Chapter 3
Issues
3.1
This Bill seeks to address gaps in the existing framework for processing
applications for protection under the Refugee Convention and other associated
pieces of international law to which Australia is party, a course of action
recommended by the Legal and Constitutional Affairs References Committee on
several occasions in the past and also by the Senate Select Committee on
Ministerial Discretion in Migration Matters in 2004.[1]
The need for complementary protection legislation was expounded on in the
second reading speech for the Bill:
Complementary protection will cover circumstances in which a
person may currently be refused a protection visa because the reason for the
persecution or harm on return is not for one of the specified reasons in the
refugee convention—that is not on the basis of race, religion, nationality,
membership of a particular social group or political opinion. For example, it
is not certain that a girl who would face a real risk of female genital
mutilation would always be covered by the refugee convention, whereas she would
be covered under complementary protection. Women at risk of so-called honour
killings can also potentially fall through gaps in the refugee convention
definition. In some countries victims of rape are executed along with, or
rather than, their attackers. Again, depending on the circumstances, this
situation may not be covered under the refugee convention.[2]
3.2
However, as pointed out by Associate Professor Jane McAdam,
complementary protection does not supplant or compete with the Refugee
Convention. By its very nature, it is complementary to refugee status
determination done in accordance with the Refugee Convention. Complementary
protection grounds are only considered following a comprehensive evaluation of
the applicant’s claim against the Refugee Convention definition, and a finding
that the applicant is not a refugee.[3]
3.3
Strong support was received for the direction of the Bill from
submitters[4],
particularly its central aim of reducing the need for the use of Ministerial
intervention powers in respect of the Migration Act.[5]
3.4
In addition to improving administrative efficiency, Mr Andrew Bartlett
pointed to his experience with refugee law during his time as Senator for
Queensland. Mr Bartlett identified other benefits deriving from a move to a
codified form of complementary protection in Australian law. These included the
enhanced effectiveness and integrity of the Migration Agent profession; greater
certainty and quicker resolution for applicants and those assisting them; and an
improvement in the public perception of the integrity of government ministers.[6]
3.5
The Department of Immigration and Citizenship (the Department) agreed
with Mr Bartlett in respect the Bill's impact on administrative arrangements:
The use of the Ministerial intervention powers to meet
non-refoulement obligations other than those contained in the Refugee
Convention is administratively inefficient. The Minister's personal
intervention power to grant a visa on humanitarian grounds under section 417 of
the Migration Act cannot be engaged until a person has been refused a
Protection visa both by a departmental delegate of the Minister and on review
by the Refugee Review Tribunal. This means that under current arrangements,
people who are not refugees under the Refugees Convention, but who may engage
Australia's other non-refoulement obligations must apply for a visa for which
they are not eligible and exhaust merits review before their claims can be
considered by the Minister personally. This results in slower case resolution
as it delays the time at which a person owed an international obligation
receives a visa and has access to family reunion. It also leads to a longer
time in removing a person to whom there is no non-refoulement obligation as
this would not be determined until the Ministerial intervention stage.[7]
3.6
While going on to commend the underlying premises of the Bill as 'sound
as principled' Associate Professor Jane McAdam reflected on the Bill in the
following terms:
In my view, the Bill makes the Australian system of
complementary protection far more complicated, convoluted and introverted than
it needs to be. This is because it conflates tests drawn from international and
comparative law, formulates them in a manner that risks marginalising an extensive
international jurisprudence on which Australian decision-makers could (and
ought to) draw, and in turn risks isolating Australian decision-makers at a
time when harmonisation is being sought. It invites decision-makers to
'reinvent the wheel', rather than encouraging them to draw on the jurisprudence
that has been developed around these human rights principles internationally.
Since the purpose of the Bill is to implement Australia's international human
rights obligations based on the expanded principle of non-refoulement, it seems
only sensible and appropriate that Australian legislation reflect the language
and interpretation of these obligations as closely as possible.[8]
3.7
Associate Professor McAdam was not alone in her conclusion that aspects
of the Bill were sub-optimal. Submitters such as the Refugee Advice and
Casework Service (RACS) and the Immigration Advice and Rights Centre (IARC),
which submitted jointly, considered that the Bill represented a valuable step
forward but fell short of meeting Australia’s obligations.[9]
Some of the matters raised by submitters are discussed below.
