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Inquiry into the Migration Amendment (Complementary Protection) Bill 2009

Legal

Inquiry into the Migration Amendment (Complementary Protection) Bill 2009

Australian Human Rights Commission
Submission to the Senate Standing Committee on Legal and Constitutional
Affairs

30 September 2009

Table of Contents

1 Introduction

2 Summary

3 Recommendations

4 The need for a system of complementary protection

5 The test for harm

6 Protection from death penalty

7 Limited scope of protection

7.1 ICCPR rights

7.2 Children’s Rights

8 Individuals unable to access complementary protection on equal terms

8.1 Offshore entry persons

8.2 Stateless persons

1 Introduction

  1. The Australian Human Rights Commission (the Commission) makes this
    submission to the Senate Standing Committee on Legal and Constitutional Affairs
    Inquiry into the Migration Amendment (Complementary Protection) Bill 2009
    (Complementary Protection Bill).

  2. The Commission is Australia’s national human rights institution.

  3. The Commission commends the Australian Government on the introduction of the
    Complementary Protection Bill. The Commission has on a number of occasions
    recommended the introduction of a legislated complementary protection system for
    people who do not meet the definition of refugee, but nonetheless face serious
    harm if returned to their country of
    origin.[1]

2 Summary

  1. The Commission submits that the Committee recommend the Bill be passed,
    subject to a number of amendments to better protect human rights.

  2. The Commission welcomes many of the changes to the law proposed by the Bill
    including:

    • the enactment of a complementary protection regime in the Migration Act
      1958       (Cth) (Migration Act); and

    • the conferral of a visa with the same conditions and entitlements to
      complementary protection recipients as that conferred on refugees within the
      meaning of the Refugees Convention.

  3. The Commission is nevertheless of the view that certain provisions of the
    Complementary Protection Bill should be amended to fully implement
    Australia’s international human rights obligations. These include:

    • removal of ‘irreparable harm’ from the test in section
      36(2)(aa);

    • deletion of the words ‘and it will be carried out’ from section
      36(2A)(b); and

    • amendment of section 36(2A) to cover any act which would constitute a breach
      of the ICCPR or CRC and would result in serious harm.

  4. The Commission is concerned that the Bill does not adequately protect:

    • individuals who arrive in excised offshore places; or

    • individuals who are stateless.

3 Recommendations

Recommendation 1: Subject to amendments recommended in this
submission, the Complementary Protection Bill should be passed at the earliest
opportunity.

Recommendation 2: The requirement that applicants must face a risk of
‘irreparable harm’ should be deleted from the Bill.

Recommendation 3: The words ‘and it will be carried out’
in subsection 36(2A)(b) should be deleted.

Recommendation 4: The Bill should be amended to provide that Australia
has protection obligations where a non-citizen would suffer serious harm because
of a breach of his or her rights under the ICCPR.

Recommendation 5: The Bill should be amended to provide that Australia
has protection obligations where a child would suffer serious harm because of a
breach of his or her rights under the CRC.

Recommendation 6: Section 46A of the Migration Act should be
repealed.

Recommendation 7: The Government should identify options for the
resolution under the Migration Act of claims by people who are stateless.

4 The
need for a system of complementary protection

  1. Australia has binding international obligations to protect people who do not
    fall within the definition of refugee under the Refugee Convention, but who
    nonetheless must be protected from refoulement (return) under the Convention
    Against Torture (CAT), the International Covenant on Civil and Political Rights
    (ICCPR) and the Convention on the Rights of the Child (CRC).

  2. The Commission has, during the course of its work, come into contact with a
    number of people who have had difficulty meeting the Convention definition of
    refugee, and yet have compelling cases for protection which may be met by a
    complementary protection system. These include such cases as:

    • women who are at risk of domestic violence if returned to their countries
      where, for various reasons, they cannot seek adequate protection from the
      authorities

    • witnesses of crime who have been threatened with death or physical injury by
      criminal elements in countries where those criminal elements operate with
      impunity

    • people who face the death penalty in their country of origin although they
      have already served a sentence for the crime in Australia.

  3. Several examples of cases were also included in the Senate Legal and
    Constitutional References Committee 2000 report, A Sanctuary under Review: An
    Examination of Australia’s Refugee and Humanitarian Determination
    Processes    .[2]

  4. The European Union, Canada and New Zealand have or are soon to legislate to
    enact a complementary protection
    regime[3].

