Bills Digest no. 49 2015–16
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Elibritt Karlsen
Law and Bills Digest Section
18 November 2015
Contents
Purpose
of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Other provisions
Date introduced: 14
October 2015
House: House of
Representatives
Portfolio: Immigration
and Border Protection
Commencement: Sections
1 to 3 commence upon Royal Assent and Schedule 1 commences on a day to be
fixed by Proclamation or six months after Royal Assent, whichever is sooner.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The purpose of the Migration Amendment (Complementary
Protection and Other Measures) Bill 2015 (the Bill) is to amend the Migration Act 1958
[1](the
Act) primarily to align the complementary protection statutory framework with
the statutory refugee framework, as recently amended by the Migration and Maritime
Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.[2]
More explicitly, the Bill will amend the Act to provide:
- protection
is only available where the real risk of significant harm relates to all areas
of a receiving country
- protection
is not available if an applicant could take reasonable steps to modify their
behaviour so as to avoid a real risk of significant harm (other than
modification that would conflict with their innate or immutable characteristics
or which is fundamental to the person’s identity or conscience)
- protection
is only available where the real risk of significant harm is faced by a person
personally, rather than being an indiscriminate risk of harm faced by the
population generally in a receiving country
- protection
is only available if effective protection measures are not available to an
applicant through State or non-State actors in a receiving country and
- the
ability of the Minister for Immigration and Border Protection to preclude
merits review will be expanded to include an unsuccessful complementary
protection applicant on character grounds.
The Bill also makes other minor amendments.
Background to the existing statutory scheme
The Migration
Amendment (Complementary Protection) Act 2011 (the Complementary Protection Act) amended section
36 of the Act to provide a new statutory ground upon which protection visas
could be granted (namely, on complementary protection grounds).[3]
The new visa criterion commenced by Proclamation on 24 March 2012.
In brief, ‘complementary protection’ is the term used to
describe a category of protection for people who are not refugees but who
cannot be returned to their home country because there is a real risk they will
suffer significant harm. The Act prescribes that a person will suffer
‘significant harm’ if:
- the
person will be arbitrarily deprived of his or her life
- the
death penalty will be carried out on the person
- the
person will be subjected to torture
- the
person will be subjected to cruel or inhuman treatment or punishment, or
- the
person will be subjected to degrading treatment or punishment.[4]
Australia’s non-refoulement (non-return) obligations
to such people arise from the International Covenant on Civil and Political
Rights (ICCPR), and the Convention Against Torture, and other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) to which Australia is a party.[5]
The Coalition strongly opposed the former Labor
Government’s introduction of a statutory complementary protection regime,
preferring to rely on an administrative process to enable the Minister to
personally determine claims on a discretionary (and non-compellable) basis.[6]
The Coalition was of the view that the introduction of a statutory scheme is:
unnecessary counterproductive and risks being represented as
yet another softening of Australia’s immigration laws that sends a clear
message to people smugglers and unlawful non-citizens seeking entry that
Australia is an easy target ... [and would] encourage the lodging of a large
number of new, non-refugee, protection applications and the making of false
asylum claims.[7]
Accordingly, the first immigration Bill to be introduced
by the Coalition after it regained power in late 2013 was the Migration
Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013
(Regaining Control Bill) which proposed to repeal (in essentially identical
terms) the provisions inserted by Labor’s 2011 Complementary Protection Act.[8]
Then Minister for Immigration and Citizenship, Scott Morrison, expressed
numerous concerns about the operation of the newly created statutory scheme:
- it
creates an incentive for people to come to Australia
- it
is a costly and inefficient way to process applicants as so few are satisfying
the visa criteria
- people
who have committed serious crimes, have associated with criminal gangs, or have
been involved in blood feuds are satisfying the complementary protection
criteria and are guaranteed a particular visa outcome
- the
visa criteria are complicated, convoluted, and difficult for decision-makers to
apply, which is resulting in inconsistent outcomes
- the
courts have interpreted the criteria in a way that has broadened Australia’s
obligations beyond what is required under international law and
- the
criteria do not enable consideration of Australia’s broader humanitarian
concerns.[9]
The Parliamentary Library’s Bills
Digest into the Regaining Control Bill examined these concerns in greater
detail.[10]
The Senate Legal and Constitutional Affairs Committee’s
inquiry into the Migration
Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013
subsequently recommended that the Bill be passed. It also recommended that the
Department release consultation drafts of the guides and supporting material it
intended to use as part of the administrative assessment of complementary
protection claims (if the Bill was passed) and actively consults with
stakeholders in finalising those guides and supporting materials.[11]
In addition, the Committee noted:
the statutory scheme for assessing complementary protection
claims established by the previous government created another product for
people smugglers to sell. The committee is of the view that this Bill takes
that product off the shelves.[12]
However, the Committee acknowledged that a number of
submitters and witnesses held the view that it would not be possible to design
a non-statutory scheme that would be sufficient to address concerns that the
Bill could risk Australia's protection obligations under international law, may
lead to errors and introduce inefficiency.
