DISSENTING REPORT BY
AUSTRALIAN GREENS
Introduction
1.1
The Senate inquiry into the Migration Amendment (Protection and Other
Measures) Bill 2014 revealed a barrage of concern from the community, human
rights advocates and legal experts. Whilst the bill at face value seems
technical in nature it is everything but. This bill carries with it the very
real likelihood of Australia deporting people back to danger, in turn breaching
our obligations under international law. The bill seriously compromises the
integrity of Australia’s rigorous protection determination system, erodes
procedural safeguards and puts Australia at risk of breaching its
non-refoulement obligations.
1.2
Those who arrive on our shores seeking protection are extremely
vulnerable and have often experienced persecution and suffered torture and
trauma. The amendments proposed in this bill disregard the realities of fleeing
persecution and dismiss the very real and complex nature of the needs of people
seeking asylum and the support they require.
1.3
The bill is nothing more than another attempt by the Government to limit
Australia’s responsibilities to those seeking protection. The Australian Greens
do not accept that there is any evidence to justify the amendments proposed in
this bill and do not believe it does anything to ‘enhance the integrity and
fairness of Australia’s onshore protection status determination process’. In
fact, it does the opposite.
1.4
Evidence provided to the committee made it clear that the bill should
not be passed by the Parliament as it breaches various international protocols
and treaties, misunderstands the refugee status determination process, has
significant adverse impacts on people in genuine need of protection, including
the real risk of refoulement due to an unjustifiable increase in the risk
threshold, and denies applicants a proper and fair assessment of their
protection claims.
1.5
The Australian Greens acknowledge the great concern raised by members of
the community and experts in the sector and for the reasons outlined below, do
not support the passage of this bill.
Burden of Proof
1.6
The amendments proposed by this bill state that the burden of proof will
rest solely on the applicant to prove that they are a person to whom Australia
has protection obligations and that sufficient evidence must be provided in the
first instance to establish that claim. The shifting of the burden of proof has
been widely criticised by legal experts and human rights advocates.
1.7
As noted by many of the submitters and witnesses the amendment is in
complete contradiction to the United Nations High Commissioner for Refugee’s
Guidelines for decision making, which states that:
While the burden of proof in principle rests on the
applicant, the duty to ascertain and evaluate all the relevant facts is shared
between the applicant and the examiner. Indeed, in some cases, it may be for
the examiner to use all the means at his disposal to produce the necessary
evidence in support of the application.
It is hardly possible for a refugee to “prove” every part of
his case and, indeed, if this were a requirement the majority of refugees would
not be recognised.[1]
1.8
As was raised by the Human Rights Law Centre in their evidence to the
committee the amendments require asylum seekers to master, what the UN
recognises as, the art of the ‘hardly’ possible.[2]
1.9
The bill dismisses the realities of fleeing persecution and the
vulnerabilities of those who reach Australia seeking protection. This, combined
with the Government's recent cuts to legal advice for asylum seekers who arrive
in Australia irregularly, means that those in genuine need of protection will
be automatically disadvantaged and at risk of being returned to danger should
they be unable to prepare and defend their claims on their own.
1.10
As stated by Mr David Manne, CEO of the Refugee and Immigration Legal
Centre:
It is often very difficult for people in those circumstances
to understand what is required and how to present it. That is why the
conventional position in international law and under our system is that the
duty of establishing claims, the duty of listing those claims and evaluating
them is a shared duty between the applicant and the decision maker.[3]
1.11
Of particular concern is how these changes will affect vulnerable
groups, including women and children. The Parliamentary Joint Committee on
Human Rights clearly stated that the proposed changes “may have a
disproportionate or unintended negative impact on women” owing to the increased
likelihood of their claims being based on persecution occurring in the home or
private sphere making if difficult for applicants to prove.[4]
1.12
Seeking to amend the Act to shift the burden of proof goes against
international law and the reputable body responsible for the protection of
refugees, the UNHCR, and should not be accepted.
Increasing the risk threshold to ‘more likely than not’
1.13
Significantly increasing the risk threshold for people who are fleeing
harm puts Australia at an increased risk of deporting those who are in genuine
need of protection back to danger. Under the proposed amendments asylum seekers
will have to prove that they have a greater than 50 per cent chance of being
tortured or killed. Should a person have a 40 per cent chance of being returned
to serious harm then they will be deported.
1.14
These changes are in contravention to international and human rights
law, in particular the International Covenant on Civil and Political Rights
(ICCPR) and the Convention Against Torture and Other Cruel, inhuman or
Degrading Treatment or Punishment (CAT) and the principle of
non-refoulement to which Australia is party.
