Dissenting Report By Labor Senators
In the view of Labor Senators, this Bill cannot regain control over
Australia's protection obligations. That control has never been lost. Accordingly,
Labor Senators recommend that the Bill not be passed.
In March 2012, the then Labor government instituted a statutory regime
for assessing complementary protection claims. That statutory scheme was the
product of multiple reviews into the previous scheme which relied entirely on
the minister's personal, non-delegable, non-reviewable and non-compellable
powers. Those reviews highlighted the gross inefficiency and unfairness of that
It is that process to which the government now wishes to return. Whilst
the statutory scheme for complementary protection introduced by Labor was evidence
based and effective policy making, there is no evidence to support the
government's Bill. Apart from the department, all submissions received by the
committee in relation to this Bill opposed its introduction.
At the public hearing on 14 February 2014, the committee heard
overwhelming and compelling evidence as to why this Bill would, if passed, lead
to inefficiency. Moreover, it would increase the risk of errors and undermine
Australia's ability to provide protection to vulnerable people including women
at risk of honour killings and girls at risk of genital mutilation.
Labor Senators also highlight that both the Scrutiny of Bills Committee
and Parliamentary Joint Committee on Human Rights have raised serious
concerns with the Bill.
Their concerns include the failure to define the proposed administrative
arrangement for considering complementary protection claims and concerns about
the Bill's compatibility with Australia's human rights obligations.
In this dissenting report, we set out the background to the introduction
of complementary protection by the previous Labor government and highlight the
overwhelming evidence received by the committee on why this Bill should not
In this section we set out what the term 'complementary protection'
means, why the then Labor government introduced a statutory scheme for
assessing complementary protection claims in 2012 and, finally, we question the
government's rationale for the Bill.
What is complementary protection?
Complementary protection is the term used to describe a category of
protection under international law for people who are not refugees as defined
in the Refugee Convention, but who, if returned to their home country are at a
real risk of suffering significant harm. Due to the real risk of significant
harm these individuals engage Australia’s non-refoulement (non-return)
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
Examples where complementary protection obligations have been found to arise
women who would be subject to forced marriage;
women who would be subject to domestic violence or honour
young girls who would be subject to genital mutilation; and
individuals who, because of their sexual orientation, would be
subject to torture or death.
Why was a statutory scheme for complimentary
protection introduced into the Migration Act 1958?
Complementary protection provisions were introduced into the Migration
Act 1958 ('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.
In December 2007, the then Minister for Immigration & Citizenship,
Senator the Hon Chris Evans, commissioned businesswoman and former senior
public servant, Ms Elizabeth Proust, to undertake an independent review of the
department’s effectiveness particularly in the area of managing processes
associated with the minister's discretionary powers under the Act. The minister
was concerned that he was 'playing god' when personally making decisions on individual
visa cases and this was not an efficient nor effective use of resources.
How best to manage and utilise the minister's limited resources, as well as
improve the administration of the visa processing scheme were key
considerations of this review.
The Proust Report recommended the introduction of a scheme for
complementary protection that no longer relied on the minister's discretion.
The volume of applications, together with their complexity, militate against
any minister having the capacity to effectively consider complementary
protection claims under his or her non-delegable and discretionary powers. That
report took the view that a statutory scheme for considering complementary
...has the advantage of transparency, efficiency,
accountability, and for the applicant, gives more certainty and reduces the
time involved in the processing. For the Minister, it would be a significant
reduction in workload.
In addition to the Proust Report, this very committee has on multiple
occasions recommended the introduction of a statutory scheme for complementary
protection, for example:
- 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 Legal and Constitutional References Committee report, Administration
and Operation of the Migration Act 1958 (March 2006); and
the Senate Legal and Constitutional Affairs Legislation Committee
report, Migration Amendment (Complementary Protection) Bill 2009
[Provisions] (October 2009).
The 2009 report of this committee considered an earlier iteration of the
Bill that ultimately introduced the statutory scheme for complementary
protection claims. In that report, the committee took the view that the
Australian community expects complementary protection claims, which raise grave
protection concerns, 'to be dealt with through a process that affords natural
justice and access to independent merits review'.
Submitters to that inquiry overwhelmingly supported the introduction of
a statutory scheme for assessing complementary protection claims. The
department submitted at the time that the reforms were necessary because the
administrative arrangements were considered to be inefficient and lengthy:
The use of the Ministerial intervention powers to meet
non-refoulement obligations other than those contained in the Refugees
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 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 claim 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.
