89. The ALRC is of the view that the treatment of refugees who are victims of family violence falls within the Terms of Reference. The Macquarie dictionary defines term ‘immigrate’ as: ‘to come into a country of which one is not a native for the purposes of permanent residence’.[103] This bears similarities to the object of the Act, which is expressed broadly as being ‘to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’.[104] The ambit of the Act extends to those people seeking refugee status in Australia.

90. Australia is a signatory to the United Nations Convention Relating to the Status of Refugees (the Refugees Convention), the key international instrument that regulates the obligations of states to provide refugees fleeing from persecution with protection.[105] Article 1A(2) of the Convention defines a refugee as someone who:

owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.[106]

91. Section 36(2) of the Migration Act incorporates by reference art 1A(2) of the Convention into Australian municipal law, and gives effect to Australia’s obligation of non-refoulement under Article 33.[107] It provides for the grant of a protection visa to a ‘non citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol’.[108]

92. The term ‘persecution’ in art 1A(2) of the Refugees Convention is qualified by s 91R(1) of the Act, which provides that art 1A(2) does not apply unless persecution for one or more of the Convention reason(s) is:

  • the ‘essential and significant reason(s), for the persecution’; and

  • the persecution involves ‘serious harm’ to the person; and

  • the persecution involves ‘systematic and discriminatory conduct’.[109]

93. In turn, a non-exhaustive list of instances of ‘serious harm’ is provided in s 91R(2), including:

  • a threat to the person’s life or liberty;

  • significant physical harassment of the person;

  • significant physical ill treatment of the person;

  • significant economic hardship that threatens the person’s capacity to subsist; and

  • denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.[110]

The asylum application process

94. The primary decision to grant refugee status is made by a DIAC officer as a delegate of the Minister for Immigration and Citizenship. Unsuccessful applicants can seek merits review by the Refugee Review Tribunal (RRT), and thereafter, judicial review by the courts. Under s 417 of the Act, the Minister may personally consider, and grant a visa on humanitarian grounds, if he or she considers it to be in the public interest. This personal intervention power is only exercisable by the Minister and only in cases where the applicant has exhausted all avenues of merits review.

Family violence and the definition of a refugee

95. Historically, applicants whose asylum claims are based on family violence have faced difficulties meeting the definition of a refugee in art 1A(2) of the Refugees Convention, both internationally, and in Australia. While it is generally accepted that instances of family violence can constitute serious harm, two compounding and interlinking factors have historically excluded victims of family violence from protection under the Convention. These are: family violence claims in the context of gender-related persecution and the public/private dichotomy.

Gender-related claims and the public/private dichotomy

96. First, family violence claims have tended to exist within the wider context of gender-specific harm, including: sexual violence, forced marriage, female genital mutilation, and honour killings.[111] These types of harms—generally experienced by women—are not afforded protection because neither gender, nor sex, is an enumerated Refugees Convention ground. As such, courts have traditionally failed to consider whether such gender-related claims may fall under the ground of particular social group, or other Convention reasons.[112]

97. A second, and more problematic distinction, relates to the public/private dichotomy. As explained by Anthea Roberts, the Refugees Convention is primarily aimed at the protection of individuals from state or public forms of persecution, rather than intruding into the private realm of family life and personal activities.[113] This is most evident in the interpretation of the term ‘persecution’.

98. The Refugees Convention does not define ‘persecution’.[114] However, the term is widely recognised as involving certain a relation between the individual and the state, whereby, persecution occurs in the public sphere and the perpetrators are the state or its agents.[115] As stated by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Khawar:

the paradigm case of persecution contemplated by the Convention is persecution by the state itself. Article 1A(2) was primarily, even if not exclusively, aimed at persecution by a state or its agents on one of the grounds to which it refers.[116]

99. In Applicant A v Minister for Immigration and Ethnic Affairs, the High Court explained that:

The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality.[117]

100. As family violence tends to be perpetrated by non-state actors within private relationships, such claims have historically been construed as falling outside the bounds of the Convention, because the state cannot be implicated in the infliction of harm. In Equality Before the Law, the ALRC observed that:

