A need for complementary protection?

22.41 The need to protect those seeking asylum—including victims of family violence—whose claims are not covered by the Refugee Convention, but who may need international protection, was a key rationale of the Migration Amendment (Complementary Protection) Bill 2009 (Cth) (the 2009 Bill).^[51] Upon introduction into the House of Representatives, the 2009 Bill was referred to the Senate Legal and Constitutional Affairs Committee (the Senate Committee) for inquiry. The 2009 Bill lapsed when parliament was prorogued on 19 July 2010.

22.42 On 24 February 2011, the Migration Amendment (Complementary Protection) Bill 2011 (Cth) (the Bill) was introduced into Parliament. The Bill—based on the 2009 Bill—incorporates amendments to address recommendations made by the Senate Committee in the report, Migration Amendment (Complementary Protection) Bill 2009 [Provisions].^[52]

22.43 The Bill proposes amendments to s 36 of the Migration Act to produce a statutory regime for assessing claims that may engage in Australia’s non-refoulement obligations under various human rights treaties other than the Refugee Convention.^[53] As noted above, non-refoulement is an international law principle that prevents the return of persons to countries where their lives or freedom may be endangered. The stipulation against non-refoulement is expressed in a range of international human rights, humanitarian, and extradition treaties and has been ‘repeatedly endorsed in a variety of international forums’.^[54]

Definitions

22.44 The Bill provides that a non-citizen to whom Australia does not owe protection obligations under the Refugees Convention may still be granted a protection visa—with the same rights and entitlements as refugees—if that person meets the criteria for ‘complementary protection’.^[55] Under measures proposed in the Bill, ‘complementary protection’ arises in circumstances where the Minister for Immigration and Citizenship ‘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’^[56] because:

(a) the non-citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non-citizen; or

(c) the non-citizen will be subject to torture; or

(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non-citizen will be subjected to degrading treatment or punishment.^[57]

22.45 The Bill provides exhaustive definitions of ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ that, prima facie, cover instances of family violence. ‘Cruel and inhuman treatment or punishment’ is defined to include acts or omissions by which:

(a) severe pain or suffering, whether physical or mental, is intentionally inflicted upon person; or

(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature.^[58]

22.46 ‘Degrading treatment or punishment’ is defined as an act or omission that ‘causes, and is intended to cause, extreme humiliation which is unreasonable’.^[59]

22.47 Importantly, the Bill gives a broader definition of ‘torture’ than that in art 1 of the UN Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment (CAT).^[60] Under the CAT, ‘torture’ is limited to an act that is inflicted by, at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.^[61] By contrast, under the definition proposed in the Bill, torture may be committed by any person, regardless of whether or not the person is a public official or person acting in an official capacity.^[62] This has a particular impact on victims of family violence. As the Public Interest Law Clearing House (Vic) Inc submitted to the inquiry into the 2009 Bill by the Senate Committee:

On this interpretation, the Bill goes beyond Australia’s obligations under the CAT as there are many instances in which private persons may subject others to torture. For example, some types of female genital mutilation may be carried out by religious groups in private, or a person may be subject to domestic violence so grave that it would meet the proposed definition of cruel, inhumane or degrading treatment.^[63]

22.48 Similar examples raised to illustrate the coverage of complementary protection were cited in the Second Reading Speech of the 2009 Bill by the Hon Laurie Ferguson:

For example, it is not certain that a girl who would face a real risk of female genital mutilation would always be covered by the refugee convention, whereas she would be covered under complementary protection.

Women at risk of so-called honour killings can also potentially fall through gaps in the refugee convention definition. In some countries victims of rape are executed along with, or rather than, their attackers. Again, depending on the circumstances, this situation may not be covered under the refugee convention.^[64]

Exceptions

22.49 The Explanatory Memorandum to the Bill emphasises that the criteria for complementary protection reflect that ‘a high threshold is required to engage Australia’s non-refoulement obligations’.^[65] The Bill also specifies a number of exceptions to the obligations that arise in circumstances where there is not a real risk that the non-citizen will suffer significant harm if the person is returned to their country of origin, including where:

(a) 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

(b) 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; or

(c) the real risk is one faced by the population generally and is not faced by the non-citizen personally.^[66]

22.50 The requirement that the risk of harm must be faced by the non-citizen personally was a source of concern expressed to the Inquiry conducted by the Senate Committee into the 2009 Bill.^[67] For example, Amnesty International submitted that:

The requirement that the risk faced must not be ‘faced by the population of the country generally’ may provide, for example, for an applicant fleeing domestic violence to be excluded from [complementary] protection on the grounds that the applicant originates from a country where domestic violence is widespread and where perpetrators are not generally brought to justice. Additionally, the stipulation that the risk must be ‘faced by the non-citizen personally’ has the potential to exclude, for example, applicants who have not been directly threatened with female genital mutilation but due to their age and gender, face a probable risk that they will be subjected to the practice upon return.^[68]

22.51 The Senate Committee recommended that the provision be reviewed ‘with a view to ensuring it would not exclude from protection people fleeing genital mutilation or domestic violence from which there is little realistic or accessible relief available in their home country’.^[69] On its face the Bill does not give force to this recommendation.