In addition, the department submitted that the introduction of
complementary protection legislation would not take away from the minister's
ability to intervene in unique cases and in fact may improve his or her capacity
to focus on those cases 'which raise unique and exceptional circumstances as
originally contemplated when this power was created'.
Other inquiries also recommended a statutory scheme for assessing
complementary protection claims including: 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).
Based on this overwhelming evidence that complementary protection claims
should not be left to the discretionary powers of the minister, the then Labor
government introduced on 24 March 2012, the current statutory regime for
considering complementary protection claims. The 2012 amendments provided for a
combined protection visa assessment process of both Australia's obligations
under the Refugees Convention and Australia's non-refoulement obligations under
the ICCPR, CRC and CAT.
This combined assessment is efficient and ensures applicants do not have to go
through separate and unnecessary processes to access complementary protection.
As a result of this scheme, the burdens on the applicant are necessarily
reduced and government resources are not tied up in unnecessary processes.
What is the rationale for removing
the statutory scheme and how would it work?
The current regime has been in place for less than two years. Given the
wealth of evidence supporting this approach, it is beholden on the minister to
explain why he has proposed, though this Bill, to remove the statutory scheme
and replace it with the former failed scheme based on ministerial discretion.
The minister has not made even the slightest case for this Bill. His second
reading speech contained a number of contradictory arguments. For example, on
the one hand the Bill is necessary to regain control over Australia's
protection obligations, on the other only 57 applicants have been granted a protection
visa on the complementary protection grounds.
Given thousands of protection visas are issued every year, the small number of
successful applicants for complementary protection belies any notion that
Australia has lost control of its protection obligations.
The return to Australia’s non-refoulement obligations being considered
through an administrative process gives full decision making discretion to one
person – the Minister for Immigration and Border Protection. And yet, two
months after he had introduced the Bill into the other house, he had not yet decided
on the administrative processes that he will use to assess complementary
protection claims. During the public hearing into this Bill, the department
could not explain in any detail how complementary protection claims would be
managed and processed because the minister had not signed off on the policy.
How can this parliament support a Bill to remove an effective scheme when the
alternative has not yet been fully elaborated?
Accordingly, Labor Senators are of the view that the minister has singularly
failed to explain both the rationale for the Bill and how the government's
proposed approach would work in practice.
Evidence to the committee
Submitters put forward a range of reasons why the Bill should be
rejected. In this section, we highlight three key reasons in turn:
risks associated with removing standard legal processes and
risk of harm to vulnerable people.
Submitters and witnesses highlighted that the Bill would introduce
significant inefficiency in the processing of complementary protection claims.
Ms Nicolle's evidence to the committee was emblematic of many submissions when
she noted the Bill:
....creates an administratively inefficient practice for the
department. The amendment would force complementary protection claimants to
undergo the futile process of being assessed against refugee convention
obligations that they plainly do not engage. Only then may they request
ministerial intervention to have that claim assessed against Australia's other
In addition to the inefficiency of burdening complementary protection
claimants with unnecessary processes, the removal of merits review will have
particular implications for the courts. Dr Thom was representative of a number
of submitters when he argued that:
if cases cannot go through an open and transparent system,
which they currently have, these things will fall to the courts. This is what
we have seen in the past. ... This is another cost that will play out for those
individuals but also for the Commonwealth, and it is something that we think is
unnecessary when those determinations could easily have been made at the first
Further, the Asylum Seekers Resource Centre (ASRC) noted the impact the
Bill would have on Australian charities:
When there is not efficient, quality and timely decision
making that meets obligations, who pays for it? Charities pay for it....Why would
we want a model that bleeds resources from charities? They are helping people,
having to support them [complementary protection applicants] for years.
In addition to these views, a number of migration agents made
submissions to the inquiry. Those submissions contrasted the efficiency of the
current statutory scheme with the inefficiency of the process proposed in the
Ms Tompson, a registered migration agent, submitted in relation
to the existing statutory scheme that:
To put it simply, there is not a significant administrative
burden involved in asking a departmental decision-maker or RRT decision-maker
to consider broad human rights instruments and the definition of serious harm
when considering a protection visa application because there is no additional
process. There is no additional interview, no separate tribunal, only an
additional set of criteria that a decision-maker must consider during the same
interview and determination process. ... One can easily follow the
decision-maker’s method: after ruling that an applicant is not a refugee, the
decision-maker goes on to use largely the same facts to make a determination
against the 36(2)(aa) [complementary protection] criteria.
