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Migration Amendment (Complementary Protection and Other Measures) Bill 2015



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ISSN 1328-8091

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BILLS DIGEST NO. 49, 2015-16 18 NOVEMBER 2015

Migration Amendment (Complementary Protection and Other Measures) Bill 2015 Elibritt Karlsen Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 2

Background ......................................................................... 2

Background to the existing statutory scheme ......................... 2

Why is the existing statutory scheme being amended? .......... 4

Committee consideration .................................................... 5

Senate Standing Committee on Legal and Constitutional Affairs ...................................................................................... 5

Senate Standing Committee for the Scrutiny of Bills .............. 5

Policy position of non-government parties/independents ..... 5

Position of major interest groups ......................................... 5

Financial implications .......................................................... 6

Statement of Compatibility with Human Rights .................... 6

Parliamentary Joint Committee on Human Rights .................. 6

Key issues and provisions..................................................... 6

Internal relocation and generalised risk: exclusion if a person can relocate within the country and the risk of harm is faced by the population generally .............................. 6

Effective protection: exclusion if protection is available through State or non-State actors ........................................... 8

Modification of behaviour: exclusion if an applicant can modify their behaviour to avoid risk of harm.......................... 9

Exclusion from merits review ................................................ 10

Other provisions ................................................................ 11

Authorising disclosure of identifying information to foreign countries ................................................................... 11

Date introduced: 14 October 2015

House: House of Representatives

Portfolio: Immigration and Border Protection

Commencement: Sections 1 to 3 commence upon Royal Assent and Schedule 1 commences on a day to be fixed by Proclamation or six months after Royal Assent, whichever is sooner.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

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Exclusion from Australia ........................................................ 11

Purpose of the Bill The purpose of the Migration Amendment (Complementary Protection and Other Measures) Bill 2015 (the Bill) is to amend the Migration Act 1958 1(the Act) primarily to align the complementary protection statutory framework with the statutory refugee framework, as recently amended by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.2 More explicitly, the Bill will amend the Act to provide:

• protection is only available where the real risk of significant harm relates to all areas of a receiving country

• protection is not available if an applicant could take reasonable steps to modify their behaviour so as to avoid a real risk of significant harm (other than modification that would conflict with their innate or immutable characteristics or which is fundamental to the person’s identity or conscience)

• protection is only available where the real risk of significant harm is faced by a person personally, rather than being an indiscriminate risk of harm faced by the population generally in a receiving country

• protection is only available if effective protection measures are not available to an applicant through State or non-State actors in a receiving country and

• the ability of the Minister for Immigration and Border Protection to preclude merits review will be expanded to include an unsuccessful complementary protection applicant on character grounds.

The Bill also makes other minor amendments.

Background Background to the existing statutory scheme The Migration Amendment (Complementary Protection) Act 2011 (the Complementary Protection Act) amended section 36 of the Act to provide a new statutory ground upon which protection visas could be granted (namely, on complementary protection grounds).3 The new visa criterion commenced by Proclamation on 24 March 2012.

In brief, ‘complementary protection’ is the term used to describe a category of protection for people who are not refugees but who cannot be returned to their home country because there is a real risk they will suffer significant harm. The Act prescribes that a person will suffer ‘significant harm’ if:

• the person will be arbitrarily deprived of his or her life

• the death penalty will be carried out on the person

• the person will be subjected to torture

• the person will be subjected to cruel or inhuman treatment or punishment, or

• the person will be subjected to degrading treatment or punishment.4

Australia’s non-refoulement (non-return) obligations to such people arise from the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to which Australia is a party.5

1. Migration Act 1958, accessed 16 November 2015. 2. Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, accessed 9 November 2015. 3. Migration Amendment (Complementary Protection) Act 2011, accessed 9 November 2015. For further information see: E Karlsen, Migration Amendment (Complementary Protection) Bill 2011, Bills digest, 79, 2010-11, Parliamentary Library, Canberra, 2011, accessed

9 November 2015. 4. See proposed subsection 5LAA(3) of the Act, at item 11 of the Bill. This definition is identical to existing section 36(2A) which is being repealed by item 16. 5. Explanatory Memorandum, Migration Amendment (Complementary Protection and Other Measures) Bill 2015, p. 1.

