Chapter 1
Introduction
1.1
On 9
September 2009, the Senate referred the Migration Amendment (Complementary
Protection) Bill 2009 to the Senate Legislation Committee on Legal and
Constitutional Affairs, for inquiry and report by 16 October 2009.
1.2
The Bill was introduced in the House of Representatives on 9 September
2009 by the Hon. Laurie Ferguson M.P., Parliamentary Secretary for
Multicultural Affairs and Settlement Services. The Bill seeks to amend the
Migration Act 1958 to better meet Australia's human rights obligations with
respect to non-refoulement under international law. A key aspect of the Bill is
the reduction in reliance on Ministerial Intervention powers with respect to
non-citizens seeking protection in Australia from the risk of harm overseas.
1.3
Non-refoulement is a principle in international refugee law that
concerns the protection of refugees from being returned to places where their
lives or freedoms could be threatened through persecution, torture, death or
cruel, inhuman or degrading treatment.
1.4
Australia is party to a number of relevant United Nations conventions in
relation to non-refoulement, including:
-
the 1951 Convention and the 1967 Protocol Relating to the Status
of Refugees (the refugees convention) to which Australia became a party in 1954
and 1973 respectively;
-
the 1966 International Covenant on Civil and Political Rights
(ICCPR), to which Australia became a party in 1980;
-
the 1984 Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT), to which Australia became a party in
1989; and
-
the 1989 Convention on the Rights of the Child (CROC) to which
Australia became a party in 1990.[1]
1.5
Currently, asylum seekers may apply for a protection visa, and their
applications are decided through a transparent process that incorporates
principles of natural justice. Applications for a protection visa are first
considered by an officer of the Department of Immigration and Citizenship
acting as the minister’s delegate. A decision is taken and written reasons for the
decision provided. Applicants who are unsuccessful can seek independent merits
review by the Refugee Review Tribunal (RRT), or the Administrative Appeals
Tribunal (AAT) for applications refused on the basis of exclusion or character
issues. The relevant tribunal must also provide written reasons for its
decision.
1.6
However, the Migration Act does not currently permit claims that may
engage Australia’s non-refoulement obligations under treaties, other than the
refugees convention, to be considered in the protection visa process. This bill
addresses that anomaly by permitting all claims that may engage
Australia’s non-refoulement obligations to be considered under a single
integrated protection visa application process. It ensures that all people who
may be owed Australia’s protection have access to the same transparent,
reviewable and procedurally robust decision-making framework that is currently
available to applicants who make claims under the refugees convention.
1.7
Even where immigration officers or the Refugee Review Tribunal might
consider that the applicant’s circumstances engage a non-refoulement
obligation, they are currently unable to grant a visa, because these
obligations are not reflected in the visa criteria. Some applicants understand
at the outset that their claims fall under human rights treaties other than the
refugees convention, but are forced through the protection visa process because
that is the only route to ministerial intervention, where their claims can be considered.
1.8
The protection from return in situations that engage non-refoulement
obligations under the CAT, ICCPR and CROC is known as ‘complementary
protection’, in the sense that it is complementary to the protection owed to
refugees under the refugees convention.
Rationale for complementary protection legislation
1.9
The Second Reading Speech discloses the rationale for introducing
complementary protection into the Migration Act as being based on the need to
be consistent in the consideration of whether a person would face arbitrary
deprivation of his or her life, or be tortured. At present, Ministerial
intervention powers provide the only course of action to assist such people,
unless they are covered by the refugees convention.[2]
1.10
While the powers enable the minister to grant a visa if the minister
considers it is in the public interest to do so, including cases in which
non-refoulement obligations are owed under international law, the Government
argues that reliance on the ministerial intervention powers brings with it
several disadvantages. These include:
-
decisions may only be made by the minister personally;
-
no-one can compel the minister to exercise the powers;
-
there is no specific requirement to provide natural justice;
-
there is no requirement to provide reasons if the minister does
not exercise the power; and there is no merits review of decisions by the
minister;
1.11
Moreover, the current process is widely considered to be inefficient and
unnecessarily burdensome on all parties. The Department summed this up neatly
in their submission:
The use of the Ministerial intervention powers to meet
non-refoulement obligations other than those contained in the Refugees
Convention is administratively inefficient. The Minister's personal
intervention power to grant a visa on humanitarian grounds under section 417 of
the Migration Act cannot be engaged until a person has been refused a
Protection visa both by a departmental delegate and on review by the Refugee
Review Tribunal. This means that under current arrangements, people who are not
refugees under the Refugees Convention, but who may engage Australia's other
non-refoulement obligations must apply for a visa for which they are not
eligible and exhaust merits review before their claim can be considered by the
Minister personally. This results in slower case resolution as it delays the
time at which a person owed an international obligation receives a visa and has
access to family reunion. It also leads to a longer time in removing a person
to whom there is no non-refoulement obligation as this would not be determined
until the Ministerial intervention stage.[3]
1.12
During the Second Reading Speech, Mr Ferguson argued:
While there can be no doubt that ministers take very
seriously their obligations to consider whether a visa should be granted to
meet Australia’s human rights obligations, the very nature of ministerial
intervention powers is such that they do not provide a sufficient guarantee of
fairness and integrity for decisions in which a person’s life may be in the
balance.[4]
1.13
The Government points to arguments from both domestic and international
bodies for the need for changes to be made to better address complementary
protection claims. Mr Ferguson's Second Reading Speech noted the following:
The Refugee Council of Australia and other organisations with
firsthand experience of the shortcomings of Australia’s current arrangements
have also been tireless advocates for the introduction of a system of
complementary protection. Internationally, this reform has the strong support
of the United Nations High Commissioner for Refugees (UNHCR) and is consistent
with a number of conclusions by the state membership of UNHCR’s Executive
Committee. It has also been recommended by other key international human rights
bodies.
The United Nations Committee against Torture recommended,
most recently in May 2008, that Australia adopt a system of complementary
protection, ensuring that the minister’s discretionary powers are no longer
solely relied on to meet Australia’s non-refoulement obligations under human
rights treaties. In addition, the United Nations Human Rights Committee
recommended, in May 2009, that Australia should take urgent and adequate
measures, including legislative measures, to ensure that nobody is returned to
a country where there are substantial grounds to believe that they are at risk
of being arbitrarily deprived of their life or being tortured or subjected to
other cruel, inhuman or degrading treatment or punishment.[5]
1.14
Mr Ferguson also noted that:
Australia is almost alone among modern Western democracies in
not having a formal system of complementary protection in place. Many European
and North American countries already have established complementary protection
arrangements. The New Zealand government already has a bill before their
parliament to introduce complementary protection. This bill brings Australia
into line with what is now recognised as international best practice in meeting
core human rights obligations.[6]
Conduct of the inquiry
1.15
The committee
advertised the inquiry in The Australian newspaper on 23 September 2009,
and invited submissions by 28 September 2009. Details of the inquiry, the Bill, and associated documents were placed on the committee's website. The committee also wrote
to over 70 organisations and individuals inviting submissions.
1.16
The committee
received 35 submissions which are listed at Appendix 1. Submissions were placed
on the committee's website for ease of access by the public.
Acknowledgement
1.17
The committee
thanks the organisations and individuals who made submissions and gave evidence
at the public hearing.
Note on references
1.18
References in
this report are to individual submissions as received by the committee, not to
a bound volume. References to the committee Hansard are to the proof Hansard
and page numbers may vary between the proof and the official Hansard
transcript.
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