2013 - 2014 - 2015

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

MIGRATION AMENDMENT (COMPLEMENTARY PROTECTION AND OTHER MEASURES) BILL 2015

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Border Protection,

The Hon. Peter Dutton MP)

OUTLINE

The Migration Amendment (Complementary Protection and Other Measures) Bill 2015 (the Bill) amends the statutory framework in the Migration Act 1958 (the Migration Act) relating to the protection status determination process for persons seeking protection on complementary protection grounds. 

Complementary protection is the term used to describe a category of protection for people who are not refugees, as defined in the Migration Act, but who also cannot be returned to their receiving country (that is, their country of nationality or country of former habitual residence if they do not have a nationality) because there is a real risk that they would suffer a significant harm that would engage one of Australia’s international non-refoulement (non-return) obligations under the International Covenant on Civil and Political Rights (ICCPR) or the Convention Against Torture, and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT).

The Bill also includes amendments to the statutory framework in the Migration Act relating to protection visas and related matters, following the commencement of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (the Legacy Act) and the Migration Amendment (Protection and Other Measures) Act 2015 .  The measures in the Bill are a continuation of the Government’s protection reform agenda to deliver a more effective and efficient onshore protection status determination process. 

Specifically, the Bill will amend the Migration Act to:

•           strengthen the statutory complementary protection framework by aligning its standards with equivalent standards established in the new statutory refugee framework, as inserted by Part 2 of Schedule 5 to the Legacy Act;

•           clarify the reference to ‘protection obligations’ in subsection 36(3), by specifying the source of the obligations;

•           clarify that the ‘country’ in subsection 5H(1), which outlines the meaning of refugee , is intended to be the same country as the ‘receiving country’, by referring directly to the definition of ‘receiving country’ in subsection 5(1) of the Migration Act;

•           align the statutory provisions relating to protection in another country (third country protection) with the definition of ‘well-founded fear of persecution’ in section 5J of the Migration Act;

•           amend subsection 36(2C), to remove duplication between paragraph 36(2C)(b) and subsection 36(1C) in the Migration Act, which both operate to exclude an applicant from the grant of a protection visa on character-related grounds;

•           amend subsection 336F(5), which authorises disclosure of identifying information to foreign countries, to include information pertaining to unauthorised maritime arrivals who make claims for protection as a refugee and fall within the circumstances of subsection 36(1C) of the Migration Act;

•           amend subsection 502(1) of the Migration Act, which allows the Minister for Immigration and Border Protection (the Minister) to personally make a decision, that is not reviewable by the Administrative Appeals Tribunal, to apply to persons who have been refused the grant of a protection visa on complementary protection grounds for reasons relating to the character of the person; and

•           amend subsection 503(1) of the Migration Act, which relates to the exclusion of certain persons from Australia, to apply to persons who have been refused the grant of a protection visa on complementary protection grounds for reasons relating to the character of the person.  

 

financial impact statement

 

The financial impact of the Bill is low. Any costs will be met from within existing resources of the Department of Immigration and Border Protection.

 

REGULATION impact statement

 

The Office of Best Practice Regulation has been consulted and assessed that a regulation impact statement is not required.  The advice reference is 19080.

 

statement OF COMPATIBILITY with Human rights

 

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill and assesses that the amendments are compatible with Australia’s human rights obligations.  A copy of the Statement of Compatibility with Human Rights is at Attachment A .

 

 

 

 

 

 

 

 

 

 

 

MIGRATION AMENDMENT (Complementary Protection and Other Measures) Bill 2015

NOTES ON INDIVIDUAL CLAUSES

Clause 1          Short title

1.       Clause 1 provides that the short title by which this Act may be cited is the Migration Amendment (Complementary Protection and Other Measures) Act 2015 .

Clause 2          Commencement

2.       Subclause 2(1) provides that each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

3.       Table item 1 provides that sections 1 to 3 of this Act and anything in this Act not elsewhere covered by the table will commence on the day on which this Act receives the Royal Assent.

 

4.       Table item 2 provides that amendments in Schedule 1 commence on a single day to be fixed by Proclamation. However if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

5.       The note after the table in subclause 2(1) states that this table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 

6.       Subclause 2(2) provides that any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

 

Clause 3          Schedules(s)

7.       This clause provides that each Act that is specified in a Schedule to this Act is amended or repealed as set out in the application items in the Schedule concerned and any other item in a Schedule to this Act has effect according to its terms.

 

                                  

 

 

 

SCHEDULE 1 - Amendments

 

Part 1 - Amendments

 

Migration Act 1958

 

Item 1             Subsection 5(1) (subparagraph (b)(iii) of the definition of fast track decision )    

 

8.       This item repeals subparagraph (b)(iii) of the definition of fast track decision in subsection 5(1) of Part 1 of the Migration Act, and substitutes new subparagraph 5(1)(b)(iii).

 

9.       Current subparagraph 5(1)b(iii) provides that a fast track decision does not include a decision to refuse to grant a protection visa to a fast track applicant, where that decision relies on paragraphs 36(2C)(a) or (b) of the Migration Act.   

 

10.   New subparagraph 5(1)(b)(iii) provides that a fast track decision does not include a decision to refuse to grant a protection visa to a fast track applicant, where that decision relies on subsection 36(2C) of the Migration Act.

 

11.    This amendment is consequential to item 16 below, which repeals current subsection 36(2C) of the Migration Act and substitutes new subsection 36(2C).

 

Item 2             Subsection 5(1) (definition of significant harm )     

 

12.   This item omits “36(2A)” and substitutes “5LAA(3)” in  the definition of significant harm in subsection 5(1) of Part 1 of the Migration Act.

 

13.   This amendment is consequential to item 16 below, which repeals current subsection 36(2A) of the Migration Act.

                       

14.   Current subsection 36(2A) provides the circumstances in which a non-citizen will suffer significant harm. Due to a restructure of the legislative framework, these circumstances will now be contained in new subsection 5LAA(3), which is inserted by item 11 below, thus moving the definition of significant harm to the general ‘Interpretation’ part of the Migration Act.  New subsection 5LAA(3) does not alter the content of current subsection 36(2A), nor is it intended to change its meaning.

 

Item 3             Paragraph 5H(1)(a)

 

15.   This item omits the words “the country of his or her nationality and, owing to a well- founded fear of persecution” and substitutes the words “the person’s receiving country and, owing to a well-founded fear of persecution in relation to that country” in paragraph 5H(1)(a) of Part 1 of the Migration Act.

 

16.   The definition of ‘refugee’ was recently inserted into the Migration Act by Part 2 of Schedule 5 to the Migration Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (the Legacy Act).

 

17.   This is a technical amendment to clarify that the ‘country’ in subsection 5H(1) is intended to be the same country as the ‘receiving country’, by referring directly to the definition of ‘receiving country’ in subsection 5(1) of the Migration Act.  That is, for a person who has a country of nationality, it is the country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country.  This amendment does not change which country or countries a person will be assessed against for the purpose of determining whether they meet the definition of ‘refugee’ in subsection 5H(1). 

 

Item 4             Paragraph 5H(1)(b)  

 

18.   This item omits the words “the country of his or her former habitual residence and owing to a well-founded fear of persecution” and substitutes the words “the person’s receiving country and, owing to a well-founded fear of persecution in relation to that country” in paragraph 5H(1)(b) in Part 1 of the Migration Act.

 

19.   The definition of ‘refugee’ was recently inserted into the Migration Act by Part 2 of Schedule 5 to the Legacy Act.

 

20.   This is a technical amendment to clarify that the ‘country’ in subsection 5H(1) is intended to be the same country as the ‘receiving country’, by referring directly to the definition of ‘receiving country’ in subsection 5(1) of the Migration Act.  That is, for a person who has no country of nationality, it is the country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.  This amendment does not change which country or countries a person will be assessed against for the purpose of determining whether they meet the definition of ‘refugee’ in subsection 5H(1). 

 

Item 5             Subsection 5J(1)       

 

21.   This item inserts the words “in relation to a country” after “persecution”, in subsection 5J(1) in Part 1 of the Migration Act.

 

22.   Together with the amendments at items 5 - 7 and items 18 - 23, this amendment is intended to ensure greater consistency between the language used in the definition of well-founded fear of persecution in section 5J of the Migration Act and subsections 36(3) to 36(7), which relate to protection in another country.

 

23.   The definition of well-founded fear of persecution was recently inserted into the Migration Act by Part 2 of Schedule 5 to the Legacy Act.

 

24.   The intention is that the new definition of well-founded fear of persecution in section 5J applies to the provisions relating to protection in another country in subsections 36(3) to 36(7) of the Migration Act. Currently, subsections 36(3) to 36(7) refer to a

well-founded fear of being persecuted and a real risk of significant harm ‘in relation to a country’.

 

Item 6             Paragraph 5J(1)(b)

 

25.   This item omits the words “returned to the receiving country”, and substitutes the words “were in the country” in paragraph 5J(1)(b) in Part 1 of the Migration Act.

 

26.   Section 5J of the Migration Act provides the meaning of well-founded fear of persecution . Paragraph 5J(1)(b) currently provides that a person has a well-founded fear of persecution if there is a real chance that, if the person is returned to the receiving country, the person would be persecuted for one or more of the reasons set out in paragraph 5J(1)(a).

