Chapter 1


Chapter 1

Background

The referral

1.1        On 5 December 2013, the Senate referred the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013 [Provisions] (the Bill) to the Senate Legal and Constitutional Affairs Legislation Committee, for inquiry and report by 3 March 2014.[1] On 3 March 2014, the Senate extended the reporting date of this inquiry to 18 March 2014.

1.2        The Bill was introduced in the House of Representatives on 4 December 2013, by the Hon Scott Morrison MP, Minister for Immigration and Border Protection.[2] The Bill would amend the Migration Act 1958 (the Act) to remove the statutory criterion for grant of a protection visa on 'complementary protection' grounds and other related provisions. Instead, Australia's complementary protection obligations under international law would be considered through administrative processes as was previously the case prior to March 2012.[3]

Australia's obligations under international law

1.3        Australia acceded to the Convention Relating to the Status of Refugees on 22 January 1954 and the Protocol Relating to the Status of Refugees on 13 December 1973 (together the Refugees Convention). As a party to the Refugee Convention, Australia owes protection obligations to individuals who have 'a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion' if returned to their home country. A central protection obligation is the principle of 'non-refoulement', which prohibits return of an individual to a country in which he or she may be persecuted.

1.4        In addition to protection obligations under the Refugee Convention, Australia has assumed additional non-refoulement obligations under international law to non‑refugees. These obligations exist where there is a real risk that if Australia was to return an individual to their home country they would suffer a certain type of harm. Protection from return in situations that engage these non-refoulement obligations is often referred to as 'complementary protection'; that is, protection under international treaties that is additional to the protection given to refugees under the Refugee Convention.

1.5        Australia's non-refoulement obligations are engaged by the International Covenant on Civil and Political Rights (the ICCPR), the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, the Convention on the Rights of the Child (the CRC) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT).  These treaties provide protection from the real risk of:

  • arbitrary deprivation of life;
  • imposition of the death penalty;
  • being subject to torture; or
  • being subjected to cruel, inhuman or degrading treatment or punishment.

Complementary protection considerations under Australian law

1.6        Complementary protection provisions were introduced into the Act on 24 March 2012. Prior to the commencement of these provisions, Australia assessed its non-refoulement obligations through administrative processes which either went towards the exercise of the minister's personal non-compellable intervention powers under the Act or through pre-removal assessment procedures.

1.7        The Migration Amendment (Complementary Protection) Bill 2011 introduced complementary protection provisions into the Act. The introduction of a statutory framework for considering complementary protection claims had been considered by the Senate Legal and Constitutional References Committee report A Sanctuary under Review: An examination of Australia's Refugee and Humanitarian Determination Processes (June 2000); the Senate Select Committee on Ministerial Discretion in Migration Matters (March 2004); and the Legal and Constitutional References Committee report Administration and Operation of the Migration Act 1958 (March 2006). In October 2009, the Senate Legal and Constitutional Affairs Legislation Committee report Migration Amendment (Complementary Protection) Bill 2009 [Provisions] recommended a bill introducing complementary protection provisions in to the Act be passed subject to amendments.

1.8        The 2012 amendments provided for a combined protection visa assessment process of both Australia's obligations under the Refugee Convention and Australia's non-refoulement obligations under the ICCPR, CRC and CAT. In order for a non­citizen to receive complementary protection, the minister must have substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. In addition, the 2012 amendments provided unsuccessful applicants for complementary protection with equivalent administrative review rights as persons seeking protection under the Refugee Convention.[4]

1.9        The Bill seeks to amend the Act to remove the criterion for the grant of a protection visa on the basis of complementary protection from the Act. The Bill seeks to move the assessment of Australia's complementary protection obligations to a separate administrative process. According to the Explanatory Memorandum, the government will re-establish a similar administrative process to that which existed prior to the 2012 amendments. Australia's non-refoulement obligations would be assessed administratively either as part of pre-removal procedures or through the minister's personal and non-compellable public interest powers to grant a visa under the Act.[5] The administrative process that would be used by the Department of Immigration and Border Protection (department) if the Bill was passed was further explained in an additional submission from the department.[6] Complementary protection obligations will be assessed by the primary decision maker:

