Changes to what constitutes a ‘character concern’ - and the consequences for people who have had their visas cancelled under character grounds – quietly passed in February when the Australian parliament resumed for two weeks with attention focussed on energy policy and party vote-preference deals in the Western Australia.
As part of the Kaldor Centre’s series of Legislative Briefs, Khanh Hoang explains The Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth). He outlines key issues including: procedural fairness concerns; the potential for double punishment; lack of disclosure of information to the visa holder; and ability to seek judicial review.
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Manus deportation reports raise legal concerns
Statement by Kaldor Centre Director, Professor Jane McAdam, outlines concerns about Papua New Guinea’s refugee status determination system and violations of international law.
Reports today that asylum seekers are being removed from Papua New Guinea (PNG) raise a number of serious legal concerns.
PNG’s refugee status determination process falls far short of the standards required by international law to ensure that all people with international protection needs are properly recognized. PNG law itself does not contain any protection against refoulement (removal to persecution and other serious harm). Instead, the Minister has a discretionary power to recognize someone as a refugee; the Migration Regulation 1979 elaborates on what this power entails.
In light of this framework, PNG’s refugee status determination process is inconsistent with international law in a number of significant respects:
- The refugee ‘definition’ incorporated into PNG’s Migration Regulation goes well beyond the very strict grounds of exclusion under the Refugee Convention (eg people suspected of war crimes, crimes against humanity, serious non-political crimes, etc). This means that in PNG, a person may be denied refugee status contrary to international law (eg if they have ‘exhibited a demeanour incompatible with a person of good character and standing’ (reg 14(2)(h)). As UNHCR has noted, the Regulation ‘incorrectly applies the limited exclusion provisions of the Refugee Convention to ordinary criminal matters more properly dealt with under PNG criminal law, which could lead to wrongful denial of refugee status’;1
- People’s protection needs are not assessed against PNG’s obligations under international human rights treaties (known generally as ‘complementary protection’), which means that there is no assessment of whether they may be sent back to face a real risk of being arbitrarily deprived of their life, tortured, or exposed to cruel, inhuman or degrading treatment or punishment;
- The system reinforces the differential treatment of asylum seekers depending on their mode of arrival, which could amount to discrimination;2
- There are inadequate procedural safeguards, and prospects for review are limited and unclear.3 Even if review does occur, the final decision rests with the Minister. Section 19 of the Migration Act states that any decision by the Minister relating to the grant or cancellation of an entry permit or the removal of a person from the country ‘is not open to review or challenge in any court on any ground’.
There are therefore considerable concerns about the capacity of PNG’s system to properly recognize and protect refugees and others in need of international protection. As such, there is a serious risk that the forcible removal of asylum seekers from PNG may violate international law.
1 United Nations High Commissioner for Refugees, UNHCR Monitoring Visit to Manus Island, Papua New Guinea: 11–13 June 2013 (12 July 2013) 6.
3 Andrew & Renata Kaldor Centre for International Refugee Law, Refugee Status Determination on Manus Island, Papua New Guinea (Factsheet, last updated January 2017) 9–10.