 

27.   This amendment clarifies that the definition of well-founded fear of persecution in section 5J applies to the provisions relating to protection in another country in subsections 36(3) to 36 (7). Currently, the definition of well-founded fear of persecution in section 5J refers to a ‘receiving country’. Subsections 36(3) to 36(7) refer only to a ‘country’.

 

28.   Subsections 36(3) to 36(7) refer to protection in a third country. Specifically, subsection 36(3) prevents a person from being granted a protection visa in Australia if the person has not taken all possible steps to avail himself or herself of a right to enter and reside in “any country apart from Australia”. This is unless one of the exceptions in subsections 36(4) to 36(5A) applies to the person. Relevantly, the exception in paragraph 36(4)(a) relates to the person having a well-founded fear of persecution or there being a real risk of significant harm in the third country. The exception in paragraph 36(5)(b) relates to the person being returned by the third country to a country where he or she has a well-founded fear of persecution or there being a real risk of significant harm.

 

29.   This is a technical amendment to provide greater consistency in the language within the Migration Act and to make an existing measure work as originally intended. It is not intended to change the substance of the test for well-founded fear of persecution . Rather, it is intended to clarify that the same test for well-founded fear of persecution is to be considered for both a receiving country and in relation to ‘third country protection’ solutions.  In such cases, the person may never have been to the third country, so it is inaccurate to speak of their ‘return’ to that country.

 

Item 7             Paragraph 5J(1)(c)

 

30.   This item omits the words “a receiving country” and substitutes the words “the country” in paragraph 5J(1)(c) of Part 1 of the Migration Act. This amendment is consistent with changes in paragraph 5J(1)(b), made by item 6 above.

 

31.   Section 5J of the Migration Act provides the meaning of well-founded fear of persecution . Paragraph 5J(1)(c) provides that a person has a well-founded fear of persecution if  the real chance of persecution relates to all areas of the receiving country.

 

32.   This amendment clarifies that the definition of well-founded fear of persecution in section 5J applies to the provisions relating to protection in another country in subsections 36(3) to 36 (7). Currently, the definition of well-founded fear of persecution in section 5J refers to a ‘receiving country’. Subsections 36(3) to 36(7) refer only to a ‘country’.

 

33.   Subsections 36(3) to 36(7) refer to protection in a third country. Specifically,

subsection 36(3) prevents a person from being granted a protection visa in Australia if the person “has not taken all possible steps to avail himself or herself of a right to enter and reside in” any country apart from Australia. This is unless one of the exceptions in

subsections 36(4) to 36(5A) applies to the person. Relevantly, the exception in paragraph 36(4)(a) relates to the person having a well-founded fear of persecution in the third country. The exception in paragraph 36(5)(b) relates to the person being returned by the third country to a country where he or she has a well-founded fear of persecution.

 

34.   This is a technical amendment to provide greater consistency in the language within the Migration Act and to make an existing measure work as originally intended. It is not intended to change the substance of the test for well-founded fear of persecution , but is intended that the test clearly includes ‘third country protection’ solutions.

 

Item 8             Subsection 5J(2)

 

35.   This item repeals current subsection 5J(2) of the Migration Act (not including the note) and substitutes new subsection 5J(2).

 

36.   Currently, subsection 5J(2) provides that a person does not have a well-founded fear of persecution if effective protection measures are available to a person in a receiving country.

37.   New subsection 5J(2) provides that a person does not have a well-founded fear of persecution in relation to a country if effective protection measures against persecution are available to the person in the country.

 

38.    The changes to subsection 5J(2) provide consistency between the language used in the definition of well-founded fear of persecution in section 5J and subsections 36(3) to 36(7), which relate to protection in another country.

 

39.   Section 5J of the Migration Act provides the meaning of well- founded fear of persecution . Paragraph 5J(1)(c) provides that a person has a well-founded fear of persecution if the real chance of persecution relates to all areas of the receiving country.

 

40.   This amendment clarifies that the definition of well-founded fear of persecution in section 5J applies to the provisions relating to protection in another country in subsections 36(3) to 36(7). Currently, the definition of well-founded fear of persecution in section 5J refers to a ‘receiving country’. Subsections 36(3) to 36(7) refer only to a ‘country’.

 

41.   Subsections 36(3) to 36(7) refer to protection in a third country. Specifically, subsection 36(3) prevents a person from being granted a protection visa in Australia if the person “has not taken all possible steps to avail himself or herself of a right to enter and reside in” any country apart from Australia. This is unless one of the exceptions in subsections 36(4) to 36(5A) applies to the person. Relevantly, the exception in paragraph 36(4)(a) relates to the person having a well-founded fear of persecution in the third country. The exception in paragraph 36(5)(b) relates to the person being returned by the third country to a country where he or she has a well-founded fear of persecution.

 

42.   This is a technical amendment to provide greater consistency in the language within the Migration Act and to make an existing measure work as originally intended. It is not intended to change the substance of the test for well-founded fear of persecution , but is intended that the test clearly includes ‘third country protection’ solutions.

 

Item 9             Subsection 5J(3)

 

43.   This item inserts the words “in relation to a country” after “ persecution ”, in subsection 5J(3) in Part 1 of the Migration Act.

 

44.   This amendment is intended to ensure greater consistency between the language used in the meaning of well-founded fear of persecution in section 5J of the Migration Act and subsections 36(3) to 36(7), which relate to protection in another country.

 

45.   The definition of well-founded fear of persecution was recently inserted into the Migration Act by Part 2 of Schedule 5 to the Legacy Act.

 

46.   The intention is that the new definition of well-founded fear of persecution in section 5J applies to the provisions relating to protection in another country in subsections 36(3) to 36(7) of the Migration Act. Currently, subsections 36(3) to 36(7) refer to a

well-founded fear of being persecuted and a real risk of significant harm “in relation to a country”.

 

47.   This amendment provides greater consistency in the language and interaction between the new definition of well-founded fear of persecution in section 5J and

subsections 36(3) to 36(7), which relate to protection in another country.

Item 10           Subsection 5J(3)

 

48.   This item omits the words “a receiving country” and substitutes the words “the country” in subsection 5J(3) of Part 1 of the Migration Act.

 

49.   This amendment clarifies that the definition of well-founded fear of persecution in section 5J applies to the provisions relating to protection in another country in subsections 36(3) to 36(7). Currently, the definition of well-founded fear of persecution in section 5J refers to a ‘receiving country’. Subsections 36(3) to 36(7) refer only to a ‘country’.

 

50.   Subsections 36(3) to 36(7) refer to protection in a third country. Specifically, subsection 36(3) prevents a person from being granted a protection visa in Australia if the person “has not taken all possible steps to avail himself or herself of a right to enter and reside in” any country apart from Australia. This is unless one of the exceptions in subsections 36(4) to 36(5A) applies to the person. Relevantly, the exception in paragraph 36(4)(a) relates to the person having a well-founded fear of persecution in the third country. The exception in paragraph 36(5)(b) relates to the person being returned by the third country to a country where he or she has a well-founded fear of persecution.

 

51.   This is a technical amendment to provide greater consistency in the language within the Migration Act and to make an existing measure work as originally intended. It is not intended to change the substance of the test for well-founded fear of persecution , but is intended that the test clearly includes ‘third country protection’ solutions.

 

Item 11           After section 5L

 

52.   This item inserts new section 5LAA after section 5L in Part 1 of the Migration Act. New section 5LAA provides the circumstances in which there is a real risk that a person will suffer significant harm.  This is currently dealt with in subsections 36(2A) and 36(2B) of the Migration Act, which are repealed by item 16 below.

 

 

Subsection 5LAA(1)

53.   New subsection 5LAA(1) provides that for the purposes of the application of the Migration Act and the Migration Regulations 1994 (the regulations) to a particular person, there is a real risk that the person will suffer significant harm in a country if:

 

·          the real risk relates to all areas of the country; and

·          the real risk is faced by the person personally.

 

54.   New paragraph 5LAA(1)(a) provides that a necessary element of the real risk of significant harm is that the real risk relates to all areas of the receiving country. This amendment aligns the criteria for complementary protection with the criteria under the refugee framework in existing paragraph 5J(1)(c) of the Migration Act .

 

55.   In the case of complementary protection claims, a person who could relocate to a safe part of the receiving country upon return would be found not to have a real risk of significant harm. In considering whether a person can relocate to another area, a decision maker is required to take into account whether the person can safely and legally access the area upon returning to the receiving country.

 

56.   Currently, paragraph 36(2B)(a) of the Migration Act provides that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm. This paragraph is repealed by item 16 of this Bill and replaced with new paragraph 5LAA(1)(a).

 

57.   While the Government will continue to adopt this approach in proposed paragraph 5LAA(1)(a), the amendment reflects the Government’s intention that the ‘reasonableness’ of relocation no longer be a part of the test. 