1.15
The amendments proposed refer to people who are seeking protection on
complementary grounds, that is, people who are not captured by the Refugee
Convention but are still deserving of protection as they are fleeing serious
harm such as torture, honour killings or female genital mutilation. The
proposed amendments will mean Australia’s protection obligations will only be
engaged when the Minister considers it ‘more likely than not’ that the person
will suffer significant harm if returned.
1.16
As stated by Mr Manne:
The proposed 'more likely than not' test would ultimately
significantly increase the risk of Australia making the wrong decision on
whether or not somebody should be protected from serious harm. The test raises
the real prospect of returning people to persecution or other forms of
life-threatening harm, in violation of our non-refoulement obligations. That is
the bottom line here.[5]
1.17
Despite the government and Department’s attempts to downplay the quantitative
measurement of the risk threshold throughout the inquiry, it is clear from the
evidence provided to the committee that the ‘more likely than not’ threshold
will result in a significantly higher test than the current ‘real risk’ or
‘substantial grounds’ threshold.
1.18
As stated by Mr Webb:
[the] ‘more likely than not’ test is a higher test than real
risk or substantial grounds and, to put that beyond doubt, the UN Committee
Against Torture has specifically said that the 'more likely than not' standard
is a higher test than the substantial grounds test that the committee has
advocated in its interpretation of the convention against torture.[6]
1.19
This unacceptably high threshold is at odds with Australia’s
international obligations, the lower threshold test which has been well
established and applies in comparable countries like the UK and New Zealand,
and significantly increases Australia’s chances of violating its
non-refoulement obligations.
Bogus Documentation
1.20
Should an applicant provide fraudulent documentation or is unable to
prove their identity, under this bill, their application for protection will be
denied. This amendment ignores the realities of seeking asylum and goes against
the basic principles of the Refugee Convention.
1.21
As highlight by many of the submitters there are many reasons that
people are unable to obtain identity documents or may not have the correct
documentation when they arrive in Australia, such as their home government
refusing to issue documentation to persecuted groups, being too afraid to
request documentation from the government they are fleeing, and having no time
to obtain documentation due to fleeing persecution.[7]
To propose such an amendment dismisses the experiences of those fleeing
persecution.
1.22
Further to this, the amendments contravene article 31 of the Refugee
Convention which prohibits governments from penalising refugees who arrive
without authorisation. As raised by Mr Webb:
The Refugee Convention recognises what these reforms ignore –
that is, the basic legal and moral duty to protect a person is not diminished
just because a person arrives without certain paperwork or with fake documents.[8]
1.23
Amendments of this nature will result in genuine refugees being denied
protection purely on the basis that they were unable to provide the ‘right’
documentation. This will put Australia at risk of returning refugees back to
their persecutors.
Family Reunion
1.24
Family reunification is a fundamental human right under international
law and a requirement of the Refugee Convention. The amendments proposed in
Item 11, subsection 91W,compromise this right and will mean that the family
members of a protection visa holder will be unable to apply for a protection
visa on the basis that they are a ‘member of the same family unit’.
1.25
It is well known that the spouses and children of those found to be in
genuine need of protection in Australia are highly likely to face similar
threats or harm. As stated by Refugee Advice and Case Works Service (RACS)
'(t)his is because harm to a person’s family is one of the most common threats
a person can receive by those perpetrators of serious harm'.[9]
1.26
The amendments also raise serious concerns for unaccompanied minors who
will be unable to be reunited with their families under these amendments. The
only option minors and other persons will have to be reunited with their loved
ones will be through the humanitarian program which has significantly long wait
times (up to five years for children who are separated from their families).
In their evidence to the inquiry the Law Council of Australia stated these
changes will be further exacerbated by the government’s recent changes to
family reunion for protection visa holders which includes:
Removing 4,000 additional Family Stream places for people
found to be owed protection in Australia to reunite with immediate family
members announced as a measure in the 2014-15 budget; the Migration Amendment
(Repeal of Certain Visa Classes) Regulation 2014 (Cth) that removes parent visa
subclass 103, the aged parent visa subclass 804, the aged dependent relative
visas subclasses 114 and 838, the remaining relative visas subclasses 115 and
835, and the carer visas subclasses 116 and 836, and the fact that, as noted by
the NSW Bar, since July 2013, fees for sponsors have increased up to 500%.[10]
1.27
Removing pathways for family reunion for vulnerable refugees compromises
Australia’s international obligations relating to family unification and puts
unaccompanied minors at risk of being separated from family members for
excessively long periods of time.