Sexual violence against women tends to be seen as occurring in the private rather than public sphere and discounted as persecution ... Discriminatory practices may also be seen as ‘private’ where they affect family life. In many cases, most notably in cases of sexual or domestic violence, the nexus between the individual and the state is generally more complex than in ‘public’ forms of persecution. Difficulties arise as to the exact extent of state responsibility.[118]

The role of state responsibility

101. The issue of state responsibility, in cases where the harm is inflicted by non-state actors for a non-Convention reason, was clarified by the landmark decision of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Khawar (Khawar).[119]

102. In Khawar, the applicant fled Pakistan to Australia with her three daughters, after years of escalating abuse from her husband and his family. She claimed asylum on the basis that the Pakistani authorities (the police) had systematically discriminated against her by failing to provide her protection and that this was tolerated and sanctioned by the state. Thus, it was argued her well-founded fear of persecution was based on the lack of state protection for reasons of her membership of a particular social group—‘women in Pakistan’.

103. Her case was rejected by the Department of Immigration, Multiculturalism and Ethnic Affairs, and the RRT on the basis that there was no nexus to a Convention ground. The RRT considered that she was harmed for personal reasons arising from her marriage and relationship with her husband, and that the Convention was not intended to provide protection to people involved in personal disputes. The RRT made no findings in relation to the failure of the police to provide protection or the Pakistani state’s attitude towards a particular social group comprised of women.[120]

104. The case was appealed to the Federal Court where Branson J found that the RRT had erred in not making findings in relation to any particular social group of which Ms Khawar might be a member.[121] Consequently, the RRT also committed an error in not making any findings about the lack of state protection in relation to a particular social group of which Ms Khawar was a member.[122] A Full Federal Court dismissed an appeal from Branson J’s decision.[123]

105. On appeal to the High Court, two issues were in dispute. These were summarised by Gleeson CJ in the following terms:

The first issue is whether the failure of a country of nationality to provide protection against domestic violence to women, in circumstances where the motivation of the perpetrators of the violence is private, can result in persecution of the kind referred to in Art 1A(2) of the Convention.

The second issue is whether women or, for the present purposes, women in Pakistan may constitute a particular social group within the meaning of the Convention.[124]

106. In separate judgments, the majority answered both questions in the affirmative. Gleeson CJ held that persecution may result where the criminal conduct of private individuals is tolerated or condoned by the state in circumstances where the state has the duty to provide such protection against harm.[125]

107. Kirby J adopted the formula, ‘Persecution = Serious Harm + The Failure of State Protection’,[126] to find it ‘sufficient that there is both a risk of serious harm to the applicant from human sources, and a failure on the part of state to afford protection that is adequate to protect the human rights and dignity of the person concerned’.[127] He considered that ‘persecution’ is a construct of these two separate but essential elements.

108. McHugh and Gummow JJ found that ‘the persecution in question lies in the discriminatory inactivity of the State authorities in not responding to the violence of non-state actors’.[128]

109. Although the judgments took different approaches, the cumulative effect appears to be that where serious harm is inflicted by non-state actors for a non-Convention reason, the nexus to the Convention is met by the conduct of the state in withholding protection—in a selective and discriminatory manner—for reasons of a Convention ground.

110. On the issue of particular social group, McHugh and Gummow JJ held that the evidence supported a social group: ‘at its narrowest, married women living in a household which did not include a male blood relation to whom the woman might look for protection against violence by members of the household’.[129] Gleeson CJ considered that it was open on the evidence to conclude that ‘women in Pakistan’ are a ‘particular social group’.[130]

The position of victims of family violence post Khawar

111. While the principle in Khawar has allowed family violence claims to be more fully considered, subsequent cases before the RRT and the Federal Court have highlighted that such cases remain complex and challenging. Issues surrounding what comprises a ‘particular social group’, and whether the state has withdrawn protection for Convention reasons, remain hurdles for those making claims for protection as victims of family violence.[131]

112. First, proving that a state is withdrawing or withholding protection for a Convention reason in a selective and discriminatory manner may be particularly difficult for those asylum seekers facing language barriers, lack of legal representation, or access to current country information.[132] The courts have made it clear that, where the state is unable to provide effective protection for reasons of shortage of resources, maladministration, incompetence or ineptitude, ‘that would not convert the personally-motivated domestic violence into persecution on one of the grounds set out in Article 1A(2)’.[133] In such cases, those who are victims of family violence have no recourse to protection under the Convention.