 

58.   The modified test is consistent with Australia’s non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

 

59.   International jurisprudence on Australia’s non-refoulement obligations confirms that consideration should be given to whether the person will face a real risk of significant harm in the whole of a country.  Furthermore, it indicates that there must exist a risk of harm to the entire territory of the State, with no internal flight alternative.  As such, the aim of new paragraph 5LAA(1)(a) is to ensure that this approach is both applied to an assessment of complementary protection claims and applied consistently with the interpretation of Australia’s non-refoulement obligations; that is, to ascertain if a safe and legally accessible alternative flight option exists that would mitigate a ‘real risk’ of ‘significant harm’ to the person.  Such an assessment is not required to further determine whether the alternative flight option would provide the person with ideal or preferred living circumstances. Such considerations go beyond the requirements of Australia’s non-refoulement obligations because aspects which fall short of the definition of ‘significant harm’ as outlined under new subsection 5LAA(3) do not amount to a ‘real risk’ of ‘significant harm’. 

 

60.   This amendment further clarifies the Government’s intention that the approach will no longer encompass the consideration of whether relocation is ‘reasonable’ in light of the individual circumstances of the person.  The Government considers that, in interpreting the ‘reasonableness’ element into the internal relocation principle in the refugee context, Australian case law has broadened the scope of the principle to take into account the practical realities of relocation. For example, as a result of cases such as

SZATV and Randhawa v MILGEA (1994) 52 FCR 437, when assessing internal relocation options, decision makers are now required to consider aspects such as a potential diminishment in quality of life or financial hardship which may result from the relocation. As such, in adopting this approach when assessing complementary protection claims, the Government considers those aspects which fall short of the type of harm which amounts to significant harm to be irrelevant to the assessment of a real risk of significant harm. For these reasons, it is the Government’s intention that new

paragraph 5LAA(1)(a) not be read down by reference to such notions of “reasonableness’.

 

61.   New paragraph 5LAA(1)(b) provides that there is a real risk that a person will suffer significant harm in a country if the real risk is faced by the person personally. The purpose of this paragraph is to make clear that a person must personally face the ‘real risk’ of ‘significant harm’. The intention of this paragraph is further clarified by subsection 5LAA(2).

 

62.   New paragraph 5LAA(1)(b) reinforces one of the key aspects of the ‘real risk’ threshold that must be considered, namely the likelihood of risk faced by a person in their personal capacity.  Specifically, in relation to claims arising from situations of heightened danger or violence, this amendment clarifies that such circumstances would not constitute a personal risk of ‘significant harm’ unless there were a further factor or characteristic indicating that the individual themselves or a class of persons that they belong to, are the intended target of such violence which in turn, increases the likelihood of the individual to face a ‘real risk’ of ‘significant harm’. 

 

63.   The intention of this provision is not to elevate the level of risk which must be demonstrated to satisfy the ‘real risk’ test under the complementary protection grounds.  Rather and consistent with international jurisprudence on the interpretation of the ICCPR and the CAT, paragraph 5LAA(1)(b) clarifies that while the existence of a consistent pattern of gross, flagrant or mass violation of human rights in the relevant country is a relevant consideration, such circumstances of themselves will not meet the necessary threshold of constituting a ‘real risk’ of ‘significant harm’ for the purposes of complementary protection. 

 

64.   Rather, to engage one of Australia’s complementary protection obligations, a decision maker must be satisfied that the person concerned would be personally at risk of facing ‘significant harm’ if in a country.   For example, there may be instances where levels of generalised violence in a country can become so dangerous, consistent or targeted towards groups, as to pose significant harm to individuals.  It may be possible in such circumstances that the level of risk faced by a person in an area of generalised violence may crystallise into a personal, direct and real risk of harm in their case.  This amendment ensures that such issues are taken into consideration of the analysis of a person’s complementary protection claims.

 

Subsection 5LAA(2)

65.   Subsection 5LAA(2) clarifies the intention and effect of paragraph 5LAA(1)(b). Subsection 5LAA(2) provides that, for the purposes of paragraph 5LAA(1)(b), if the real risk is faced by the population of the country generally, the person must be at a particular risk for the risk to be faced by the person personally.

 

66.   The purpose of paragraph 5LAA(1)(b) and subsection 5LAA(2) is to put beyond doubt that complementary protection is only available where the real risk of significant harm is faced by the non-citizen personally rather than being an indiscriminate risk faced by the population generally.

 

67.   In accordance with Australia’s non-refoulement obligations, while the existence of a consistent pattern of human rights violations in a country may create an environment where human rights violations may be condoned or more easily carried out, international jurisprudence states that to be eligible for complementary protection, specific grounds must exist that indicate that the individual concerned would be personally at risk of ‘significant harm’.  As such, the aim of subsection 5LAA(2) requires an assessment by decision makers of the actual level of risk specifically posed to a particular person, as part of which the existence of serious and indiscriminate human rights violations will be a relevant factor.

 

68.   There may be occasions, however, where the level of risk of harm arising from generalised violence across a region or country may be truly real and personal for an entire population.  For instance, a ‘real risk’ of being arbitrarily killed could arise from the threat of guerrilla militants who are systematically moving through a particular region of a country and committing genocide against entire populations without discrimination.  It may be possible in such circumstances that the level of risk faced by a person in an area of generalised violence may crystallise into a personal, direct and real risk of harm for them if they come from that region.

 

69.   It is not intended that this amendment will elevate the risk threshold for those people who are facing removal to countries where there is a generalised risk of violence. It is only intended to put beyond doubt that the real risk must be faced by the person personally, irrespective of whether there is generalised violence in the country.

 

70.   This amendment seeks to make the policy intention clearer on this issue. Currently, paragraph 36(2B)(c) of the Migration Act provides that a non-citizen will not suffer significant harm in a country if the Minister is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. This paragraph is being repealed by item 16 below. Contrary to the intention in respect of paragraph 36(2B)(c), some decision makers have erroneously reasoned that harm that is faced by a population of a country generally will therefore be faced personally by each of the residents, or that where significant harm is faced by everyone in the country of origin/region of a country, a particular applicant is necessarily excluded from protection. Neither of these interpretations were the Government’s intention.  This amendment is seeking to restore the intended operation of the provision.

 

71.   Therefore, the intended interpretation and application of the amended provision is that, while the existence in the relevant country of a consistent pattern of gross, flagrant or mass violation of human rights is a relevant consideration, this, of itself, does not constitute a real risk of significant harm for the purposes of complementary protection. The intent is that in such cases, additional grounds must be adduced by the applicant to show that he or she is at a particular risk.  However, this does not mean that the person must be individually targeted. For example, the removal of a person to a country where random criminal violence was prevalent would not constitute a personal risk of significant harm to a person unless there was some factor or characteristic to show why the person or a class of persons might be targeted, or unless the risk was so high that the risk truly was real and personal for the population.  This will require an assessment by decision makers of the actual level of risk specifically posed to a particular person, as part of which the existence of serious and indiscriminate human rights violations will be a relevant factor.

 

Subsection 5LAA(3)

72.   New subsection 5LAA(3) provides that a person will suffer significant harm if:

 

·          the person will be arbitrarily deprived of his or her life; or

·          the death penalty will be carried out on the person; or

·          the person will be subjected to torture; or

·          the person will be subjected to cruel or inhuman treatment or punishment; or

·          the person will be subjected to degrading treatment or punishment.

 

73.   This amendment replicates subsection 36(2A), which is being repealed by item 16 below.  New subsection 5LAA(3) does not alter the content of current

subsection 36(2A), nor is it intended to change its meaning.

 

Subsection 5LAA(4)

74.   New subsection 5LAA(4) provides that there is not a real risk that a person will suffer significant harm in a country if effective protection measures against significant harm are available to the person in the country.

 

75.   New subsection 5LAA(4) is intended to have the effect that, when determining whether a person engages one of Australia’s complementary protection obligations, consideration must be given to the level of effective protection available in the receiving country to ascertain if such protection will mitigate the risk of harm towards the person.   This amendment replicates current paragraph 36(2B)(b) of the Migration Act, which is being repealed by item 16 below.  

 

76.   The intention of this amendment is to clarify that, consistent with Australia’s

non-refoulement obligations under the ICCPR and the CAT, the level of protection offered by a country to a person must only be sufficient so as to mitigate a ‘real risk’ of ‘significant harm’ to them, rather than provide them with ‘perfect’ or preferred circumstances under which  the person might wish to live.  Again, similar to considerations that decision makers take into account when assessing the possibility of an alternative flight option in-country, international jurisprudence on the interpretation of these obligations indicates that a ‘real risk’ of harm may not arise in circumstances where there are effective safety or enforcement mechanisms offered by state or non-state actors internally that would assist the person to avoid a threat of significant harm towards them. 

 

77.   The purpose of this amendment is to align the complementary protection framework, relating to state protection measures, with the equivalent provisions in the new refugee framework. Currently, paragraph 36(2B)(b) provides that a person is taken not to face a real risk of suffering significant harm if they can avoid it by gaining protection from an authority of the receiving country. It has always been the intention that an assessment of protection measures under paragraph 36(2B)(b) should include an assessment of the system of State protection provided in the receiving country - including a functioning criminal law and justice system, and the availability of an effective police force.  This standard has been adopted in subsection 5J(2) and section 5LA of the new refugee framework in the Migration Act and reflects the High Court’s finding in MIMIA v Respondents S152/2003 [2004] HCA 18.  It is also relevant that protection need not be provided exclusively by the State, but may be effected by Non-State actors, for example, the United Nations or friendly forces.

 

78.   Moreover, it has always been the intention that consideration must be given to whether that person is able to access the effective protection measures in their individual circumstances.  If the person is unable to access state protection that would normally be effective but in their particular circumstances is not (for example, in a domestic violence case  because the perpetrator of the harm has close links to the police force), then this provision will not apply and the person may be entitled to complementary protection.