In contrast to this simple and clear process, the Migration
Institute of Australia submitted that the proposal in the Bill would increase
costs and introduce inefficiency:
Removing the requirement for the RRT to consider
complementary protection claims can only result in further increased costs to
the Government in having to process these claims administratively and a
duplication of services. ....The new system as currently proposed will result in
the applicant’s claims having to be considered by a Ministerial Unit staffed by
Departmental officers who will need to examine each claim de nuovo (which is
currently the role of the RRT). This does not appear to be in line with the
Government’s intentions of trying to work more productively within its current
Risks associated with removing
standard legal processes and protections
In addition to introducing inefficiency, submitters expressed concerns
that the proposal in the Bill would undermine key protections under Australian
law for those seeking protection on the grounds of complementary protection. As
Mr David Manne argued persuasively:
Due process in this country lies at the heart of the basic
safeguards for individuals in relation to fundamental rights and in relation to
ensuring that we do not violate rights and endanger lives.
And yet this Bill would remove those basic safeguards and institute a system:
...proposing to vest one person,—the minister of the Crown in
this country—who presumably has a lot of other things on his or her plate, to
be deciding the individual fate of so many people.
The sheer volume of cases which are referred to the minister for
consideration was highlighted by the ASRC:
In 2009-10, for example, the Minister personally signed off
on 2025 requests. If the Minster worked all 52 weeks of the year, he would have
been required to finalise almost 40 applications per week.
The risk of reverting to a system that requires the minister to decide so
many cases is compounded by the removal of merits review. The Human Rights Law
Centre noted the critical importance of merits review in remedying errors:
The decision as to whether or not an asylum seeker genuinely
needs protection from serious harm can involve evaluating vast and often
conflicting country information, assessing complex evidence, making highly
subjective credibility assessments and applying technical legal principles.
Competent decision makers exercising their powers in good
faith may still make mistakes. There must be processes in place to correct
them, especially given that the consequence of error can be the return of a
person to face serious human rights violations.
The importance of merits review is also highlighted by the fact that, of
the very few individuals who have been granted a protection visa on the grounds
of complementary protection, 'a high proportion of visas that have been granted
on those grounds have been from an RRT determination'.
Accordingly, it is unsurprising that multiple submitters argued strongly
that this the Bill would heighten the risk that errors would be made, resulting
in Australia breaching its non-refoulement obligations under international law.
For example, Mr Manne argued:
...What all of this would do is take us back to a process, back
to a situation, where there would be on any view be a higher risk of harm to
people seeking protection from danger, and the real potential for serious
mistakes and miscarriages of justice.
In addition to removing merits review, Labor Senators raise concerns
about the limited availability of judicial review. In this regard we note
commentary from the Scrutiny of Bills Committee (which were endorsed by the Law
....Although the High Court’s jurisdiction under section 75(v)
of the Constitution would continue to be available in principle ..., in practice
the non-statutory nature of the decision-making process may diminish its
effectiveness in ensuring legal accountability. If the new administrative
process for decision-making ... is linked to the exercise of the Minister’s
personal and non-compellable intervention powers to grant a person a visa under
the Migration Act ..., the scope for judicial review will depend on whether the
Minister has made a decision to consider the exercise of these powers in a
particular case. If the Minister refuses to even consider the exercise of these
powers, the result is likely to be that judicial review would in practice be
unavailable. Further, even if judicial review is available the Minister could
not be compelled to exercise these powers and questions may arise as to the
utility of declaratory relief.
The Scrutiny of Bills Committee raised similar concerns in relation to
the effectiveness of judicial review for decisions taken by departmental
officers as part of a pre-removal process:
... Assuming the ultimate source of power exercised is
non-statutory Executive power, then questions may arise as to how effective
judicial review of its exercise would be. The 'constitutional writs' (such as mandamus)
are available only on the basis of jurisdictional errors and, typically, such
errors are identified by reference to the statute under which a decision is
Risk of harm to vulnerable people
Whilst the minister raised the furphy of complementary protection being
used by criminals and bikies,
evidence to the committee demonstrated that the primary beneficiaries have been
particularly vulnerable groups.