New claims or evidence before the Refugee Review Tribunal (RRT)
1.28
Amendments proposed in section 423A will require the RRT to refuse
protection if new evidence or claims are provided that were not previously
raised with the Department. This amendment fails to take into consideration the
vulnerabilities of those who come to Australia seeking protection and the
reasons why some people may not or were unable to provide all necessary
evidence in the first instance.
1.29
As noted by the ANU College of Law, Migration Law Program in their
submission:
A failure to disclose earlier claims or evidence would be
particularly common in relation to family violence or gendered-violence claims.
Applicants may be reluctant to disclose evidence due to the traumatic nature of
such claims and a fear and mistrust of authorities.[11]
1.30
The amendments ignore the lived experiences of asylum seekers and
refugees who come to Australia seeking protection.
Tribunal processes
Guidance decisions, oral decisions and statements of
reason and power to dismiss for non-attendance
1.31
The proposed amendments in Schedule 4 of the bill will undermine the
independence of the Refugee Review Tribunal (RRT) and Migration Review Tribunal
(MRT) and deny applicants procedural fairness.
1.32
Many submitters raised concerns about the amendments that would enable
the Principal Member to issue guidance decisions. Mr Hoang from the ANU College
of Law stated in his evidence to the committee:
This unnecessarily fetters the discretion and independence of
tribunal members to consider the merits of a particular case. The bill is
completely silent on the circumstances on which a guidance decision would be
issued by the principal member of the RRT and exactly what parts of a decision
would be binding on tribunal members.[12]
1.33
Similarly, concerns were raised about amendments that would see only
oral decisions handed down by the RRT and MRT. Written decisions would only be
available if specifically requested. In their experience Refugee Immigration
and Legal Centre stated that:
Applicants often struggle to understand key elements of their
decision, even after a detailed explanation...and may also not understand the
need to request written reasons within the limited time period. The consequence
of failing to obtain a written statement of reasons could seriously compromise
a person’s capacity to seek judicial review.[13]
1.34
The proposed power to dismiss a person’s case on the basis of
non-attendance denies a person the ability to receive a fair hearing and could
potentially breach Australia’s international obligations. The committee heard
clear evidence from experts in the sector that there are a number of reasons
that people may be unable to attend a hearing and that a seven day timeframe
for reinstatement fails to take into consideration the obstacles that many
asylum seekers face.
Retrospectivity
1.35
It is important to note that the provisions in this bill are drafted to
apply retrospectively. Should this bill be passed people who have applications
on foot will be disadvantaged despite at all times meeting the criteria for a
visa grant prior to the change. Evidence provided to the committee by the RRT
and MRT states that there are currently 4,400 cases that will be affected
should this bill pass.[14]
1.36
As stated by Amnesty International these amendments will:
Adversely impact a large cohort of individuals who have
always complied with the criteria for their protection applications. The
changes will mean that they are found to no longer meet these requirements,
simply because the goalposts have moved around them. This is plainly unfair and
must not be allowed to come into effect.[15]
1.37
The retrospective nature of this bill is unnecessary and will result in
thousands of people being disadvantaged due to the goal posts shifting.
Conclusion
1.38
The bill is nothing more than another attempt by the Government to limit
Australia’s responsibilities to those seeking protection. The Australian Greens
do not accept that there is any evidence to justify the amendments proposed in
this bill and do not believe this bill does anything to ‘enhance the integrity
and fairness of Australia’s onshore protection status determination process’.
In fact, it does the opposite.
1.39
This bill carries with it the very real likelihood of breaching
Australia’s
non- refoulement obligations and deporting people back to danger due to the
increase in the risk threshold to over a 50 per cent chance of experiencing
significant harm. The bill is inconsistent with international standards, it
misunderstands the refugee status determination process, has significant
adverse impacts on people in genuine need of protection and denies applicants a
proper and fair assessment of their protection claims.
1.40
The Australian Greens acknowledge the community concerns regarding the
implications of this bill and for the reasons stated, do not support the
passage of this bill.
Recommendation 1:
1.41
The Australian Greens recommend that the Australian Government at
all times act within the law and abide by Australia’s international and human
rights obligations.
Recommendation 2:
1.42
The Australian Greens recommend that the Australian Government
reaffirm its commitment to the Refugee Convention, the International Covenant
on Civil and Political Rights and the Convention Against Torture and Other
Cruel, inhuman or Degrading Treatment or Punishment.
Recommendation 3:
1.43
The Australian Greens recommend that the Senate reject the bill.
Senator Sarah
Hanson-Young
Australian
Greens
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