Chapter 8 - International humanitarian obligations
the minister's discretionary powers provide an adequate mechanism for
implementing Australia's international humanitarian obligations has
been a contentious issue in immigration policy for a number of years. It was
subject to close scrutiny by the Senate Legal and Constitutional References
Committee in its 2000 report A Sanctuary
Under Review. On that
occasion, and notwithstanding the submission by the then Department of
Immigration and Multicultural Affairs (DIMA), that Committee received evidence from
a number of organisations claiming that reliance on the discretionary powers to
fulfil Australia's international humanitarian obligations was
fraught with a number of legal problems and administrative shortcomings.
chapter examines the ministerial discretion powers under term of reference (d).
It evaluates the claim repeated by DIMIA during this inquiry that the minister's
discretionary powers in their current form are appropriate to ensure that Australia meets its obligations under various
international conventions. Australia's primary obligation to asylum seekers and
other persons in Australia who are deemed in need of protection is to
ensure that they are not refouled (returned) to their countries where they may
face persecution, torture or death.
describes Australia's obligations under various international
conventions and identifies major shortcomings with the arguments presented by
DIMIA in relation to those obligations. The chapter then outlines a range of
criticisms of the current system by human rights and refugee-advocacy groups.
These collectively voice concern that reliance on ministerial discretion places
Australia at risk of breaching its international legal
obligations not to refoule asylum seekers. There is also concern that the
current system places unnecessary hardship on those who are required to exhaust
a decision making process which has no direct application to them before they can
have their humanitarian claims considered by the minister. It briefly revisits the
conclusions of A Sanctuary Under Review,
in particular the recommendation that Australia incorporate its relevant international
obligations into domestic law.
section considers some options that could enable Australia to meet its non-refoulement obligations
without relying solely on the minister's discretionary powers. It provides a
brief overview of complementary protection, and considers the Australian
Government's position on this emerging issue, especially the question of whether
a new humanitarian visa class would be a suitable additional safety-net to
ensure compliance with various international treaties.
Ministerial discretion and Australia's
international humanitarian obligations
Australia, as part of its
Onshore Protection Program, has assumed responsibility to extend protection to
asylum seekers already in Australia under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees (the Refugee
Convention). As a signatory to the
1951 Convention, Australia is obliged to
consider refugee cases and then provide protection if they pass the test. The basis for the obligation is Article
33 which prohibits member States from returning a refugee to a country where,
amongst other things, the life and freedom of that person would be threatened
on account of his or her race, religion, nationality, membership of a
particular social group or political opinion.
People seeking refugee status under the Onshore Protection Program do so by
applying for a Protection Visa. Non-refoulement
obligations apply to persons who may not have a fear of persecution under the
terms of the Refugee Convention but who face a real risk of a violation of
their fundamental human rights.
Australia does not have a
separate or distinct onshore process for dealing with asylum seekers on
humanitarian grounds. Australia's obligation of
non-refoulement is principally derived from four conventions:
Convention Relating to the Status of Refugees
(1951) and the Protocol relating to the Status of Refugees (1967) (COR);
Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT), ratified by Australia on 8
Convention on the Rights of the Child (CROC),
ratified by Australia on 16 January 1991; and
The International Covenant on Civil and
Political Rights (ICCPR), ratified by Australia on 13 August 1980.
A crucial issue with regard to these various
conventions is that, with the exception of the Refugee Convention, they have
not been incorporated into Australia's domestic law. As
stated in A Sanctuary Under Review: '...treaties
have no direct legal effect within Australia unless they are
incorporated into domestic law by an Act of the Australian Parliament'. Accordingly, the Migration Act
implements only those obligations contained in the Refugee Convention. This is
significant because, as the Human Rights
and Equal Opportunity Commission (HREOC) points out, the definition of refugee under
the Convention may exclude people who must be protected from refoulement under
the CAT, CROC and ICCPR. According to Amnesty International:
The consequences of non-incorporation into domestic law is that,
under the current refugee determination system, there is no legal obligation
under Australia's domestic law through which any individual can ensure that he
or she is not forcibly removed from this country to another...
Australia's obligations under the
CAT, CROC and ICCPR
The ministerial guidelines specifically identify
obligations under the CAT, ICCPR and the CROC. However, as previously indicated,
reference to these international treaties does not constitute their
incorporation into Australian law and, therefore, does not create enforceable
rights and obligations. The non-incorporation of these treaties into domestic
law means that any breaches of Australia's non-refoulement
obligations are not illegal within Australia.
important to briefly describe Australia's international obligations under each of
these Conventions. The obligation of non-refoulement under the CAT is contained
in Article 3 which provides that:
State Party shall expel, return ('refoule') or extradite a person to another
State where there are substantial grounds for believing that he would be in
danger of being subjected to torture.
the purpose of determining where there are such grounds, the competent
authorities shall take into account all relevant considerations including,
where applicable, the existence in the State concerned of a consistent pattern
of gross, flagrant or mass violations of human rights.
The CAT is
significant because it is the only universal treaty other than the Refugee Convention
to explicitly refer to non-refoulement.
