Additional Comments - Senator Andrew Bartlett
I support the recommendations of the Senate Select Committee
on Ministerial Discretion in Migration Matters and agree with the thrust of the
report. I share the concerns raised in the report regarding the lack of
transparency around the ministerial discretion system. The reluctance of DIMIA
and the Minister for Immigration to assist with providing records and other
material pertinent to the Committee's investigation illustrates that the system
is a major accountability problem that all parliamentarians should be concerned
about.
The political genesis of this Inquiry related to specific
allegations against the then Immigration Minister, Philip
Ruddock. Whilst any allegations of serious
impropriety should be examined, the Inquiry demonstrated that the real problems
are with the way the power of ministerial discretion has evolved and expanded
into so many aspects of migration law.
Whilst the current Minister's refusal to allow proper access
to records was frustrating and unacceptable, I believe it must be said that no
solid evidence at all was presented to suggest that the so-called 'cash for
visas' allegations had any real substance. I have been and remain very critical
of many of Minister Ruddock's policies towards migration and refugee issues and
the way those are implemented, but I have seen nothing that leads me to think
that there is likely to be direct corruption of the sort that had been alleged
or implied. Similarly, I have seen nothing which gives weight to any of the
claims against Mr Kirswani,
the member of the public most frequently mentioned in regard to these
allegations.
I believe the 'cash for visas' allegations are a distraction
from the main issue of concern, which is the decline in transparency, independence,
consistency and fairness in the migration area, particularly (but by no means
only) in regard to asylum claims.
I support retaining ministerial discretion, but it needs to
be in a far more limited capacity. I believe the use of the discretionary powers
has grown much larger and wider than is desirable. The Committee's report
details the expansion in the minister's use of these powers in recent years. I
would like to see ministerial discretion restored to it's original intention of
being for unusual and extraordinary circumstances. This would mean reducing
some of the areas where discretion is now available and introducing codified
criteria for visas in areas where discretion has now become commonplace.
I am pleased that the Committee has made recommendations to
this effect, particularly in relation to adopting a system of complementary
protection. However, I would have liked to have seen the Committee present a stronger,
more detailed case for such a measure. I wish here to highlight a number of
options that merit examination in any consideration of implementing a
complementary protection regime in Australia.
The need for Australia
to adopt a complementary protection system
I remain concerned that Australia
is one of the few countries in the developed world that does not have a system
of complementary protection. I believe that the Government is turning a blind
eye to the merits of complementary protection, which are well documented in
evidence to this inquiry. I am left in no doubt that the current Australian
practice of relying solely on ministerial discretion places it at odds with
emerging international trends and that the risks involved in relying solely on
this mechanism are not acceptable.
The Committee has been made aware that most European countries
and Canada have
adopted a visa category which addresses the issue of complementary protection. The
UNHCR advised the Committee that a number of countries have in place
administrative or legislative mechanisms for regularising the stay of persons
who are not formally recognised as refugees, but who are in need of protection
or for whom return is not possible or advisable.[508] Amnesty International also told the
Committee that the international community is in the process of moving towards
developing systems which have a complementary protection component.[509] UNHCR explained recent international
developments regarding complementary protection in the following terms:
Every country has cases which fall in the difficult grey area
between those of people who have experienced high levels of discrimination or
come from countries with recognised human rights concerns, and those of people
who cross the threshold of persecution on convention grounds and are recognised
as refugees. The committee can think of that as a spectrum with people at one
end with no international protection concerns and people at the other end who
are recognised as refugees.[510]
The UNHCR also points out that there are significant
differences in the way countries interpret inclusion criteria set out in
Article 1 of the 1951 Convention.[511]
This means that some persons who are recognised as refugees in one country may
be denied such status in another country. At least three categories of persons
are currently the subject of varying State interpretations of the refugee
definition criteria: those who fear persecution by non-state agents for 1951
Convention reasons; those who flee persecution in areas of on-going conflict;
and those who fear or suffer gender-related persecution.[512]
The reliance of ministerial discretion to meet the
protection needs of those who fall outside of the Refugee Convention’s
definition of a refugee ignores the real dangers facing thousands of people who
seek protection from Australia.
I believe that relying on ministerial discretion in this way
leaves no safeguards to ensure that those whom Australia
has protection obligations under international treaties receive this
protection.[513]
The Refugee Council of Australia has presented the Committee
with a proposal for a model of complementary protection. This model allows decision
makers to grant protection at all stages of the process. As Figure 1 shows, the
model uses a single administrative procedure to determine whether a person is
eligible for complementary protection and is therefore efficient and cost
effective.
I believe this model deserves serious consideration on the
part of the government. Adopting such a model will ensure that Australian
policy is consistent with not only internationally recognised best practice but
also an Australian Government commitment to the framework document Agenda for Protection[514] which was adopted by the
Executive Committee of the UNHCR in September 2001.
