On 5 December 2013, the Senate referred the Migration Amendment
(Regaining Control Over Australia's Protection Obligations) Bill 2013 [Provisions]
(the Bill) to the Senate Legal and Constitutional Affairs Legislation Committee,
for inquiry and report by 3 March 2014.
On 3 March 2014, the Senate extended the reporting date of this inquiry to
18 March 2014.
The Bill was introduced in the House of Representatives on 4 December 2013,
by the Hon Scott Morrison MP, Minister for Immigration and Border Protection.
The Bill would amend the Migration Act 1958 (the Act) to remove the statutory
criterion for grant of a protection visa on 'complementary protection' grounds
and other related provisions. Instead, Australia's complementary protection
obligations under international law would be considered through administrative
processes as was previously the case prior to March 2012.
Australia's obligations under international law
Australia acceded to the Convention Relating to the Status of
Refugees on 22 January 1954 and the Protocol Relating to the Status
of Refugees on 13 December 1973 (together the Refugees
Convention). As a party to the Refugee Convention, Australia owes protection
obligations to individuals who have 'a well founded fear of being persecuted
for reasons of race, religion, nationality, membership of a particular social
group or political opinion' if returned to their home country. A central protection
obligation is the principle of 'non-refoulement', which prohibits return of an
individual to a country in which he or she may be persecuted.
In addition to protection obligations under the Refugee Convention,
Australia has assumed additional non-refoulement obligations under
international law to non‑refugees. These obligations exist where there is
a real risk that if Australia was to return an individual to their home country
they would suffer a certain type of harm. Protection from return in situations
that engage these non-refoulement obligations is often referred to as 'complementary
protection'; that is, protection under international treaties that is
additional to the protection given to refugees under the Refugee Convention.
Australia's non-refoulement obligations are engaged by the International
Covenant on Civil and Political Rights (the ICCPR), the Second Optional
Protocol to the International Covenant on Civil and Political Rights Aiming at
the Abolition of the Death Penalty, the Convention on the Rights of the Child
(the CRC) and the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (the CAT). These treaties provide protection
from the real risk of:
- arbitrary deprivation of life;
- imposition of the death penalty;
- being subject to torture; or
- being subjected to cruel, inhuman or degrading treatment or
Complementary protection considerations under Australian law
Complementary protection provisions were introduced into the Act on 24 March
2012. Prior to the commencement of these provisions, Australia assessed its
non-refoulement obligations through administrative processes which either went
towards the exercise of the minister's personal non-compellable intervention
powers under the Act or through pre-removal assessment procedures.
The Migration Amendment (Complementary Protection) Bill 2011 introduced
complementary protection provisions into the Act. The introduction of a
statutory framework for considering complementary protection claims had been considered
by the Senate Legal and Constitutional References Committee report A
Sanctuary under Review: An examination of Australia's Refugee and Humanitarian
Determination Processes (June 2000); the Senate Select Committee on
Ministerial Discretion in Migration Matters (March 2004); and the Legal and
Constitutional References Committee report Administration and Operation of
the Migration Act 1958 (March 2006). In October 2009, the Senate Legal
and Constitutional Affairs Legislation Committee report Migration Amendment
(Complementary Protection) Bill 2009 [Provisions] recommended a bill
introducing complementary protection provisions in to the Act be passed subject
The 2012 amendments provided for a combined protection visa assessment
process of both Australia's obligations under the Refugee Convention and
Australia's non-refoulement obligations under the ICCPR, CRC and CAT. In order
for a noncitizen to receive complementary protection, the minister must have
substantial grounds for believing that, as a necessary and foreseeable
consequence of the non-citizen being removed from Australia to a receiving
country, there is a real risk that the non-citizen will suffer significant
harm. In addition, the 2012 amendments provided unsuccessful applicants for
complementary protection with equivalent administrative review rights as
persons seeking protection under the Refugee Convention.