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The Coalition strongly opposed the former Labor Government’s introduction of a statutory complementary protection regime, preferring to rely on an administrative process to enable the Minister to personally determine claims on a discretionary (and non-compellable) basis.6 The Coalition was of the view that the introduction of a statutory scheme is:

unnecessary counterproductive and risks being represented as yet another softening of Australia’s immigration laws that sends a clear message to people smugglers and unlawful non-citizens seeking entry that Australia is an easy target … [and would] encourage the lodging of a large number of new, non-refugee, protection applications and the making of false asylum claims.

7

Accordingly, the first immigration Bill to be introduced by the Coalition after it regained power in late 2013 was the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013 (Regaining Control Bill) which proposed to repeal (in essentially identical terms) the provisions inserted by Labor’s 2011 Complementary Protection Act.8 Then Minister for Immigration and Border Protection, Scott Morrison, expressed numerous concerns about the operation of the newly created statutory scheme:

• it creates an incentive for people to come to Australia

• it is a costly and inefficient way to process applicants as so few are satisfying the visa criteria

• people who have committed serious crimes, have associated with criminal gangs, or have been involved in blood feuds are satisfying the complementary protection criteria and are guaranteed a particular visa outcome

• the visa criteria are complicated, convoluted, and difficult for decision-makers to apply, which is resulting in inconsistent outcomes

• the courts have interpreted the criteria in a way that has broadened Australia’s obligations beyond what is required under international law and

• the criteria do not enable consideration of Australia’s broader humanitarian concerns.9

The Parliamentary Library’s Bills Digest into the Regaining Control Bill examined these concerns in greater detail.10

The Senate Legal and Constitutional Affairs Committee’s inquiry into the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013 subsequently recommended that the Bill be passed. It also recommended that the Department release consultation drafts of the guides and supporting material it intended to use as part of the administrative assessment of complementary protection claims (if the Bill was passed) and actively consults with stakeholders in finalising those guides and supporting materials.11

In addition, the Committee noted:

the statutory scheme for assessing complementary protection claims established by the previous government created another product for people smugglers to sell. The committee is of the view that this Bill takes that product off the shelves. 12

6. For further information see: E Karlsen, Complementary protection for asylum seekers - overview of the international and Australian legal frameworks, Research paper, 7, 2009-10, Parliamentary Library, Canberra, 2009, accessed 9 November 2015. 7. Liberal Senators, ‘Dissenting report by Liberal Senators’, Dissenting report, Senate Legal and Constitutional Affairs Legislation Committee, Migration Amendment (Complementary Protection) Bill 2009, The Senate, Canberra, October 2009, accessed 9 November 2015. 8. Parliament of Australia, ‘Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013 homepage’, Australian

Parliament website, accessed 16 November 2015; the amendments made by items 17 to 24 in the Migration Amendment (Complementary Protection) Bill 2011 in relation to sections 91T (non-political crime) and 91U (particularly serious crime) and the amendments to section 5 of that Bill relating to the interpretation of the terms ‘non-political crime’, ‘serious Australian offence’, and ‘serious foreign offence’ were not being repealed as these had broader application in the Act. 9. S Morrison, ‘Second reading speech: Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Bill 2013’, House of

Representatives, Debates, 4 December 2013, pp. 1521-1523, accessed 9 November 2015. 10. E Karlsen, Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013, Bills digest, 41, 2013-14, Parliamentary Library, Canberra, 2014, accessed 9 November 2015. 11. Senate Legal and Constitutional Affairs Committee, Inquiry into the Provisions of the Migration Amendment (Regaining Control Over

Australia's Protection Obligations) Bill 2013, The Senate, Canberra, 18 March 2014, accessed 9 November 2015. 12. Ibid., p. 17.

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However, the Committee acknowledged that a number of submitters and witnesses held the view that it would not be possible to design a non-statutory scheme that would be sufficient to address concerns that the Bill could risk Australia's protection obligations under international law, may lead to errors and introduce inefficiency.