 

79.   The note at the end of subsection 5LAA(4) directs readers to section 5LA of the Migration Act for further guidance on effective protection measures.

 

Subsection 5LAA(5)

80.   New subsection 5LAA(5) provides that there is not a real risk that a person will suffer significant harm in a country if the person could take reasonable steps to modify his or her behaviour so as to avoid a real risk that the person will suffer significant harm in the country. However, this does not include  modification that would:

 

·          conflict with a characteristic that is fundamental to a person’s identity or conscience; or

·          conceal an innate or immutable characteristic of the person; or

·          without limiting paragraphs 5LAA(5)(a) or (b), require a person to do any of the following:

-           alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

-           conceal his or her true race, ethnicity, nationality or country of origin;

-           alter his or her political beliefs or conceal his or her true political beliefs;

-           conceal a physical, psychological or intellectual disability;

-           enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

-           alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

81.   The purpose of subsection 5LAA(5) is to clarify that, in accordance with Australia’s non-refoulement obligations, a ‘real risk’ of ‘significant harm’ does not crystallise where a person could take reasonable steps to modify their behaviour so as to avoid a real risk of significant harm arising, other than a modification that would conflict with the person’s innate or immutable characteristics, or which is fundamental to the person’s identity or conscience.  The aim of this provision, an equivalent of which exists in the refugee framework, is to reflect that some harm could be brought about by a person’s own voluntary actions, for example, by breaking the law upon their return to the country, and that in some circumstances it is reasonable to expect a person not to engage in such action so as to avoid a real risk of harm. 

 

82.   The effect of new subsection 5LAA(5) is that a person who could avoid a real risk of significant harm in a country by taking reasonable steps to modify his or her behaviour, would be found not to have a real risk of significant harm.  This is provided that the modification of behaviour required to avoid the harm does not conflict with a characteristic that is fundamental to the person’s identity or conscience or conceal an innate or immutable characteristic of the person.  The reference in new paragraph 5LAA(5)(a) to “conscience” is intended to encompass aspects such as religion, political opinion and moral beliefs.  A modification in behaviour which is contrary to any aspect of ‘conscience’ will not necessarily indicate that the person could not take reasonable steps to avoid a real risk of significant harm. Only a modification of behaviour that is fundamental to the person’s conscience will be relevant for the purposes of new paragraph 5LAA(5)(a).

 

83.   The reference in new paragraph 5LAA(5)(b) to an ‘innate’ characteristic is intended to include inborn characteristics, which could be genetic. Innate characteristics could include aspects such as the colour of a person’s skin, a disability that a person is born with or a person’s gender. The reference in new paragraph 5LAA(5)(b) to an ‘immutable’ characteristic is intended to encompass a shared common background that cannot be changed. This could be an attribute which the person has acquired at some stage of his or her life such as the health status of being HIV positive, or a certain experience such as being a child soldier, sex worker or victim of human trafficking. For example, a person who faces a real risk of significant harm because of their previous history as a prostitute may not be able to avoid a real risk of significant harm by merely ceasing prostitution work in the future because it is often difficult for a person to disavow themselves of their background and personal profile as a former prostitute. New section 5LAA would therefore not preclude a finding of a real risk of significant harm in respect of that person.

 

84.   It is the Government’s intention that this provision is concerned with reasonable modification only.  In the complementary protection context, a person may be able to modify their behaviour in a manner that would not conflict with their identity or belief system (for example, by refraining from engaging in an occupation that carries risk where it is reasonable for the person to find another occupation) and could thereby avoid the risk of significant harm. If this is the case, they do not require Australia’s protection as their return would not place them at risk of harm and therefore not engage Australia’s non-refoulement obligations - a risk of harm would only arise if they chose to undertake certain actions. 

 

85.   The aim of new subsection 5LAA(5) is to also align the interpretation of protection obligations under complementary protection with those under existing subsection 5J(3) which relates to protection under the refugee framework.

 

Item 12           Subsection 5LA(1)

 

86.   This item omits the words “are available to the person in a receiving country”, and substitutes the words “against persecution or significant harm are available to the person in a country” in subsection 5LA(1) of Part 1 of the Migration Act.

87.   Subsection 5LA(1) deals with effective protection measures. The amendments made by this item are consequential to the amendments made by item 11 above, which inserts new subsection 5LAA(4).

88.   New subsection 5LAA(4) provides that there is not a real risk of significant harm in a country if effective protection measures against significant harm are available to the person in the country. Section 5LA currently sets out those measures which will constitute effective protection, but applies only to assessments on refugee grounds. This item will broaden the scope of section 5LA so that it also applies to assessments on complementary protection grounds.

89.   The amendment to the wording from ‘receiving country’ to ‘country’ is to reflect the amendments relating to the definition of well-founded fear of persecution . This amendment it is intended to clarify that effective protection measures may be considered for both a receiving country and in relation to ‘third country protection’ solutions.

Item 13           Paragraph 5LA (1)(a)

 

90.   This item inserts the words “or significant harm (as the case requires)” after the word “persecution” in paragraph 5LA(1)(a) of Part 1 of the Migration Act.

 

91.   This is a consequential amendment as a result of the amendments made by item 11 above which inserts new subsection 5LAA(4).

92.   New subsection 5LAA(4) provides that there is not a real risk of significant harm in a country if effective protection measures against significant harm are available to the person in the country. Section 5LA currently sets out those measures which will constitute effective protection, but applies only to assessments on refugee grounds.

93.   The scope of subsection 5LA(1) is therefore broadened to include assessments on complementary protection grounds.

 

 

Item 14           Subsection 5LA(2)

 

94.   This item inserts the words “or significant harm” after the word “persecution” in subsection 5LA(2) of Part 1 the Migration Act.

 

95.   This is a consequential amendment as a result of the amendments made by item 11 above which inserts new subsection 5LAA(4).

96.    New subsection 5LAA(4) provides that there is not a real risk of significant harm in a country if effective protection measures against significant harm are available to the person in the country. Section 5LA currently sets out those measures which will constitute effective protection, but applies only to assessments on refugee grounds.   The scope of subsection 5LA(2) is therefore broadened to include assessments on complementary protection grounds.

Item 15           Paragraph 36(2)(aa)

 

97.   This item inserts the words “in the receiving country or another country (see section 5LAA)” after the words “significant harm” in paragraph 36(2)(aa) in Division 3 of Part 2 of the Migration Act.

 

98.   This item amends paragraph 36(2)(aa) to provide that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied 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 person will suffer significant harm in relation to the receiving country or another country.

 

99.   This amendment seeks to clarify that the real risk of significant harm can be in relation to the receiving country or another country and is intended to capture circumstances of chain refoulement from the receiving country.  The fact that a person might suffer significant harm in another country is not of itself sufficient to allow a person to be granted protection, in cases where there is no risk in relation to the receiving country.  This must be a direct consequence of being removed from Australia to a receiving country.

 

Item 16           Subsections 36(2A), 36(2B) and 36(2C)

 

100.       This item repeals subsections 36(2A), 36(2B) and 36(2C) in Division 3 of Part 2 of the Migration Act and substitutes new subsection 36(2C).

 

101.       Currently, subsection 36(2A) provides the meaning of significant harm and subsection 36(2B) provides the circumstances where there is taken not to be a real risk that a non-citizen will suffer significant harm. These subsections are being repealed due to a restructure of the Migration Act. The subject matter currently dealt with in these provisions will be included in new section 5LAA, which is inserted by item 11 above.

 

102.       For example, subsection 5LAA(3) provides the meaning of significant harm and subsections 5LAA(4) and 5LAA(5) provide the circumstances where there is not a real risk that a person will suffer significant harm.

 

103.       This restructure will more closely align the complementary protection provisions with the framework for protection under refugee grounds, as inserted by Part 2 of Schedule 5 to the Legacy Act.

 

104.       Subsection 36(2C) deals with the ineligibility for the grant of a protection visa.  The amendments made by this item are technical in nature and will remove current paragraph 36(2C)(b) and restructure current paragraph 36(2C)(a).

 

105.       Paragraph 36(2C)(b) prevents a person from satisfying the complementary protection criterion for a protection visa (included in paragraph 36(2)(aa)) if the Minister considers, on reasonable grounds, that the non-citizen is a danger to Australia’s security; or the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community. The content of paragraph 36(2C)(b) is replicated in subsection 36(1C), which was inserted into the Migration Act by Part 2 of Schedule 5 to the Legacy Act. Subsection 36(1C) applies to all protection visa applicants, regardless of the ground on which the applicant seeks protection. For this reason, paragraph 36(2C)(b) is no longer required.  This amendment does not change in any way the grounds on which a person can be taken to be ineligible for a protection visa, nor does it alter the Government’s position that while it is open to decline to grant a visa to a person who has committed crimes of the type listed in new subsection 36(2C), the commission of those crime does not extinguish any non-refoulement obligations Australia may owe to that person.

 

Item 17           Subsection 36(3)

 

106.       This item inserts the words “because of a matter mentioned in paragraph (2)(a) or (aa)” after the words “protection obligations” in subsection 36(3) in Division 3 of Part 2 of the Migration Act.

