Australian Human Rights Commission
Submission to UN Committee Against Torture, 17 October 2014
Proposed amendments to the Migration Act
(a)
Complementary protection
195.
The Government has proposed to repeal Australia’s complementary protection
framework. The Government introduced the Migration Amendment (Regaining
Control Over Australia’s Protection Obligations) Bill (2013) (Cth) on December
4 2013, which seeks to repeal the statutory scheme of complementary
protection by amending the Migration Act to remove complementary protection
as a basis for the grant of a protection visa. The Bill has been passed by the
House of Representatives and is before the Senate.
196.
In its submission to the Senate Legal and Constitutional Affairs Legislation
Committee Inquiry into the Bill, the Commission raised concerns that the
repeal of the statutory complementary protection framework may result in
breaches of Australia’s non-refoulement obligations under article 3 of the
Convention.122
197.
The Bill proposes to remove s 36(2)(aa) of the Migration Act, which provides
for complementary protection as a criterion for the grant of a protection visa.
In its place, the Minister may implement administrative arrangements to give
effect to complementary protection obligations.
198.
The Commission is concerned that if s 36(2)(aa) is repealed, the Minister may
apply a test in assessing applications for complementary protection that is
inconsistent with the obligation of non-refoulement.123 It is not clear what actual
framework will be used to assess claims for complementary protection. It
appears that any such framework will rely on the Minister exercising
discretionary powers under Migration Act. Administrative mechanisms used to
replace the statutory provision for complementary protection will not be
binding.124
(b)
S 501 visa cancellations
199.
Section 501 (and also sections 501A and 501B) of the Migration Act 1958
(Cth) provides that a non-citizen’s application for a visa may be refused or
their visa may be cancelled if the Minister is not satisfied that they pass the
‘character test’.
200.
On 25 September 2014, the Government introduced the Migration
Amendment (Character and General Visa Cancellation) Bill 2014. This Bill
proposes to strengthen powers to refuse an application for a visa or cancel a
visa on character grounds.125 The Senate Legal and Constitutional Affairs
Legal Committee will inquire into the bill and report on 24 November 2014.
201.
The Commission has expressed concern about the impact of visa cancellation
or refusal under s 501 on those who are found to engage Australia’s nonrefoulement obligations.126 Under Australia’s mandatory detention regime,
individuals who meet this description face the prospect of indefinite detention
unless they meet the requirements for a protection visa or there is a third
country where they can be resettled in which they do not have a real risk of
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