The Bill seeks to amend the Act to remove the criterion for the grant of
a protection visa on the basis of complementary protection from the Act. The
Bill seeks to move the assessment of Australia's complementary protection
obligations to a separate administrative process. According to the Explanatory Memorandum,
the government will re-establish a similar administrative process to that which
existed prior to the 2012 amendments. Australia's non-refoulement obligations
would be assessed administratively either as part of pre-removal procedures or
through the minister's personal and non-compellable public interest powers to
grant a visa under the Act.
The administrative process that would be used by the Department of Immigration
and Border Protection (department) if the Bill was passed was further explained
in an additional submission from the department.
Complementary protection obligations will be assessed by the primary decision
if the person is in detention ‑
- immediately following a negative primary protection decision by
the department; and
if the person is in the community ‑
in the event that the Refugee Review Tribunal (RRT) on review
confirms the department's primary protection decision that the person is not a refugee.
The department will also maintain access to ministerial intervention and
pre‑removal assessment processes to ensure those in need of Australia's
protection are not refouled in breach of international law.
Rationale for the Bill
The second reading speech discloses the rationale for introducing the
Bill as being based on the need to regain control of Australia's protection
obligations. During the second reading speech, Mr Morrison stated:
It is the government's position that it is not appropriate
for Australia's non-refoulement obligations under the CAT and the ICCPR to be
considered as part of a Protection visa application under the Migration Act.
Such a measure creates another statutory product for people smugglers to sell.
Given that only 57 applicants have satisfied the requirements for the
grant of a protection visa on complementary protection grounds, the government
argues that the complementary protection provisions of the Act are 'costly and
The complementary protection provisions that were introduced
in the Migration Act by the previous government are complicated, convoluted,
difficult for decision-makers to apply and are leading to inconsistent outcomes.
On introducing the Bill, the minister explained that a number of
individuals who had been found to engage complementary protection obligations
were people who had committed serious crimes in their home countries, or people
associated with criminal gangs or involved in blood feuds.
Another reason for introducing the Bill is to respond to recent court
decisions that have changed the test for assessing complementary protection
claims. The department argued that the courts have applied the statutory
provisions for complementary protection in a manner inconsistent with the department's
The courts have equated the threshold of 'real risk' that a person will suffer
significant harm with the lower threshold of a 'real chance', as applied under
the Refugee Convention.
Further, the court's decisions have the result that even where a
person's home country has a functioning and effective police and judicial
system, in order for the Australian government to conclude that the person's
home country will in fact manage to protect the person from the risk of harm,
the protection by that country's authorities must reduce the level of harm to
below that of a 'real chance'. The department submitted that the 'real chance
test' is a very low bar and, according to the department, lower than required
under the CAT and the ICCPR.
Whilst the complementary protection provisions would be removed from the
Act, according to the government:
...the bill does not propose to resile from or limit Australia's
non‑refoulement obligations, nor is it intended to withdraw from
any Conventions to which Australia is a party. Australia remains committed to
adhering to our non-refoulement obligations under the CAT and the ICCPR. Anyone
who is found to engage Australia's non-refoulement obligations under these
treaties will not be removed from Australia in breach of these obligations.
The government also stressed the advantages of moving from a statutory
to an administrative process, including that:
The Minister for Immigration and Border Protection's personal
powers have the advantage of being able to deal flexibly and constructively
with genuine cases of individuals and families whose circumstances are
invariably unique and complex, and who may be disadvantaged by rigidly codified
Conduct of the inquiry
In accordance with the usual practice, the committee advertised the
inquiry on its website. The committee also wrote to relevant organisations
inviting submissions by 23 January 2014. The committee received 30 submissions.
A full list of submissions is provided at Appendix 1.
The committee held a public hearing in Melbourne on 14 February 2014.
A list of stakeholders who have evidence to the committee at the public
hearing is provided at Appendix 2.
Structure of the report
This report considers the Bill as follows:
chapter 2 provides a brief overview of the provisions contained
in the bill;
- chapter 3 discusses the key issues raised in submissions and
evidence to the committee; and
- chapter 4 sets out the committee's views and recommendations.
The committee thanks the organisations and individuals who made
submissions and gave evidence at the public hearing.
Note on references
References in this report to the committee Hansard are to the proof.
Hansard and page numbers may vary between the proof and the official Hansard
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