Burden of Proof
3.8
The proposed test to be met by an applicant for protection would require
the Minister to have substantial grounds for believing that, as a necessary
and foreseeable consequence of being removed, there would be a real risk
of irreparable harm because of matter listed in subsection 36(2A).
3.9
The great majority of submitters criticise the complexity of the test
and/or the difficulty in meeting it.[10]
The proposed requirement that a person be at risk of 'irreparable harm' drew
particular criticism. Companion House regarded the requirement as significantly
stricter than what was called for under international law, and considered it
could serve to exclude those deserving protection.
3.10
The Human Rights Law Research Centre (HRLRC) contended that Australia’s
non-refoulement obligation in relation to children attaches to a broader range
of rights under the CROC than is currently reflected in the proposed s 36(2A).
The HRLRC stated that the Committee on the Rights of the Child has interpreted
Articles 6 and 37 – at a minimum – to require that:
...States shall not return a child to a country where there are
substantial grounds for believing that there is a real risk of irreparable harm
to the child, such as, but by no means limited to, those contemplated under
articles 6 and 37 and of the Convention, either in the country to which removal
is to be effected or in any country to which the child may subsequently be removed...
In the case that the requirements for granting refugee status
under the 1951 Refugee Convention are not met, unaccompanied and separated
children shall benefit from available forms of complementary protection to the
extent determined by their protection needs.[11]
3.11
The HRLRC submitted that Article 6 of CROC protects children’s right to
life. Article 37 of the CROC protects not only children’s right not to be
subjected to torture or other cruel, inhuman or degrading treatment or
punishment, but also their right to liberty, humane treatment in detention and
prompt access to legal and other appropriate assistance when in detention. The
HRLRC were of the view that that the Committee on the Rights of the Child’s
express recognition that the non-refoulement obligation is not limited to
Articles 6 and 37 should be reflected in the Bill.[12]
3.12
The Victorian Foundation for Survivors of Torture (Foundation House)
took issue with the invocation in the Explanatory Memorandum that the proposed
requirement for 'irreparable harm' is consistent with the relevant provision in
the CAT and the ICCPR. Foundation House submit that:
That is incorrect. As detailed above, the CAT quite plainly
does not impose a test of irreparable harm. With respect to the ICCPR...it is
apparent [in the paragraph referred to in the EM that] the Human Rights
Committee uses the phrase 'irreparable harm' as shorthand for the harm caused
by violations of articles 6 and 7, not as an additional threshold before the
obligation not to remove a person from their territory is engaged.[13]
3.13
This criticism was echoed by the Refugee Council of Australia, who
submitted that it had received advice from Sir Nigel Rodley, a former UN Special
Rapporteur on Torture and current member of the Human Rights Committee, that
the proposed requirement regarding 'irreparable harm' was derived from a
misinterpretation of the Committee's comment, on which the EM draws.[14]
The United Nations High Commissioner for refugees called for the removal of the
'irreparable harm' requirement, submitting that 'such a test has no basis in
international law or jurisprudence'.[15]
3.14
Associate Professor Jane McAdam reflected the view of many submitters
when she said that:
The problem with the very convoluted test currently set out
in [proposed paragraph] 36(2)(aa) of the Bill is that it combines...the
international and regional tests plus additional ones drawn from various
other human rights documents such as 'necessary and foreseeable consequence'
and 'irreparable harm')...it is an amalgam of thresholds that were meant to
explain each other, not to be used as cumulative tests. This makes it
confusing, unworkable and inconsistent with comparable standards in other
jurisdictions. Accordingly, the standard of proof needs to be made much
simpler, otherwise it is likely to:
-
Cause substantial confusion for
decision-makers;
-
Lead to inconsistency in
decision-making;
-
Impose a much higher test than is
required in any other jurisdiction or under international human rights law; and
-
Risk exposing people to
refoulement, contrary to Australia's international obligations.[16]
3.15
As an example, Associate Professor McAdam cites commentary from the
United Nations Human Rights Committee in respect of 'irreparable harm', and
concludes that:
It is clear...that the notion of 'irreparable harm' is regarded
as inherent in the treatment proscribed by Articles 6 and 7 [of the] ICCPR
because of its very nature...irreparable harm is synonymous with, or inherent in,
the very nature of harm prohibited by these provisions.[17]
3.16
Associate Professor McAdam goes onto recommend that proposed paragraph 36(2)(aa)
refer to a 'real risk that the non-citizen will be subject to serious harm, as
defined in subsection (2A)'.