Figure 1: Proposed Model of Complementary Protection
(Refugee Council of Australia)
APPLICATION FOR A PROTECTION VISA
The UNHCR also presented a compelling case for the adoption
of a system of complementary protection, one that would overcome some of the problems
that beset the government's current policy towards people who fall outside the
Refugee Convention. The UNHCR told the Committee:
This approach would ensure that key concerns—such as the threat
of torture, the rights of children, or the non-returnability of a stateless
person—are dealt with ... certainty and clarity from the outset, rather than
relying on a non-compellable, non-reviewable executive power at the very end of
the process. UNHCR believes that this is a better risk management and more
humanitarian approach which would avoid prolonged detention and prevent any
chance of people being refouled without these issues being raised and
considered properly.[515]
The UNHCR advised the Committee that in 2002 it had
requested the Government to provide complementary forms of protection to all
Afghans and, more recently, to all Iraqis seeking refugee status ‘because we
know that even rejected Iraqis cannot be returned at present—certainly not in
large numbers’. The UNHCR clarified its position by stating that complementary
protection should only be temporary: ‘We review the situation in principle in
the countries of origin every six months and we brief the government on what
our view is of the situation’.[516] In
addition: ‘For a complementary form of protection, we certainly would not
suggest that the traditional rights that we would request be granted to
convention refugees be applied’.[517]
In other words, the UNHCR is proposing a flexible solution that would be able
to respond to changing circumstances in countries of origin as required.
In addition to the above proposals, there are a number of
other options that should be noted. HREOC advised the Committee that all models
of complementary protection should at the very least incorporate the following
three features:
- clear criteria setting out when a person should
be protected from non-refoulement under the ICCPR, CROC and CAT;
- procedures that protect against errors in
applying that criteria (due process); and
- mechanisms to implement Australia’s protection
obligations for those who meet the criteria (visas).
The CCJDP and the Uniting
Church also advocate the
introduction of a complementary protection scheme into Australian law based on
the various refugee determination systems currently in operation in countries
such as Canada,
the Netherlands,
Sweden, Denmark,
the UK and the US.[518] The Refugee Council of Australia
points out that Denmark
and Sweden have
comprehensive legislation which recognises fully the protection need of certain
groups of people who fall outside the terms of the Refugee Convention, but who
have compelling humanitarian reasons to stay.[519]
The CCJDP argues that the government should seriously
consider two options as a potential solution to the ‘unaccountable’, ‘vague’
and ‘unwieldy’ mechanism embodied in section 417.[520] The first involves the introduction
of a new humanitarian visa class which would have at least two distinct
advantages over the current sole reliance on the section 417 discretionary
powers:
- it would remove the administrative burden,
inconsistency and arbitrary decision making inherent in the section 417 powers
by de-linking the compassionate and humanitarian program from the onshore
refugee program; and
- it would preclude the continuation and use of section
417 in certain circumstances, and increase the discretion available to case
managers and the RRT to deal with more humanitarian claims at a much earlier
stage of the refugee determination process.
The second option would involve amending section 36 of the
Migration Act to give DIMIA case officers and the RRT jurisdiction to grant
protection visas to persons who meet the requirement for protection under the
CAT, CROC and ICCPR. According to the CCJDP, this would enable decision makers
at both the primary and merits review stages to consider relevant human rights
conventions as well as the Refugee Convention, thus ‘improving the criteria for
their discretion, [saving] time, and [reducing] the number of cases currently
made under s417’.[521]
The change would empower decision makers in much the same
way as currently exists for temporary protection visas introduced in 2001.
These visas which apply to those who fall under the umbrella of the Pacific
Solution include criteria that are outside of the Refugee Convention.
I want to also note that DIMIA was unable to substantiate its
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. This claim is
simply alarmist and exaggerated. 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...[522]
Whilst I remain supportive of the concept of ministerial
discretion, various changes in circumstances and wide-ranging changes to Australia’s
Migration Act have left many thousands of people in a vulnerable position.
Currently we face the prospect of those who were granted temporary protection
remaining in an unprocessed state for months or maybe years to come. The
situation is so dire that those who have argued ministerial discretion adequately
meets these needs can no longer logically do so. The expense, inefficiency and the
human costs of the current system make it absolutely necessary for steps to be
taken to alleviate the problem.
I believe it is time that Australia
accepted and acted upon its international obligations and joined the global
community in offering protection to refugees for non-convention reasons. The
concerns about the flaws and limitations of ministerial discretion have been
raised before Senate Committees many times and outlined in previous reports,
but have not been addressed by government. I therefore strongly urge the
government to accept recommendation 17 of the Committee report and give
priority to implementing a system of complementary protection in Australia.
Andrew Bartlett
Australian Democrats