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Thursday, 12 May 2011
Page: 3839

Mrs MOYLAN (Pearce) (13:13): In addition to the refugee convention, Australia is a signatory to a number of international conventions that prohibit refoulement of people seeking protection. These agreements include the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the International Covenant on Civil and Political Rights. Non-refoulement obligations arise where an individual currently on Australian shores is determined not to be a refugee under that convention but nonetheless would face a real risk of torture or cruel, inhuman or degrading treatment if returned home or would be exposed to the death penalty or other arbitrary deprivation of life. The obligation of nonrefoulement is described as complementary protection. Currently, requests for asylum based on nonrefoulement, other than under the refugee convention, can only be granted by the immigration minister. Ministerial discretion can only be invoked after an application has been refused by both a primary assessor and on a merits review. This bill seeks to establish a statutory regime where, instead of ministerial intervention, officers of the immigration department can determine claims based on both refugee and non-refoulement grounds. These grounds would be enunciated in law, and they would be judicially reviewable.

Strong parallels can be drawn between this bill and legislation enacted by the government in 1981, which introduced section 6A(1)(e) to the Migration Act. That paragraph allowed for the grant of an onshore visa to those who did not meet refugee criteria but still had 'strong compassionate or humanitarian grounds' for asylum. In giving evidence to the Senate Select Committee on Ministerial Discretion in Migration Matters in 2003, Ms Philippa Godwin from the immigration department commented that the provision:

… was an attempt to codify the concept of discretionary compassionate circumstances [but] it essentially just blew out and blew out until it became largely meaningless.

The expanded application of 'strong compassionate or humanitarian grounds' was due largely to judicial interpretation, and the resulting administrative difficulties were profound. Whilst it was estimated that less than 100 people a year would benefit from the provision, indeed 226 people were approved in the following year, 1981-82, rising to 3,260 approvals in 1987. By December of 1989, when the provision was then repealed, over 8,000 applications were outstanding. In further evidence to the committee, Ms Godwin stated:

… all of the information around [the section's] creation indicated that it was meant to be used in exceptional circumstances. The difficulty was that it was hard to prescribe objectively what those circumstances are.

The same difficulty is faced in codifying complementary protection. While the grounds for protection are set out in the relevant conventions, their practical application needs to balance the flexibility to provide protection when necessary with the need to ensure protection grounds do not blow-out beyond their original intention. Such a balance is difficult to achieve, as highlighted by the Refugee Council of Australia in a briefing note they provided on this matter. To quote from that note:

The threshold for standard of proof in relation to meeting the requirements for complementary protection has been set so high that it is inconsistent with international standards. If unamended, this legislation could result in the denial of protection to people who require it, putting Australia in breach of its human rights treaty obligations.

Associate Professor Jane McAdam, on page 4 of her submission to the Senate Legal and Constitutional Affairs Legislation Committee enquiry into this bill, submitted:

Since the purpose of the bill is to implement Australia's international human rights obligations … it seems only sensible and appropriate that Australian legislation reflect the language and interpretation of these obligations as closely as possible.

Minister Bowen has referred to honour killings and female genital mutilation as instances where this bill would apparently provide protection. The examples would fall under arbitrary deprivation of life and cruel or inhuman treatment respectively under the bill. Those sections, however, are qualified by proposed section 36 (2)(c), which provides that the risk of such events must not be one 'faced by the population generally' but one 'faced by the non-citizen personally'. Both Amnesty International and the Refugee Council queried the application of the proposed section 36. Amnesty noted on page 7 of their submission:

The requirement that the risk faced must not be 'faced by the population generally' may result in an applicant fleeing domestic violence to be excluded from protection on the grounds that the applicant originates from a country where domestic violence is widespread—

And, I would go on to say, even an accepted practice, as we know it is in some countries. The submission continued:

Additionally, the stipulation that the risk must be 'faced by the non-citizen personally' has the potential to exclude, for example, applicants who have not been directly threatened with female genital mutilation but due to their age and gender face a probable risk that they will be subjected to the practice upon return.