Though it is not entirely clear why the Regaining Control Bill was not brought on for debate in the Senate (having secured passage through the House of Representatives in December 2013), it was discharged from the Senate Notice Paper on 15 October 2015, nearly two years after it was first introduced.

Nonetheless, when introducing this Bill into Parliament, the Minister for Immigration and Border Protection, Peter Dutton, explained that the Government had considered the concerns raised by Parliament and its relevant committees and concluded that, on balance the best way forward would be for the complementary protection provisions to remain in the Act, but be modified slightly as per the terms of this Bill.13 Significantly, the Minister acknowledged that in doing so, Australia would continue to align with the practices of other like-minded countries, including New Zealand, Canada, the United States of America and many European countries.14

Why is the existing statutory scheme being amended? There appear to be three main reasons why this Bill has been introduced, according to the Minister for Immigration and Border Protection, Peter Dutton.

Firstly, the Bill ‘is the final instalment in a package of legislative reforms that implements the government's election commitments to ensure a more effective and efficient onshore protection status determination process’.15 However, none of the ten or so different asylum policy papers released prior to the 2013 federal election appear to have mentioned any proposed statutory changes to the way in which complementary protection claims would be assessed (though this could be because they remained opposed to the statutory framework).

Secondly, the Bill will align the complementary protection statutory framework with the refugee statutory framework as there are inconsistencies between the two frameworks.16 Though assessment of claims occurs under a single administrative process, the Minister does not explain why consistency between the two is necessary, other than to say a person who might be refused protection under the refugee framework could satisfy the complementary protection framework, as currently drafted. However, this is how the statutory scheme has been designed to operate. An applicant can only satisfy the complementary protection criterion contained in paragraph 36(2)(aa) of the Act once a decision-maker is satisfied that a non-citizen is not a refugee in accordance with paragraph 36(2)(a). It should also be recalled that the Government has previously tried to amend the Act so that the threshold to be applied in assessing complementary protection claims would be different to the threshold used for assessing refugees.17

Thirdly, the Bill is necessary to tighten the various tests to diminish the likelihood of certain persons being granted Australia’s protection. Namely, people who have been involved in serious crimes in their home countries, or are fleeing their home countries due to their association with criminal gangs, or people who have been granted protection because they have sold movies or drunk/supplied alcohol in countries where such activities are severely punished.18

Though the number of successful complementary protection claimants is not currently publicly known, historical figures suggest that it is not a large number and the kinds of cases that have been successful in Australia are broadly consistent with complementary protection decisions in other countries.19

13. P Dutton, ‘Second reading speech: Migration Amendment (Complementary Protection and Other Measures) Bill 2015’, House of Representatives, Debates, (proof), 14 October 2015, p. 6, accessed 9 November 2015. 14. P Dutton, Second reading speech, op. cit., p. 6. 15. Ibid., p. 4. 16. Ibid.

17. For further information see: Parliament of Australia, ‘Migration Amendment (Protection and Other Measures) Bill 2014 homepage’, Australian Parliament website, accessed 16 November 2015. See also E Karlsen, Migration Amendment (Protection and Other Measures) Bill 2014, Bills digest, 6, 2014-15, Parliamentary Library, Canberra, 2014, accessed 17 November 2015.

18. P Dutton, Second reading speech, op. cit., p. 5. 19. J McAdam and F Chong, ‘Complementary protection in Australia two years on: an emerging human rights jurisprudence’, Federal Law Review, 42(3), 2014, p. 457, accessed 17 November 2015.

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The amendments proposed in this Bill will exclude protection to persons who can take reasonable steps to modify their behaviour (such as not breaking the law upon their return), to those who can access effective protection through State or non-State actors, and to those who face an indiscriminate risk of harm which is faced by the population generally. However, whether such measures are consistent with Australia’s international human rights obligations is a matter of dispute, as discussed in greater detail under the heading ‘Key issues and provisions’.

Committee consideration Senate Standing Committee on Legal and Constitutional Affairs The Bill has been referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 18 February 2016. Details of the inquiry are at the inquiry webpage.20 At time of writing, no submissions had been published by the Committee.