Though it is not entirely clear why the Regaining Control
Bill was not brought on for debate in the Senate (having secured passage
through the House of Representatives in December 2013), it was discharged from
the Senate Notice Paper on 15 October 2015, nearly two years after it was first
introduced.
Nonetheless, when introducing this Bill into Parliament,
the Minister for Immigration and Border Protection, Peter Dutton, explained that
the Government had considered the concerns raised by Parliament
and its relevant committees and concluded that, on balance the best way forward
would be for the complementary protection provisions to remain in the Act, but
be modified slightly as per the terms of this Bill.[13]
Significantly, the Minister acknowledged that in doing so, Australia would
continue to align with the practices of other like-minded countries, including
New Zealand, Canada, the United States of America and many European countries.[14]
Why is the existing statutory
scheme being amended?
There appear to be three main reasons why this Bill has been
introduced, according to the Minister for Immigration and Border Protection,
Peter Dutton.
Firstly, the Bill ‘is the final instalment in a package of
legislative reforms that implements the government's election commitments to
ensure a more effective and efficient onshore protection status determination
process’.[15]
However, none of the ten or so different asylum policy papers released prior to
the 2013 federal election appear to have mentioned any proposed statutory
changes to the way in which complementary protection claims would be assessed (though
this could be because they remained opposed to the statutory framework).
Secondly, the Bill will align the complementary protection
statutory framework with the refugee statutory framework as there are
inconsistencies between the two frameworks.[16]
Though assessment of claims occurs under a single administrative process, the
Minister does not explain why consistency between the two is necessary,
other than to say a person who might be refused protection under the refugee
framework could satisfy the complementary protection framework, as currently
drafted. However, this is how the statutory scheme has been designed to
operate. An applicant can only satisfy the complementary protection criterion
contained in paragraph 36(2)(aa) of the Act once a decision-maker is satisfied
that a non-citizen is not a refugee in accordance with paragraph 36(2)(a).
It should also be recalled that the Government has previously tried to amend
the Act so that the threshold to be applied in assessing complementary
protection claims would be different to the threshold used for assessing
refugees.[17]
Thirdly, the Bill is necessary to tighten the various tests
to diminish the likelihood of certain persons being granted Australia’s
protection. Namely, people who have been involved in serious crimes in their
home countries, or are fleeing their home countries due to their association with
criminal gangs, or people who have been granted protection because they have
sold movies or drunk/supplied alcohol in countries where such activities are
severely punished.[18]
Though the number of successful complementary protection
claimants is not currently publicly known, historical figures suggest that it
is not a large number and the kinds of cases that have been successful in
Australia are broadly consistent with complementary protection decisions in
other countries.[19]
The amendments proposed in this Bill will exclude protection
to persons who can take reasonable steps to modify their behaviour (such as not
breaking the law upon their return), to those who can access effective
protection through State or non-State actors, and to those who face an
indiscriminate risk of harm which is faced by the population generally.
However, whether such measures are consistent with Australia’s international
human rights obligations is a matter of dispute, as discussed in greater detail
under the heading ‘Key issues and provisions’.
Senate Standing Committee on Legal
and Constitutional Affairs
The Bill has been referred to the Senate Standing Committee
on Legal and Constitutional Affairs for inquiry and report by 18 February 2016.
Details of the inquiry are at the inquiry webpage.[20]
At time of writing, no submissions had been published by the Committee.
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills only
commented on one aspect of the Bill, relating to merits review.[21]
The Committee’s comments are discussed in greater detail below under the
heading ‘Key issues and provisions’.
It is not currently known whether the Australian Labor
Party (ALP) will support this Bill or whether it will seek to make amendments. Senator
Sarah Hanson-Young of the Australian Greens has reportedly expressed strong
opposition to the Bill.[22]
The policy position of the other cross-benchers is not currently publicly
known.