113. Secondly, much depends on how an applicant argues that he or she is member of a particular social group. In each instance, it is for the applicant to present the case to the decision maker. Claims that define the particular social group too broadly risk a finding that the harm feared is not motivated by their membership of that particular social group. On the other hand, claims that define the particular social group too narrow risk a finding that the group is impermissibly defined by the harm feared.[134]

114. Decision makers also face challenges in making consistent decisions. For example, the consideration of whether the applicant is a member of a particular social group is dependent on the cultural, legal, social and religious factors which must be properly understood. Decisions about whether a victim of family violence can access ‘effective state protection’ depends on access to current and up-to-date country information. As Gleeson CJ emphasised in Khawar:

An Australian court or tribunal would need to be well-informed about the relevant facts and circumstances, including cultural conditions, before reaching a conclusion that what occurs in another country amounts to persecution by reason of the attitudes of the authorities to the behaviour of private individuals; but if, after due care, such a conclusion is reached, then there is no reason for hesitating to give effect to it.[135]

Legislative response to Khawar

115. Section 91R of the Act was inserted in response to concerns that decisions such as Khawar had widened the application of the Refugees Convention ‘beyond the bounds intended’.[136] Consequently, commentators have expressed concern that by narrowing the refugee definition, the Act places major burdens on those with family violence claims.

116. First, s 91R(1) requires the applicant to show that the Convention reason is ‘the essential and significant reason’ for the persecution.[137] Catherine Hunter argues that, in the context of gender-related claims, the ‘essential and significant’ requirement will mean decision makers are likely to focus on aspects other than gender, until gender-related decisions are no longer controversial.[138] This concern is echoed by Leanne McKay who states that applicants have ‘difficulty articulating their claims in asylum terms that are assessable by decision-makers due to shame or fear’,[139] and therefore:

due to the restrictive terminology of s 91R ... there is now a risk that certain Refugee Convention reasons may not be identified or adequately addressed, resulting in legitimate claims going unrecognised.[140]

117. Others have criticised the definition of persecution under s 91R(2) of the Act for its failure explicitly to recognise psychological harm as serious harm, and the impact that this may have for victims of sexual violence and abuse.[141] In particular, such victims can experience serious psychological trauma from even the most minimal of physical injuries.[142] Another concern is that s 91R(2) makes no reference to the failure of state protection as being an element of persecution and thus appears to direct decision makers towards cases where persecution emanates from the state.[143]

118. The ALRC is interested in comment about whether the current legislative arrangements in the Migration Act 1958 (Cth) are adequate to protect the safety of those seeking asylum as victims of family violence. The ALRC, however, is not eliciting views about the Refugees Convention.

Question 21 What, if any, legislative changes are necessary to the Migration Act 1958 (Cth) to ensure the safety of those seeking protection in Australia as victims of family violence?

A need for complementary protection?

119.  The need to protect those seeking asylum—including victims of family violence—whose claims are not covered by the Refugees Convention, but who may need international protection, was a key rationale of the Migration Amendment (Complementary Protection) Bill 2009 (Cth) (the 2009 Bill).[144] On the same day it was introduced, 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.