  • if the person is in detention ‑
  • immediately following a negative primary protection decision by the department; and
  • if the person is in the community ‑
  • in the event that the Refugee Review Tribunal (RRT) on review confirms the department's primary protection decision that the person is not a refugee.[7]

1.10      The department will also maintain access to ministerial intervention and pre‑removal assessment processes to ensure those in need of Australia's protection are not refouled in breach of international law.[8]

Rationale for the Bill

1.11      The second reading speech discloses the rationale for introducing the Bill as being based on the need to regain control of Australia's protection obligations. During the second reading speech, Mr Morrison stated:

It is the government's position that it is not appropriate for Australia's non-refoulement obligations under the CAT and the ICCPR to be considered as part of a Protection visa application under the Migration Act. Such a measure creates another statutory product for people smugglers to sell.[9]

1.12      Given that only 57 applicants have satisfied the requirements for the grant of a protection visa on complementary protection grounds, the government argues that the complementary protection provisions of the Act are 'costly and inefficient':

The complementary protection provisions that were introduced in the Migration Act by the previous government are complicated, convoluted, difficult for decision-makers to apply and are leading to inconsistent outcomes.[10]

1.13      On introducing the Bill, the minister explained that a number of individuals who had been found to engage complementary protection obligations were people who had committed serious crimes in their home countries, or people associated with criminal gangs or involved in blood feuds.[11]

1.14      Another reason for introducing the Bill is to respond to recent court decisions that have changed the test for assessing complementary protection claims. The department argued that the courts have applied the statutory provisions for complementary protection in a manner inconsistent with the department's interpretation.[12] The courts have equated the threshold of 'real risk' that a person will suffer significant harm with the lower threshold of a 'real chance', as applied under the Refugee Convention.[13]

1.15      Further, the court's decisions have the result that even where a person's home country has a functioning and effective police and judicial system, in order for the Australian government to conclude that the person's home country will in fact manage to protect the person from the risk of harm, the protection by that country's authorities must reduce the level of harm to below that of a 'real chance'. The department submitted that the 'real chance test' is a very low bar and, according to the department, lower than required under the CAT and the ICCPR.[14]

1.16      Whilst the complementary protection provisions would be removed from the Act, according to the government:

...the bill does not propose to resile from or limit Australia's non‑refoulement obligations, nor is it intended to withdraw from any Conventions to which Australia is a party. Australia remains committed to adhering to our non-refoulement obligations under the CAT and the ICCPR. Anyone who is found to engage Australia's non-refoulement obligations under these treaties will not be removed from Australia in breach of these obligations.[15]

1.17      The government also stressed the advantages of moving from a statutory to an administrative process, including that:

The Minister for Immigration and Border Protection's personal powers have the advantage of being able to deal flexibly and constructively with genuine cases of individuals and families whose circumstances are invariably unique and complex, and who may be disadvantaged by rigidly codified criterion.[16]

Conduct of the inquiry

1.18      In accordance with the usual practice, the committee advertised the inquiry on its website. The committee also wrote to relevant organisations inviting submissions by 23 January 2014. The committee received 30 submissions. A full list of submissions is provided at Appendix 1.

1.19      The committee held a public hearing in Melbourne on 14 February 2014.

1.20      A list of stakeholders who have evidence to the committee at the public hearing is provided at Appendix 2.

Structure of the report

1.21      This report considers the Bill as follows:

  • chapter 2 provides a brief overview of the provisions contained in the bill;
  • chapter 3 discusses the key issues raised in submissions and evidence to the committee; and
  • chapter 4 sets out the committee's views and recommendations.

Acknowledgement

1.22      The committee thanks the organisations and individuals who made submissions and gave evidence at the public hearing.

Note on references

1.23      References in this report 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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