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills only commented on one aspect of the Bill, relating to merits review.21 The Committee’s comments are discussed in greater detail below under the heading ‘Key issues and provisions’.

Policy position of non-government parties/independents It is not currently known whether the Australian Labor Party (ALP) will support this Bill or whether it will seek to make amendments. Senator Sarah Hanson-Young of the Australian Greens has reportedly expressed strong opposition to the Bill.22 The policy position of the other cross-benchers is not currently publicly known.

Position of major interest groups Shortly after the Bill was introduced, David Mann (Executive Director of the Refugee and Immigration Legal Centre) voiced concerns over the proposed amendments, reportedly stating ‘these provisions run the very real risk, if they pass into law, of seeing people sent back to extremely dangerous war zones’.23 He also reportedly stated that the Government had not made a credible case for the proposed changes, which he said would affect ‘many people’ in Australia. 24

Save the Children also expressed concern that the changes are ‘unnecessary, pose a potential breach to Australia’s obligations under refugee and human rights law, and counter the fast growing need for protection resulting from complex humanitarian emergencies unfolding across the globe’. 25 Mat Tinkler (Acting CEO for Save the Children) reportedly stated:

Australia must not take a simplistic, isolated attitude to what is increasingly a global complex issue. At a time when more than 60 million people worldwide have been forced to flee their homes from conflict, persecution and mass human rights violations, now is not the time to further tighten the rules and limit life-saving protection…Minister Dutton has expressly said that a consistent pattern of mass human rights violations would not meet the threshold for protection under these amendments. This is unconscionable.

26

More broadly speaking, when a formal statutory system of complementary protection was introduced, it received wide support from key domestic and international human rights agencies as well as legal agencies, non-government organisations, refugee advocacy and church groups.27 As this Bill (amongst other things) is

20. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Provisions of the Migration Amendment (Complementary Protection and Other Measures) Bill 2015, The Senate, Canberra, 2015, accessed 9 November 2015. 21. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 12, 2015, The Senate, 11 November 2015, accessed 16 November 2015. 22. S Anderson, ‘Greens criticise 'inhumane' bid to tighten asylum seeker laws proposed by Immigration Minister Peter Dutton’, ABC News,

(online edition), 14 October 2015, accessed 16 November 2015. 23. S Anderson, ‘Asylum seekers could be forced into warzones under laws proposed by Federal Government, human rights lawyer David Manne warns’, ABC News, (online edition), 21 October 2015, accessed 16 November 2015. 24. Ibid.

25. Save the Children, Changes to Australia’s Migration Act will weaken protection, put lives at risk, media release, 14 October 2015, accessed 16 November 2015. 26. Ibid.

27. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Provisions of the Migration Amendment (Complementary Protection) Bill 2009, The Senate, Canberra, 19 October 2009, accessed 9 November 2015.

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expanding the basis upon which people can be excluded from protection under the complementary protection framework, this Bill is unlikely to receive the support of such groups. Nonetheless, such groups would undeniably welcome the Government’s announcement that it is no longer going to repeal the statutory complementary protection framework altogether (as discussed above).

Financial implications The Explanatory Memorandum notes that the financial impact of the Bill is low and that any costs will be met from within the existing resources of the Department of Immigration and Border Protection.28

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.29

The Statement of Compatibility with Human Rights (the Statement of Compatibility) provides that the amendments being proposed in the Bill ‘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 … the Government remains committed to acting in accordance with Article 3 of the CRC [Convention on the Rights of the Child]’.30

The Statement of Compatibility goes on to affirm:

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. 31

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (chaired by Philip Ruddock) examined the Bill and reported on its compatibility with human rights in its thirtieth report, dated 10 November 2015.32 It commented on a number of provisions and sought the Minister’s advice in relation to a number of the amendments being proposed (discussed in greater detail below under the heading ‘Key issues and provisions’).

Key issues and provisions Existing paragraph 36(2)(aa) of the Act provides that a criterion for a protection visa is that the applicant is:

a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a) [that is, a refugee]) 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 non-citizen will suffer significant harm.