ICCPR, Australia has an obligation not to deliver a person by
compulsion into the hands of another state or third party which might inflict
harm, or which may expel that person to a third state which might inflict such
harm. Australia is also obliged to consider the risk that a
person's rights under article 6 (protection of the right of life), and article 9
(protection of the right to security of persons) will be violated.
states that like the ICCPR, Australia has an obligation under CROC not to place a
child in a situation where the child's rights under articles 4, 6 and 37(a), (b)
and (c) are violated.
both the CAT (article 3) and ICCPR (article 7), but not CROC, have mechanisms
in place to hear complaints from individuals alleging that their human rights
under these treaties have been breached. As part of this procedure, the
Australian Government may respond to the findings of UN committees with regard
to non-refoulement, and the response to each allegation is considered by the
relevant Committee and included in the final written communications. According to
HREOC, the Committee usually asks the State party to outline what measures have
been taken to implement their recommendations.
illustrate the process, HREOC provided the Committee with copies of six
communications sent to CAT and three to ICCPR from individuals in Australia which allege their right to non-refoulement
would be breached if they were removed from Australia. HREOC noted that while the communications do
not specifically relate to the operation of ministerial discretion: 'they
relate to the possibility that ministerial discretion has failed to protect
these individuals from refoulement'.
The communications cover the period December 1997 to September 2003. HREOC also told the Committee that
it does not monitor individual communications in a systematic way, but does 'look
at...communications occasionally [when] they come to our attention through
various news and information...'.
advised the Committee that since June 1993 a total of 39 communications to UN
Committees have been made by individuals claiming that Australia has not met its international humanitarian
obligations. These have given rise to four findings against Australia from the
UNHCR (April 1997, July 2001, October 2002 and August 2003) and one ruling
against Australia from the United Nations Committee Against Torture (UNCAT)
takes special note of the UNHCR document entitled Concluding observations of the Committee against torture: Australia, which provides a brief assessment of Australia's combined Second and Third Periodic Report
under the Convention. The document expressed concern about, amongst other
things, the lack of appropriate review mechanisms in Australia for ministerial decisions in respect of cases
coming under article 3 of CAT. Accordingly, it recommended that Australia consider the desirability of providing a
mechanism for independent review of ministerial decisions in respect of cases
coming under article 3 of the Convention.
meeting its international obligations?
that one of the justifications for the minister's discretionary powers is that
they are the primary mechanism for implementing Australia's non-refoulement obligations under several
international treaties, including the CAT, CROC and ICCPR. In particular, the
ministerial discretion powers are used:
...to ensure that relevant international obligations that Australia
has are satisfied where the applicant would not otherwise be eligible for the
grant of a visa.
While migration legislation includes provisions that embrace Australia's
obligations under the Refugees' Convention...there are no migration provisions
international obligations under instruments such as the United Nations
Convention Against Torture (CAT) or the International Covenant on Civil and
The ministerial discretion powers under sections 351 and 417 are
used to enable Australia
to meet those obligations in respect of individual applicants.
Committee, however, does not believe that this contentious issue is as
straightforward as DIMIA's submission suggests. To begin with, the Committee
heard from HREOC that Australia is in 'continuing breach' of article 2 of the
ICCPR because it does not have in place a system that, for example, would
guarantee the right to be protected from torture: 'If...discretion is exercised
there will be no breach to the right to life in the specific circumstances. But
the fact that there is no system in place to make sure that that breach does
not occur is a continuing breach of...article 2 of the ICCPR'.
notwithstanding DIMIA's contention that ministerial discretion is used as a device to enable Australia to meet its international humanitarian
obligations, it could not provide the Committee with figures on the number of
occasions the discretionary powers were used specifically for humanitarian reasons
under various international treaties.
the Committee that it does not collect in a reportable format detailed
information on which requests for ministerial intervention cite Australia's non-refoulement obligations under the CAT,
CROC and ICCPR. This is because the nature of ministerial discretion – the
powers are personal to the minister and the minister does not usually provide detailed
reasons for his or her decision – precludes the collection and analysis of data
on individual cases considered by the minister:
The department does not record the grounds on which the minister
uses his s417 intervention powers beyond the information contained in
statements tabled by the minister in parliament in relations to such cases. The
minister determines whether to intervene on a case by case basis, depending on
the facts of the individual case.
It is not possible to extrapolate the reasons for the minister's
intervention from the class of visa granted. As non-refoulement under CAT and
ICCPR require merely that the person not be returned to the country where they
face harm, any visa would deliver the outcome by allowing the person to stay
lawfully in Australia.
Ms Philippa Godwin, a Deputy Secretary in DIMIA, told the Committee that successive
ministers have held the view that the number of cases that invoke Australia's international obligations is 'very small'
and involves quite exceptional circumstances which are hard to quantify in a
formal visa decision making process.
Another officer from DIMIA, Mr Illingworth, conveyed the view that most of these cases
would meet criteria for a protection visa and hence receive 'the most
beneficial form of protection'.