Shortly after the Bill was introduced, David Mann
(Executive Director of the Refugee and Immigration Legal Centre) voiced
concerns over the proposed amendments, reportedly stating ‘these provisions run
the very real risk, if they pass into law, of seeing people sent back to
extremely dangerous war zones’.[23]
He also reportedly stated that the Government had not made a credible case for
the proposed changes, which he said would affect ‘many people’ in Australia. [24]
Save the Children also expressed concern
that the changes are ‘unnecessary, pose a potential breach to Australia’s
obligations under refugee and human rights law, and counter the fast growing
need for protection resulting from complex humanitarian emergencies unfolding
across the globe’. [25]
Mat Tinkler (Acting CEO for Save the Children) reportedly stated:
Australia must not take a simplistic, isolated attitude to
what is increasingly a global complex issue. At a time when more than 60
million people worldwide have been forced to flee their homes from conflict,
persecution and mass human rights violations, now is not the time to further
tighten the rules and limit life-saving protection...Minister Dutton has
expressly said that a consistent pattern of mass human rights violations would
not meet the threshold for protection under these amendments. This is
unconscionable.[26]
More broadly speaking, when a formal statutory system of
complementary protection was introduced, it received wide support from key
domestic and international human rights agencies as well as legal agencies, non‑government
organisations, refugee advocacy and church groups.[27]
As this Bill (amongst other things) is expanding the basis upon which people
can be excluded from protection under the complementary protection framework,
this Bill is unlikely to receive the support of such groups. Nonetheless, such
groups would undeniably welcome the Government’s announcement that it is no
longer going to repeal the statutory complementary protection framework
altogether (as discussed above).
The Explanatory Memorandum notes that the financial impact
of the Bill is low and that any costs will be met from within the existing resources
of the Department of Immigration and Border Protection.[28]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[29]
The Statement of Compatibility with Human Rights (the Statement
of Compatibility) provides that the amendments being proposed in the Bill ‘are
consistent with Australia’s non-refoulement obligations under the ICCPR
and the CAT as those obligations are set out in the overview of this statement ...
the Government remains committed to acting in accordance with Article 3 of the
CRC [Convention on the Rights of the Child]’.[30]
The Statement of Compatibility goes on to affirm:
these tests reflect Australia’s interpretation of its
obligations and guidance will be provided to decision makers to ensure that the
tests are applied in a manner consistent with those obligations. Any person
found to engage Australia’s non-refoulement obligations will not be
removed in breach of those obligations.[31]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights (chaired
by Philip Ruddock) examined the Bill and reported on its compatibility with
human rights in its thirtieth report, dated 10 November 2015.[32]
It commented on a number of provisions and sought the Minister’s advice in
relation to a number of the amendments being proposed (discussed in greater
detail below under the heading ‘Key issues and provisions’).
Key issues and
provisions
Existing paragraph
36(2)(aa) of the Act provides that a criterion for a protection visa is
that the applicant is:
a non-citizen in Australia (other than a non-citizen
mentioned in paragraph (a) [that is, a refugee]) in respect of 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 non-citizen being removed from Australia to a receiving
country, there is a real risk that the non-citizen will suffer significant
harm.[33]
This criterion is subject to a number of qualifications (discussed
immediately below).
Internal relocation and generalised
risk: exclusion if a person can relocate within the country and the risk of
harm is faced by the population generally
For the purposes of satisfying the complementary
protection criterion contained in paragraph 36(2)(aa), existing paragraphs
36(2B)(a) and (c) provide that there is taken not to be a real risk that a
non-citizen will suffer significant harm in a country if the Minister is
satisfied that:
- it
would be reasonable for the non-citizen to relocate to an area of the country
where there would not be a real risk that the non-citizen will suffer
significant harm or
- the
real risk is one faced by the population of the country generally and is not
faced by the non-citizen personally.
Item 16 will repeal subsection 36(2B) and item
11 will insert proposed subsections 5LAA(1) and (2) into the Act.
Together, these broadly provide that there is a real risk that the person will
suffer significant harm in a country if:
- the
real risk relates to all areas of the country and
- the
real risk is faced by the person personally (if the real risk is faced by the
population of the country generally, the person must be at a particular risk
for the risk to be faced by the person personally).
In essence, this amendment will remove the requirement for
decision-makers to consider whether it is reasonable for an applicant to
relocate to another part of the country to avoid risk of harm in light of their
individual circumstances.
In addition, this amendment will clarify that the real
risk of significant harm must be faced by the person personally. If the
real risk of significant harm is faced by the population generally, a person
must adduce additional grounds to show that they are at a particular risk.
