Getting fair, not tough, on immigration

'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.