120. 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 in the report, Migration Amendment (Complementary Protection) Bill 2009 [Provisions], by the Senate Committee.[145]

121. The Bill proposes amendments to s 36 of the 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 Refugees Convention.[146] 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’.[147]

122. Under 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’[148] 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.[149]

123.  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. Thus, ‘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 a 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 inhumane in nature.[150]

124.  Degrading treatment or punishment is defined as an act or omission that ‘causes, and is intended to cause, extreme humiliation which is unreasonable’.[151]

125.  Importantly, the Bill gives a broader definition of ‘torture’ than that in art 1 of the Convention Against Torture and other Cruel, Inhumane or Degrading Treatment (CAT).[152] Under the CAT, ‘torture’ is limited to an act that is inflicted by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.[153] In contrast, under the definition proposed by 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.[154] 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.[5]

126.  Similar examples in relation to 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.[156]

127. The Explanatory Memorandum to the Bill emphasises that the criteria for complementary protection ‘reflects that a high threshold is required to engage Australia’s non-refoulement obligations’.[157] As such, the Bill also specifies circumstances where there is not a real risk that the non-citizen will suffer significant harm, 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.[158]

128. The requirement that the risk of harm must be faced by the non-citizen personally was a source of concern expressed to the inquiry of the Committee into the 2009 Bill.[9] 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.[160]

129. The 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’.[161] On its face the Bill does not give force to this recommendation.

130. Nonetheless, it appears that the amendments to the 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. For example, the Refugees Convention would not protect a non-citizen making a Khawar type claim, in circumstances where the state does not withdraw or withhold protection in a selective and discriminatory manner, but rather 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.

131. The ALRC is interested in comment about 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 Refugees Convention to whom Australia owes non-refoulement obligations are protected.

Question 22 Are legislative reforms, such as those proposed in the Migration Amendment (Complementary Protection) Bill 2009 (Cth), necessary to protect the safety of victims of family violence, to whom Australia owes non-refoulement obligations, but whose claims may not be covered by the United Nations Convention Relating to the Status of Refugees?


[103] S Butler, Macquarie Dictionary Online Macquarie Dictionary Publishers <http://www.
macquariedictionary.com.au> at 15 September 2010.

[104]Migration Act 1958 (Cth) s 4.

[105]Convention relating to the Status of Refugees, [1951] 189 UNTS 151, (entered into force generally on 22 April 1954).

[106] Ibid art 1A(2).

[107]Convention relating to the Status of Refugees, [1951], 189 UNTS 151, (entered into force generally on 22 April 1954) art 33: ‘No contracting state shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

[108]Migration Act 1958 (Cth) s 36(2).

[109] Ibid s 91R(1).

[110] Ibid s 91R(1)(b).

[111] See A Roberts, ‘Gender and Refugee Law’ (2002) 22 Australian Yearbook of International Law 160, 164 where she draws a distinction between ‘gender-specific harm’ and ‘gender-related claims’. While men can also be victims of family violence, the majority of asylum claims on the basis of being victims of family violence are made by women.

[112] H Crawley, Refugees and Gender: Law and Process (2001), 21–26, 79–90.

[113] A Roberts, ‘Gender and Refugee Law’ (2002) 22 Australian Yearbook of International Law 160, 161.

[114] Though as noted above, the term persecution is qualified by s 91R of the Migration Act 1958 (Cth) for the purposes of Australian law.

[115] See, eg, C Yeo, ‘Agents of the State: When is an Official of the State an Agent of the State?’ (2003) 14 International Journal of Refugee Law 510, 510. The Convention grounds thus reflect the concerns of the drafters of the Refugees Convention in protecting those fleeing state based persecution in the aftermath of World War II.

[116]Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, [22].

[117]Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225.

[118] Australian Law Reform Commission, Equality Before the Law: Justice for Women (Part 1), Report 69 (1994), 243.

[119]Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1.

[120] See Reference N98/21419 (Unreported, RRT, 1998).

[121]Khawar v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 574, [55].

[122] Ibid.

[123]Minister for Immigration & Multicultural Affairs v Khawar (2000) 101 FCR 501.

[124]Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, [5], [6].

[125] Ibid, [30].

[126] Ibid, [118] referring to R v Immigration Appeal Tribunal; Ex parte Shah [1999] AC 629, 653 and Horvath v Secretary of State for the Home Department [2001] AC 489, 515–516.

[127] Ibid, [115].

[128] Ibid, [87].

[129]Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, [85].

[130] Ibid, [32].

[131] See, eg, NAIV v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 255; SBBK v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 117 FCR 412.