However, the Explanatory Memorandum clarifies that this does not mean
that they must be individually targeted.[34]
Rather, it will require decision-makers to assess the actual level of risk
specifically posed to a particular person, as part of which the existence of
serious and indiscriminate human rights violations will be a relevant factor.[35]
The Department explains that the amendment will not
elevate the risk threshold for people who are facing removal to countries where
there is a generalised risk of violence. Rather, they argue that the amendment
is needed to make the policy intention clearer for decision-makers because ‘some
decision makers have erroneously reasoned that harm that is faced by a
population of a country generally will therefore be faced personally by each of
the residents, or that where significant harm is faced by everyone in the country
of origin/region of a country, a particular applicant is necessarily excluded
from protection’, neither of which were the Government’s intention.[36]
Australia’s leading academic on complementary protection,
Scientia Professor Jane McAdam (University of NSW), has previously observed
that ‘although the Refugee Review Tribunal has found in a number of cases that
a situation of general violence does not preclude the existence of an
individualised risk, section 36(2B)(c) of the Act has not been applied
consistently’.[37]
She notes that although the Federal Circuit Court has found that a person may
personally face a real risk of significant harm, even if he or she is not
singled out and others also similarly face a real risk of such harm, there
appears to be some inconsistency in the Court’s approach. For instance, one
case suggests that an applicant may face a personal risk of significant harm
even in cases where ‘almost anyone would be potentially affected’,
another case suggests that an individual must demonstrate that there are risk
factors that distinguish him or her from the general population.[38]
McAdam argues that the approach taken in the former case is more consistent
with international jurisprudence, accords with refugee law and reflects the
European courts’ approach to this issue. [39]
This is not the approach adopted by this Bill.
The Parliamentary Joint Committee on Human Rights did not
comment on this aspect of the Bill. However, with respect to the proposed
amendment requiring the real risk to relate to all areas of the country it relevantly
noted:
There are divergent views as to whether or not under
international human rights law an 'internal flight option' – the ability to
find safety in one part of your home country – negates an individual's claim
for protection against refoulement. The weight of evidence would suggest this
is not the case. What is clear from the jurisprudence is that such relocation
must be reasonable and practicable. In removing the requirement that the
minister must be satisfied that it is reasonable for a person to relocate to an
area of their home country the Bill would result in a person being ineligible
for protection even though it may not be reasonable for them to relocate
internally. This would leave such individuals subject to refoulement in
breach of Australia's international legal obligations. [40]
[Emphasis added and footnotes omitted].
While acknowledging the Department’s Statement of
Compatibility which states that in considering whether a person can relocate to
another area, a decision maker would still be required to take into account
whether the person can safely and legally access an alternative flight option
upon returning to the receiving country, the Committee observed that:
However, there is no statutory requirement obliging a
decision maker to consider such matters. While such matters may be
considered as a matter of departmental policy, this is an insufficiently robust
protection for the purpose of international human rights law. The committee
has consistently stated that where a measure limits a human right,
discretionary or administrative safeguards alone are likely to be insufficient
for the purpose of a permissible limitation under international human rights
law. This is because administrative and discretionary safeguards are less
stringent than the protection of statutory processes and can be amended or
removed at any time. [41]
[Emphasis added and footnotes omitted].
Effective protection: exclusion if
protection is available through State or non-State actors
For the purposes of satisfying the complementary
protection criterion contained in paragraph 36(2)(aa), existing paragraph
36(2B)(b) provides that there is taken not to be a real risk that a
non-citizen will suffer significant harm in a country if the Minister is
satisfied that:
- the
non-citizen could obtain, from an authority of the country, protection
such that there would not be a real risk that the non-citizen will suffer
significant harm.
Item 16 will repeal subsection 36(2B) and item
11 will insert proposed subsection 5LAA(4) into the Act which
provides that ‘there is not a real risk that a person will suffer significant
harm in a country if ‘effective protection measures’ against significant harm
are available to the person in the country’.
The term ‘effective protection measures’ is defined in existing
section 5LA (as amended by items 12 —14 of the Bill). It broadly provides
that ‘effective protection measures’ are available to a person if:
- protection
against persecution or significant harm (as the case requires) could be
provided to the person by the relevant State or a party or organisation
(including an international organisation) that controls the relevant State or a
substantial part of it, and that are willing and able to offer such protection.
In essence, this amendment will expand the bodies or
agencies that can provide effective protection to a person from ‘an authority
of the country’ to a party or organisation that controls, at a minimum, a substantial
part of the State. The Explanatory Memorandum provides the example of the
United Nations or friendly forces,[42]
though the Department’s Complementary Protection Guidelines provides the
example of a rebel or military force in power.[43]
The difference between the two should not be understated.