Committee is of the view that the absence of data stems mainly from the lack of
accountability and transparency characteristic of a discretionary process that
is non-compellable and non-reviewable. Furthermore, the Committee is not aware
of any other research or data that compares the different grounds for
protection under the Minister's discretionary powers.
presented to the Committee, such as it is, suggests that the exercise of
ministerial discretion for humanitarian reasons applies only to small number of
cases. The Uniting Church, for example, describes the experience of the
Hotham Mission in its dealings with asylum seekers who possess a Bridging Visa
E. It claims the Mission:
...has found it difficult to gain an intervention from the minister
when they have raised cases they believed held merit for humanitarian reasons
or invoked non-refugee convention protection obligations...The minister appears
to use the intervention power more for cases that involve a connection to
Australia than in cases where there are primarily...only humanitarian concerns or
told the Committee that following discussions with various NGOs and DIMIA, it
had concluded that 'Ministerial Discretion is being primarily exercised on the
grounds of public interest and/or family reunion, rather than on Australia's international human rights obligations'. Amnesty International is convinced Australia's human rights obligations are being
compromised by inadequate use of section 417 powers for cases that warrant ministerial
This view is
more or less supported by former Refugee Council of Australia President, David Bitel, who is currently a Partner with legal firm Parish Patience Immigration
Lawyers. He told the Committee that, although his firm had acted for a large
number of applicants seeking ministerial intervention under section 417, he
could not 'recall one case where ministerial approval has been granted on
Because the current system 'involves no meaningful transparency or
accountability', there is no way of identifying the number of cases where section
417 powers have been invoked on purely humanitarian grounds.
of concern to the Committee that sheds light on the question of Australia fulfilling its international human rights
obligations relates to forms of persecution not specified by the Convention,
such as gender-based persecution, and how Australia deals with such cases. Dr Mary Crock advised the Committee of the unique problems that confront women in
refugee law because their subversive activities 'tend to be very private':
In many traditional societies [women] will be the back-up people
who make the coffee or do the secretarial work while the men are out front
actively dissenting and putting their lives on the line. The problem is that,
when the women come to claim refugee status, they are told “You weren't a
member of a political party; you just made the tea', or 'You weren't raped
because you were the sister of this dissident; you were raped because you're a
woman and that is what happens to women in situations of disorder'.
International told the Committee that Australia is reluctant to expand the
current definition of the Refugee Convention to take on board certain forms of
gender persecution – such as female genital mutilation, honour killings,
trafficking in certain countries, and domestic violence – and that the former immigration
minister, Mr Ruddock, 'quite specifically said that he [did] not see a need to
expand the current definition of the convention and he [was] not going to take
those cases into consideration'.
despite the argument put to the Committee by one witness that 'gender' should
be included as a sixth category in Australia's domestic law definition of
refugee. Australia, as well as Canada and the US, have not succeeded in past attempts to remedy
the gender bias inherent in their refugee law. As a consequence, these countries
still exclude the gender-specific claims of women in their legal definition of 'refugee'.
The Committee recommends that DIMIA establish a
process for recording the reasons for the immigration minister's use of the
section 417 intervention powers. This process should be consistent with
Recommendation 15 about the level of information to be provided in the minister's
tabling statements to parliament. This new method of recording should enable
the department to identify cases where Australia's
international obligations under the CAT, CROC and ICCPR were the grounds for
the minister exercising the discretionary power.
Criticisms of reliance on ministerial discretion to fulfil Australia's
of submissions expressed the view that protection from refoulement should not
be left solely to ministerial discretion powers which are non-compellable, non-reviewable
and non-delegable. To do so places Australia at risk of breaching its international legal
obligations not to refoule individuals in fear of torture or other forms of
cruel and inhuman treatment. Reliance
on ministerial discretion, therefore, always leaves open the possibility of
breaches of Australia's convention responsibilities.
Committee heard from various stakeholders that because of the complexity, urgency
and gravity of issues involved in cases where Australia's non-refoulement obligations under the CAT,
CROC and ICCPR are invoked, the Commonwealth should at the very least undertake
an assessment of this issue to improve the way Australia fulfils these obligations.
Mr David Prince
captures the general thrust of the criticism by stating that the minister's
discretion is 'an inappropriate means for Australia to seek to meet its
non-refoulement obligations' and that the discretion powers 'should be reserved
to act as "a measure of last resort" for dealing with compassionate
and compelling cases that constitute "exceptions to the rule"'. Given that individuals who are
covered by the CAT, CROC and ICCPR are not necessarily refugees covered by the
Refugee Convention, it is, according to Mr Prince, inappropriate that Australia's
only mechanism for dealing with individuals who are at risk of the severest
form of inhuman treatment is 'through a non-investigative, non-compellable and
non-reviewable discretion' exercised by the minister.
Unless an applicant falls neatly within the definition of
"refugee", the only way that their concerns can be brought before our
government is by applying for a visa that they know they cannot achieve – by
setting up an artificial pathway to reach the minister's desk. Only then can
their extraordinarily serious claims be ventilated, in a context where there is
an obligation for the minister to turn his mind to it.
the issue further by emphasising that asylum seekers who wish to invoke Australia's protection obligations under the CAT, CROC
...do not have the benefits of merits review and access to the courts
to review unfavourable decisions by [DIMIA]. The decision making process
regarding their claims, which...may be literally a matter of life and death,
effectively defaults into a non-reviewable, non-compellable exercise of ministerial
provided the Committee with a list of six specific concerns with the current
system. The criticisms are comprehensive and inclusive of many of the
criticisms raised by various organisations and individuals during the inquiry.
First, Australia's non-refoulement obligations under the CAT,
CROC and ICCPR are not discretionary and subject to few, if any, exceptions.