33

This criterion is subject to a number of qualifications (discussed immediately below).

Internal relocation and generalised risk: exclusion if a person can relocate within the country and the risk of harm is faced by the population generally For the purposes of satisfying the complementary protection criterion contained in paragraph 36(2)(aa), existing paragraphs 36(2B)(a) and (c) provide 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 or

28. Explanatory Memorandum, Migration Amendment (Complementary Protection and Other Measures) Bill 2015, op. cit., p. 2. 29. The Statement of Compatibility with Human Rights can be found at page 27 of the Explanatory Memorandum to the Bill. 30. Explanatory Memorandum, Migration Amendment (Complementary Protection and Other Measures) Bill 2015, op. cit., p. 30. Article 3 of the Convention on the Rights of the Child requires the best interest of the child to be a primary consideration in all actions concerning children.

31. Ibid.

32. Parliamentary Joint Committee on Human Rights, Thirtieth report of the 44th Parliament, 10 November 2015, pp. 19-27, accessed 16 November 2015. 33. Migration Act 1958, paragraph 36(2)(aa), accessed 17 November 2015.

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• the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

Item 16 will repeal subsection 36(2B) and item 11 will insert proposed subsections 5LAA(1) and (2) into the Act. Together, these broadly provide that 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 (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).

In essence, this amendment will remove the requirement for decision-makers to consider whether it is reasonable for an applicant to relocate to another part of the country to avoid risk of harm in light of their individual circumstances.

In addition, this amendment will clarify that the real risk of significant harm must be faced by the person personally. If the real risk of significant harm is faced by the population generally, a person must adduce additional grounds to show that they are at a particular risk. However, the Explanatory Memorandum clarifies that this does not mean that they must be individually targeted.34 Rather, it will require decision-makers to assess 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.35

The Department explains that the amendment will not elevate the risk threshold for people who are facing removal to countries where there is a generalised risk of violence. Rather, they argue that the amendment is needed to make the policy intention clearer for decision-makers because ‘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 which were the Government’s intention.36

Australia’s leading academic on complementary protection, Scientia Professor Jane McAdam (University of NSW), has previously observed that ‘although the Refugee Review Tribunal has found in a number of cases that a situation of general violence does not preclude the existence of an individualised risk, section 36(2B)(c) of the Act has not been applied consistently’.37 She notes that although the Federal Circuit Court has found that a person may personally face a real risk of significant harm, even if he or she is not singled out and others also similarly face a real risk of such harm, there appears to be some inconsistency in the Court’s approach. For instance, one case suggests that an applicant may face a personal risk of significant harm even in cases where ‘almost anyone would be potentially affected’, another case suggests that an individual must demonstrate that there are risk factors that distinguish him or her from the general population.38 McAdam argues that the approach taken in the former case is more consistent with international jurisprudence, accords with refugee law and reflects the European courts’ approach to this issue. 39 This is not the approach adopted by this Bill.

The Parliamentary Joint Committee on Human Rights did not comment on this aspect of the Bill. However, with respect to the proposed amendment requiring the real risk to relate to all areas of the country it relevantly noted:

There are divergent views as to whether or not under international human rights law an 'internal flight option' - the ability to find safety in one part of your home country - negates an individual's claim for protection against refoulement. The weight of evidence would suggest this is not the case. What is clear from the jurisprudence is that such relocation must be reasonable and practicable. In removing the requirement that the minister must be satisfied that it is reasonable for a person to relocate to an area of their home country the Bill would result in a person being ineligible for protection even though it may not be reasonable for them to relocate internally. This

34. Explanatory Memorandum, Migration Amendment (Complementary Protection and Other Measures) Bill 2015, op. cit., p. 13. 35. Ibid.

36. Ibid.

37. J McAdam and F Chong, ‘Complementary protection in Australia two years on: an emerging human rights jurisprudence’, op. cit., p. 454. 38. Ibid., p. 454. 39. Ibid., p. 455-456.