This amendment will align this exclusion ground to the
equivalent exclusion ground in the refugee statutory framework (see subsection 5J(2)
of the Act (as amended by item 8)).
Scientia Professor Jane McAdam (University of NSW) and
Associate Professor Michelle Foster (University of Melbourne) previously expressed
concerns over the insertion of the equivalent requirement into the refugee
statutory framework.[44]
In a joint submission to the Senate Legal and Constitutional Affairs
Committee’s inquiry into the Migration and Maritime Powers Legislation
Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 they noted that the
idea that non-State actors (NSAs) can provide adequate protection is controversial
in international practice and has proven difficult to implement in practice. In
their submission they outline some of the main arguments against NSAs being
recognised as sources of protection:
- NSAs
do not meet a key condition for providing protection, namely being a party to
the Refugee Convention and/or having an established practice of compliance with
its provisions
- NSAs
are not legally bound by any international human rights treaties and cannot be
held accountable under them
- NSAs
are unlikely to have been in a stable position over a sufficient period of time
to (i) establish a practice of compliance with international standards; or (ii)
be able to provide protection on an on-going and continuous basis
- NSAs
are unlikely to be able to have the undisputed control of territory and
administrative authority to enforce the rule of law and guarantee human rights
and
- the
notion of NSAs as actors of protection has proven problematic in practice for
national decision-makers and courts, with no consensus on what criteria must be
established to be satisfied that a sufficient level of protection will be
provided. Indeed most decisions have continued to view the State as the main
source of protection. [45]
They also expressed concern that there was no requirement
that the protection (either from a State or NSA source) be stable, effective
and durable.
Modification of behaviour: exclusion
if an applicant can modify their behaviour to avoid risk of harm
Item 11 will insert proposed subsection 5LAA(5)
into the Act. Broadly speaking it provides that there will not be a real risk
that a person will suffer significant harm if the person could take reasonable
steps to modify their behaviour so as to avoid a real risk of harm, other than
a modification that would:
- conflict
with a characteristic that is fundamental to the person’s identity or
conscience or
- conceal
an innate or immutable characteristic of the person.
Proposed paragraph 5LAA(5)(c) prescribes
modifications which would not be required, such as altering one’s religious
or political beliefs, sexual orientation, or concealing one’s ethnicity or
physical disability (amongst other things).
The Explanatory Memorandum clarifies that the Government’s
intention is that ‘this provision is concerned with reasonable modification
only’ such as ‘by refraining from engaging in an occupation that carries risk
where it is reasonable for the person to find another occupation) and could
thereby avoid the risk of significant harm’.[46]
This amendment will align this exclusion ground to the
equivalent exclusion ground in the refugee statutory framework (see subsection
5J(3) of the Act (as amended by items 9 and
10)).
The Statement of Compatibility argues that that this
amendment is consistent with Australia’s non-refoulement obligations:
In the complementary protection context, a person may be able
to modify their behaviour in a manner that would not conflict with their
identity or belief system (for example, by refraining from engaging in an
occupation that carries risk where it is reasonable for the person to find
another occupation) and could thereby avoid the risk of significant harm. If this
is the case, they should not necessarily be provided with protection, as their
return would not itself engage non-refoulement obligations – the risk of
harm would only arise if they chose to undertake certain actions. This
amendment is therefore consistent with Australia’s non-refoulement obligations.[47]
However, the Parliamentary Joint Committee on Human Rights
expressed concern about the compatibility of this amendment with Australia’s
international human rights obligations, noting that the jurisprudence does not
support the position outlined by the Government in the Statement of
Compatibility:
The jurisprudence does not support the position outlined in
the statement of compatibility. The obligation to protect against
refoulement is not contingent on the oppressed avoiding conduct that might
upset their oppressors. The courts have found that persecution does not
cease to be persecution simply because those persecuted can eliminate the harm
by taking avoiding action within the country of nationality. This principle
applies equally in the refugee assessment space as it does in assessing
complementary protection under the ICCPR and CAT.
The Bill would require decision makers to assess whether or
not a behaviour modification is reasonable and not in conflict with a
characteristic that is fundamental to a person's identity or conscience. This
measure imposes additional statutory hurdles as part of the assessment of
protection status. It requires an assessment of not only whether a person could
refrain from certain actions but also take positive actions to conceal aspects
of their identity or conscience that are not assessed as fundamental.
Under the Bill, a person could be required to not attend or
participate in any political activity, such as attending a rally, if such
conduct is not considered to be of fundamental importance to the person's
conscience. Similarly, a person who has previously worked as a journalist in
their home country could be required to cease work as a journalist if the
content of their published work risked attracting persecution. [48]
[Emphasis added and footnotes omitted].