CASE for Refugees submitted that it had personally made eight
complementary protection applications since the introduction of the statutory
scheme in 2012. All of those cases:
....were for women and/or children who faced a harm
within their family or close community in countries where law enforcement
agencies were unable or unwilling to protect them from that harm.
In similar evidence, the Human Rights Law Centre noted:
The Bill will repeal provisions that protected a Pakistani
woman who faced the risk of being killed by her family because she did not
marry the first cousin to whom she was 'betrothed from birth'. She fell outside
the Refugee Convention because her risk of being killed was not due to her
race, religion, nationality, political opinion or membership of a particular
social group. She was granted a protection visa on complementary protection
grounds after the Refugee Review Tribunal found that she faced a risk of harm,
accepted evidence about the inability and unwillingness of the local police and
judiciary to protect would be victims of honour killings and found that there
was no other area to which she could relocate where she would be safe.
The committee also received submissions from the Coalition Against
Trafficking in Women Australia (CATWA) and Anti-Slavery of Australia who
highlighted the importance of complementary protection for women who are the
victims of human trafficking, servitude and slavery.
The Australian Churches Taskforce highlighted the important protections
complementary protection provides to young girls at risk of genital mutilation.
Rainbow Communities Tasmania demonstrated the importance of
complementary protection to individuals at risk of torture or death due to
their sexual orientation or gender identity:
If the provisions are repealed, there is a real risk that
LGBTI asylum seekers will be exposed to very serious international human rights
violations, including torture or death contrary to our international legal
obligations. Removing a codified basis to have claims considered against the
complementary protection criteria means that Australia cannot guarantee that
LGBTI asylum seekers will be protected from removal to significant harm.
The National Ethnic Disability Alliance (NEDA) submitted that the
Bill raised concerns for people with a disability, particularly those who are
vulnerable due to a cognitive impairment.
Finally, a number of submitters raised concerns that the Bill had
implications for the unity of families. Currently under the Act, where an
individual is granted a protection visa on the grounds of complementary
protection, their immediate family members are also eligible for a protection
visa. This Bill would remove these provisions, potentially in breach of
international law as highlighted by RACS:
The proposed Bill also risks Australia violating
international obligations under the ICCPR and CRC which require the best
interests of the child and family unit to be protected. Under the existing
provisions, a grant of protection to a person on complementary grounds will
also be extended to that person’s family. This guarantee will be removed under
the proposed amendments and will be left as a matter to be decided by the
Minister at his discretion.
Additional information from the department
On 3 March 2014, nearly three months after the Bill was introduced to
the other house, the committee received an additional submission from the
This additional submission sets out how the department and the minister would
assess and process complementary protection claims if the legislation was
passed. This additional information, whilst useful to understanding how the
government proposes to manage complementary protection claims, does not address
the concerns of submitters. The administrative arrangement do not provide
merits review of the department's primary decision and the minister will not be
compelled to grant a visa where a complementary protection obligation is found
Further, the actual policy documents that will be used as part of the
administrative process have not been publicly released. The department stated
The guidance material supporting the process will be publicly
available. Public information specifically designed for reference by the people
having their... claims against Australia's non-refoulement obligations under the
ICCPR and the CAT assessed will also be made available.
These documents should have been drafted and released for public
comment. All departmental manuals and guidance materials which would form part
of the administrative process for assessing complementary protection claims
need to be publicly released so that they may scrutinised. A short summary of
how the minister and department envisage running the process is not sufficient
information to provide a basis for passing this Bill.
The introduction of a statutory scheme for complementary protection by
the Labor government in 2012 brought Australian law into line with the 27
countries of the European Union (EU), Canada, the United States, New Zealand, Hong
Kong and Mexico. The statutory scheme improved efficiency. It significantly
reduced the number of cases personally before the minister, improving their
ability to focus on truly unique or complex cases. With a robust scheme or
merits review, the statutory scheme reduced the risk of error thus improving
Australia's ability to provide necessary protection, particularly to vulnerable
Given the success of the statutory scheme for assessing
complementary protection claims introduced by Labor in 2012, Labor Senators
recommend that the Bill not be passed.
Senator the Hon Lisa
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