3.17
A number of other submitters also preferred this approach. The Public
Interest Law Clearing House (PILCH) also called for a single test based on a
real risk of harm[18],
while the joint submission of the Immigration Advice and Rights Centre (IARC)
and the Refugee Advice and Casework Service (RACS) called for the test to be a ‘real
risk that the non-citizen will be subject to a matter mentioned in subsection
2A’.[19]
The same or similar suggestions were made by submitters including Professor
Mary Crock[20],
Sydney Centre for International Law[21],
and the Human Rights Law Resource Centre.[22]
3.18
The committee is persuaded that the current wording of the bill is too
restrictive and therefore recommends that the irreparable harm requirement be
removed.
Recommendation 1
3.19 The committee recommends that proposed paragraph 36(2)(aa) at Item 11 of
Schedule 1, 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'.
Personal v. Generalised violence
3.20
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. The Department submitted that people fleeing generalised violence or
places of humanitarian concern do not engage a non-refoulement obligation and
would not be eligible for grant of a Protection visa under the Convention
Relating to Status of Stateless Persons (1954) and the Convention on the
Reduction of Statelessness (1961) but that:
In the past, Australia has used a number of alternative
responses to specific humanitarian crises including temporary suspension of
removals, generous consideration of visa extensions, and specific new temporary
visas. These options will continue to be used on a case by case basis as an
appropriate means of assisting people in generalised humanitarian need.[23]
3.21
Associate Professor Jane McAdam had this to say:
This provision seems intended to ‘close the floodgates’. It
has no legal rationale, since international human rights law is not premised on
exceptionality of treatment but proscribes any treatment that contravenes human
rights treaty provisions. Indeed, a key purpose of human rights law is to
improve national standards and not only the situation of the most disadvantaged
in a society. At its most extreme, it could be argued that this provision
would permit return even where a whole country were at risk of genocide,
starvation or indiscriminate violence, which would run contrary to the
fundamental aims and principles of human rights law.[24]
3.22
The Refugee Council of Australia pointed to an apparent anomaly between
the Bill's wording and its stated intent when it submitted that:
We are concerned that the current wording could potentially
be interpreted to exclude certain categories of person whose claims may
strongly warrant complementary protection. An example is that of women and
girls of a certain age or other category (such as imminent marriage) who,
within a particular country, as a sub-population face the threat of female
genital mutilation. We note, however, that the Second Reading Speech specifically
sets out that a girl who would face a real risk of genital mutilation would be covered
under complementary protection (where she would not necessarily be covered under
the Refugees Convention).[25]
3.23
Amnesty International took a similar view, submitting that:
...the wording of section 36(2B)(c) should be revised in order
to avoid misinterpretation...However, there are concerns that the current wording
provides grounds to argue for the ineligibility of certain applicants in a
manner that would be against the overall spirit of the bill. The requirement
that the risk faced must not be ‘faced by the population of the country
generally’ may provide, for example, for an applicant fleeing domestic violence
to be excluded from protection on the grounds that the applicant originates
from a country where domestic violence is widespread and where perpetrators are
not generally brought to justice. Additionally, the stipulation that the risk
must be ‘faced by the non-citizen personally’ has the potential to exclude, for
example, applicants who have not been directly threatened with female genital
mutilation but due to their age and gender, face a probable risk that they will
be subjected to the practice upon return.[26]
3.24
By way of resolution, the Refugee Council went on to suggest that it may
be necessary to make it clear that the provision does not require that a person
should be individually singled out or targeted before coming within the
complementary protection scheme nor does it impose a higher threshold than is required
for Convention-based protection.[27]
3.25
The IARC/RACS joint submission suggested the question should not go to
how many people in a country are facing risk of violence, but rather their
ability to relocate to another third place to find protection, as addressed by
proposed paragraph 36(2B)(a). They also argued that, were the real risk not
faced by the non-citizen personally, they would not satisfy the requirements of
subsection 36(2A) and would be disqualified at that stage. With these matters
in mind, IARC/RACS recommended the deletion of the proposed paragraph 36(2B)(c)
altogether.[28]
3.26
While the committee has been unable to explore the likely implications
of the IARC/RACS recommendation, it is of concern that more than one submitter
expressed a view that the provisions as they stand may not serve to protect
women fleeing mutilation or culturally accepted domestic violence.[29]
The committee recommends that proposed paragraph 36(2A)(c) be revisited with a
view to establishing categorically that it would not serve to exclude from
protection non-citizens such as those described above.