The obligation under article 3 of CAT has been described as 'absolute'. HREOC
describes the discretionary process for protection from refoulement as 'fragile'
and concludes that it 'appears incompatible with the nature of the obligations Australia has assumed'.
HREOC acknowledges that the ministerial guidelines refer specifically to
Australia's obligations not to refoule under the CAT, CROC and ICCPR, it
maintains that unlike the multiple avenues of appeal available for applicants
under the Refugee Convention, the current scheme for non-refoulement 'does not
make adequate provision for the possibility of flaws in the decision making
process'. The risk of an 'incorrect decision' which attends all administrative
decision making underpins the entire system of judicial and merits review. Yet
CAT, CROC and ICCPR asylum seekers have no such right of review and little
protection in the way administrative decisions are scrutinised.
mentioned previously, the exclusive reliance upon the section 417 discretion
for CAT, CROC and ICCPR asylum seekers places Australia in breach of its
obligation to ensure that there are appropriate systems in place to provide
what article 2(3) of the ICCPR calls 'effective remedies' for breaches of human
rights instruments. The discretion under section 417 is considered a very
limited form of administrative remedy which does not meet the requirement of 'effectiveness'
as defined by the ICCPR and as understood by the UNHCR.
solely on the discretionary powers under section 417 for Australia's
non-refoulement obligations is placing considerable burden on a part of the
system that is already stressed by the large number and variety of requests
made under section 417. Providing alternative administrative arrangements to enable
Australia to fulfil its non-refoulement would ease the
burden on the current (over) use of ministerial discretion.
existing discretionary system is particularly detrimental to CAT, CROC and
ICCPR asylum seekers. The current policy of mandatory detention of unauthorized
non-citizens means that non-Convention asylum seekers will be detained for an
extended period in order to make section 417 requests at the end of a process
which has no direct application to them. HREOC is of the view that the often
long periods of arbitrary detention for these asylum seekers is neither
necessary nor proportional as required by article 9(1) of the ICCPR and article
37(b) of the CROC.
requirement under the Migration Act that the minister only exercise his discretion
after an unfavourable decision of the
RRT might preclude the timely consideration of some matters that fall within
the 'exceptional or unique circumstances' provided for in the ministerial
guidelines. For example, under article 3 of the CROC, which refers to the best
interest of the child, a child might have a compelling and urgent reason to be
granted a visa on compassionate grounds before activating Australia's
non-refoulement obligations (as early as the primary applications stage). This
would minimise the risk of the child being exposed to physical and mental harm
while in detention. HREOC believes consideration of the exercise of ministerial
discretion (including assessment of claims by departmental officers) should be
given prior to an applicant receiving
an unfavourable decision from the RRT, particularly in cases involving
Australia's international human rights obligations.
concerns are almost identical to those raised by the Refugee Council of
Australia which argues that the present system results in the inefficient use
of resources because 'it forces people with no claim to [Refugee] Convention
status to go through a lengthy and expensive process in order to have their
actual claims or protection assessed at the Ministerial level'.
concerns raised by HREOC about the inappropriateness of the discretionary
powers in enabling Australia to meet its non-refoulement obligations are
echoed by other organisations. The Catholic Commission for Justice, Development
& Peace (CCJDP), for example, states that:
It is unfortunate that many people, who are potentially eligible
for consideration of their cases on humanitarian grounds under s417, cannot
have their particular circumstances considered earlier. They must wait until
their claim has failed under the Refugee Convention...Such delay is unnecessary,
causes additional suffering for the person making the claim, clogs up the
bureaucracy and wastes taxpayer dollars by putting him or her through processes
that are not suitable to their circumstances.
The Uniting Church also holds the view that a non-compellable power 'is not appropriate
for assessment of routine...claims such as those arising from obligations under
international treaties'. Asylum seekers who require non-refugee convention protection
'require a consistently applied test of their case against a set of clearly
defined obligations arising from international treaties'.
Committee notes that with one exception DIMIA did not respond to the various
criticisms advanced by HREOC, the Refugee Council of Australia, the CCJDP and
the Uniting Church. It did, however, express a view in relation to the concern that a
significant number of CAT, CROC and ICCPR asylum seekers are detained for
extended periods in order to make section 417 requests at the end of a process
which has no direct application to them. In response to the argument that
humanitarian intervention earlier in the determination process would be more
efficient and compassionate, DIMIA told the Committee that the current filtering
process was probably less resource intensive than the alternative of setting up
new visa classes to address international convention obligations:
You would...end up in a situation potentially of people applying
for multiple visa classes for different convention obligations...I think it would
open up...whole new areas for people to apply to remain in Australia...The net
result could be many thousands more applications and more litigation...and
potentially it would be much more expensive than the current system.
