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Migration Amendment (Reinstatement
of Temporary Protection Visas) Bill 2013
Introduced into the
House of Representatives on 11 February 2013
By: Mr Morrison MP
Migration
Amendment (Reinstatement of Temporary Protection Visas) Bill 2013 [No.2]
Introduced into the
Senate on 28 February 2013
By: Senator Cash
Summary of
committee view
1.1
The
committee seeks clarification on how the bills are compatible with the right to family life; the right
to freedom of movement; the right to health; the right to social security and
an adequate standard of living; the rights of children as guaranteed by the
Convention on the Rights of the Child; and the guarantee of the
non-discriminatory enjoyment of these rights.
Overview
1.2
These
two bills (which are in identical terms) seek to amend the Migration Act
1958 to introduce two new categories of protection visas:
- Temporary
Protection (Offshore Entry Visa): this visa may be granted to a person recognised to be a refugee,
where Australia is the first country the person could seek protection from. The
visa would be valid for no longer than three years, and a permanent visa could
not be granted unless the Minister personally considered it to be in the public
interest to grant a permanent visa;
- Temporary
Protection (Secondary Movement Offshore Entry Visa): this visa may be
granted to a person recognised to be a refugee, where the person could have
sought protection from another country but did not do so. The visa would be valid
for no longer than three years and a person on such a visa would never be
entitled to a permanent visa.
1.3
Under
both types of visas, family reunion would not be permitted and the visa holder would
not be able to leave and re-enter Australia while holding such a visa. The
holder of the visa would be entitled to engage in work and access social
security benefits, but social security benefits would only be available if the visa
holder participated in 'a mutual obligation program', to be prescribed by
regulations.
Compatibility
with human rights
1.4
The bills are
accompanied by self-contained statements of compatibility, which state in
general terms that the bills are consistent with human rights as they enhance
the human rights of those fleeing persecution by facilitating the provision of
temporary safe haven (through a temporary protection visa (TPV)). However, the
net effect of the bills would appear to reduce the rights that such persons
presently enjoy rather than enhance them. This lesser level of protection is
justified in the statements of compatibility on the grounds that this level of
protection is nonetheless consistent with Australia’s obligations as a party to
the 1951 Refugee Convention and 1967 Protocol to that Convention.
1.5
The committee
has concerns whether the proposed reintroduction of temporary protection visas
as proposed by the bills is fully consistent with Australia's obligations under
the Refugees Convention and Protocol. In this report the committee focuses on
the issues of compatibility with the human rights explicitly guaranteed by the
seven human rights treaties listed in the Human Rights (Parliamentary
Scrutiny) Act 2011. However, it notes that the provisions of the Refugee
Convention and Protocol may be relevant to the interpretation of the guarantees
contained in those treaties.
Right
to family life
1.6
Under the
provisions proposed by the bills, a temporary protection visa would be subject
to a number of conditions, including that 'family reunion is not permitted
under the visa'.[1]
This can be contrasted with the right to family reunion provided for under
other categories of visas granted to refugees and humanitarian entrants.
Articles 17 and 23 of the International Covenant on Civil and Political Rights
(ICCPR), article 10 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR) and articles 8 and 10 of the Convention on the Rights
of the Child (among other provisions) guarantee various aspects of the right to
family life.
1.7
If limitations
on enjoyment of the right to a family life are to be imposed, any such
limitation must be shown to be a reasonable and proportionate restriction which
is rationally adapted to achieving a legitimate objective. In the context of
the Convention on the Rights of the Child, it must also be shown that the best
interests of the child are ‘a primary consideration’. The right to enjoy such
rights must also be guaranteed equally to all without discrimination, under
articles 2(1) and 26 of the ICCPR and article 2(2) of the ICESCR. The guarantee
of non-discriminatory enjoyment requires the demonstration of an objective and
reasonable basis for any differential treatment of similarly situated persons,
in this case between different categories of refugees to whom Australia owes
protection obligations.
1.8
A general policy
denying the possibility of family reunion raises issues about reasonableness
and proportionality and consistency with the obligation to make the best
interests of the child a primary consideration.