Recommendation 2
3.27 The committee recommends that the effect of proposed paragraph 36(2A)(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.
Death penalty
3.28
The Bill requires as one possible ground for a claim of protection that
the ‘non-citizen will have the death penalty imposed on him or her and it will
be carried out’.
3.29
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.[30]
3.30
The Department argued that the requirement 'is an essential aspect of
that ground, and it is expected that claims relating to prison conditions on
death row will be considered against the last three grounds', which are those
relating to torture, cruel, inhuman or degrading treatment.[31]
3.31
Nonetheless, the committee is unconvinced by this argument, considering
that its acceptance may draw into question the usefulness of the death penalty
ground altogether. It could also 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. The committee
recommends the test be amended to require that where the death penalty is
imposed, it is 'likely' to be carried out.
Recommendation 3
3.32 The committee recommends 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'.
‘Cruel or inhuman treatment or punishment’ and ‘degrading treatment or
punishment’
3.33
A submission received from Dr Michelle Foster and Jason Pobjoy expressed
concern about the inclusion of an ‘intention’ requirement in the definitions of
‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or
punishment’ in proposed subsection 5(1). The submitters contended that the
imposition of this additional criterion is inconsistent with Australia’s
international human rights obligations, and that it was difficult to ascertain
the justification for the imposition of this additional hurdle.[32]
3.34
Associate Professor Jane McAdam queries the separation in the Bill of
the two classes of treatment or punishment, preferring to consolidate the two
classes of treatment as one ground under subsection 36(2A), and simplifying the
definition of cruel or inhuman treatment or punishment. Associate Professor
McAdam submitted that:
It is unclear why the Bill separates out ‘cruel or inhuman
treatment or punishment’ from ‘degrading treatment or punishment’. The
standard approach internationally is to regard these forms of harm as part of a
sliding scale, or hierarchy, of ill-treatment, with torture the most severe
manifestation. The distinction between torture and inhuman treatment is often
one of degree. Courts and tribunals are therefore generally content to find
that a violation falls somewhere within the range of proscribed harms, without
needing to determine precisely which it is. Indeed, the UN Human Rights
Committee considers it undesirable ‘to draw up a list of prohibited acts or to
establish sharp distinctions between the different kinds of punishment or
treatment; the distinctions depend on the nature, purpose and severity of the
treatment applied’. For that reason, the Human Rights Committee commonly fails
to determine precisely which aspect of article 7 ICCPR has been violated, and
there is accordingly very little jurisprudence from that body about the nature
of each type of harm.[33]
3.35
The committee notes that the Department of Immigration and Citizenship
has submitted that the exhaustive definitions of treatment or punishment are
intended to guide decision-makers and the Australian judiciary in interpreting
and implementing these international law concepts:
These definitions reflect the extent of Australia's
non-refoulement obligations without expanding the concepts beyond
interpretations currently accepted in international law and commentary.[34]
3.36
Because of the constrained circumstances of this short inquiry, the
committee has not had the opportunity to investigate these definitional issues
in any detail, but notes the Department's assertion that the definitions are consistent
with current international law.
People eligible but for character concerns
3.37
Article 7 of ICCPR and Article 3 of CAT impose a non-derogable duty on
signatories to observe non-refoulement obligations even in respect people for
whom the country of refuge harbours character concerns. Several submissions
raised the proposed amendments in subsection 36(2C) and their inconsistency
with these instruments.[35]
3.38
The explanatory memorandum notes that, in fulfilling its non-refoulement
obligations, Australia is under no duty to grant any particular kind of visa to
a person seeking protection about whom there are character concerns:
It is intended that, although a person to whom Australia owes
a non-refoulement obligation might not be granted a protection visa because of
this exclusion provision, alternative case resolution solutions will be
identified to ensure Australia meets its non-refoulement obligations and the
Australian community is protected.[36]
3.39
The committee agrees that international obligations need to be balanced
with security imperatives, and that the Government would appear to be adopting
a fair and measured approach. Nonetheless, the committee looks forward to
learning further details about what form 'alternative case resolution solutions'
would take.