 

107.       This is a technical amendment to clarify that the reference to ‘protection obligations’ in subsection 36(3) incorporates obligations relating to refugee protection and complementary protection.

 

108.       The reference to paragraphs 36(2)(a) and 36(2)(aa) are cross references only. This does not require a conclusive decision to be made in relation to the criterion for a protection visa, under sections 36(2)(a) or 36(2)(aa) of the Migration Act, before a decision can be made as to whether a person has access to protection in another country.

 

Item 18           Subsection 36(4)

 

109.       This item omits the words “in respect of which” and substitutes with the word “if” in subsection 36(4) in Division 3 of Part 2 of the Migration Act.

 

110.       This is a technical amendment to reflect modern drafting practices and ensures consistency with the provisions in section 36.

 

Item 19           Paragraph 36(4)(a)

 

111.       This item repeals current paragraph 36(4)(a) in Division 3 of Part 2 of  the Migration Act and substitutes new paragraph 36(4)(a).

 

112.       New paragraph 36(4)(a) provides that subsection 36(3) does not apply in relation to a country if:

 

·          the non-citizen has a well-founded fear of persecution in relation to the country (see section 5J); or  

 

113.       This is a technical amendment to update paragraph 36(4)(a) and ensures it is applied consistently in conjunction with the definition of well-founded fear of persecution in section 5J of the Migration Act. Paragraph 5J(1)(a) replicates paragraph 36(4)(a). This amendment therefore removes unnecessary duplication in paragraph 36(4)(a) by referring to section 5J of the Migration Act.        

 

Item 20           Paragraph 36(4)(b)

 

114.       This item omits the words “in relation to the country” and substitutes the words “in the country (see section 5LAA)” in paragraph 36(4)(b) in Division 3 of Part 2 of the Migration Act.

 

115.       This is a consequential amendment to align the language in paragraph 36(4)(b) with the language in new section 5LAA, which is inserted by item 11 above.

 

Item 21           Subsection 36(5)

 

116.       This item repeals current subsection 36(5) in Division 3 of Part 2 of the Migration Act and substitutes new subsection 36(5).

 

117.       New subsection 36(5) provides that subsection 36(3) does not apply in relation to a country if:

·          the non-citizen has a well-founded fear that the country will send the

non-citizen to another country; and

·          the non-citizen has a well-founded fear of persecution in relation to the other country (see section 5J).

 

118.       This is a technical amendment to update subsection 36(5) and ensures it is applied consistently in conjunction with the definition of well-founded fear of persecution in section 5J of the Migration Act. Paragraph 5J(1)(a) replicates paragraph 36(5)(b). This amendment removes unnecessary duplication in subsection 36(5) by referring to section 5J of the Migration Act.

 

119.       The term ‘return’ has been replaced in subsection with the word ‘send’ in new paragraph 36(5)(a) to clarify that, where a person’s protection claims are assessed against another country, it could be a country which the person has not previously entered or lived in but rather, is a country where the person holds a right to nationality or a right to enter and reside in as a matter of law.  In such circumstances, and if the person is found not to have a well-founded fear of persecution or to face a real risk of significant harm against that other country, it is more accurate to describe the person’s subsequent entry into such a country as being ‘sent’ to it rather than being ‘returned’ to it.

 

Item 22           Paragraph 36(5A)(a)

 

120.       This item omits the word “return” and substitutes the word “send” in paragraph 36(5A)(a) in Division 3 of Part 2 of the Migration Act.

 

121.       The purpose of this amendment is to align the language in current paragraph 36(5A)(a) with the language in new subsection 36(5), which is inserted by item 21 above.

 

122.       The word ‘return’ has been replaced with the word ‘send’ in new paragraph 36(5A)(a) to clarify that, where a person’s protection claims are assessed against another country, it could be a country which the person has not previously entered or lived in but rather, is a country where the person holds a right to nationality or a right to enter and reside in as a matter of law.  In such circumstances and if the person is found not to have a well-founded fear of persecution or to face a real risk of significant harm against that other country, it is more accurate to describe the person’s subsequent entry into such a country as being ‘sent’ to it rather than being ‘returned’ to it .

 

 

 

 

 

Item 23           Paragraph 36(5A)(b)

 

123.       This item omits the words “in relation to the other country” and substitutes the words “in the other country (see section 5LAA)” in paragraph 36(5A)(b) in Division 3 of

Part 2 of the Migration Act.

 

124.       This is a consequential amendment to align the language in paragraph 36(5A)(b) with the language in new section 5LAA, which is inserted by item 11 above.

 

Item 24           After paragraph 336F(5)(c)

 

125.       This item inserts new paragraph 336F(5)(caa) after paragraph 336F(5)(c) in

 Division 3 of Part 4A of the Migration Act.

 

126.       Section 336F deals with the authorisation of disclosure of identifying information to foreign countries or entities.

 

127.       The amendments made by this item are technical and are being made as a consequence of the insertion of subsection 36(1C) into the Migration Act by Part 2 of Schedule 5 to the Legacy Act.

 

128.       It is intended that identifying information should be able to be disclosed to a foreign country or entity if the information relates to an  unauthorised maritime arrival who makes a claim for protection as a refugee, but is taken to be ineligible for a protection visa because subsection 36(1C) of the Migration Act applies. That is, they are a person in respect of whom there are reasonable grounds for considering that he or she is a danger to Australia’s security or is a person who, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.  The wording ‘danger to Australia’s security’ and ‘danger to the Australian community’ in subsection 36(1C) is consistent with the terminology used in Article 33(2) of the United Nations Refugee Convention (Refugees Convention) which is an exception to the non-refoulement obligation in Article 33(1) of the Refugees Convention. 

 

129.       Disclosure is limited to circumstances where the Secretary of the Department of Immigration and Border Protection or the Australian Border Force Commissioner has provided written authorisation to a specified officer to disclose specified identifying information to specified countries/bodies/organisations for one or more purposes set out in subsection 5A(3) of the Migration Act. 

 

130.       This amendment is intended to bring about consistency with other subsections of the Migration Act, and is not addressing a policy or operational deficiency that has been identified in practice.

 

Item 25           Paragraph 411(1)(c)

 

131.       This item omits all the words after the word “relying” and substitutes the words “on subsection 5H(2) or 36(1B), (1C) or (2C)” in paragraph 411(1)(c) in Division 2 of Part 7 of the Migration Act.

 

132.       This amendment is consequential to item 16 above, which repeals current subsection 36(2C) of the Migration Act and substitutes new subsection 36(2C).

Item 26           Subparagraph 411(1)(d)(i)

 

133.       This item inserts the words “or (2C)” after the words “36(1C)” in subparagraph 411(1)(d)(i) in Division 2 of Part 7 of the Migration Act.

 

134.       This amendment is consequential to item 16 above, which substitutes subsection 36(2C) and item 28 below, which repeals subparagraph 411(1)(d)(iii) of the Migration Act.

 

Item 27           Subparagraph 411(1)(d)(ii)

 

135.       This item omits “1979); or”, and substitutes “1979).” in subparagraph 411(1)(d)(ii) in  Division 2 of Part 7 of the Migration Act.

 

136.       This amendment is consequential to item 28 below, which repeals current subparagraph 411(1)(d)(iii) of the Migration Act.

 

Item 28           Subparagraph 411(1)(d)(iii)

 

137.       This item repeals subparagraph 411(1)(d)(iii) in Division 2 of Part 7 of the Migration Act.

 

138.       This amendment is consequential to item 16 above, which repeals current subsection 36(2C) of the Migration Act and substitutes new subsection 36(2C).

 

 

 

 

Item 29           Paragraph 500(1)(c)

 

139.       This item omits all the words after “relying”, and substitutes with the words “on subsection 5H(2) or 36(1C) or (2C)” in paragraph 500(1)(c) in Division 2 of Part 9 of the Migration Act.

 

140.       This amendment is consequential to item 16 above which repeals current subsection 36(2C) of the Migration Act and substitutes new subsection 36(2C).

Item 30           Paragraph 500(4)(c)

 

141.       This item omits all the words after “relying” and substitutes the words “on subsection 5H(2) or 36(1C) or (2C)” in paragraph 500(4)(c) in Division 2 of Part 9 of the Migration Act.

 

142.       This amendment is consequential to item 16 above, which repeals current subsection 36(2C) of the Migration Act and substitutes new subsection 36(2C).

 

Item 31           Subparagraph 502(1)(a)(ii)

 

143.       This item inserts “(or 2C)” after “36(1C)”, in subparagraph 502(1)(a)(ii) in Division 2 of Part 9 of the Migration Act.

 

144.       The a mendments made by this item are proposed to expand the scope of section 502 of the Migration Act to relate to persons seeking complementary protection.

 

145.       Section 502 provides the Minister for Immigration and Border Protection with the power, in certain circumstances, to declare a person to be an ‘excluded person’. As a consequence of being declared an ‘excluded person’, a person may not be able to seek merits review of a decision at the Administrative Appeals Tribunal.

 

146.       Currently, section 502 applies in respect of persons who have been refused the grant of a protection visa on refugee grounds for reasons relating to the character of the person. The intention of this amendment is to extend the scope of section 502 to also apply to persons who have been refused the grant of a protection visa on complementary protection grounds for reasons relating to the character of the person.