Liberty
of movement and non-discrimination
1.9
The bills
provide that a person granted a TPV will not be permitted to leave and re-enter
Australia while holding the visa. Article 12(2) and (3) of the ICCPR provides:
2. Everyone
shall be free to leave any country, including his own.
3. The
above-mentioned rights shall not be subject to any restrictions except those
which are provided by law, are necessary to protect national security, public
order (ordre public), public health or morals or the rights and freedoms of
others, and are consistent with the other rights recognized in the present
Covenant.
1.10
Although the
right in article 12(2) may not independently guarantee a person who is not a
citizen or permanent resident the right to leave and then return to Australia,
a person holding a TPV is entitled to non-discriminatory treatment in the
enjoyment of the right to leave Australia. Under article 2(1) of the ICCPR,
Australia has undertaken to ‘ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the present Covenant,
without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status.’ The status of being a TPV-holder would fall within the term ‘other
status’ in article 2(1) (and also in article 26) of the ICCPR.[2]
1.11
International
human rights law requires that different treatment of people in similar
situations be justified by objective and reasonable criteria; it must be a
reasonable and proportionate measure that rationally pursues an objective that
is legitimate under the ICCPR. Permitting other recognised refugees (for
example those who arrived with a visa before seeking asylum) or other visa
holders to leave and return to Australia while denying this right to TPV
holders raises issues of discrimination on the ground of ‘other status’.
Right
to social security
1.12
Proposed new
sections 76D(2) and 76H(2) provide that the regulations may prescribe that TPV
holders must participate in a mutual obligations program in order to access
social security benefits, which would be specified in regulations. No details
are given of the nature of the program envisaged, nor are any reasons offered
for the restriction on the right of access to social security by these means.
In imposing such restrictions, the bill engages the right to social security
and the right to an adequate standard of living as guaranteed by articles 9 and
11 of the ICESCR. The bill also engages article 2(2) of the ICESCR, which
guarantees the non-discriminatory enjoyment of those rights, and may also
engage article 26 of the Convention on the Rights of the Child, which
guarantees children the right to social security.
1.13
While article 4
of the ICESCR permits reasonable limitations on the enjoyment of the rights in
articles 9 and 11, any limitations must not be discriminatory as between
classes of similarly situated asylum-seekers to whom Australia owes protection
obligations. In assessing the legitimacy of any restrictions or differential
treatment relating to the right to social security, Australia’s obligations
under article 24 of the Refugee Convention are relevant. Article 24 adopts as
its starting point equality of treatment in relation to social security. The
statement of compatibility offers no justification for the limitations and
differential treatment proposed by the bill.
Right
to health
1.14
The bills also
engage the right to the highest attainable standard of health guaranteed by
article 12 of the ICESCR and article 24 of the Convention on the Rights of the
Child. Under the previous TPV regime, commentators and studies indicated that
the uncertainty involved in living under a TPV regime, especially when combined
with conditions preventing family reunion and the impossibility of visiting
family living outside Australia, may have significantly adverse effects on the
mental health of TPV holders and their families.
1.15
The bills may
also engage article 39 of the Convention on the Rights of the Child, which
provides that Australia ‘take all appropriate measures to promote physical and
psychological recovery and social reintegration of a child victim of: any form
of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman
or degrading treatment or punishment; or armed conflicts.’
1.16
The statements
of compatibility make no reference to these issues, and contain no
justification for the potential limitations on the enjoyment of the right to
health (which includes the right to mental health).
1.17
The
committee intends to write to Mr Morrison MP and Senator Cash to ask them to clarify
how the bills are compatible with the following rights:
(a) the right
to family life;
(b) the right
to freedom of movement;
(c) the right
to health;
(d) the right
to social security and an adequate standard of living;
(e) the
rights of children as guaranteed by the Convention on the Rights of the Child;
and
(f) the
guarantee of the non-discriminatory enjoyment of these rights.
1.18
The
committee expects that in relation to each right an explanation will be
provided that sets out:
- whether the
limitation on the right is aimed at achieving a legitimate objective;
- whether the
limitation on the right is rationally connected to achieving that objective;
and
- whether the
limitation on the right is reasonable and proportionate to achieving the
objective, and whether any less restrictive alternatives could achieve that
objective.
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