speech to the 2009 Bill also acknowledged that the ministerial intervention process does not ‘provide sufficient guarantee of fairness and integrity for decisions’. The extent to which this discretion will remain—particularly to those who have had their claims assessed under the proposed statutory scheme and determined not to be in need of protection, remains unclear.
Asylum seekers being processed under the offshore processing regime (whether they are geographically accommodated off the Australian mainland or not) also have access to an informal complementary protection assessment procedure (of sorts). Under section 195A of the Migration Act the Minister for Immigration and Citizenship may personally intervene and grant a visa to a person in detention (whether they applied for one or not) if he considers it is in the public interest to do so. A pre-removal clearance process is also undertaken by DIAC in which they assess whether the removal or deportation of an asylum seeker could otherwise engage Australia’s non-refoulement obligations under international human rights instruments to which Australia is a party.
With respect to the progress of the current Bill—on 22 September 2010, only eight days after having been sworn in as the new Minister for Immigration and Citizenship, Chris Bowen was reported in The Age as having said:
Labor would seek to widen the criteria by which people can apply for protection before parliament breaks for summer...We’ll be proceeding with that bill,” he said. “I see it as an important measure. Out of the immigration legislation that is outstanding, I see that as the most important.”
In the second reading speech accompanying the Bill, the Minister focuses instead, on the ‘significant administrative hole in our protection visa application process’ that this Bill will fill.
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’.
In 2009, the Senate Standing Committee for the Scrutiny of Bills, in its consideration of the 2009 Bill, 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’.
On the issue of whether proposed subsections 36(2B) and (2C) 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.
The provisions of the 2009 Bill were referred to the Senate Legal and Constitutional Affairs Legislation Committee (Senate Committee) for inquiry and report by 16 October 2009. 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. 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. It subsequently made only three recommendations relating to the content of the Bill which are discussed in further detail under the heading ‘Key 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.
The Liberal Minority Report recommended that the Bill should not be passed.
In a policy announcement on 6 July 2010 entitled ‘the Coalition's real action plan for restoring integrity and fairness to refugee decision making’, the Coalition re-confirmed its opposition to complementary protection.
As noted, the three Liberal Senators participating in the Senate Committee inquiring into the 2009 Bill submitted a dissenting report in which they recommended that the 2009 Bill not proceed. Broadly speaking, they were of the view that the 2009 Bill was ‘unnecessary, counterproductive and risks being represented as yet another softening of Australia’s immigration laws’. In particular, they were opposed to the passage of the 2009 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’.
The Shadow Minister for Immigration and Citizenship, Scott Morrison MP recently published an opinion piece in The Australian which re-iterated some these arguments. In it he states:
There is strong argument that codification of this criteria may serve to constrain our opportunity to provide protection as much as extend such protection beyond what was intended through these treaties. Vexatious claims, where every negative decision can be appealed, would also create further pressure on an already overstressed court system... This would add further pressure to a detention network already in crisis and stretched beyond capacity... The opening of another avenue for onshore applications, that goes beyond the requirements of the Refugee Convention, runs the risk of creating a further policy incentive for people-smuggling... By contrast, the present process maintains a flexibility that avoids these outcomes while affording protection to those who need it, consistent with our treaty and other obligations.
It remains to be seen whether Liberal Senator Judith Troeth (whose term expires on 30 June 2011) will oppose the Bill in the Senate. Senator Troeth crossed the floor to vote for the Government’s abolition of detention debt Bill and to support the abolition of the 45 day rule.
The Australian Greens official 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’. Senator Hanson-Young, who replaced Senator Ludlum as a member of the Senate Committee inquiring into the 2009 Bill, 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. [Emphasis added].
Senator Hanson-Young made six recommendations. In brief, these were as follows:
- that section 36(2A) (the provision containing the complementary protection matters/criteria) 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’.
Speaking to the ABC in September 2009 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 these women, haven't yet been passed.
The Sydney Morning Herald reported in September 2009 that Family First Senator Steve Fielding was undecided on the proposed measures. On 23 August 2010 it also reported that Rob Oakeshott MP appears to be supportive of a humane processing regime for asylum seekers:
When rural refugee advocates wanted a holiday house for a man who had sewn his lips together in immigration detention, Rob Oakeshott offered his house. The asylum seeker and the family he had not seen for two years stayed with the independent MP for a week. From the experience Oakeshott learnt there was an economic case for treating asylum seekers humanely. If the processing regime was too tough on those who would be later granted entry, then their productive capacity as Australians would be reduced, he said. ''We just mess them up on the way through.'' Oakeshott's position on asylum seekers is just one that appears to contradict his background in Nationals politics. But then, that's why he became an independent, he says.
Independent MP Andrew Wilkie is likely to be supportive of this Bill as his policy on asylum seekers appears to encompass persons seeking asylum on grounds broader than those enunciated in the 1951 Refugees Convention:
Australia must honour the UN Refugee Convention to which it is a signatory. It must protect people fleeing persecution, war or violence, promptly hear their claims and give refuge to those in genuine need of asylum.