Scientia Professor Jane McAdam and Associate Professor
Michelle Foster previously noted, when the equivalent provision was being
inserted into the statutory refugee framework, that such a provision ‘effectively
puts the onus on an applicant to ‘avoid persecution’, a position fundamentally
at odds with the human rights principles underlying the Refugee Convention’.[49]
They noted, ‘we are concerned that this provision is inconsistent with the
emphatic rejection across the common law world, and recently by the Court of Justice
of the European Union, of any ‘discretion’ or ‘modification’ requirement in the
Refugee Convention’.[50]
They further observe that:
Although the Bill purports to limit the impact of the
‘discretion’ or ‘modification’ requirement by protecting fundamental
characteristics, it is not clear how this would be applied or interpreted in
practice... However, since any limitation on rights in the ICCPR must be ‘prescribed
by law’ and are addressed to when governments may limit rights, this
rule does not assist in assessing when a person can be expected or required to
self-moderate or self‑limit, and is particularly unhelpful when an
applicant fears harm by NSAs at home.[51]
[Footnotes omitted].
Exclusion from merits review
Section 502 of the Act provides that the Minister may
personally decide in the national interest that certain persons are to be
‘excluded persons’. As a consequence of being declared an ‘excluded person’, a
person will not be able to seek merits review of a decision at the
Administrative Appeals Tribunal.[52]
While this provision currently applies to refusals of protection visas on the
basis of subsection 5H(2) and 36(1C) relating to character grounds, the
amendment being proposed by item 31 is to extend the application of this
provision to persons who have been refused a protection visa on complementary
protection grounds for reasons relating to their character (as contained in proposed
subsection 36(2C)).
The Parliamentary Joint Committee on Human Rights was of
the view that this proposed amendment raised questions about the measure’s
compatibility with Australia’s international human rights obligations. While
acknowledging that there is no express requirement specifically for merits
review in the articles of the relevant conventions or jurisprudence relating to
obligations of non-refoulement, the Committee noted that ‘treaty
monitoring bodies have found that the provision of effective and impartial
review of non-refoulement decisions by a court or tribunal is integral
to complying with the obligation of non-refoulement under the ICCPR and
CAT’.[53]
The Committee considered that ‘in the Australian context, the requirement for
independent, effective and impartial review of non-refoulement decisions
is not met by the availability of judicial review, but may be fulfilled by
merits review’.[54]
The Senate Standing Committee for the Scrutiny of Bills was
also of the view that ‘merits review provides a level of assurance that
judicial review cannot, given the restricted grounds on which courts are able
to review decisions. For example, in general, judicial review cannot correct
for factual errors even when those errors are serious and material’.[55]
The Committee was of the view that consistency with
existing powers in the Migration Act which exclude ministerial decisions
on character grounds from merits review was not a compelling justification for
the introduction of further, similar powers. In light of the limited capacity
of judicial review to ensure administrative justice in the context of broad
discretionary powers, the Committee sought more detailed advice from the
Minister which explains why an appropriate form of merits review is not
warranted in relation to the making of these decisions. [56]
Other provisions
Authorising disclosure of
identifying information to foreign countries
Section 336F of the Act provides for the disclosure of
identifying information to foreign countries or entities in certain circumstances.
The amendment being made by item 24 proposes to expand the types of
people who will not be exempt from disclosure under existing subsections
336F(3) or (4) to include unauthorised maritime arrivals:
- who
make a claim for protection as a refugee and
- who,
following assessment of his or her claim, is found to be a person in respect of
whom there are reasonable grounds for considering that he or she is a ‘danger
to Australia’s security’ or is a person who, having been convicted by a final
judgment of a particularly serious crime (including a crime that consists of
the commission of a serious Australian offence or serious foreign offence), is
a ‘danger to the Australian community’. [57]
Such an exemption, in identical terms, already exists for
unauthorised maritime arrivals who make a claim for protection on the basis
that they will suffer significant harm (paragraph 336F(5)(cc)).
