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Australia playing catch-up with latest refugee reforms


Complementary Protection in International Refugee Law, by Jane McAdamOn Saturday two major reforms commenced regarding refugee processing. The first is the long awaited Complementary Protection provisions. The second is the abandonment of offshore processing and having all protection visa applications assessed in the same process, regardless of how the person arrived in Australia.

Complementary Protection was introduced back in October 2011, but the start date was delayed. It means that a person who makes a protection claim can now rely on one of three separate claims to be successful; a claim based on the refugee criteria; a claim under the Complementary Protection provisions; or a claim as a member of the immediate family (spouse, dependent children) of a person claiming under one or two above.

Complementary Protection is intended to simplify a process whereby previously people had to wait until their review case was decided before seeking the personal intervention of the Minister. This three stage process was cumbersome and the ministerial process was not transparent and had no review options.

Now, a person who has a real risk that they will suffer certain types of harm contrary to the Convention Against Torture (CAT) or the Covenant on Civil and Political Rights (ICCPR) will have their case assessed at the first stage of processing rather than waiting until the end.

People will need to prove they are at risk of torture, of being subjected to the death penalty, or to cruel, inhuman or degrading treatment. There are exclusions for those who are a danger to the community or have committed serious crimes.

These changes bring Australian processing of asylum cases into line with similar provisions in the EU, Canada and New Zealand. For the first time, there is a domestic remedy for someone with such a case. Sadly, there are still gaps such as for stateless persons, but hopefully this will be reformed in the future.

The second major reform is the standardisation of processing for all refugee applicants onshore, regardless of how they arrived. This is also a long overdue reform. Now, all unsuccessful asylum seekers will have their case assessed by the Refugee Review Tribunal (RRT), rather than by an independent contractor under the IMR (independent merits review ) system.

The IMR system was successfully challenged in the High Court in 2010 in the M61 case. Since then, a significant number of IMR decisions have been overturned in the courts for errors of law such as a failure to provide procedural fairness or to comply with Australian immigration and refugee law.

There will be delays in the review process as the RRT needs to recruit and train more staff to deal with the increased caseload and the implementation of Complementary Protection. The Government was forced into the single processing system because it could not get the flawed Malaysian system amendments passed.

Sadly the Coalition opposes both reforms, and has even recently managed to cause concerns with the Indonesian Government by relying on their simplistic 'stop the boats' chanting rather than seriously trying to address what is a global human rights phenomenon.

Like any major reform, it will be interesting to see how the laws develop over time. In the meantime the changes are welcome for refugees and asylum seekers.

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: Kerry Murphy, refugees, asylum seekers, complementary protection, Malaysia solution, stop the boats



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Existing comments

At last we are trying to rejoin the world of justice, ethics and global responsibility. Thanks for your part in that change, Kerry Murphy.

Caroline Storm | 26 March 2012  

In a few years time I believe the media and pollies are going to look at the "but they came by boat" and "they paid their own way" nonsense and cringe over their stupidity.

This is an island, coming by boat is done by about 800,000 people per annum and we are dredging harbours and ports to entice more and more.

And everyone pays their own way.

Marilyn Shepherd | 26 March 2012  

How the Leader of the Opposition has the hide to call himself a Christian defies the imagination. It is a national scandal that Australia continues to be so far behind the E.U., Canada and New Zealand.

David | 26 March 2012  

Kerry, you maintain the voice of honest calm and reason in the face of shameful behaviours. Thank you for your consistently responsible contributions that help us to understand this strange world and galvanise us to change it

Ali Corke | 26 March 2012  

Kerry, you maintain the voice of honest calm and reason in the face of shameful behaviours. Thank you for your consistently responsible contributions that help us to understand this strange world and galvanise us to change it

Ali Corke | 26 March 2012  

Crikey, David! Where on Earth did you manage to dig up the leader of the opposition in this debate? As far as I am aware Tony Abbott has absolutely nothing to do with the current situation. Perhaps you should wait to see what he does when he is in a position to do something about it. You won't have long to wait!

john frawley | 27 March 2012  

Yes, these are good news for the people smuggling industry. It will help them to get more money faster. It is certainly good for parts of our economy and for the second hand trade of old derelict fishing vessels in Indonesia.

Beat Odermatt | 28 March 2012  

This legislation is long overdue and hopefully will result in a more humane attitude towards refugees and asylum seekers. The last ten or twelve years have been embarassing for Australia because of the inhumane and rascist attitudes of our political leaders such as John Howard, Kim Beasley, Julia Gillard and Tony Abbott as well as most the mainstream media.

Mark Doyle | 28 March 2012  

At last! At last! Some compassion and common sense in Australia's management of the refugees issue. Kerry has put it so well: it is a global human rights phenomenon. It is high time Australians dropped the racist, insular attitude. Asylum seekers fleeing their countries of birth are desperate, destitute, terrified people arriving at Western countries all the time. We are part of this globalized world, Tony Abbot, and we should and must do our bit. We have plenty of room here. All Australians should welcome these reforms, and extend our hands of friendship. Isn't life about caring and sharing?!

Louw | 01 April 2012  

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