Whilst Amnesty International, the Refugee Council and the Senate committee itself all recommended that the provision be clarified, none were able to suggest an appropriate definition that struck a balance between protecting intended beneficiaries and, at the same time, ensuring the scope was not open to widespread, unintended, claims. Being unable to appropriately define the circumstances that give rise to protection is a critical deficiency in this bill. If the provisions are interpreted narrowly, excluding the very people they are intended to protect, then applicants still have to apply for ministerial intervention. On the other hand, if the provisions are too wide, then, as happened under the system operating in 1981, the process can become administratively unworkable, overwhelmed by cases never intended to give rise to protection. People could spend even greater amounts of time in detention as the immigration department works through the expanded volume of claims.

Further, it is unclear to me why the very people this bill seeks to assist are currently not successful under the refugee convention. There are five threshold categories under the refugee convention, one of which is persecution based on being a member of a particular 'social group'. Many examples that would fall under complementary protection have been accepted or favourably viewed by the High Court as falling under the social-group protection. Current Australian law, informed by the reasoning of High Court decisions, should already operate to protect many of the people that are claimed to be solely reliant on ministerial intervention.

So, rather than enacting legislation that could possibly exclude the very people it seeks to assist, a prudent approach would be to revise the policy guides available to departmental decision-makers when assessing claims in the first instance. To avoid doubt, that guidance could, for instance, specifically state that women fleeing genital mutilation are considered to be part of a 'social group' for the purposes of the refugee convention, ensuring that people who legitimately deserve protection are not rejected on technical grounds. This requires no amendment to existing legislation, is consistent with High Court interpretations of the refugee convention provisions and relieves the burden on the minister, without changing the existing processing system. I find it quite paradoxical that the parliament is considering this bill today, in light of the government's recently announced 'Malaysian solution'. The intention of codifying complementary protection grounds, as described on page 1 of the explanatory memorandum to this bill, is to:

… better reflect Australia’s longstanding commitment to protecting those at risk of the most serious forms of human rights abuses.

And what is the government doing in relation to the Malaysian solution? It is directly placing people into a situation where they are at risk of the most serious forms of human rights abuses. How can the government make such a pious claim in light of its new policy? The Malaysian solution will transfer people seeking assistance to a country not signatory to the refugee convention, with the added stipulation that they shall never be allowed to settle in Australia.

I commend Amnesty International for its recent report on the dire conditions facing refugees in Malaysia, and I commend the reading of that report to every Australian. I acknowledge the great difficulty the staff of Amnesty International have had in undertaking the task of documenting the plight of refugees in Malaysia. Amnesty International points out that, as Malaysia is not a signatory to the refugee convention, it does not distinguish between refugees and illegal migrant workers. In 2002 the Malaysian government passed a law endorsing caning as a form of punishment for immigration violations; a punishment that the UN warns could be considered as cruel, inhuman or degrading treatment. While we can understand the difficulties faced by Malaysia, with over 90,000 refugees within their borders to care for, we cannot condone the terrible conditions refugees are subjected to in that country. Once again, I refer this parliament and the public in general to Amnesty's report, which makes sobering reading indeed.

The government has placated its policy with a promise to accept 4,000 refugees from Burma, and in doing so claims to be laying the foundation for a regional solution to this problem. I put it to you that this is a deal that the government conceived in secret, that is politically expedient and that plays to the political cycle. But it is hardly a foundation for a durable solution in a region that continues to face a flow of refugees and the challenge of how to deal with people smuggling. The government should be working constructively to share in the management of the flow of refugees in the region and should reject policies that simply deflect our responsibilities onto other countries, which often bear a disproportionate share and in some cases are less well equipped to care for refugees. I think that it is a diplomatic disaster as well as a humanitarian disaster to shovel our responsibilities onto countries that are much less better equipped than our country to deal with this flow of refugees that we are currently witnessing.

In conclusion, as a co-convenor of the Amnesty International Parliamentary Group I commend the work of Amnesty International, which has consistently campaigned for a humane and durable solution consistent with Australia's international obligations.