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would leave such individuals subject to refoulement in breach of Australia's international legal obligations. 40

[Emphasis added and footnotes omitted].

While acknowledging the Department’s Statement of Compatibility which states that 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, the Committee observed that:

However, there is no statutory requirement obliging a decision maker to consider such matters. While such matters may be considered as a matter of departmental policy, this is an insufficiently robust protection for the purpose of international human rights law. The committee has consistently stated that where a measure limits a human right, discretionary or administrative safeguards alone are likely to be insufficient for the purpose of a permissible limitation under international human rights law. This is because administrative and discretionary safeguards are less stringent than the protection of statutory processes and can be amended or removed at any time.

41 [Emphasis

added and footnotes omitted].

Effective protection: exclusion if protection is available through State or non-State actors For the purposes of satisfying the complementary protection criterion contained in paragraph 36(2)(aa), existing paragraph 36(2B)(b) 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:

• the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm.

Item 16 will repeal subsection 36(2B) and item 11 will insert proposed subsection 5LAA(4) into the Act which 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’.

The term ‘effective protection measures’ is defined in existing section 5LA (as amended by items 12 —14 of the Bill). It broadly provides that ‘effective protection measures’ are available to a person if:

• protection against persecution or significant harm (as the case requires) could be provided to the person by the relevant State or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of it, and that are willing and able to offer such protection.

In essence, this amendment will expand the bodies or agencies that can provide effective protection to a person from ‘an authority of the country’ to a party or organisation that controls, at a minimum, a substantial part of the State. The Explanatory Memorandum provides the example of the United Nations or friendly forces,42 though the Department’s Complementary Protection Guidelines provides the example of a rebel or military force in power.43 The difference between the two should not be understated.

This amendment will align this exclusion ground to the equivalent exclusion ground in the refugee statutory framework (see subsection 5J(2) of the Act (as amended by item 8)).

Scientia Professor Jane McAdam (University of NSW) and Associate Professor Michelle Foster (University of Melbourne) previously expressed concerns over the insertion of the equivalent requirement into the refugee statutory framework.44 In a joint submission to the Senate Legal and Constitutional Affairs Committee’s inquiry into the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 they noted that the idea that non-State actors (NSAs) can provide adequate protection is controversial in international practice and has proven difficult to implement in practice. In their submission they outline some of the main arguments against NSAs being recognised as sources of protection:

40. Parliamentary Joint Committee on Human Rights, Thirtieth report of the 44th Parliament, op. cit., pp. 21-22. 41. Ibid., p. 22. 42. Explanatory Memorandum, Migration Amendment (Complementary Protection and Other Measures) Bill 2015, op. cit., p. 14. 43. Administrative Appeals Tribunal (Migration and Refugee Division), Guide to Refugee Law, chapter 10: Complementary protection,

Administrative Appeals Tribunal, Sydney, updated 10 November 2015, p. 31, accessed 17 November 2015. 44. J McAdam and M Foster, Submission to Senate Legal and Constitutional Affairs Committee, Inquiry into the Provisions of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, 167, 31 October 2014, pp. 18-20, accessed

16 November 2015.

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• NSAs do not meet a key condition for providing protection, namely being a party to the Refugee Convention and/or having an established practice of compliance with its provisions

• NSAs are not legally bound by any international human rights treaties and cannot be held accountable under them

• NSAs are unlikely to have been in a stable position over a sufficient period of time to (i) establish a practice of compliance with international standards; or (ii) be able to provide protection on an on-going and continuous basis

• NSAs are unlikely to be able to have the undisputed control of territory and administrative authority to enforce the rule of law and guarantee human rights and

• the notion of NSAs as actors of protection has proven problematic in practice for national decision-makers and courts, with no consensus on what criteria must be established to be satisfied that a sufficient level of protection will be provided. Indeed most decisions have continued to view the State as the main source of protection. 45

They also expressed concern that there was no requirement that the protection (either from a State or NSA source) be stable, effective and durable.

