Monday, 22 September 2014
Migration Amendment (Protection and Other Measures) Bill 2014; Consideration in Detail
by leave—I move:
(1) Clause 2, page 2 (table items 5 to 8), omit the table items.
(2) Schedule 2, page 10 (line 1) to page 15 (line 9), omit the Schedule.
(3) Schedule 4, item 17, page 27 (line 10) to page 29 (line14), omit the item.
(4) Schedule 4, item 33, page 37 (line 25), omit ", 368(2) or 368D(1)", substitute "or 368(2)".
As foreshadowed in my speech in relation to this bill, Labor now seeks to amend the bill to remove schedule 2 and item 17 of schedule 4. Schedule 2 of this bill makes significant changes to the way Australia will determine if it has protection obligations in relation to certain non-citizens. Specifically, the bill inserts a new section 6A, which provides that a non-citizen is not entitled to complementary protection unless that person can prove that 'it is more likely than not that the non-citizen will suffer significant harm if the non-citizen is removed from Australia'.
Currently, the 'real chance' test means that a person must not be returned to a situation where there is a real chance they would face significant harm. This means a chance that is not remote or insubstantial but that may be below a 50 per cent threshold. Some international jurists have suggested as little as a 10 per cent threshold may invoke that test. The effect of the proposed changes is that the threshold would be increased, meaning that this could potentially put vulnerable people seeking Australia's protection at risk of persecution, death or serious harm if returned to their home country.
While Labor notes that those requiring complementary protection is only a small cohort of those who apply for refugee status but are refused, they are nonetheless an important cohort. When Labor introduced the Migration Amendment (Complementary Protection) Act 2011 it was intended to assess and provide protection to those who do not satisfy the definition of a refugee as based on the Refugee Convention but are nonetheless in need of protection on the basis that they face serious violations of their human rights if they return to their country of origin. The cases often cited as not fitting within the definition of the Refugee Convention include those which invoke other international instruments such as the Convention against Torture, honour killings or women returning who face the fear of female genital mutilation. In those circumstances, we believe that an increase in the threshold invoking this legislation is an inappropriate step for this country to take. The changes proposed by schedule 2 of the current bill are contrary, therefore, to the complementary protection framework that Labor introduced.
It is also important to note the government's form on the issue of complementary protection. It was only last year that the government sought to remove Labor's changes to complementary protection by introducing the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013. This bill sought to unwind Labor's statutory regime for complementary protection. It did not pass the parliament, and what we have now is another attempt by the government to make it more difficult for those who are seeking and are in need of protection to obtain it. On that basis we seek to amend the bill to remove schedule 2.
We also seek to amend the bill to remove item 17 of schedule 4. Currently, where the Refugee Review Tribunal gives an oral statement of reasons, they must also provide a written statement to an applicant. However, the proposed changes in this bill will only require a written statement to be provided where there is a request made by the applicant. This is a clear watering down of the bill. It is of particular concern, given the government's recent decision to axe the Immigration Advice and Application Assistance Scheme. This could result in applicants not knowing or understanding what their rights are during a merits review, not having the comprehension to understand the reasons for a tribunal decision given orally, not being able to brief representation appropriately in the context of appeal and not being aware of the requirement to make a request. This change will severely disadvantage those who are unrepresented, who are unfamiliar with the system and who are not proficient in English. Labor is therefore concerned that this change will result in a denial of procedural fairness to those engaged with the system that is meant to protect them. For this reason Labor is also seeking to have this item removed in its entirety from the bill.