LABOR SENATORS' ADDITIONAL COMMENTS
Introduction
1.1
Labor senators are concerned with the widespread confusion about the
intended meaning and application of the new complementary threshold and the
proposed changes to the delivery of certain decisions by the Migration Review
Tribunal (MRT) and Refugee Review Tribunal (RRT).
Meaning and application of the threshold for complementary protection
1.2
Schedule 2 of the bill makes significant changes to the way Australia
will determine if it has protection obligations in relation to a certain
non-citizen. Specifically, the bill inserts a new section 6A that provides that
a non-citizen is not entitled to complementary protection unless that person
can prove that it is 'more likely than not' he or she will suffer significant
harm if removed from Australia.[1]
1.3
Labor Senators note that in evidence before the committee, the
Department of Immigration and Border Protection (department) conceded that the
meaning and application of 'more likely than not' was expressed inconsistently
in the explanatory memorandum,[2]
the Minister for the department's second reading speech,[3]
and the department's submission to this inquiry.[4]
As such, the department agreed that an amended explanatory memorandum ought to
be published[5]
'in order to clarify the confusion around the "more likely than not"
threshold and how it is intended to apply to decision makers.'[6]
1.4
The confusion surrounding the threshold for complementary protection
centred on whether it would be interpreted by decision makers on the balance of
probabilities or a quantifiable greater than 50 per cent chance style test.
These issues are outlined below.
Balance of probabilities
1.5
The department's written submission to this inquiry explained the
government's intention as follows:
The 'more likely than not' test is considered to be a
workable and meaningful test that is already understood in Australian law and
by the Courts as it is the same as the 'balance of probabilities' standard in
civil proceedings.[7]
1.6
Labor senators note that the balance of probabilities test is not
applied on a crude mathematical 50/50 basis. Instead, it requires a decision
maker to weigh up the facts and evidence before them, giving weight to or
discounting relevant factors dependent on the circumstances, and drawing a
conclusion as to whether the balance of probabilities is satisfied. For
example, an administrative decision maker considering a complementary
protection claim might give weight to the magnitude of the harm that an
applicant may suffer if removed from Australia, such as female genital
mutilation or honour killings, when determining where the balance of
probabilities sits.
50/50 test (greater than fifty per
cent chance)
1.7
An alternative interpretation of the 'more likely than not'
complementary protection threshold is that it apply on a crude mathematical
basis. i.e. a '50/50' test. This gives rise to concern for Labor senators that
a non-citizen may be removed from Australia if there is only a 49 per cent
chance that they will suffer significant harm.
1.8
The department's written submission to this inquiry explained that it is
not the government's intention that the 'more likely than not' threshold will
be applied in this arbitrary fashion:
It has been suggested that a refugee may be returned to a
country where they have a 49 per cent chance of being subject to torture. This
is not the case [emphasis added].[8]
The explanatory memorandum and
second reading speech
1.9
The misunderstanding about the government's intended meaning and
application of the 'more likely not' threshold arises from shortcomings in the
explanatory memorandum and second reading speech.
1.10
The explanatory memorandum states:
The risk threshold of "more likely than not" means
that there would be a greater than fifty percent chance that a person would
suffer significant harm in the receiving county.[9]
1.11
Similarly, the Hon Scott Morrison MP, Minister for the department
stated in the his second reading speech that:
'More likely than not' means that there would be a greater
than fifty percent chance that a person would suffer significant harm in the
country they are returned to.[10]
1.12
In light of the department's evidence before the committee, the
explanatory memorandum and the Minister's second reading speech represent a
poorly-expressed attempt at explaining the meaning of 'more likely than not.' The
department’s evidence suggests that expressing the test on a 'greater than
fifty percent' basis was an attempt to explain the balance of probabilities
standard in plain English terms.
1.13
In response to a question on notice from Senator Jacinta Collins’
regarding the clarity of the explanatory memorandum, the department agreed
that:
Further clarity could be provided in the explanatory
memorandum to more closely reflect the further information provided to the
Committee by the Department in its initial submission and during the course of
the hearing.[11]
1.14
Labor Senators welcome the department’s commitment to redraft the
explanatory memorandum in order to clarify the confusion around the application
of the ‘more likely than not’ test and its application by decision-makers.
1.15
Unfortunately, in expressing the balance of probabilities standard in
such terms, the department and the Minister have caused a misunderstanding
about the test that is intended. They have given the false impression that the
'more likely than not' test will be applied on a crude mathematical basis. Labor
senators are unaware of any such test applying in any other field of Australian
law.
Labor
Senators' view
1.16
The department should deliver on its commitment to publish an amended explanatory
memorandum to clarify that the government does not intend the 'more likely than
not' test to be applied in an unsophisticated mathematical fashion. Pursuant to
the evidence provided, Labor senators understand that the amended explanatory memorandum
will clarify that the normal civil standard of balance of probabilities is
intended to apply.
1.17
Similarly, the Minister ought to make a supplementary second reading
speech to clarify the current misunderstanding. Both the explanatory memorandum
and the Minister’s second reading speech have interpretive effect. The confusion
arising from the existing explanatory memorandum and Minister’s second reading
speech must not be allowed to persist.
1.18
Labor senators' view is that failure to take the above mentioned steps
will lead the law into a state of confusion, and could also expose vulnerable
persons, especially women and children, to risk of being removed from Australia
and subjected to the most abhorrent of harms.
Changes to the delivery of decisions by tribunals
1.19
Schedule 4 of the bill makes significant changes to the processes and
administration of the MRT and RRT. Specifically, items 12 and 27 seek to
empower the tribunals to dismiss applications in the case of an applicant's
failure to appear;[12]
and items 17 and 32 seek to empower tribunals to provide an oral statement of
reasons where it makes an oral decision.[13]
No written statement where oral
decision made
1.20
Currently where the tribunal gives an oral statement of reasons, they
must also provide a written statement. However, the proposed change will
require the Tribunal to provide a written statement only at the request of the
applicant where an oral decision is made.
Power to dismiss an application
where an applicant fails to appear
1.21
Currently where an applicant fails to appear before a tribunal after
being invited to do so, the tribunal has the power to determine the review
without the applicant's further input. However, under the proposed change
tribunals will be able dismiss an application where an applicant fails to
appear after being invited, without considering the information before it.
1.22
Labor senators note that where an application is dismissed where an
applicant fails to appear, the tribunals will have the power to reinstate the
application if reinstatement is requested by the applicant within a specific
period of time and it is considered appropriate to do so.[14]
Labor Senators' view
1.23
Labor Senators remain concerned that the broadening of the powers of the
MRT and RRT is a watering down of current requirements.
Senator the Hon
Jacinta Collins
Deputy Chair |
Senator Catryna Bilyk |
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