  5. In contrast Australia currently has no effective system of protection for
    such people. Instead, their claims can only be considered after they have had
    their claims for refugee status rejected. They must then seek personal
    intervention by the Minister for Immigration and Citizenship under section 417
    of the Migration Act for a grant of a visa on public interest grounds. Although
    the Minister may consider Australia’s international human rights
    obligations, his or her decisions in these cases are non-compellable and
    non-reviewable. The Minister is also not obliged to give reasons for his or her
    decisions, which means that the decisions lack transparency, accountability and
    consistency.

  6. One of the effects of the current system of Ministerial discretion in these
    cases is the possibility of prolonged immigration detention, which may lead to
    breaches of article 9(1) of the ICCPR. To get to the stage at which exercise of
    the Minister’s section 417 discretion may be considered, asylum seekers
    must first make an application for a refugee protection visa and apply for
    review of that decision. It is not until they have exhausted that process that
    they can be considered by the Minister under section 417. Once they reach the
    section 417 stage, the process can take months. Overall, the process can take
    years.

  7. This is particularly inefficient as it requires people who fear harm if
    returned to their country of nationality, but who do not fall within the
    definition of refugee, to frame their claim as one for refugee status so that
    their real claim can be assessed at the end of that process. This means that
    resources are expended and costs incurred in assessing claims that may be
    unmeritorious as refugee claims, but are compelling as claims for the protection
    of human rights.

  8. The Commission has previously recommended that the Australian Government
    should introduce a legislated system of complementary protection which
    incorporates the following features:

    • clear criteria setting out when a person should be protected from
      refoulement

    • procedures that protect against errors in applying that criteria (due
      process)

    • mechanisms to implement Australia’s protection obligations for those
      who meet the criteria (visas).

Therefore, the Commission
welcomes the Complementary Protection Bill, which includes these key features.

Recommendation 1: Subject to amendments recommended in this
submission, the Complementary Protection Bill should be passed at the earliest
opportunity.

5 The test for
harm

  1. The proposed section 36(2)(aa) of the Migration Act provides that to be
    eligible for complementary protection an individual must be:

    • a non-citizen in Australia

    • who is not owed protection obligations under the Refugee Convention

    • to whom the Minister is satisfied that Australia has protection obligations
      because the Minister has 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 be irreparably
        harmed because of a matter mentioned in subsection
        (2A).

  2. The explanatory memorandum to the Bill notes that the ICCPR and the CAT
    require a high threshold for non-refoulement obligations to be engaged and cites
    the United Nations Human Rights Committee General Comment 31 as the origin of
    the ‘irreparable harm’
    test.[4] The Commission agrees that
    international jurisprudence suggests that a risk of serious harm is required
    before a non-refoulement obligation is engaged. However, the Commission
    considers that the test imposed in section 36(2)(aa) is not the correct test.

  3. The statement in paragraph 12 of General Comment 31 uses the term
    ‘irreparable harm’ as a shorthand way of referencing the serious
    harms contemplated by Articles 6 and 7 of the ICCPR. It should not be understood
    as a discrete requirement. The former United Nations Human Rights
    Committee’s Rapporteur, Sir Nigel Rodley, has supported this
    interpretation, saying:

    I think it should be self-evident that
    paragraph 12 of General Comment 31 (for which I was the Committee’s
    Rapporteur during its consideration of the text) speaks of irreparable harm to
    indicate that not all human rights violations will necessarily entail an
    obligation not to expose a person to them by returning them to the country in
    question.[5]

  4. The requirement for an applicant to be at risk of irreparable harm could
    lead to unintended results. For example, it might be argued that some forms of
    torture such as removal of fingernails or use of electric shock batons will not
    cause irreparable harm to the applicant as required by section 36(2)(aa). The
    Act should not allow for such an approach. The apprehension of such forms of
    torture would certainly engage Australia’s protection obligations under
    CAT, which the Bill intends to import into domestic law.

  5. The Commission considers that a more appropriate reference to the level of
    harm required to engage a non-refoulement obligation is found in General Comment
    1 of the United Nations Committee against Torture. In this comment the Committee
    states:

    Bearing in mind that the State party and the Committee are
    obliged to assess whether there are substantial grounds for believing that the
    author would be in danger of being subjected to torture were he/she to be
    expelled, returned or extradited, the risk of torture must be assessed on
    grounds that go beyond mere theory or suspicion. However, the risk does not have
    to meet the test of being highly probable.

