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 The Commission is concerned that if s 36(2)(aa) is repealed, the Minister may apply a test in assessing applications for complementary protection that is inconsistent with the obligation of non-refoulement.123 It is not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 46