The expressions ‘danger to Australia’s security’ and
‘danger to the Australian community’ (as also contained in subsection 36(1C))
is also consistent with the terminology used in Article 33(2) of the Convention
relating to the Status of Refugees as amended by the Protocol Relating
to the Status of Refugees (1951 Refugee Convention).[58]
According to the Explanatory Memorandum, ‘this amendment
is intended to bring about consistency with other subsections of the Migration
Act, and is not addressing a policy or operational deficiency that has been
identified in practice’.[59]
Exclusion from Australia
Section 503 of the Act provides that certain persons are
not entitled to enter Australia or to be in Australia during a period
determined under the regulations. While this provision currently applies to
refusals of protection visas on the basis of subsection 5H(2) and 36(1C)
relating to character grounds, the amendment being proposed by item 32 is
to extend the application of this provision to persons who have been refused a
protection visa on complementary protection grounds for reasons relating to
their character (as contained in proposed subsection 36(2C)).
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Migration Act 1958,
accessed 16 November 2015.
[2]. Migration and Maritime
Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014,
accessed 9 November 2015.
[3]. Migration Amendment
(Complementary Protection) Act 2011, accessed 9 November 2015. For
further information see: E Karlsen, Migration
Amendment (Complementary Protection) Bill 2011, Bills digest, 79, 2010–11,
Parliamentary Library, Canberra, 2011, accessed 9 November 2015.
[4]. See
proposed subsection 5LAA(3) of the Act, at item 11 of the Bill.
This definition is identical to existing section 36(2A) which is being repealed
by item 16.
[5]. Explanatory
Memorandum, Migration Amendment (Complementary Protection and Other
Measures) Bill 2015, p. 1.
[6]. For
further information see: E Karlsen, Complementary
protection for asylum seekers – overview of the international and Australian
legal frameworks, Research paper, 7, 2009–10, Parliamentary Library,
Canberra, 2009, accessed 9 November 2015.
[7]. Liberal
Senators, ‘Dissenting
report by Liberal Senators’, Dissenting report, Senate Legal and
Constitutional Affairs Legislation Committee, Migration Amendment
(Complementary Protection) Bill 2009, The Senate, Canberra, October 2009,
accessed 9 November 2015.
[8]. Parliament
of Australia, ‘Migration
Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013
homepage’, Australian Parliament website, accessed 16 November 2015; the
amendments made by items 17 to 24 in the Migration Amendment (Complementary
Protection) Bill 2011 in relation to sections 91T (non-political crime) and 91U
(particularly serious crime) and the amendments to section 5 of that Bill
relating to the interpretation of the terms ‘non-political crime’, ‘serious
Australian offence’, and ‘serious foreign offence’ were not being repealed as
these had broader application in the Act.
[9]. S
Morrison, ‘Second
reading speech: Migration Amendment (Regaining Control Over Australia’s
Protection Obligations) Bill 2013’, House of Representatives, Debates,
4 December 2013, pp. 1521–1523, accessed 9 November 2015.
[10]. E
Karlsen, Migration
Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013,
Bills digest, 41, 2013–14, Parliamentary Library, Canberra, 2014, accessed 9
November 2015.
[11]. Senate
Legal and Constitutional Affairs Committee, Inquiry
into the Provisions of the Migration Amendment (Regaining Control Over
Australia's Protection Obligations) Bill 2013, The Senate, Canberra, 18
March 2014, accessed 9 November 2015.
[12]. Ibid.,
p. 17.
[13]. P
Dutton, ‘Second
reading speech: Migration Amendment (Complementary Protection and Other
Measures) Bill 2015’, House of Representatives, Debates, (proof), 14
October 2015, p. 6, accessed 9 November 2015.
[14]. P
Dutton, Second reading speech, op. cit., p. 6.
[15]. Ibid.,
p. 4.
[16]. Ibid.
[17]. For
further information see: Parliament of Australia, ‘Migration
Amendment (Protection and Other Measures) Bill 2014 homepage’, Australian
Parliament website, accessed 16 November 2015. See also E Karlsen, Migration
Amendment (Protection and Other Measures) Bill 2014, Bills digest, 6,
2014–15, Parliamentary Library, Canberra, 2014, accessed 17 November 2015.
[18]. P
Dutton, Second reading speech, op. cit., p. 5.
[19]. J
McAdam and F Chong, ‘Complementary
protection in Australia two years on: an emerging human rights jurisprudence’,
Federal Law Review, 42(3), 2014, p. 457, accessed 17 November 2015.
[20]. Senate
Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Provisions of the Migration Amendment (Complementary Protection and
Other Measures) Bill 2015, The Senate, Canberra, 2015, accessed 9
November 2015.
[21]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 12, 2015, The Senate, 11 November 2015, accessed 16 November
2015.
[22]. S
Anderson, ‘Greens
criticise 'inhumane' bid to tighten asylum seeker laws proposed by Immigration
Minister Peter Dutton’, ABC News, (online edition), 14 October 2015,
accessed 16 November 2015.