Terms of imprisonment to determine serious crime
3.40
IARC/RACS consider that the assessment of the seriousness of a person's
criminal history by reference to the length of time they would be imprisoned if
the same conviction were secured in Australia, is unfair. They submitted that:
Including a quantifying figure regarding the maximum or fixed
terms of imprisonment in the legislative definition removes the flexibility and
scope for mitigation inherent in any criminal jurisdiction in determining ‘seriousness’ of offences. We submit there is no need to quantify a term of
maximum or fixed sentence in defining whether or not a crime is a serious
offence and that plain English and reasonable community standards should
prevail to obviate the necessity to do so...[I]f the Department wants to provide
guidance to decision makers on what length of sentence would generally be
considered serious this can be done in policy. The inclusion of guiding
quantifying figures in policy would allow flexibility in cases where there are mitigating
circumstances that may not have been foreseen by the legislative drafters.[37]
3.41
Nonetheless, the level of certainty offered by the proposed amendment,
and the degree of consistency in application stemming from it, appeal to the
committee. A reliance on less definitive guideposts could serve to reduced
consistency in the assessment of claims between applicants, and that is to be
avoided.
Statelessness
3.42
The Bill does not provide for protection visas to be issued solely on
the basis of statelessness. The Committee notes from its submission that the
Department has been asked to explore ‘possible policy options for the small
cohort of people who are stateless but do not engage Australia’s international
protection obligations and cannot return to their country of former residence’[38]
3.43
The committee notes general acceptance of this position, and strong
support for the implementation of new options to resolve the issue of
statelessness while ensuring Australia fulfils its international obligations.
For example, as noted by the Refugee Council of Australia:
We note the decision, flagged some time ago, not to include
coverage of statelessness within the matters encompassed by complementary
protection. We accept the reasons for this decision – namely, that the Statelessness
Conventions to which Australia is a party do not contain non-refoulement
provisions and, as such, do not fall logically within a protection framework.
We appreciate that stateless persons who also invoke Australia’s
non-refoulement obligations under another relevant treaty will be afforded
protection. We welcome the assurance in the Second Reading Speech that other
policy options will continue to be explored to ensure that stateless persons
receive appropriate treatment.[39] [40]
Likely effect on numbers of visas granted
3.44
The Department submitted that it does not expect any ‘significant
increase’ in visa grants as a result of the Bill as currently drafted. The
Department explained that:
Complementary protection is largely dependent on an
assessment of the situation of the applicant's home country as well as a
consideration of evidence as to whether the applicant is directly at risk of
serious harm because of personal reasons. For this reason, there is little data
available on a 'typical' complementary protection case and little data on which
to make projections as to how many people may be granted Protection visas on
complementary protection grounds. Past experience, however, indicates that the
number of cases is low. In 2008–09, 606 visas were granted out of the
Humanitarian Program. The Department estimates that less than half may have
involved cases which raised non-refoulement issues.[41]
Conclusion
3.45
As previously noted, the References committee has on several occasions
in the past recommended the introduction of complementary protection
legislation, as did the Senate Select Committee on Ministerial Discretion in
Migration Matters in 2004. Such legislation is premised on expectation by
voters that such protections should be offered to deserving applicants, and as
Mr Ferguson said in the Second Reading Speech:
Where the harm faced is serious enough to engage Australia’s
non-refoulement obligations, fine legal distinctions about which human rights
instrument the harm fits under should not determine whether a person is
guaranteed natural justice, has access to independent merits review, or meets
the criteria for grant of a protection visa.[42]
3.46
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
committee also notes 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. Subject to Recommendations 1 to 3, the committee
recommends the Bill be passed.
Recommendation 4
3.47 The committee recommends that subject to Recommendations 1 to 3, the
Bill be passed.
Senator Trish Crossin
Chair
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