 

Item 32           Paragraph 503(1)(c)

 

147.       This item inserts the words “or (2C)” after the words “36(1C)”, in paragraph 503(1)(c) in Division 2 of Part 9 of the Migration Act.

 

148.       This amendment to s ection 503 relates to the exclusion of certain persons from Australia. A person who is captured by this provision is not entitled to enter Australia or be in Australia at any time during the period determined under the regulations. Currently, section 503 applies in respect of persons who have been refused the grant of a protection visa on refugee grounds for reasons relating to the character of the person, and has been removed from Australia.  The intention of this amendment is to extend the scope of section 503 to also apply to persons who have been refused the grant of a protection visa on complementary protection grounds for reasons relating to the character of the person.

Part 2 - Application and savings provisions

 

Item 33           Application of amendments

 

149.       Subitem 33(1) provides that the amendments made by Part 1 of this Bill apply in relation to a protection obligations assessment that is made as a result of an application for a visa that is made, or an administrative process that starts, on or after the day this item commences.  

 

150.       This item will commence on a date to be fixed by Proclamation.  The specific date of Proclamation is yet to be determined.  The amendments in this Bill will only apply to a protection obligations assessment that is made as a result of an application for a visa that is made, or an administrative process that starts, on or after the date of Proclamation of this Bill, that being the date on which this provision commences.

 

151.       These amendments will not apply in relation to a protection obligations assessment that is made as a result of an application for a visa which was made, or an administrative process that started, prior to the commencement of this provision, including any application for review of a decision made in relation to those visa applications.

 

152.       The term “administrative process” does not include a merits review process.  The amendments in this Bill will only apply to review applications in relation to visa applications that were made on or after the date of commencement.  

 

153.       Subitem 33(2) clarifies that, for the purposes of subitem 33(1), a protection obligations assessment is an assessment under:

 

·          the Migration Act 1958 ; or

·          a regulation or other instrument made under that Act; or

·          an administrative process that occurs in relation to that Act, regulation or other instrument;

 

of whether Australia has protection obligations in respect of a person, regardless of whether the assessment is made as a result of an application for a visa by a person.

Item 34           Savings provision - prescribed international instruments

 

154.        Item 34 provides that regulations in force for the purposes of subparagraph 36(2C)(a)(i) of the Migration Act  immediately before the commencement of this item continue in force, at and after that commencement, for the purposes of paragraph 36(2C)(a) of that Act.

 

155.       Currently, subparagraph 36(2C)(a)(i) of the Migration Act provides that a non-citizen is taken not to satisfy the criterion mentioned in paragraph 36(2)(aa) of the Migration Act if  the Minister has serious reasons for considering that the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations.

 

156.       Item 16 of the Bill repeals current subsection 36(2C) and substitutes new subsection 36(2C). New subsection 36(2C) is restructured so that the information currently in subparagraph 36(2C)(a)(i) is moved to new paragraph 36(2C)(a). The purpose of this item is to ensure that those international instruments currently prescribed in regulations under current subparagraph 36(2C)(a)(i) continue in force despite the restructure of the provisions in subsection 36(2C).

 

 

 

 

 

 

 

 

 

Attachment A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Migration Amendment (Complementary Protection and Other Measures) Bill 2015

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

1.       The Migration Amendment (Complementary Protection and Other Measures) Bill 2015 (the Bill) amends the statutory framework in the Migration Act 1958 (the Migration Act) relating to the determination process for persons seeking protection on complementary protection grounds. 

 

2.       Complementary protection is the term used to describe a category of protection for people who are not refugees, as defined in the Migration Act, but who also cannot be returned to their receiving country; that is, their country of nationality or country of former habitual residence if they do not have a nationality; because there is a real risk that they would suffer a significant harm that would engage one of Australia’s international non-refoulement (non-return) obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture, and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT).

 

3.       The Bill includes amendments to the statutory framework relating to protection visas and related matters, following the passage of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Legacy Act) and the Migration Amendment (Protection and Other Measures) Act 2015 .  The measures in the Bill are a continuation of the Government’s protection reform agenda, to deliver a more effective and efficient onshore protection status determination process. 

 

4.       Specifically, the Bill will amend the Migration Act to:

•           strengthen the statutory complementary protection framework by aligning its standards with equivalent standards established in the new statutory refugee framework, as inserted by Part 2 of Schedule 5 to the Legacy Act;

•           clarify the reference to ‘protection obligations’ in subsection 36(3), by specifying the source of the obligations;

•           clarify that the ‘country’ in subsection 5H(1), which outlines the meaning of refugee , is intended to be the same country as the ‘receiving country’, by referring directly to the definition of ‘receiving country’ in subsection 5(1) of the Migration Act;

•           align the statutory provisions relating to protection in another country (third country protection) with the definition of ‘ well-founded fear of persecution ’ in section 5J of the Migration Act;

•           amend subsection 36(2C), to remove duplication between paragraph 36(2C)(b) and subsection 36(1C) in the Migration Act, which both operate to exclude an applicant from the grant of a protection visa on character-related grounds;

•           amend subsection 336F(5), which authorises disclosure of identifying information to foreign countries or entities, to include information pertaining to unauthorised maritime arrivals who make claims for protection as a refugee and fall within the circumstances of subsection 36(1C) of the Migration Act;

•           amend subsection 502(1) of the Migration Act, which allows the Minister for Immigration and Border Protection (the Minister) to personally make a decision that is not reviewable by the Administrative Appeals Tribunal, to apply to persons who have been refused the grant of a protection visa on complementary protection grounds for reasons relating to the character of the person; and

•           amend subsection 503(1) of the Migration Act, which relates to the exclusion of certain persons from Australia, to apply to persons who have been refused the grant of a protection visa on complementary protection grounds for reasons relating to the character of the person.  

 

Human rights implications - Overview

Non-refoulement

5.       Australia has obligations under the ICCPR and the CAT not to return a person to a country in certain circumstances.

 

6.       Article 3 of the CAT states:

No State party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

 

7.       Non-refoulement obligations also arise, by implication, in relation to Articles 6 and 7 of the ICCPR, and its Second Optional Protocol aiming at the abolition of the death penalty. 

 

8.       Article 6(1) of the ICCPR states:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

 

9.       Article 7 of the ICCPR states:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

 

10.   The Bill makes several changes to the framework for assessing protection claims on complementary protection grounds.  It does not, however, affect the substance of Australia’s adherence to its non- refoulement obligations. 

 

11.   The Government is of the view that, provided Australia’s international obligations are satisfied, the Government can decide how it processes claims. The ICCPR or CAT does not specify how this should occur.  Australia’s implementation of the above obligations is further complemented by the ability of the Minister to consider the exercise of his or her non-compellable powers under the Migration Act to grant a visa.

Best interests of the child

12.   Article 3 of the Convention on the Rights of the Child (CRC) states that:

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.

 

13.   The Government is committed to acting in accordance with Article 3 of the CRC. 

The obligation in the CRC in relation to the best interests of the child does not amount to a right to remain in Australia if a person has no other lawful authority to stay, but the Government has policies and procedures in place to guide the exercise of powers under the Migration Act in a manner consistent with the CRC. 

 

Human rights implications - Individual measures in the Bill

Strengthening the statutory complementary protection framework

14.   This Bill amends the Migration Act to align the statutory complementary protection framework with the statutory refugee framework, as recently inserted by Part 2 of Schedule 5 to the Legacy Act. 

 

15.   Specifically, provisions in this Bill will:

·          clarify that, in relation to assessing claims of complementary protection, the real risk of significant harm needs to relate to all areas of a receiving country;

·          amend the provision relating to generalised risk, to clarify that the person needs to face the real risk personally.  A person who may be exposed to indiscriminate harm (such as generalised violence) in their receiving country, but which does not amount to a personal, direct and targeted risk of significant harm to the person themselves, does not satisfy the complementary protection criteria;

·          introduce a provision to exclude persons from complementary protection who could take reasonable steps to modify their behaviour, so as to avoid a real risk of significant harm in a receiving country, provided that this would not conflict with their identity or core belief system; and

·          amend the provision relating to state protection measures, when determining whether a person faces the relevant risk of harm relating to complementary protection, to clarify that a person will not face a real risk of significant harm if effective protection measures are available to the person through State or non-State actors in a receiving country.

16.   Without these amendments, there is an inconsistency between the two frameworks.  Under the current process, a person may not meet one of the elements of the refugee test relating to internal relocation, effective protection and behaviour modification under the current refugee framework.  However, they may then be found to satisfy the complementary protection test because those same elements are currently not aligned.  This Bill addresses this inconsistency.

 

17.   In aligning the statutory complementary protection and refugee frameworks, these amendments will clarify the Government’s intended interpretation of Australia’s complementary protection obligations.

 

18.   These amendments are consistent with Australia’s non-refoulement obligations under the ICCPR and the CAT as those obligations are set out in the overview of this statement.  These tests reflect Australia’s interpretation of its obligations and guidance will be provided to decision makers to ensure that the tests are applied in a manner consistent with those obligations.  Any person found to engage Australia’s

non-refoulement obligations will not be removed in breach of those obligations.

 

19.   Through these amendments, the Government remains committed to acting in accordance with Article 3 of the CRC.  Policies and procedures give effect to this commitment.  The assessment of protection claims made by, or on behalf of, children will continue to be made in an age-sensitive way that recognises the limitations and vulnerabilities of children in order to ensure that all non-refoulement obligations are fully assessed.