22.52 In the Migration Issues Paper, the ALRC expressed a view that the amendments to the Migration Act proposed by the Bill provide some scope for the protection of victims of family violence whose claims may have ‘fallen through the cracks’, especially in cases of severe gender-related harm or torture.^[70] For example, the Refugee Convention would not protect a non-citizen making a Khawar-type claim, in circumstances where the state cannot provide protection for reasons of lack of resources, maladministration, or incompetence. This is so, irrespective of the severity of the harm faced. Under complementary protection, such a non-citizen may be protected if there is a real chance that he or she will suffer significant harm if returned to the country of origin.

Submissions and consultations

22.53 In the Migration Issues Paper, the ALRC asked whether legislative amendments, such as those proposed in the Bill, are necessary to ensure that victims of family violence whose claims may not be covered by the Refugee Convention, but to whom Australia owes non-refoulement obligations, are protected.^[71]

22.54 The majority of submissions gave principled and cautious support to the Migration Amendment (Complementary Protection) Bill, to the extent that it may cover gaps in protection in claims that do not fall neatly under a ‘particular social group’.^[72] For example, in a joint submission, Domestic Violence Victoria and others supported the complementary protection regime, but argued:

If the Bill is intended to assist those with gender-based claims of persecution, it is vital that the Bill does not replicate current problems relating to the Act’s lack of direction as to what will constitute a risk of serious harm. The current provision in the Bill that the real risk of serious harm does not constitute ‘one faced by the population generally’ but requires a risk faced by the applicant personally will not adequately protect those … such as girls and young women facing genital mutilation. It does not appear to seriously contemplate the situation where women, in general, are at high risk of family violence.

Furthermore, without explicitly providing for gender based claims under the new complementary protection regime women seeking protection in Australia are likely to experience the same difficulties they experience under the current regime in fitting what is persistently viewed as ‘private’ harm into a definition which does not explicitly allow for gender based persecution and harm.^[73]

22.55 The Law Institute of Victoria submitted that amendment to the Bill was necessary to clarify that complementary protection will not be available where

there is general lawlessness in the applicant’s country of origin, rather than imposing requirements that an applicant must show that they personally face the risk of harm.^[74]

22.56 The above concerns were echoed in the submission by National Legal Aid that the scope of complementary protection was ‘narrowly defined’, and that there was a risk that ‘the definitions contained in the Bill might be perceived by decision makers as not covering situations of family violence’.^[75] Additionally, the ALRC heard concerns in consultations that the attempts to legislate to cover all claims of family violence via complementary protection may have the adverse effect of narrowing the circumstances where an applicant can make a claim, when compared to the current provisions for ministerial intervention under s 417 of the Migration Act.

ALRC’s views

22.57 The ALRC supports the measures in the Bill to introduce a complementary protection scheme and considers that, with appropriate amendments, the Bill may cover gaps in protection to account for those whose family violence claims may fall outside the Refugee Convention.

22.58 However, the ALRC is concerned that if the Bill is passed in its current form, it would only cover limited and extreme cases of family violence. For example, the current exceptions could be used to deny protection to applicants on the basis that the risk of family violence is a risk faced by the population generally, or that the risk may be real but is not directed at the applicant personally. In addition, claims made under complementary protection would be required to meet the qualifying phrases of ‘significant harm’, ‘cruel or inhuman treatment or punishment’, or ‘degrading treatment of punishment’. These qualifying phrases are untested in relation to family violence claims, and their lack of certainty may result in a denial of protection to victims of family violence in a manner detrimental to their safety.

22.59 The ALRC considers that amendments to the exclusion criteria for complementary protection—along the lines of those proposed in submissions—are necessary, and would allow the scheme more readily to accommodate family violence claims. However, in the ALRC’s view, such amendments to the exclusion criteria would significantly alter the nature of complementary protection, with ramifications beyond the issue of ensuring the safety of victims of family violence. For example, removing the requirement that the applicant must face harm personally would affect all persons who may make a claim for complementary protection, not just those who are victims of family violence. For the above reasons, the ALRC makes no proposals in relation to the Bill, as they would go beyond the Terms of Reference for this Inquiry.

22.60 The ALRC notes that the current arrangements for ministerial intervention under s 417 of the Migration Act affords a measure of flexibility in allowing the Minister to consider the individual circumstances of each applicant whose case does not fall neatly within the Refugee Convention. The ALRC is interested in stakeholder views about whether the current arrangements in relation to ministerial intervention are sufficient to protect the safety of victims of family violence.

22.61 As noted above, in the ALRC’s view, the issuance of a ministerial direction under s 499 of the Migration Act requiring decision makers to have regard to gender guidelines, coupled with training and education for decision makers, will go some way to ensuring greater consistency in decision making, and improve the safety of victims of family violence. If so, it should reduce the need for applicants to apply for ministerial intervention.