    The author must establish that he/she would be in danger of being tortured
    and that the grounds for so believing are substantial in the way described, and
    that such danger is personal and
    present...[6]

  6. The Commission notes that the standard of proof for complementary protection
    in the European Union is that ‘substantial grounds have been shown for
    believing that the person concerned, if returned to his or her country of
    origin... would face a real risk of suffering serious harm as defined in Article
    15’.[7] A similar test is
    imported into section 36(2)(aa) with the requirement that applicants for
    protection are required to face ‘real risk’ of the kind of harm
    outlined in section 36(2A) of the Bill. Accordingly, the removal of the
    requirement for irreparable harm would more closely align section 36 (2)(aa)
    with other tests applied under international law.

  7. Accordingly, the test contained in section 36(2)(aa) should refer to:

    • a non-citizen in Australia

    • who is not owed protection obligations under the Refugee Convention

    • to whom the Minister is satisfied that Australia has protection obligations
      because the Minister has 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 face a harm of the
        kind mentioned in subsection (2A).

  8. Simplifying the test in section 36(2)(aa) by removing the requirement
    relating to irreparable harm will also make the test easier to apply for
    decision-makers. This is likely to result in more consistent and fair
    decision-making.

Recommendation 2: The requirement that
applicants must face a risk of ‘irreparable harm’ should be deleted
from the Bill

6 Protection from death
penalty

  1. The proposed section 36(2A) provides that the Minister may grant a visa on
    complementary protection grounds where he or she believes that there is a real
    risk that the non-citizen will be irreparably harmed because the non-citizen
    will ‘have the death penalty imposed on him or her and it will be carried
    out’.

  2. The Commission recommends that the words ‘and it will be carried
    out’ in subsection 36(2A)(b) be deleted. These additional words are
    unnecessary and are likely to present practical difficulties in implementation.
    For example, it is unclear how a decision maker would satisfy himself or herself
    that the death penalty will be carried out in a particular case. Short of a
    country having a record of never carrying out the death penalty, it is submitted
    that a decision maker could never be satisfied that the death penalty would not
    be carried out. Statistically some countries may tend to delay executions or may
    only carry out a small number of executions that are ordered. However,
    statistics cannot predict with certainty what will occur in a given case.

  3. It should also be noted that these words are not used in the ICCPR or in the
    second optional protocol to the ICCPR regarding the abolition of the death
    penalty.

  4. For these reasons, the Commission considers that the words ‘and it
    will be carried out’ should be deleted from section
    36(2A)(b).

Recommendation 3: The words ‘and it will be
carried out’ in subsection 36(2A)(b) should be deleted.

7 Limited scope of
protection

  1. The proposed section 36(2A) provides that the Minister may grant a visa on
    complementary protection grounds where he or she believes that there is a real
    risk that a non-citizen will be irreparably harmed because the non-citizen
    will:

    • be arbitrarily deprived of his or her life; or
    • have the death penalty imposed on him or her and it will be carried out;
      or
    • be subjected to torture; or
    • be subjected to cruel or inhuman treatment or punishment; or
    • be subjected to degrading treatment or punishment.
  2. The obligation not to return someone at risk of death, torture or cruel,
    inhuman or degrading treatment or punishment is well established in
    international law.[8] The Commission
    supports the extension of protection to people on these grounds, which cover
    some of the most significant examples of serious harm.
  3. However, the Committee should be aware that international jurisprudence
    supports the extension of non-refoulement obligations based on the ICCPR and CRC
    beyond the grounds contained in the Bill.

7.1 ICCPR rights

  1. In its General Comments the UN Human Rights Committee (the Committee) has
    considered which articles of the ICCPR may give rise to an obligation not to
    return a non-citizen.

  2. In General Comment 31 the Committee states:

    Moreover, the
    article 2 obligation requiring that State Parties respect and ensure the
    Covenant rights for all persons in their territory and all persons under their
    control entails an obligation not to extradite, deport, expel or otherwise
    remove a person from their territory where there are substantial grounds for
    believing that there is a real risk of irreparable harm, such as that
    contemplated by articles 6 and 7 of the Covenant, either in the country to which
    removal is to be effected or in any country to which the person may subsequently
    be removed.[9] (emphasis added)

  3. Whilst General Comment 15 states:

    ....in certain circumstances
    an alien may enjoy the protection of the Covenant even in relation to entry or
    residence, for example, when considerations of non-discrimination, prohibition
    of inhuman treatment and respect for family life
    arise.[10]