 

 

 

New subsection 5LAA - Circumstances in which a person will suffer significant harm

New paragraph 5LAA(1)(a) - real risk in the entire country

20.   New paragraph 5LAA(1)(a) provides that a necessary element of the real risk of significant harm is that the real risk relates to all areas of the receiving country.  Specifically, paragraph 5LAA(1)(a) requires a decision maker to consider, in circumstances where there are preliminary findings that a person may be personally at a real risk of significant harm, whether the level of risk of harm is one that the person will face in all areas of the country.  This replicates the same approach followed for refugee assessments in section 5J of the Migration Act.  In considering whether a person can relocate to another area, a decision maker would still be required to take into account whether the person can safely and legally access an alternative flight option upon returning to the receiving country.

 

21.   International jurisprudence interpreting the non-refoulement obligations under the ICCPR and CAT confirms that the general approach followed under the principle of internal relocation, also applies when determining whether a person faces a real risk of death, torture or cruel, inhuman or degrading treatment or punishment in their proposed country of return.  In particular, the UN Human Rights Committee (UNHRC) has described the non-refoulement obligation under the ICCPR as being engaged only if a person faces a risk of harm in the whole of a country.  In addition, commentary from the UN Committee Against Torture (UNCAT) has suggested that there must exist a risk [of harm] in the entire territory of the target State and that there must be no internal flight alternative, thus acknowledging the same approach should be applied in the consideration of complementary protection claims regarding torture, as is applied by the internal relocation principle in the consideration of Refugee Convention claims. As such, this amendment is compatible with human rights because it reflects Australia’s non-refoulement obligations.

 

22.   While  the Government will continue to adopt this approach in proposed paragraph 5LAA(1)(a), it is the Government’s intention that the principle will no longer encompass the consideration of whether the relocation is ‘reasonable’ in light of the individual circumstances of the person.  The Government considers that, in interpreting the ‘reasonableness’ element into the internal relocation principle, Australian case law has broadened the scope of the principle to take into account the practical realities of relocation.  For example, as a result of cases such as SZATV and Randhawa v MILGEA (1994) 52 FCR 437 , when assessing internal relocation options, decision makers are now required to consider aspects such as a potential diminishment in quality of life or financial hardship which may result from the relocation.  As such aspects fall short of the type of harm which amounts to persecution, the Government considers these to be irrelevant to the assessment of a real risk of significant harm. For these reasons, it is the Government’s intention that new paragraph 5LAA(1)(a) not be read down by reference to such notions of ‘reasonableness’. 

New paragraph 5LAA(1)(b) - person at risk of significant harm personally

23.   New section 5LAA repeals subsections 36(2A), (2B) and (2C) and replaces them with new section 5LAA, thus moving these concepts to the general ‘Interpretation’ part of the Migration Act.  Section 5LAA establishes equivalent concepts and standards applicable to the complementary protection framework, as currently apply under Australia’s refugee framework.

 

24.   New paragraph 5LAA(1)(b) reinforces one of the key aspects of the ‘real risk’ threshold that must be considered, namely the likelihood of risk to the person personally.  Specifically, in relation to claims arising from situations of generalised risk (for instance, countries experiencing civil war), subsection 5LAA(2) clarifies that, to engage one of Australia’s complementary protection obligations, a decision maker must turn their mind to whether a person may face a real risk of significant harm personally.

 

25.   The intention of this provision is not to elevate the level of risk which must be demonstrated to satisfy the ‘real risk’ test under the complementary protection grounds.  Rather, and consistent with international jurisprudence regarding the interpretation of the ICCPR and the CAT, while the existence in the relevant country of a consistent pattern of gross, flagrant or mass violation of human rights is a relevant consideration, this, of itself, does not constitute a real risk of significant harm for the purposes of complementary protection.  In such cases, additional grounds must be adduced by the applicant to show that he or she is personally at risk. 

 

26.   However, this does not mean that the person must be individually targeted. For example, the removal of a person to a country where random criminal violence was prevalent would not constitute a personal risk of significant harm to a person unless there was some factor or characteristic to show why the person or a class of persons might be targeted, or unless the risk was so high that the risk truly was real and personal for the population.  There may be instances where levels of generalised violence in a country can become so dangerous, consistent or targeted towards groups, as to pose significant harm to individuals.  It may be possible in such circumstances that the level of risk faced by a person in an area of generalised violence may crystallise into a personal, direct and real risk of harm in their case.  This amendment ensures that such issues are taken into consideration of the analysis of a person’s complementary protection claims.  As such, this amendment is compatible with human rights because it reflects Australia’s non-refoulement obligations.

New subsection 5LAA(3) - definition of ‘significant harm’

27.   New subsection 5LAA(3) outlines the circumstances in which a person will suffer significant harm, and replicates current subsection 36(2A) of the Migration Act.  These circumstances reflect those in which Australia’s non-refoulement obligations would be engaged.  This amendment repeals the definition of ‘significant harm’ from current subsection 36(2A) and places it within new section 5LAA, thus moving the definition to the general ‘Interpretation’ part of the Migration Act.  ‘Significant harm’ is defined in new subsection 5LAA(3).  New subsection 5LAA(3) does not alter the content of current subsection 36(2A), nor is it intended to change its meaning.  As such, this amendment is compatible with human rights because it reflects Australia’s

non-refoulement obligations.

New subsection 5LAA(4) - effective protection and complementary protection

28.   New subsection 5LAA(4) provides that, when determining whether a person engages one of Australia’s complementary protection obligations, consideration should be given to the level of effective protection available in the receiving country to ascertain if such protection will mitigate the risk of harm towards the person.  This amendment repeals current paragraph 36(2B)(b) of the Migration Act and replaces it within new section 5LAA, thus moving the concept to the general ‘Interpretation’ part of the Migration Act.

 

29.   The intention of this amendment is to clarify that, consistent with Australia’s

non-refoulement obligations under the ICCPR and the CAT, the level of protection offered by a receiving country to a person must only be sufficient so as to mitigate a ‘real risk’ of ‘significant harm’ to them, rather than provide them with ‘perfect’ or preferred circumstances that the person might wish to live under.  Again, similar to considerations of internal relocation, international jurisprudence on the interpretation of these obligations indicates that a ‘real risk’ of harm may not arise in circumstances where there are effective safety or enforcement mechanisms offered by state or

non-state actors internally that would assist the person to avoid a threat of significant harm towards them.  When considering the definition of effective protection measures which already exists in the Migration Act, decision makers will be guided to assess whether the person can access the protection in their individual circumstances.  As such, this amendment is compatible with human rights because it reflects Australia’s non-refoulement obligations.

New subsection 5LAA(5) - Modifying behaviour to avoid significant harm

30.   New subsection 5LAA(5) provides that there is not a real risk of significant harm if a person could take reasonable steps to modify their behaviour so as to avoid a real risk of significant harm, other than a modification that would conflict with the person’s innate or immutable characteristics, or which is fundamental to the person’s identity or conscience.  The aim of this provision, an equivalent of which exists in the refugee framework, is to reflect that some harm could be brought about by a person’s own voluntary actions, for example, by breaking the law upon their return, and that in some circumstances it is reasonable to expect a person not to engage is such action so as to avoid a real risk of harm.  This amendment engages human rights.

 

31.   This provision is concerned with reasonable modification only.  In the complementary protection context, a person may be able to modify their behaviour in a manner that would not conflict with their identity or belief system (for example, by refraining from engaging in an occupation that carries risk where it is reasonable for the person to find another occupation) and could thereby avoid the risk of significant harm. 

If this is the case, they should not necessarily be provided with protection, as their return would not itself engage non-refoulement obligations - the risk of harm would only arise if they chose to undertake certain actions.  This amendment is therefore consistent with Australia’s non-refoulement obligations.

 

32.   In addition to the human rights engaged by this amendment that relate to

non-refoulement obligations, Article 18(1) of the ICCPR states:

Everyone shall have the right to freedom of thought, conscience and religion.  This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

 

33.   Article 19 of the ICCPR states:

Everyone shall have the right to hold opinions without interference.

 

34.   The Government maintains that it is possible to limit certain rights as long as it is reasonable, proportionate and adapted to achieve a legitimate objective.  For instance, the right to religious belief is an absolute right; however, the right to exercise one’s belief can be limited, by prescription of law, where it can be demonstrated that the limitation is reasonable and proportionate, and is necessary to protect public safety, order, health, morals, or the rights and freedoms of others.

 

35.   As such, while this provision requires a decision maker to consider whether a person could take reasonable steps to modify their behaviour so as to avoid a real risk of significant harm, it will not limit the rights protected by Articles 18(1) and 19 because it will not require a person to modify his or her behaviour where it relates to the person’s religion, political opinion or moral beliefs if such characteristics are fundamental to the person’s identity or conscience or are innate or immutable.

While this will be assessed by decision makers on a case-by-case basis, any modification would also be limited to what is reasonable in the person’s individual circumstances.

 

36.   Although the conduct in question would take place outside Australia’s jurisdiction, the intention is for the provision to be broadly consistent with these rights to ensure that individuals are not denied protection on complementary protection grounds where they face a real risk of significant harm for exercising such rights in the receiving country.

