HUMAN RIGHTS
Getting fair, not tough, on immigration
Kerry Murphy October 07, 2009
'Complementary protection' is a new idea in Australian migration law. A Bill to introduce complementary protection is now before the Parliament. It will extend Australia's protection obligations to other areas of international human rights law which previously could not be directly accessed.
The changes mean that people who previously did not meet the narrow refugee definition, but for various reasons could not be sent back to their home country, may now be able to get protection in Australia. This includes people who may come under the Torture Convention and International Convention on Civil and Political Rights (ICCPR).
Some examples of people who fit the complementary definition may include those who are at genuine risk of execution in their home country. In Iran, homosexuals have been executed, while in some countries women are at risk of execution for accusations of 'adultery', which in some cultures has a very wide definition. Such cases may or may not meet the refugee definition, but will benefit from complementary protection.
The tests proposed in the new law will improve compliance with Australia's international human rights law obligations but they do not fully encompass these international obligations. There are limits built into the legislation. This may reflect the political reality of getting such legislation passed, given the opposition has indicated it will vote against these improvements.
Academics and advocates in the field welcome this reform, even though they see gaps in the coverage. Some gaps include how cases under the Statelessness Convention would be dealt with as well as other ICCPR rights such as the right to privacy and family life. The definitions may also be over-restrictive and too narrow to benefit some of the genuine but complex cases that remain in limbo.
Currently the process to access a type of complementary protection is cumbersome and not transparent. It requires an applicant to lose two cases before these complementary protection issues can be considered.
A person who would meet 'complementary protection' obligations but not the refugee convention must go through the refugee process with Immigration, then apply to the Refugee Review Tribunal (RRT). Then after losing the RRT case they can make a request to the Minister under section 417 for his personal intervention.
It is overly bureaucratic to require such a long and messy process before the Minister has jurisdiction to consider the complementary protection issues. This process is wasteful on resources as well as stressful for the applicants.
Under the proposed law, a person who, say, fits the Torture Convention, but not the Refugee Convention, can have their case assessed at the primary level by an immigration officer rather than having to wait until the Minister can look at the case. There have been calls to reform the 'ministerial intervention' processes under section 417 for many years but this is the first serious legislative attempt to improve the system.
The reforms will provide some clarity into this complex area. It also brings Australia's domestic law closer to the practices that have existed in Europe and Canada for many years.
It is not clear how many cases will be affected but from experience, I think the numbers will be relatively small. A person who fits the definitions of complementary protection will get the same 'protection visa' as someone who meets the refugee definition.
This reform has been needed for more than a decade. The changes will hopefully mean there will be sensible and humane improvements in a system that has for too long just been tampered with to make it tighter, not fairer. Maintaining sovereignty and respecting human rights need not be seen as being in conflict.
Kerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers. He is a student of Arabic, former Jesuit Refugee Service coordinator, teaches at ANU and is one of Australia's top immigration lawyers recognised by last year's Australian Financial Review Best Lawyers survey.
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SUBMITTED COMMENTS
Margaret Ortiz06-Oct-2009
We welcome any changes that make the system less beurocratic and more fair. Shame on the opposition for deciding to oppose it. Here is a great chance for the government of the 'lucky country' to act in a common-sense bipartisan way in a small move towards a just society.
Maryrose Dennehy06-Oct-2009
Thank you, Kerry for writing about this proposed law. I hope that it passes and becomes widely known.
Ray O'Donoghue06-Oct-2009
Is it compulsory for the Opposition to oppose everything that the Government proposes? There is a higher law that tells us to go the aid of the weak and oppressed. Come on Aussie , come on.
Nathan Socci06-Oct-2009
Even if one regards the punishment as inhumane, at least one must acknowledge that a country like Iran takes its religious convictions regarding sin seriously. This should not be undermined.
Nathalie06-Oct-2009
I agree with the article. I think there should be less migrants (especially Chinese) and more refugees of whatever description. They are the ones who need our help and who can make good Australian citizens after being properly investigated(we don't want torturers in disguise here)
By the way, I thought that the ministerial intervention section was s 315??!!??
Anton Sabella06-Oct-2009
Great and very informative article indeed. Thanks Kerry and hopefully the legislation will pass.
Kerry Murphy07-Oct-2009
s351 requests are essentially the same as s417 requests. The s351 request comes from a case with a Migration Review Tribunal decision, the s417 is an RRT decision.
Joe Castley07-Oct-2009
Great news! Another step along the path back to a decent Australia. The Hansenist thinking of the Opposition is as morally defenceless as it is opportunistic.
Maggie07-Oct-2009
This is great news that infuses hope to the afflicted. If Australia can accommodate and protect more people fleeing from persecution, suffering and torture brought about by their own country’s culture/tradition/religion/politics, I believe that God the Almighty will pour out more blessings to Australia.
Claude Rigney08-Oct-2009
'In Iran homosexuals have been executed, while in some countries women are at risk of execution for accusations of adultery'. Could Mr Murphy please give an example of a court case tried under the Iranian justice system during the last year wherein a homosexual has been accused and found guilty of homosexual practices and subsequently executed? Could he also detail, during the same period, a court case in which a woman was accused and found guilty of adultery and consequently executed?
Kerry Murphy11-Oct-2009
Claude, a good source is the UK Home Office report.
In refugee and complementary protection cases, it may be that someone may be also accused of other offences, which they did not do, just to give a cover for persecution.
Claude Rigney11-Oct-2009
Thanks for the tip Kerry. I scanned that document but was only able to find "reports" of abuses tendered by organisations and individuals, not trial details.
Adam GHACHI14-Oct-2009
It is great having laws in place to protect those who need protection, but we should be vigilant to the exploitation of these laws. In order to access these laws heterosexual may become homosexual and sex workers may all sudden fear prosecution. I hope that all loopholes have been taking into consideration to prevent these laws from exploitation.