Modification of behaviour: exclusion if an applicant can modify their behaviour to avoid risk of harm Item 11 will insert proposed subsection 5LAA(5) into the Act. Broadly speaking it provides that there will not be a real risk that a person will suffer significant harm if the person could take reasonable steps to modify their behaviour so as to avoid a real risk of harm, other than a modification that would:

• conflict with a characteristic that is fundamental to the person’s identity or conscience or

• conceal an innate or immutable characteristic of the person.

Proposed paragraph 5LAA(5)(c) prescribes modifications which would not be required, such as altering one’s religious or political beliefs, sexual orientation, or concealing one’s ethnicity or physical disability (amongst other things).

The Explanatory Memorandum clarifies that the Government’s intention is that ‘this provision is concerned with reasonable modification only’ such as ‘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’.46

This amendment will align this exclusion ground to the equivalent exclusion ground in the refugee statutory framework (see subsection 5J(3) of the Act (as amended by items 9 and 10)).

The Statement of Compatibility argues that that this amendment is consistent with Australia’s non-refoulement obligations:

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.

47

However, the Parliamentary Joint Committee on Human Rights expressed concern about the compatibility of this amendment with Australia’s international human rights obligations, noting that the jurisprudence does not support the position outlined by the Government in the Statement of Compatibility:

45. Ibid.

46. Explanatory Memorandum, Migration Amendment (Complementary Protection and Other Measures) Bill 2015, op. cit., p. 16. 47. Statement of Compatibility with Human Rights, Migration Amendment (Complementary Protection and Other Measures) Bill 2015, pp. 33-34, accessed 16 November 2015.

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The jurisprudence does not support the position outlined in the statement of compatibility. The obligation to protect against refoulement is not contingent on the oppressed avoiding conduct that might upset their oppressors. The courts have found that persecution does not cease to be persecution simply because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. This principle applies equally in the refugee assessment space as it does in assessing complementary protection under the ICCPR and CAT.

The Bill would require decision makers to assess whether or not a behaviour modification is reasonable and not in conflict with a characteristic that is fundamental to a person's identity or conscience. This measure imposes additional statutory hurdles as part of the assessment of protection status. It requires an assessment of not only whether a person could refrain from certain actions but also take positive actions to conceal aspects of their identity or conscience that are not assessed as fundamental.

Under the Bill, a person could be required to not attend or participate in any political activity, such as attending a rally, if such conduct is not considered to be of fundamental importance to the person's conscience. Similarly, a person who has previously worked as a journalist in their home country could be required to cease work as a journalist if the content of their published work risked attracting persecution.

48 [Emphasis added and footnotes

omitted].

Scientia Professor Jane McAdam and Associate Professor Michelle Foster previously noted, when the equivalent provision was being inserted into the statutory refugee framework, that such a provision ‘effectively puts the onus on an applicant to ‘avoid persecution’, a position fundamentally at odds with the human rights principles underlying the Refugee Convention’.49 They noted, ‘we are concerned that this provision is inconsistent with the emphatic rejection across the common law world, and recently by the Court of Justice of the European Union, of any ‘discretion’ or ‘modification’ requirement in the Refugee Convention’.50

They further observe that:

Although the Bill purports to limit the impact of the ‘discretion’ or ‘modification’ requirement by protecting fundamental characteristics, it is not clear how this would be applied or interpreted in practice… However, since any limitation on rights in the ICCPR must be ‘prescribed by law’ and are addressed to when governments may limit rights, this rule does not assist in assessing when a person can be expected or required to self-moderate or self-limit, and is particularly unhelpful when an applicant fears harm by NSAs at home.

51 [Footnotes omitted].

Exclusion from merits review Section 502 of the Act provides that the Minister may personally decide in the national interest that certain persons are to be ‘excluded persons’. As a consequence of being declared an ‘excluded person’, a person will not be able to seek merits review of a decision at the Administrative Appeals Tribunal.52 While this provision currently applies to refusals of protection visas on the basis of subsection 5H(2) and 36(1C) relating to character grounds, the amendment being proposed by item 31 is to extend the application of this provision to persons who have been refused a protection visa on complementary protection grounds for reasons relating to their character (as contained in proposed subsection 36(2C)).

