Riots and refugees

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This week, calls for reform of the mandatory detention policy coincide with the reintroduction of the Complementary Protection Bill to Parliament. The latter ought be welcomed, while the former is long overdue. It is important to adumbrate the key issues in these areas.

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The Complementary Protection Bill was originally introduced in 2009 and reintroduced in early 2011. It is one of the most significant changes to Australia immigration law in the area of refugee and humanitarian visas for many years.

'Complementary Protection' is about providing a mechanism for accessing the non refoulement (no return) provisions in several human rights treaties, such as the Convention Against Torture (CAT), the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

Previously, the only way to access protection under these international treaties in Australia was through the cumbersome and sometimes arbitrary process of ministerial invention. This is popularly known as a section 417 request. Section 417 of the Migration Act gives the Minister power to grant any visa the Minister wants to grant, if there are circumstances in the public interest. The Minister's power is only available if there is a review decision by the Refugee Review Tribunal (RRT).

According to the changes proposed under the Complementary Protection Bill, issues that would underpin claims for complementary protection can now be considered at the first stage of a case, at the same time as the factors that determine whether someone meets the refugee criteria.

In other words, a case officer will in the first instance assess two separate issues: Does this person meet the refugee criteria? If no, then do they meet the complementary protection criteria?

This is a sensible and worthwhile change and should reduce the need for cases to have to go through the long path to the Minister. It also brings Australian law more in line with similar complementary protection provisions in the European Union, Canada, US and New Zealand, among other countries.

I recall a case where someone did not meet the refugee criteria, but had strong evidence that they would face torture as part of a routine police investigation for a minor matter in their home country. This was accepted by Immigration and by the RRT, but still we had to take this case to the Minister to access the protection offered in the CAT.

Under the new provisions the case could be dealt with at the first level and would not waste resources further up the administrative review chain.

It will take a period of time for the impact of the changes to seep through, and case officers, review officers and advocates will need training on the new provisions. Fortunately they apply to all current cases, even those on review. These reforms are long overdue and the Minister ought be supported.

Given the protests in Christmas Island, it is also time to reform the mandatory detention policy.

A major cause of the protests were the delays in security checks that occur after the Department of Immigration and Citizenship (DIAC) accepts someone is a refugee.

One of the major frustrations is that there is no way to know why the security check is taking so long. I contact DIAC and are told things like: Mr A is currently awaiting security clearance. This is obvious, but fails to tell me anything about how long the delay might be, or whether there is some reason for it.

I think DIAC are as much in the dark as I am about the delays. I accept that security checks must be done, but it is frustrating when the process is so opaque and takes so long, and when information about progress is non-existent.

If I am annoyed and frustrated as an advocate, how much worse must it be for refugees, especially those in detention? Detention periods are arbitrary. The longer someone is in detention, the worse are the psychological effects. The build-up of tension and psychological harm will go on unless there is reform of mandatory detention.

ASIO and the security assessors need to be better resourced to process these cases more quickly. A system of release into the community with strict reporting conditions would reduce some of the tension and stress of prolonged detention. Hopefully the Government will seek to reform the system, not vilify the victims — the refugees.


Kerry MurphyKerry 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 was recognised by AFR best lawyers survey as one of Australia's top immigration lawyers 

Topic tags: Complementary Protection Bill, visa, mandatory detention, refugees, asylum seekers

 

 

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Existing comments

These rioters are ILLEGALS. They have PAID to come here through dubious means. They need to be sent back forthwith. Australia needs to look after its own citizens first before handing an entree into this country. When are we going to wake up instead of listening to contrived sob stories!
Peter | 22 March 2011


Yes,thank you Kerry, for highlighting and clarifying these changes. Many things go on under the radar and there is too much hysteria and blind ignorance when talking about refugees.This,I hope, helps average Australians see common sense and decency return and prevail.
catherine | 22 March 2011


if you invade a country and this causes hardship and strife and prosecution and people seek asylum from this which is a legal thing to and then when they arrive you lock them up most are traumatised they seek freedom but remember they dont know what it actually involves that you have to jump through hoops how self righteous we are when we have not walked a mile in another's shoes. What you do to others is what you do to me says Jesus.
irena springfield | 22 March 2011


Dear Peter. These people have broken no law. By a dirty trick with a Gilbertian slant to it, the Howard government passed a law that they may be called "illegal", but they have broken no law. There are very few contrived sob stories; the stories are thoroughly checked, often with unfavourable prejudice, and are mostly found to be true.
Jim Jones | 22 March 2011


Peter, as has been emphasised on numerous occasions previously, asylum seekers are NOT illegals, under any legislation. Their mode of arrival, by boat, may be deemed unauthorised, but the act itself of arriving in Australian territory and claiming asylum is not a crime.

The bill enacting complementary protection is long overdue and is to be welcomed. I doubt it will be supported by the Opposition, but it will be a test for those within Opposition ranks who purport to respect international law, such as the convention against torture.

There is no accountability for ASIO for the lengthy time taken for security clearances, and no transparency whatsoever in the reasons for adverse assessments. No wonder many asylum seekers lose hope and some give way to frustration and despair.
Kate | 22 March 2011


Christmas Island and all the other gulags need to go the way of Woomera and BAxter and be burnt to the ground.

I remember new years eve 2002 walking down the beach in Glenelg laughing with joy because every rotten one of the concentration camps was on fire.
Marilyn Shepherd | 22 March 2011


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