[23]. S
Anderson, ‘Asylum
seekers could be forced into warzones under laws proposed by Federal
Government, human rights lawyer David Manne warns’, ABC News,
(online edition), 21 October 2015, accessed 16 November 2015.
[24]. Ibid.
[25]. Save
the Children, Changes
to Australia’s Migration Act will weaken protection, put lives at risk,
media release, 14 October 2015, accessed 16 November 2015.
[26]. Ibid.
[27]. Senate
Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Provisions of the Migration Amendment (Complementary Protection) Bill
2009, The Senate, Canberra, 19 October 2009, accessed 9 November 2015.
[28]. Explanatory
Memorandum, Migration Amendment (Complementary Protection and Other
Measures) Bill 2015, op. cit., p. 2.
[29]. The
Statement of Compatibility with Human Rights can be found at page 27 of the
Explanatory Memorandum to the Bill.
[30]. Explanatory
Memorandum, Migration Amendment (Complementary Protection and Other
Measures) Bill 2015, op. cit., p. 30. Article 3 of the Convention on the Rights
of the Child requires the best interest of the child to be a primary
consideration in all actions concerning children.
[31]. Ibid.
[32]. Parliamentary
Joint Committee on Human Rights, Thirtieth
report of the 44th Parliament, 10 November 2015, pp. 19–27,
accessed 16 November 2015.
[33]. Migration
Act 1958, paragraph 36(2)(aa), accessed 17 November 2015.
[34]. Explanatory
Memorandum, Migration Amendment (Complementary Protection and Other
Measures) Bill 2015, op. cit., p. 13.
[35]. Ibid.
[36]. Ibid.
[37]. J
McAdam and F Chong, ‘Complementary
protection in Australia two years on: an emerging human rights jurisprudence’,
op. cit., p. 454.
[38]. Ibid.,
p. 454.
[39]. Ibid.,
p. 455–456.
[40]. Parliamentary
Joint Committee on Human Rights, Thirtieth
report of the 44th Parliament, op. cit., pp. 21–22.
[41]. Ibid.,
p. 22.
[42]. Explanatory
Memorandum, Migration Amendment (Complementary Protection and Other
Measures) Bill 2015, op. cit., p. 14.
[43]. Administrative
Appeals Tribunal (Migration and Refugee Division), Guide
to Refugee Law, chapter 10: Complementary protection, Administrative
Appeals Tribunal, Sydney, updated 10 November 2015, p. 31, accessed 17
November 2015.
[44]. J
McAdam and M Foster, Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into the Provisions
of the Migration and Maritime Powers Legislation Amendment (Resolving the
Asylum Legacy Caseload) Bill 2014, 167, 31 October 2014, pp. 18–20,
accessed 16 November 2015.
[45]. Ibid.
[46]. Explanatory
Memorandum, Migration Amendment (Complementary Protection and Other
Measures) Bill 2015, op. cit., p. 16.
[47]. Statement
of Compatibility with Human Rights, Migration Amendment (Complementary
Protection and Other Measures) Bill 2015, pp. 33–34, accessed 16 November 2015.
[48]. Parliamentary
Joint Committee on Human Rights, Thirtieth
report of the 44th Parliament, op. cit., pp. 23–24.
[49]. J
McAdam and M Foster, Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into the
Provisions of the Migration and Maritime Powers Legislation Amendment
(Resolving the Asylum Legacy Caseload) Bill 2014, op. cit., p. 20.
[50]. Ibid.
[51]. Ibid.
[52]. Subsection
500(1) provides that applications may be made to the Administrative Appeals
Tribunal for review of certain decisions other than decisions to which a
certificate under section 502 applies.
[53]. Parliamentary
Joint Committee on Human Rights, Thirtieth
report of the 44th Parliament, op. cit., pp. 25–26.
[54]. Ibid.,
p. 27.
[55]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, op. cit., pp. 18–19.
[56]. Ibid.
[57]. Section
5 of the Migration Act further defines the terms ‘serious Australian
offence’ and ‘serious foreign offence’ to include particular types of offences
punishable by imprisonment for life, or imprisonment for a fixed term of not
less than three years, or imprisonment for a maximum term of not less than
three years.
[58]. Convention
Relating to the Status of Refugees, (as amended by the 1967 Protocol
relating to the Status of Refugees), done in Geneva 28 July 1951, [1954] ATS 5
(entered into force for Australia and generally 22 April 1954), accessed 16
November 2015.
[59]. Explanatory
Memorandum, Migration Amendment (Complementary Protection and Other
Measures) Bill 2015, op. cit., p. 23.
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