  4. These General Comments indicate that an obligation not to refoule could
    arise from any article of the ICCPR. Nowak also considers that the prohibition
    of refoulement which has been recognised in respect of article 6 of the ICCPR
    might, in principle, be applicable to all ICCPR
    rights.[11]

  5. The Committee outlined its views on a State Party’s non-refoulement obligations under the ICCPR in Kindler v
    Canada    :

    if a State party takes a decision relating to a person
    within its jurisdiction, and the necessary and foreseeable consequence is that
    that person’s rights under the Covenant will be violated in another
    jurisdiction, the State party itself may be in violation of the Covenant. That
    follows from the fact that a State party’s duty under article 2 of the
    Covenant would be negated by the handing over of a person to another State
    (whether a State party to the Covenant or not) where treatment contrary to the
    Covenant is certain or the very purpose of the handing
    over.[12]

  6. The Committee has emphasised that the threshold to be met for a
    non-refoulement obligation will only be available in the most serious cases.
    However the Commission is of the view that there is no reason why any of the
    human rights in the ICCPR should be excluded from the possibility of such an
    obligation arising if that threshold is met.

Recommendation
4: The Bill should be amended to provide that Australia has protection
obligations where a non-citizen would suffer serious harm because of a breach of
his or her rights under the ICCPR.

7.2 Children’s
Rights

  1. Article 3(1) of the CRC states:

    In all actions concerning
    children, whether undertaken by public or private social welfare institutions,
    courts of law, administrative authorities or legislative bodies, the best
    interests of the child shall be a primary consideration.

  2. This article is generally recognised to create a broad obligation to
    consider the interests of children in view of their particular
    vulnerability.

  3. In its General Comment 6, the Committee on the Rights of the Child adopts a
    broader approach to non-refoulement than the Human Rights
    Committee:

    ...States shall not return a child to a country where
    there are substantial grounds for believing that there is a real risk of
    irreparable harm to the child such as, but by no means limited to, those
    contemplated under articles 6 and 37 of the Convention, either in the country to
    which removal is to be effected or in any country to which the child may
    subsequently be removed. Such non-refoulement obligations apply irrespective of
    whether serious violations of those rights guaranteed under the Convention
    originate from non-State actors or whether such violations are directly intended
    or are the indirect consequence of action or
    inaction.[13]

  4. Goodwin-Gill and McAdam argue that the best interests of the child principle
    contained in article 3 of the CRC may provide a ground of protection for
    children fleeing generalised
    violence.[14]

  5. The Commission is of the view that to best protect the rights of children,
    the Government should enact a comprehensive complementary protection regime
    specific to children in danger of serious harms.

Recommendation
5: The Bill should be amended to provide that Australia has protection
obligations where a child would suffer serious harm because of a breach of his
or her rights under the CRC.

8 Individuals
unable to access complementary protection on equal terms

  1. The Bill is a welcome development in increasing protection for a group of
    vulnerable people to whom Australia owes protection obligations. The second
    reading speech states that the Bill:

    . . .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[15]

  2. However, contrary to this statement, the Bill will not in fact extend
    protection in the same way to all people to who may be owed
    Australia’s protection.

8.1 Offshore entry
persons

  1. The Commission has previously raised concerns about the excision and
    offshore processing regime. It establishes a two-tiered system under which
    asylum seekers who arrive in excised offshore places have significantly fewer
    legal safeguards than asylum seekers on the
    mainland.[16] The Commission has
    recommended that the provisions of the Migration Act relating to excised
    offshore places should be repealed and that all people who make claims for
    asylum should have those claims processed through the refugee status
    determination system on the
    mainland.[17]
  2. Section 46A of the Migration Act excludes persons who arrive in an excised
    offshore place from making a valid application for a visa, including a
    protection visa, unless the Minister exercises his discretion to allow them to
    do so. Under current Australian Government policy, these ‘offshore entry
    persons’ are detained on Christmas Island and are processed through a
    ‘non-statutory’ refugee status assessment process.
  3. The system of complementary protection introduced by the Bill is subject to
    the limitation in section 46A. It will not be available to Offshore Entry
    Persons unless the Minister determines that they should be entitled to make a
    visa application.
  4. The Complementary Protection Bill does nothing to alter the status quo.
    Offshore entry persons remain disadvantaged compared to onshore entry persons
    because of the method by which they entered Australia.
  5. Australia’s non-refoulement obligations are not altered by the manner
    in which a non-citizen arrives in Australia, or where in Australia they arrive.
  6. By failing to extend the application of the legislated complementary
    protection system to people who arrive in excised offshore places as a matter of
    course, the Australian Government the two-tiered system currently in
    operation.