Parliamentary scrutiny of Australia's
of creating an onshore humanitarian stream that would enable Australia to fulfil its international obligations was addressed
by the Joint Committee on Migration in its 1999 review of Migration Regulation
4.31B. That Committee's report is relevant to this inquiry because although its
primary focus was on possible alternatives to the existing $1000 fee on
unsuccessful applicants to the RRT, it assessed the merits of introducing an
onshore humanitarian stream to complement the existing reliance on the minister's
noting several likely problems that would follow the introduction of a
humanitarian visa class and recommending that the proposal should not be followed,
the Committee did not wish to foreclose supporting a humanitarian visa 'at a
later time'. It maintained that 'the issue deserves consideration as part of
any detailed review of the entire refugee determination process'.
of the refugee and humanitarian determination system was precisely the issue referred
to the Senate Legal and Constitutional References Committee by the Senate in May
1999. The Committee's report, A Sanctuary
Under Review, provided a detailed assessment of Australia's international obligations and the principle
of non-refoulement. Under its
terms of reference, the report addressed the following specific questions: does
Australia meet the obligation of non-refoulement under
the CAT and the ICCPR, and can ministerial discretion be used to give effect to
attempt to answer this question, the report noted that the Australian
government was exercising its sovereign right consistent with the principles of
international law by choosing to give effect to the obligation of
non-refoulement under the CAT and the ICCPR through the provision of the
consideration of non-incorporation of these conventions into domestic law drew
out some major concerns regarding the use of ministerial discretion powers to
fulfil non-refoulement obligations. It is significant that each of these
concerns has also been raised during the course of this inquiry. Specifically,
the report identified four areas of concern:
Discretion is non-reviewable and
non-compellable, and therefore is an unacceptable means for determining the
fate of persons claiming protection under an international obligation;
The circumstances in which the minister is able
to exercise the discretionary power is too narrow (only after the relevant
review tribunal has made a decision in a particular case);
The pathway to ministerial discretion is too
long, resulting in a number of unintended adverse consequences (prolonged
periods of mandatory detention); and
The absence of a formal mechanism for the
referral of cases to the minister.
concluded by observing that some aspects of the present structure of
ministerial discretion under section 417 'seem to run counter to the absolute
nature of the obligations under the CAT'.
while the report found the discretionary power was a vehicle that could be used to facilitate compliance
with Australia's obligations under the CAT, CROC and ICCPR,
it concluded that the power was not a sufficient safety net to ensure compliance with these obligations
in so-called 'near miss' refugee cases. A number of organisations had concluded
that non-refoulement provisions under the various international conventions
should be clearly and fully incorporated into domestic legislation.
of this finding, recommendation 2.2 states:
The Committee recommends
that the Attorney-General, in conjunction with DIMA, examine the most
appropriate means by which Australia's
laws could be amended so as to explicitly incorporate the non-refoulement obligations
of the CAT and ICCPR into domestic law.
Dr Mary Crock has noted that in reaching its conclusions, the Committee did not recommend
the creation of an alternative on-shore humanitarian mechanism to the section 417
Complementary protection for refugees
Committee heard evidence from HREOC that applications based upon Australia's protection obligations under the CAT, CROC
and ICCPR should in principle be treated in a manner similar to those invoking Australia's protection obligations under the Refugee
Convention. This is because Australia's non-refoulement obligations are no less
important than those under the Convention and, according to HREOC, 'the
potential harm flowing from an error in a decision regarding those obligations is
this outcome, HREOC and Amnesty International have urged the government to
revisit recommendation 2.2 of A Sanctuary
Under Review by considering the most appropriate means of fully
implementing its obligations of non-refoulement. Specifically, HREOC and the
Refugee Council of Australia would like to see Parliament institute what is most
commonly referred to as a system of 'complementary protection', known also as 'subsidiary
protection' in the European Union and, in other countries, 'de facto refugee
status', 'exceptional leave to remain', 'B status' and 'humanitarian protection'.
to law lecturer, Ms Jane McAdam, complementary protection refers to the role of
human rights law in broadening the categories of persons to whom international
protection is owed beyond article 1A(2) of the Refugee Convention. The
categories, however, specifically exclude protection granted on purely
compassionate grounds such as age, health or family ties because these do not
stem from an international protection need.
grounds upon which Member States offer complementary protection are varied
which leads to different outcomes – for example, in Austria, Luxembourg and
Spain complementary protection is simply an obligation not to remove a person,
whereas in Sweden, the UK and Italy it requires the grant of a residence permit
of some kind.
Committee took note of a number of important recent developments which have
resulted in an emerging international consensus on the issue of complementary
protection. The Committee believes that recent international trends on this
issue have implications for how Australia fulfils its international humanitarian
obligations now and in the future.
a two-year consultative process on the future of the 1951 Refugee Convention,
known as Global Consultations on International Protection, a number of States,
including Australia, affirmed a framework document called Agenda for Protection which was adopted
by the Executive Committee of the UNHCR in September 2001. According to the
Refugee Council of Australia, the Agenda sets out a framework for action by
UNHCR, States and other players to further the cause of refugee protection.
Executive Committee of the High Commissioner's Programme (EXCOM) Standing
Committee meeting of June 2000 identified two categories for cases where there
is an international need for protection:
Persons who shall fall within the terms of the
1951 Convention relating to the Status of Refugees or its 1967 Protocol – for
example, cases involving gender-related persecution – but who may not be so
recognised by a State as a result of varying interpretation; and
Persons who have valid reasons for claiming
protection, but who are not necessarily covered by the terms of the 1951
Committee's attention was also drawn to a proposal by the European Union on
complementary protection which was finalised in September 2001, and which is
expected to be adopted in April 2004.
Ms Jane McAdam stressed that the proposal was the result of
unprecedented regional attention in Europe on the
issue of complementary protection, and that it represents:
...the first supranational codification of [a] complementary
protection regime...and a significant contrast to Australia's discretionary
system, which is an inadequate and fraught protection mechanism that does not
adequately give effect to Australia's international protection obligations.