 

 

Clarifying the reference to ‘protection obligations’ in subsection 36(3)

37.   This amendment will clarify that the reference to ‘protection obligations’ in subsection 36(3) of the Migration Act incorporates obligations under both refugee protection and complementary protection, so as to remove ambiguity as to the scope of the obligations and the operation of this provision. 

 

38.   This amendment is technical in nature and does not engage any human rights obligations.  Rather, it clarifies and puts beyond doubt the position as it currently exists. 

 

Amending the definition of refugee to include the term ‘receiving country’

39.   This amendment will put beyond doubt that the current references to ‘country’ in subsection 5H(1) of the Migration Act, which outlines the meaning of refugee , are intended to refer to the definition of ‘receiving country’ in subsection 5(1), as recently amended by Part 2 of Schedule 5 to the Legacy Act. 

 

40.   This amendment is technical in nature.  It does not change which country or countries a person would be assessed against and does not engage human rights.

 

Aligning the statutory provisions relating to protection in another country with the definition of ‘ well-founded fear of persecution’

41.   These amendments will clarify that the definition of ‘ well-founded fear of persecution ’ in section 5J of the Migration Act, which was recently inserted by Part 2 of Schedule 5 to the Legacy Act, applies to the statutory provisions relating to protection in another country, or third country protection, in subsections 36(3) to (7). 

 

42.   Specifically, under subsection 36(3), Australia is taken not to have protection obligations towards a person if they have “not taken all possible steps to avail himself or herself of a right to enter and reside in” any country apart from Australia unless one of the exceptions in subsections 36(4) to (5A) applies to the person.  The exception in subsection 36(4) relates to the person having a well-founded fear of persecution or facing a real risk of significant harm in the third country. The exception in subsections 36(5) and 36(5A) relates to the person being returned by that third country to another country where he or she has a well-founded fear of persecution or faces a real risk of significant harm.

 

43.   The Government’s intention is that the new definition of ‘ well-founded fear of persecution ’ in section 5J applies to subsections 36(3) to (7).  However, due to different terminology applied in these provisions, there is a risk that the provisions do not interact as intended.  The definition of ‘ well-founded fear of persecution ’, inserted by section 5J, is phrased in terms of a ‘receiving country’.  Subsections 36(3) to (7), which relate to protection in another country, refer only to a ‘country’.  There is therefore some ambiguity relating to the interaction of the definition of ‘ well-founded fear of persecution ’ with third country protection, which these amendments seek to resolve.

 

44.   In making these amendments, the Government is not creating any new obligations or seeking to avoid obligations.  Rather, it seeks to clarify consistency in language to make an existing measure work as originally intended.  This amendment is therefore technical in nature and does not engage human rights.

 

Streamlining subsection 36(2C)

45.   This amendment is a technical change to subsection 36(2C) of the Migration Act, to repeal paragraph 36(2C)(b).  Paragraph 36(2C)(b) prevents a person from satisfying the complementary protection criterion for a protection visa (included in

paragraph 36(2)(aa)) if the Minister considers, on reasonable grounds, that the non-citizen is a danger to Australia’s security; or the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.  The content of paragraph 36(2C)(b) is replicated in subsection 36(1C), which was inserted into the Migration Act by the Legacy Act.  Subsection 36(1C) applies to all protection visa applicants, regardless of the ground on which the applicant seeks protection.  For this reason, paragraph 36(2C)(b) is no longer required and will be repealed by the Bill.  The Bill also makes other amendments required as a consequence of this amendment to subsection 36(2C).

 

46.   By repealing paragraph 36(2C)(b) and relying on subsection 36(1C), this amendment does not change in any way the grounds on which a person can be taken to be ineligible for a protection visa.  As this amendment is technical in nature, it does not engage human rights. 

 

Amending subsection 336F(5) relating to authorising disclosure of identifying information to foreign countries or entities

47.   This amendment is required as a consequence of the insertion of new subsection 36(1C) into the Migration Act by Part 2 of Schedule 5 to the Legacy Act.

 

48.   It is the Government’s intention that identifying information collected upon a person’s entry to Australia (such as biometric information) should be able to be disclosed to a foreign country or entity, if the information relates to a person who makes a claim for protection as a refugee, but is a person in respect of whom there are reasonable grounds for considering that he or she is a danger to Australia’s security or is a person who, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.  To be clear, such identifying information will not include a person’s details as disclosed by them through a protection visa process.  That is, it is intended that identifying information should be able to be disclosed to a foreign country or entity if the information relates to a person who makes a claim for protection as a refugee, but who does not engage non-refoulement obligations under the Refugees Convention because of certain character or security matters as provided in Article 33(2) of the Refugees Convention. 

 

49.   However, the Government’s intention is not currently supported in the Migration Act.  This amendment will therefore provide a technical fix to subsection 336F(5), to give effect to this intention.  This amendment will align the circumstances where information may be authorised to be disclosed in relation to a person who makes refugee claims outside of the protection visa process, with those where a person makes them within the protection visa process.

 

50.   Article 17 of the ICCPR states:

1.       No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2.       Everyone has the right to the protection of the law against such interference or attacks.

51.   While this provision will facilitate in some instances, the disclosure of personal information to a foreign government without the person’s consent, such action will only be made if it is proportionate to the ends sought, including maintaining the integrity of Australia’s migration programme, and other purposes, as outlined at subsection 5A(3) of the Migration Act.  As such, to the extent that the rights under Article 17 are limited by this amendment, these limitations are considered necessary, reasonable and proportionate to achieve a legitimate aim and apply to the circumstances of persons who have been found to not engage non-refoulement obligations under the Refugees Convention.

 

Amending subsection 502(1) and subsection 503(1) to apply in the context of complementary protection to persons who fall within the circumstances mentioned in subsections 36(1C) or 36(2C)

52.   These amendments will expand the scope of sections 502 and 503 of the Migration Act to relate to persons seeking complementary protection.

 

53.   Section 502 of the Migration Act provides the Minister with the power, in certain circumstances, to declare a person to be an ‘excluded person’.  These circumstances apply where the Minister intends to make a personal decision to refuse a protection visa on character-related grounds and require the Minister to decide that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared an ‘excluded person’.  As a consequence of being declared an ‘excluded person’, a person may not be able to seek merits review of a decision at the Administrative Appeals Tribunal. 

 

54.   Currently section 502 applies in respect of persons who have been refused the grant of a protection visa on refugee grounds for reasons relating to the character of the person.  The Government now considers it appropriate to extend the scope of section 502 to also apply to persons who have been refused the grant of a protection visa on complementary protection grounds for reasons relating to the character of the person. The amendments to section 502 will give effect to this policy.

 

55.   This amendment was created to ensure consistency in the Minister’s powers when dealing with non-citizens of serious character concern.  As such, it is expected it will only be used in limited situations where there is a clear national interest reasons to limit access to merits review. 

 

56.   Article 13 of the ICCPR states:

‘An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.’

 

57.   While merits review can be an important safeguard, there is no express requirement under the ICCPR or the CAT that it is required in the assessment of non-refoulement obligations.  Anyone who is found through visa or Ministerial intervention processes to engage Australia’s non refoulement obligations will not be removed in breach of those obligations.  All persons impacted by the personal decisions made by the Minister will remain able to access judicial review which satisfies the obligation in Article 13 to have review by a competent authority.

 

58.   Section 503 of the Migration Act relates to the exclusion of certain persons from Australia.  A person who is affected by this provision is not entitled to enter Australia or be in Australia at any time during the period determined under the regulations. Currently, section 503 applies in respect of persons who have been refused the grant of a protection visa on refugee grounds for reasons relating to the character of the person, and has been removed from Australia.  The Government now considers it appropriate to extend the scope of section 503 to also apply to persons who have been refused the grant of a protection visa on complementary protection grounds for reasons relating to the character of the person.  The amendments to section 503 will give effect to this policy.

 

59.   It is the Government’s view that this provision, as it will apply to persons seeking the grant of a protection visa on complementary protection grounds, is consistent with Australia’s non-refoulement obligations under Articles 6 and 7 of the ICCPR and Article 3 of the CAT. 

 

60.   The non-refoulement obligations outlined in the ICCPR and the CAT require parties, such as Australia, to ensure people within its jurisdiction are not returned to a place where they may face types of harm which will violate their fundamental human rights, namely their right to life or right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment.  Australia’s non-refoulement obligations do not, however, extend to an obligation to grant permanent residency or any particular type of visa to a person who has been found to engage one of Australia’s non-refoulement obligations.  Rather, for people who are found to be owed a non-refoulement obligation but are ineligible for the grant of a protection visa on character or national security grounds, Australia will put in place appropriate measures to ensure the protection of the person’s fundamental human rights. 

 

61.   In the event that a person is refused complementary protection on a character-related ground and is subsequently removed from Australia to a safe third country, or chooses to depart Australia voluntarily, the amendment will ensure that person can be excluded from Australia as per the existing arrangements for non-citizens refused a protection visa.

Conclusion

62.   The measures in this Bill are compatible with human rights because they are consistent with Australia’s human rights obligations and, to the extent that a measure may also limit human rights, those limitations are reasonable, necessary and proportionate.

 

The Hon Peter Dutton MP, Minister for Immigration and Border Protection