[132] R Bacon and K Booth, ‘Persecution by Omission: Violence by Non-State Actors and the Role of the State under the Refugees Convention in Minister for Immigration and Multicultural Affairs v Khawar’ (2002) 24 Sydney Law Review 584, 600.

[133]Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, [26], [84].

[134] R Bacon and K Booth, ‘Persecution by Omission: Violence by Non-State Actors and the Role of the State under the Refugees Convention in Minister for Immigration and Multicultural Affairs v Khawar’ (2002) 24 Sydney Law Review 584, 600, citing Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225.

[135]Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, [26].

[136] Explanatory Memorandum, Migration Legislation Amendment Bill (No 6) 2001 (Cth), 18.

[137]Migration Act 1958 (Cth) s 91R(1)(a).

[138] C Hunter, ‘Khawar and Migration Legislation Amendment Bill (No 6) 2001: Why Narrowing the Definition of A Refugee Discriminates Against Gender-related Claims’ (2002) 8(1) Australian Journal of Human Rights 107.

[139] L McKay, ‘Women Asylum Seekers in Australia: Discrimination and the Migration Legislation Amendment Act [No 6] 2001 (Cth)’ (2003) 4 Melbourne Journal of International Law 439, 459 referring to Department of Immigration and Multicultural Affairs, Refugee and Humanitarian Visa Applicants: Guidelines On Gender Issues For Decision Makers (1996).

[140] L McKay, ‘Women Asylum Seekers in Australia: Discrimination and the Migration Legislation Amendment Act [No 6] 2001 (Cth)’ (2003) 4 Melbourne Journal of International Law 439, 459.

[141] Ibid, 454.

[142] H Crawley, Refugees and Gender: Law and Process (2001), 43; UNHCR Guidelines on International Protection: Gender-related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (2002), UN Doc HCR/GIP/02/01.

[143] L McKay, ‘Women Asylum Seekers in Australia: Discrimination and the Migration Legislation Amendment Act [No 6] 2001 (Cth)’ (2003) 4 Melbourne Journal of International Law 439, 459.

[144]  Explanatory Memorandum, Migration Amendment (Complementary Protection Bill) 2009 (Cth).

[145]   Commonwealth, Parliamentary Debates, House of Representatives, 24 February 2011, 3 (C Bowen—Minister for Immigration and Citizenship); Senate Legal and Constitutional Affairs Legislation Committee, Migration Amendment (Complementary Protection) Bill 2009 [Provisions] (2009).

[146]  Specifically, the International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force on 23 March 1976); the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, 10 December 1984, [1984] G.A Res. 39/46, (entered into force on 26 June 1987); and the Convention on the Rights of the Child, 20 November 1989, [1991] ATS 4, (entered into force on 2 September 1990). 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’. See generally, A Duffy, ‘Expulsion to Face Torture? Non-refoulement in International Law’ (2008) 20 International Journal of Refugee Law 373, 384.

[147]  Migration Amendment (Complementary Protection Bill) 2011 (Cth) item 12.

[148]Ibid.

[149]Ibid item 14.

[150] Ibid item 2.

[150]Ibid item 3.

[152] Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, 10 December 1984, [1984] G.A Res. 39/46, (entered into force on 26 June 1987).

[153] Ibid art 1.

[155]See Public Interest Law Clearing House (Vic) Inc, Submission to the Standing Committee on Legal and Constitutional Affair on its Inquiry into the Migration (Complementary Protection) Bill 2009 (2009) <www.pilch.org.au/Assets/Files/Migration%20%28Complementary%20Protection%29%20Bill%202009.pdf> at 21 February 2011.

[156] Commonwealth, Parliamentary Debates, House of Representatives, 9 September 2009, 8891 (L Ferguson).

[157] Explanatory Memorandum, Migration Amendment (Complementary Protection Bill) 2009 (Cth), 3.

[158] Migration Amendment (Complementary Protection Bill) 2011 (Cth) item 14.

[159] See Senate Legal and Constitutional Affairs Legislation Committee, Migration Amendment (Complementary Protection) Bill 2009 [Provisions] (2009), 7, 8.

[160] Ibid, 17.

[161] Ibid, Rec 2.