In a separate
detailed analysis and assessment of the proposed EU Directive, Ms Jane McAdam states that the proposal divides protection into two categories:
refugee protection (based on the Convention) and subsidiary protection (based
on international human rights instruments). Subsidiary protection takes effect
where an applicant: 'can demonstrate a well founded fear of being subjected to
torture, inhuman or degrading treatment...a violation of other human rights...or a
threat to life, safety or freedom as a result of indiscriminate violence in
armed conflict or generalized violence'.
The Directive's main objective is:
...to ensure that the laws and practices of the European Union...member
states are harmonised to provide a minimum level of protection to persons
determined to be Convention refugees or beneficiaries of subsidiary protection,
so as to prevent refugee flows based solely on differing levels of protection
in member states' legal frameworks.
introduce complementary protection?
protection is largely an underdeveloped concept in Australian asylum law. In fact, Australia is one of the few countries in the developed
world that does not have a system for complementary protection. According to the UNHCR, most Western
and European countries have a mechanism which allows a flexible application of
the Convention to provide safeguards for people who do not meet the strict
criteria but are still protected: 'They may receive a lesser range of rights,
but at least they receive some kind of protection'.
By way of
background, Australia did have an onshore
humanitarian visa system until July 1993. The onshore humanitarian visa class
inserted into the Migration Act in 1981, which applied in cases where there
were 'strong compassionate or humanitarian' grounds, was abolished when s417
replaced the former 6A(1)(e) humanitarian visa class. According to Dr Mary Crock,
the decision not to replace this section of the Migration Act with an
equivalent general power to grant visas to individuals with strong
compassionate or humanitarian grounds for remaining in Australia, represented 'the
first and most significant legislative shifts' in migration law since 1989:
With one stroke of the legislative pen, the generic power to act
with compassion and humanity was removed from mainstream decision making – to
be channelled ultimately into the hands of a single politician, the Minister
of submissions argued strongly that Australia should examine the possibility of introducing
a system of complementary protection, and look for guidance to the various
models already in place in a number of countries. The Committee notes in
particular a draft model of complementary protection which has been developed
by the Refugee Council of Australia, and published in a draft paper entitled Complementary Protection: The Way Ahead.
The model, which is endorsed by the National Council of Churches in Australia
and Amnesty International, aims to provide '...constructive guidance for those
responsible for formulating Australia's policy' to ensure that Australian
practice 'is fair, transparent, timely, efficient and legally defensible'.
to the Refugee Council of Australia, under the proposed model: 'an applicant's
eligibility for complementary protection can be assessed at each stage of the
determination process, thereby ensuring that those entitled to protection
receive it at the earliest possible time'.
Complementary protection would be offered to people who:
have no nationality or right of residence
would face torture if returned to their country
come from countries where their lives, safety or
freedom is likely to be threatened by the indiscriminate effects of generalised
violence, foreign aggression or internal conflict;
come from countries where there is significant
and systemic violation of human rights and/or a breakdown in the rule of law;
would face serious human rights violations if
compelled to return.
introduction of this model would require an amendment to section 36(2)(b) of
the Migration Act to include a new section which would set out the criteria for
the grant of a visa, introduce a new visa subclass, set out any necessary
limitations, and stipulate that nothing in this section removes or otherwise
affects the exercise of the minister's discretion. It would also require a new
regulation to set out the framework for the grant of a visa on the grounds of
the need for complementary protection and the rights and entitlements afforded
to successful applicants.
the creation of a specific visa class directed to Australia's international
obligations under the CAT, CROC and ICCPR as this would provide for
administrative and judicial review as well as the ultimate 'safety-net' of the
minister's discretionary power.
Committee, however, notes that the creation of a specific humanitarian visa
class, as previously reported by the Joint Committee on Migration, is a matter
of some contention. Mr David Prince, for example, told the committee that a general humanitarian class of
visa is not necessary. However, he does support the introduction of a separate
visa sub-class for very serious cases that fall under the CAT and ICCPR and
which are considered by the minister. This would remove some of the 'significant
inequities' which asylum seekers experience as a result of 'well-meaning but
uninformed members of the public or unscrupulous individuals', without challenging
the fundamental structure of the current migration system.
Refugee Council of Australia argued that although establishing in Australia a separate humanitarian stream with established
criteria would be a challenging task:
...serious consideration should be given to replacing the present
process with one which recognises the protection needs of de facto refugees in
a transparent and cost-effective manner. The models presented by the
Scandinavian countries of Denmark
deserve further attention...from the point of view of program management.
Government views on complementary
governments have not supported the introduction of a system of complementary protection.
Government responses to previous committee report recommendations relating to Australia's international humanitarian obligations have
supported the view that ministerial discretion under section 417 is an adequate
safety-net mechanism to ensure compliance with various international treaties.
this inquiry, DIMIA expressed serious reservations about proposals for a new
humanitarian visa class as part of a complementary protection system. It did
so, in the first instance, by drawing the Committee's attention to Australia's past experience with an onshore humanitarian
category and to the immigration policies of other countries.
with, DIMIA argued that Australia's experience with an onshore humanitarian
category under section 6A(1)(e) had negative and unforseen consequences. It was
unsatisfactory principally because of the sudden and unexpected rise in the
number of approvals of entry permits under this provision – from 226 in 1981-82
to 3,260 in 1987. Apparently, at the section was repealed there were in excess
of 8,000 applications outstanding.