It is not known whether the other independents are supportive of this Bill or complementary protection more generally.
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). Other stakeholders that have previously expressed support for reform in this area are too numerous to list.
The Senate Committee noted that the 2009 Bill ‘was widely supported by submitters, particularly in relation to its central aim of reducing the need for the use of Ministerial intervention powers’. Submitters were also generally supportive of the proposed single protection visa application process and the granting of equal entitlements to that of refugees. 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’. The issues raised by submitters are discussed further below under the headings ‘Main issues’ and ‘Key provisions’.
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. 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.
The Senate Committee identified seven main ‘issues’ from the written submissions it received in 2009. Broadly speaking they were as follows:
1) the complexity of the test and/or the difficulty in meeting it, particularly the requirement that a person be at risk of ‘irreparable harm’
2) 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’
3) the apparent unworkability of the death penalty provision which required that the death penalty will be carried out
4) 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
5) the inconsistency of proposed subsection 36(2C) with the non-derogable provisions of the CAT and ICCPR
6) the undesirability of quantified terms of imprisonment in the existing statutory definition of ‘serious offence’, and
7) the exclusion of Statelessness from the protection framework.
The majority of these issues have not been addressed by the current Bill, although some of them have been picked up. Most noteworthy, this Bill has simplified the definition of ‘cruel and inhuman treatment or punishment’, removed the need for a risk of irreparable harm, replaced reference to complementary protection criteria as ‘matters’ with a definition of ‘significant harm’, and amended the requirement that the non-citizen have the death penalty imposed and it will be carried out. These and other amendments are discussed in further detail below under the heading ‘Key provisions’.
Amendments to the interpretation sections
Existing section 5 of the Migration Act is the interpretation section. Items 1, 2, 3, 5, 8 and 9 insert six new definitions into subsection 5 (1) of the Act. The following terms will now be defined:
- ‘cruel or inhuman treatment or punishment’
- ‘degrading treatment or punishment’
- ‘receiving country’
- ‘significant harm’, and
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 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’. Put more simply, in essence the provision excludes behaviour that is outside article 7 and sanctions permitted by the Covenant. According to the 2009 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’.
Similarly 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 require the perpetrator to have an intention to cause 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’. For instance, Associate Professor McAdam from the University of New South Wales (and internationally renowned specialist on complementary protection) stated 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’.
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.
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 intended to cause the harm.
The significance of these definitional issues cannot 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, the Senate Committee explained that, due to the ‘constrained circumstances of the short inquiry’, there was no opportunity to investigate these issues in any detail. The Committee 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.
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 9 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’.
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’. 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).
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’. Item 12 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 from Australia to a receiving country, there is a real risk they will suffer significant harm.
Item 14 inserts proposed new subsections 36(2A), (2B) and (2C). Proposed subsection 36(2A) provides that a non-citizen will suffer ‘significant harm’ if the person:
- will be arbitrarily deprived of their life
- will have the death penalty carried out on them
- will be subjected to torture
- will be subjected to cruel or inhuman treatment or punishment, or
- will be subjected to degrading treatment or punishment.
Though this Bill does not technically create an express sequential order in which claims must be assessed, a refugee would not satisfy the complementary protection criterion.
As previously mentioned, in 2009 the Senate Committee noted that ‘the great majority of submitters criticise[d] the complexity of the test and/or the difficulty in meeting it’. 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’.
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. 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 (real chance) may not only prove to be problematic for decision-makers at the primary and review levels but may arguably result in extensive litigation.
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'. The Bill was amended accordingly, but the term ‘significant harm’ instead of ‘serious harm’ was ultimately adopted to avoid confusion with existing subsection 91R(2) of the Act.
Item 13 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.
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). Though the non-refoulement obligations arising under the CRC may be implied under the ICCPR, 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. 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.
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’. 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. The current Bill has not amended proposed subsection 36(2A) to take into account these concerns.
Under the Bill, statelessness alone will not form the basis upon which a protection visa will be granted. However, according to Laurie Ferguson ‘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’.
In the second reading speech to the 2009 Bill, the Government said it:
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. [Emphasis added].
The Senate Committee noted ‘general acceptance of this position, and strong support for the implementation of new options’…
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’. 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’. 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’.
The current Bill changes the criterion contained in proposed paragraph 36(2A)(b) from ‘ the non-citizen will have the death penalty imposed on him or her and it will be carried out on the non-citizen’ to ‘a non-citizen will suffer significant harm if ...the death penalty will be carried out on the non-citizen’. It is not clear how this amended statutory formulation changes the meaning of the provision or would alleviate the concerns raised by submitters and the Senate Committee.
Proposed 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 significant harm would not exist
- the person could obtain protection from an authority within the country such that there would not be a risk of the person suffering significant harm, or
- the risk faced by the person is faced by the population of the country generally and not by the person personally.
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. A number of submitters thus noted the undesirability of introducing a statutory internal relocation principle for complementary protection claimants (contained in proposed paragraph 36(2B)(a)). 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’. 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’.
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.