Recommendation 6: Section 46A of the Migration Act
should be repealed

8.2 Stateless
persons

  1. Australia has obligations to people who are stateless under the 1954
    Convention relating to the Status of Stateless Persons.     While the situation
    of stateless people does not necessarily fall within the scope of complementary
    protection, there is a need to provide an appropriate mechanism for assessing
    the claims of stateless people.

  2. In some cases, people who are stateless may claim grounds for protection
    that will fit within the definition of refugee or the new complementary
    protection grounds. However, in other cases a stateless person may fall through
    the cracks of protection, despite the fact that they are unable to be sent back
    to their country of origin. Currently, such people may be left in a prolonged
    state of limbo, in immigration detention or in the community, without a
    satisfactory resolution to their case. The Commission is of the view that the
    law should be amended to account for individuals in this situation.

  3. The Commission submits that the Committee should recommend that the
    Government identify options for the resolution under the Migration Act of claims
    by people who are stateless.

Recommendation 7: The Government
should identify options for the resolution under the Migration Act of claims by
people who are stateless.


[1] Human Rights and Equal
Opportunity Commission. Submission to the Joint Standing Committee on Migration
Inquiry into Immigration Detention in Australia 4 August 2008 at
http://humanrights.gov.au/legal/submissions/2008/20080829_immigration_d…,
Human Rights and Equal Opportunity Commission. Submission to the Senate Select
Committee on Ministerial Discretion in Migration Matters 27 August 2003 at
http://www.humanrights.gov.au/legal/submissions/migration_matters.html

[2] Senate Legal and Constitutional References Committee. A Sanctuary under
Review. An Examination of Australia’s Refugee and Humanitarian
Determination Processes. June
2000

[3] In addition, the United
States has codified its obligation not to return a non-citizen where there is a
risk of torture. See McAdam, J Complementary Protection: Labor’s Point of
Departure. http://inside.org.au/complementary-protection/ (viewed 25 September 2009)

[4] Explanatory Memorandum Migration Amendment (Complementary Protection) Bill 2009
(Cth) para 51.

[5] Email from Sir
Nigel Rodley to John Gibson of the Refugee Council of Australia dated 22
September 2009.

[6] Committee
Against Torture, General Comment No. 1 - Implementation of article 3 of the
Convention in the context of article 22 A/53/44, annex IX (1997) paras 6 and
7. At http://www.unhchr.ch/tbs/doc.nsf/0/13719f169a8a4ff78025672b0050eba1?Opendocument (viewed 20 September 2009)

[7] Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the
qualification and status of third country nationals or stateless persons as
refugees or as persons who otherwise need international protection and the
content of the protection granted. Article 2(e) http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004L0083:EN:HTML (viewed 28 September 2009)

[8] Kindler v Canada, No. 470/1991, § 15.3, Judge v Canada, No.
829/1998, § 10.4.

[9] Human
Rights Committee, General Comment No.31 - [80] Nature of the General Legal
Obligation Imposed on States Parties to the Covenant CCPR/C/21/Rev.1/Add.13
(2004) para 12. At
http://www.unhchr.ch/tbs/doc.nsf/0/58f5d4646e861359c1256ff600533f5f?Ope…

[10] Human Rights Committee, General Comment 15: The Position of Aliens under the
Covenant (1986) para 5. At
http://www.unhchr.ch/tbs/doc.nsf/0/bc561aa81bc5d86ec12563ed004aaa1b?Ope…

[11] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd ed 2005),
150.

[12] See n.8,
Kindler

[13] Committee on the
Rights of the Child, General Comment 6: Treatment of Unaccompanied and
Separated Children Outside Their Country of Origin (1 September 2005), para
27. At
http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2005.6.En?OpenDocument

[14] Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd ed 2007),
324

[15] Commonwealth,
Parliamentary Debates, House of Representatives, 9 September 2009, p4 (The Hon
Laurie Ferguson MP, Parliamentary Secretary for Multicultural Affairs and
Settlement Services)

[16] See,
for example Australian Human Rights Commission, 2008 Immigration Detention
Report: Summary of observations following visits to Australia’s
immigration detention facilities (2008), at http://www.humanrights.gov.au/human_rights/immigration/idc2008.html.

[17] Above, pp 71-72.