The Parliamentary Joint Committee on Human Rights was of the view that this proposed amendment raised questions about the measure’s compatibility with Australia’s international human rights obligations. While acknowledging that there is no express requirement specifically for merits review in the articles of the relevant conventions or jurisprudence relating to obligations of non-refoulement, the Committee noted that ‘treaty monitoring bodies have found that the provision of effective and impartial review of non-refoulement decisions by a court or tribunal is integral to complying with the obligation of non-refoulement under the ICCPR and

48. Parliamentary Joint Committee on Human Rights, Thirtieth report of the 44th Parliament, op. cit., pp. 23-24. 49. J McAdam and M Foster, Submission to Senate Legal and Constitutional Affairs Committee, Inquiry into the Provisions of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, op. cit., p. 20. 50. Ibid.

51. Ibid.

52. Subsection 500(1) provides that applications may be made to the Administrative Appeals Tribunal for review of certain decisions other than decisions to which a certificate under section 502 applies.

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CAT’.53 The Committee considered that ‘in the Australian context, the requirement for independent, effective and impartial review of non-refoulement decisions is not met by the availability of judicial review, but may be fulfilled by merits review’.54

The Senate Standing Committee for the Scrutiny of Bills was also of the view that ‘merits review provides a level of assurance that judicial review cannot, given the restricted grounds on which courts are able to review decisions. For example, in general, judicial review cannot correct for factual errors even when those errors are serious and material’.55

The Committee was of the view that consistency with existing powers in the Migration Act which exclude ministerial decisions on character grounds from merits review was not a compelling justification for the introduction of further, similar powers. In light of the limited capacity of judicial review to ensure administrative justice in the context of broad discretionary powers, the Committee sought more detailed advice from the Minister which explains why an appropriate form of merits review is not warranted in relation to the making of these decisions. 56

Other provisions Authorising disclosure of identifying information to foreign countries Section 336F of the Act provides for the disclosure of identifying information to foreign countries or entities in certain circumstances. The amendment being made by item 24 proposes to expand the types of people who will not be exempt from disclosure under existing subsections 336F(3) or (4) to include unauthorised maritime arrivals:

• who make a claim for protection as a refugee and

• who, following assessment of his or her claim, is found to be 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’. 57

Such an exemption, in identical terms, already exists for unauthorised maritime arrivals who make a claim for protection on the basis that they will suffer significant harm (paragraph 336F(5)(cc)).

The expressions ‘danger to Australia’s security’ and ‘danger to the Australian community’ (as also contained in subsection 36(1C)) is also consistent with the terminology used in Article 33(2) of the Convention relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees (1951 Refugee Convention).58

According to the Explanatory Memorandum, ‘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’.59

Exclusion from Australia Section 503 of the Act provides that certain persons are not entitled to enter Australia or to be in Australia during a period determined under the regulations. While this provision currently applies to refusals of protection visas on the basis of subsection 5H(2) and 36(1C) relating to character grounds, the amendment being proposed by item 32 is to extend the application of this provision to persons who have been refused a protection visa on

53. Parliamentary Joint Committee on Human Rights, Thirtieth report of the 44th Parliament, op. cit., pp. 25-26. 54. Ibid., p. 27. 55. Senate Standing Committee for the Scrutiny of Bills, Alert digest, op. cit., pp. 18-19. 56. Ibid.

57. Section 5 of the Migration Act further defines the terms ‘serious Australian offence’ and ‘serious foreign offence’ to include particular types of offences punishable by imprisonment for life, or imprisonment for a fixed term of not less than three years, or imprisonment for a maximum term of not less than three years.

58. Convention Relating to the Status of Refugees, (as amended by the 1967 Protocol relating to the Status of Refugees), done in Geneva 28 July 1951, [1954] ATS 5 (entered into force for Australia and generally 22 April 1954), accessed 16 November 2015. 59. Explanatory Memorandum, Migration Amendment (Complementary Protection and Other Measures) Bill 2015, op. cit., p. 23.

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complementary protection grounds for reasons relating to their character (as contained in proposed subsection 36(2C)).

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