Ms Philippa Godwin told the Committee that the insertion of section
6A(1)(e) into the Migration Act:
...was an attempt to codify [the] concept of discretionary
compassionate circumstances. It essentially just blew out and blew out until it
became largely meaningless. Phrases that would raise sympathy in the minds of
the Australian community crept in. It lost that exceptional circumstance focus
and became a much broader and much less containable concept.
during the same public hearing she expanded on these comments by noting that section
...started out as a compassionate or humanitarian visa class. All
of the information around its creation indicated that it was meant to be used
in exceptional circumstances...The difficulty was that it was hard to prescribe
objectively what those circumstances were.
Over time, it started to expand. It partly – very significantly
– started to expand as a result of challenges to decisions in courts. Someone would
get a decision saying, 'No, that is not a compelling or compassionate
circumstance', go to court, the court would expand it and say, 'Yes, it is',
and that would then become, in a sense, integrated into the decision or the
consideration that case officers had to bring to bear in deciding these cases.
same public hearing, Mr Rizvi, a First Assistant Secretary in DIMIA, speculated
at length on the possible negative implications of supplementing the system of
ministerial discretion with a humanitarian visa class. He drew the Committee's
attention to international comparisons, especially the United States, Canada and Europe which
are facing similar demographic challenges to those currently faced by Australia. He was at pains to contrast how Australia deals with migration issues, which has
provided an 'extraordinary beneficial impact' to the domestic economy, with the
situation in a number of overseas countries, which has 'led to situations where
their ability to control and manage migration has been severely undermined'. The three main areas of concern with
the situation in Europe are the significant increase in the population
of failed asylum seekers, the undermining of public confidence with immigration
processes, and a lack of confidence by authorities to manage their immigration
response to a question on notice about the possibility of creating a new visa
subclass for applicants who would be willing to waive their rights to merits
review in order to seek the minister's intervention at the beginning of the
determination process, DIMIA told the Committee that the issue: 'has been
considered from time to time in the Department since the establishment and
subsequent winding up of section 6A(1)(e)'. In the light of the experience with
the s6A(1)(e) process, DIMIA repeated its concerns with a new visa subclass:
making the intervention powers compellable would
establish an opportunity for litigation with the potential for the test for
intervention being widened and lowered;
unsuccessful applicants would probably want to
restore their access to a merits review process. This would create the
potential for misuse of the process by those wishing to prolong their stay and
frustrate their removal from Australia; and
the protection visa process identifies and
protects the large majority of individuals owed non-refoulement protection
under the CAT and ICCPR.
noteworthy that DIMIA addressed the issue of Australia introducing an onshore humanitarian stream in
its submission to the Joint Committee on Migration's 1999 inquiry into
Regulation 4.31B of the Migration Regulations. In response to the argument that
an onshore humanitarian stream should be introduced to reduce the number of
protection visa applicants, DIMIA argued that the creation of a new humanitarian
visa class had the potential to generate a number of problems:
judicial review might extend the applicability
of the class beyond its intended narrow parameters (this had occurred with the
previous onshore system);
the misuse problem with the protection visa
system might be duplicated or transferred to the new class;
the new class would allow people to extend their
time in Australia by adding another layer to the process; and
the class might contribute to the belief that it
was acceptable to enter Australia under false pretences.
Committee notes that DIMIA was not able to substantiate the claim that
introducing special categories of visas will place considerable pressures on Australia’s ability to protect its borders, and result
in the Minister for Immigration losing his or her control of the migration
determination process. In fact, other witnesses rejected these arguments
outright. Dr Mary Crock, for example, told the Committee that:
The criteria for the exercise of such
powers can be articulated without opening the floodgates and [government]
losing precious control of the migration process. The criteria are to be found
in the human rights enshrined in international law...
Committee is also not convinced that DIMIA’s evaluation of the previous
operation of s6A(1)(e) of the Migration Act has direct relevance to the
complementary protection systems advocated by the Refugee Council of Australia
light of these developments, the Committee is concerned that Australia is one of the few countries in the developed
world that does not have a system of complementary protection. The Committee is left in no doubt that the
current Australian practice of relying solely on ministerial discretion places
it at odds with emerging international trends.
Committee believes that the concerns raised by DIMIA about the old s6A(1)(e)
process should no longer be used by the department as an excuse for casting
doubts on the suitability for Australia of complementary protection, especially
when the concept has not received the attention from government it now clearly
The Committee recommends that the government
give consideration to adopting a system of complementary protection to ensure
that Australia no
longer relies solely on the minister's discretionary powers to meet its
non-refoulement obligations under the CAT, CROC and ICCPR.
Monitoring of returnees
International argued that there should be a process of informal monitoring of
returnees, consistent with recommendation 11.1 of A Sanctuary Under Review.