The Senate Committee did not comment on these issues or make any recommendation to amend proposed paragraphs 36(2B)(a) or (b). The current Bill has not amended proposed paragraphs 36(2B)(a) or (b) to take into account these concerns.
As previously mentioned, proposed paragraph 36(2B)(c) effectively excludes from protection people who will suffer significant harm if the risk is faced by the population of the country generally and not by the person personally. 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’. 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’, submitters argued that it could potentially be misinterpreted to deny protection to people it intended to protect. 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).
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’. 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’. Interestingly, while the second reading speech to the 2009 Bill stated that a girl who would face a real risk of female genital mutilation would be covered under complementary protection, the second reading speech to the current Bill is silent on this point.
The current Bill has not amended proposed paragraph 36(2B)(c).
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:
- 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); or
- the person committed a serious non-political crime before entering Australia; or
- the person has been guilty of acts contrary to the purposes and principles of the United Nations; or
- the Minister considers, on reasonable grounds, that:
- the person is a danger to Australia’s security; 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.
The Senate Committee noted that ‘several submissions raised the proposed amendments in subsection 36(2C) and their inconsistency with [the ICCPR and CAT]’. 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.
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’.
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’. 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 suffer significant harm in relation to the country.
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 suffer significant harm in relation to the other country.
Item 15 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 paragraphs 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 section 48A prohibits a non-citizen who has been refused a protection visa from making a further application for a protection visa whilst in the migration zone. Item 16 inserts proposed new subparagraph 48A(2)(aa) which clarifies that ‘application for a protection visa’ includes an application for a protection visa on complementary protection grounds under proposed paragraph 36(2)(aa). 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. 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. Normally, the Minister would only consider ‘lifting the bar’ if a person has already received a favourable Protection Obligations Determination. Once the Bill comes into effect, this will involve an assessment of complementary protection claims.
Items 25 to 30 make minor amendments to existing section 336F which sets out the circumstances in which identifying information can be disclosed to foreign countries etc. 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 26 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 28 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) (in other words, the limitation on disclosure does not apply) if an offshore entry person is found not to be a person for whom there is a real risk of suffering significant harm.
Under new amendments introduced by the current Bill, item 30 also inserts proposed new paragraphs 336F(5)(cb) and (cc). These provisions essentially further expand the basis upon which identifying information about an offshore entry person may be disclosed to a foreign country etc. There are a number of reasons why the Department may need to disclose identifying information to a foreign country. For instance, to confirm the identity of a person, identify people of character concern, facilitate removal or deportation from Australia, and so forth. The basis upon which identifying information may thus be disclosed to a foreign country now mirror the circumstances which give rise to a person being ineligible for grant of a protection visa on complementary protection grounds (as set out in proposed subsection 36(2C)). Identifying information may also be disclosed about an offshore entry person who is found by the government not to be a person for whom there is a real risk of suffering significant harm. In comparison, identifying information may only be disclosed about an applicant for a protection visa (presumably, not an offshore entry person) once such an application has been refused and ‘finally determined’—that is, no longer subject to any form of merits review by the RRT or the AAT.
Existing section 411 sets out the decisions that are reviewable by the RRT. Existing paragraphs 411(1)(c) and (d) respectively provide that decisions to refuse to grant or cancel a protection visa are ‘RRT-reviewable decisions’. Items 31 and 32 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 34 clarifies that such decisions are also not reviewable under Part 5 or 7 of the Migration Act.
Rather, under item 33 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).
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…
Item 35 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.
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 other countries 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 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 the 2009 Bill related to the drafting of the inclusion and exclusion criteria. For instance, Dr Ben Saul of the University of Sydney was of the view that the criteria contained in the 2009 Bill were ‘poorly drafted as a result of the inclusion of unnecessary qualifying phrases’ and far from creating certainty would invite needless litigation. Associate Professor McAdam was similarly of the view that the 2009 Bill ‘makes the Australian system of complementary protection far more complicated, convoluted and introverted than it needs to be’. Though the amendments contained in the current Bill have overcome some of the concerns raised by the two Senate Committees that examined the 2009 Bill, concerns appear to persist amongst refugee advocacy groups and presumably academics alike. As the Refugee Council of Australia (RCOA) recently noted:
RCOA remains concerned about several aspects of the legislation. Specifically, the threshold requirements for complementary protection are too complex and restrictive, potentially leading to inconsistencies in decision-making and the denial of protection to people who require it; the requirement that a person facing the death penalty must be able to establish that the penalty will be carried out imposes too onerous a burden of proof; and the requirement that a person must face a personal risk, as opposed to a risk faced by the general population, is ambiguous and could result in the denial of protection to people who need it. RCOA recommends that these provisions be amended before the legislation is passed to ensure that Australia upholds human rights treaty obligations.
This Bill could be said to represent a double-edged sword. Its passage would significantly improve the way in which complementary protection claims are processed in Australia—by creating transparency and accountability in the decision-making process. However, if this Bill is passed without subsequent amendment, it is not possible to say with any degree of certainty that it will create a workable and inexpensive statutory regime that also adheres to Australia’s international human rights obligations.
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