This stems from Amnesty's experience where many asylum seekers forcibly removed
from Australia and other countries are 'not heard of again – either
through assimilation into local society or for more sinister reasons'. Amnesty International is concerned
that the current lack of monitoring of returnees 'may result in a risk
assessment culture which may not be as in-depth as it otherwise could be, where
the consequences of forcible removal to certain countries is not fully
Committee acknowledges the rising level of concern among certain community and
religious groups over 'Reports of death, disappearance, imprisonment and
torture, of fear-filled lives spent in hiding, privation and despair' which
have allegedly filtered back to Australia about people removed after their
claims for protection on refugee or humanitarian grounds were disallowed. The level of community disquiet
resulted in 2002 in a coalition of religious groups, the Coalition for the
Protection of Asylum Seekers and leaders from major religious denominations,
petitioning the Federal Government 'to heed the reports of terrible things
happening to some deportees and cease sending people to countries where
protection of their safety and rights is very problematic'.
As a result
of this petition, the Coalition for the Protection of Asylum Seekers has
undertaken a study 'designed to clarify the situation behind this widespread
disquiet'. To date, the study has involved interviews with 20 people from the
following countries: Iran, Syria, Iraq, Afghanistan, Nigeria and Zimbabwe. It has also drawn on eight other
authenticated accounts as well as reliable accounts from deportee contacts and
expert respondents in Australia.
The study's preliminary findings express concern that Australia is sending, or attempting to send, refugees to
places which are not safe, a situation which places Australia is in breach of its non-refoulement
obligations under international law.
Committee heard from a number of refugee advocacy groups that protection from
refoulement should not be left solely to the minister's discretionary powers under
sections 351 and 417 of the Migration Act, given that the powers are
non-compellable, non-reviewable and non-delegable. There is a serious risk that
Australia is in continuing breach of Article 2 of the
ICCPR because it does not have appropriate systems in place to provide 'effective
remedies' for breaches of human rights instruments. It also seems likely that the
discretionary process is an inadequate mechanism for offering protection from
refoulement because it is incompatible with the obligation under Article 3 of
the CAT, which is considered to be 'absolute'.
Committee heard from various witnesses that reliance on the discretionary
powers places considerable burden on Australia's migration system and results in
non-Convention asylum seekers being detained for extended periods in order to request
the minister's intervention at the end of a determination process which is not
relevant to them.
Committee accepts the general thrust of these criticisms and concludes that Australia continues to be at risk of breaching its
international legal obligations under the CAT, CROC and ICCPR not to refoule individuals
in fear of torture or other forms of cruel and inhuman treatment. The
Committee, therefore, cannot accept assurances from DIMIA that the minister's
discretionary powers always enable Australia to meet those international obligations in
respect of individual applicants. This assessment from the department
contradicts the weight of evidence before the Committee.
Committee is concerned that DIMIA's assurances could not be supported by any
data or analysis on the number of occasions the discretionary powers are used
specifically for humanitarian reasons under various international treaties. The
Committee believes that nothing short of a major overhaul of the current use of
the minister's discretionary powers and improvements to standards of reporting
would alleviate this area of concern. While taking note of DIMIA's observation
that most people who might have claims under international conventions are
picked up in a 'positive protection visa decision', the Committee would like to point
out that this situation overlooks those individuals who are not covered by the
Refugee Convention and who are at risk of the severest form of inhuman
treatment if they are returned to their own country.
believes the government should consider criticisms aired during this inquiry
and, in line with its recommendations, investigate ways to ensure that Australia no longer relies solely on the minister's
discretionary powers to meet its non-refoulement obligations under the CAT,
CROC and ICCPR. The aim of such an investigation should be to establish an
alternative process for non-Convention refugees that would assist Australia in addressing administrative problems arising
from reliance on section 417 powers and in better managing the refugee
determination process. The Committee believes that whilst addressing these
problems, the government should also examine the feasibility of complementary
protection models such as the one proposed by the Refugee Council of Australia,
the National Council of Churches in Australia and Amnesty International.
considering the question of which system would best enable Australia to meet its international humanitarian
obligations, the Committee examined recent international developments on the
issue of complementary protection, in particular the UN consultative process
which resulted in a framework document called Agenda for Protection. The document, which was affirmed by a
number of countries including Australia, was adopted by the Executive Committee of the
UNHCR in September 2001.
Committee finds that support for the concept of complementary protection is
widespread amongst Australia's peak non-governmental bodies concerned with
refugee and asylum seeker issues, it is
reluctant to recommend any particular system of complementary protection for
Australia. The Committee's view stems from the varied experience with
complementary protection in Europe and Australia's past experience with the
section 6A(1)(e) process.
Committee takes seriously the practical and policy challenges being experienced
by European countries which have implemented complementary protection. These
challenges are readily acknowledged by even the most ardent supporters of
complementary protection, but they are not considered to be insurmountable. Having said that, the Committee does
not wish to overstate the relevance to Australia of the European experience.
Committee concludes that in the future complementary protection might be a
significant and positive development towards eliminating the risk of Australia
being in breach of its international human rights obligation. Complementary
protection has the potential to enable migration and humanitarian programs to
be delivered with certainty and transparency, and to assist non-Convention
asylum seekers who are in genuine need of humanitarian protection. However, the Committee finds that complementary
protection is a relatively undeveloped concept in the Australian context. It is
for this reason that the Committee recommends that the Government give
consideration to a system of complementary protection to ensure that Australia
no longer relies solely on the minister's discretionary powers to meet its
international humanitarian obligations.