Complementary protection

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What is complementary protection?

Since 24 March 2012, asylum seekers processed in Australia have been able to claim protection on broader grounds than those contained in the Refugee Convention, reflecting Australia’s obligations under international human rights law.

A refugee is someone with a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership of a particular social group. However, a person may face the prospect of serious human rights violations in their country of origin but not satisfy the definition of a refugee. This may occur, for example, if the harm they face is not for one of the five Refugee Convention grounds.

International human rights law precludes countries from sending people back to places where they face a real risk of being arbitrarily deprived of their life, or a real risk of being tortured or exposed to other cruel, inhuman or degrading treatment or punishment.

Section 36(2A) of the Migration Act 1958 (Cth) largely gives effect to those obligations in domestic law. People at risk of this kind of harm are eligible for a protection visa. In this way, human rights law provides a ‘complement’ to protection under the Refugee Convention, hence the name ‘complementary protection’.

Specifically, section 36(2A) provides that Australia is not permitted to remove people to countries where they face a real risk of one or more of the following:

  • arbitrary deprivation of life
  • the death penalty
  • torture
  • cruel or inhuman treatment or punishment
  • degrading treatment or punishment.1

Section 36(2B) sets out three exceptions, stating that there is no ‘real risk’ of significant harm if the applicant can safely relocate to another part of the country; if an authority within the country can provide protection; or if the risk is faced by the population generally and not by the non-citizen personally.

Section 36(2C) sets out exclusion clauses. These render an applicant ineligible for complementary protection if there are serious reasons for considering that he or she has:

  • committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
  • committed a serious non-political crime before entering Australia; or
  • been guilty of acts contrary to the purposes and principles of the UN.

These grounds for exclusion also apply to Convention refugees. However, exclusion from complementary protection is broader, and can also be denied if the Minister considers, on reasonable grounds, that the applicant is:

  • a danger to Australia’s security; or
  • having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.2


Why do we have complementary protection in Australia?

Complementary protection was introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth) to give effect to certain of Australia’s international obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

The introduction of complementary protection also aligned Australian law with comparable provisions in the 28 countries of the European Union (EU),3 Canada,4 the United States (US),5 New Zealand,6 Hong Kong7 and Mexico,8 as well as the expanded refugee categories in the regional refugee systems of Latin America9 and Africa.10

Complementary protection introduced greater efficiency, transparency and accountability into Australia’s protection regime. Prior to March 2012, Australia was unable to guarantee that people who did not meet the refugee definition in the Refugee Convention, but who nonetheless faced serious human rights abuses if returned to their country of origin or habitual residence, would be granted protection.

This was because the only way to have claims based on a fear of return to torture, a threat to life, or a risk of cruel, inhuman or degrading treatment or punishment assessed was via the non-compellable and non-reviewable ‘public interest’ power of the Immigration Minister under section 417 of the Migration Act. This is also known as Ministerial discretion. As explained below, this was a lengthy and inefficient process.


Proposed changes to the complementary protection regime

On 4 December 2013, the Abbott Government introduced the Migration Amendment (Regaining Control over Australia’s Protection Obligations) Bill 2013 which sought to repeal the complementary protection provisions in the Migration Act 1958 (Cth). The Bill was concerning because repealing the complementary protection provisions risked violating Australia’s non-refoulement obligations under international human rights law, and would lead to considerable inefficiency and delay.

In February 2014 the Parliamentary Joint Committee on Human Rights reported that the Bill’s ‘proposed amendments potentially involve serious limitations on human rights’. The Committee noted its regret ‘that the explanations provided in the statement of compatibility essentially comprise a series of unsupported assertions about the government’s intentions to continue to meet its human rights obligations through administrative processes’.11

The Senate Legal and Constitutional Affairs Legislation Committee also examined the Bill and the Committee’s report was tabled in Parliament on 18 March 2014. The Committee recommended that the Bill be passed. However, it urged the Government to ‘release consultation drafts of the guides and supporting material it intends to use in the administrative assessment of complementary protection claims’, and recommended that the Department should ‘actively consult with stakeholders’ concerning these materials.

On 25 June 2014, the Government introduced the Migration Amendment (Protection and Other Measures) Bill 2014. Schedule 2 of the Bill, intended to come into effect only if the Migration Amendment (Regaining Control over Australia’s Protection Obligations) Bill 2013 did not pass, sought to change the threshold for determining whether a person satisfied the complementary protection criterion. The proposed new threshold imposed a more difficult test to meet, namely that the Minister must consider ‘that it is more likely than not that the non-citizen will suffer significant harm’ if removed. 

There was considerable public concern about the proposed change to the test, and many submissions explaining why it was inconsistent with Australia’s obligations under international law. In the end, there was insufficient support in Parliament for the provision to pass, and the test therefore remains unchanged.

In mid-October 2015, the Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 2013 was discharged from the House of Representatives Notice Paper. Instead, the Government introduced the Migration Amendment (Complementary Protection and Other Measures) Bill 2015

This bill was partly designed to align the complementary protection provisions of the Migration Act 1958 (Cth) with changes made to the refugee provisions by Schedule 5, Part 2 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). Various aspects of the bill raised concerns with respect to its compatibility with Australia's international legal obligations. This bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee. For a detailed analysis of the international law aspects of the bill, see the submission by the Kaldor Centre for International Refugee Law and the Institute for International Law and the Humanities to the Senate Committee. The Committee recommended that various amendments be made to the bill. However, the bill lapsed when Parliament was prorogued in April 2016. 

 

Endnotes

  • 1. These obligations arise pursuant to Australia’s obligations under the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’), arts 6, 7; Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (‘CAT’), art 3; Convention on the Rights of the Child, adopted 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC’). The Act defines these some of these terms more narrowly than they are understood in international human rights law, an aspect that many of us critiqued in our submissions to the Senate Standing Committee on Legal and Constitutional Affairs’ Inquiry into the Migration Amendment (Complementary Protection) Bill 2009.
  • 2. Although such individuals are excluded from the grant of a protection visa, Australia is nonetheless precluded from removing them to a place where they would be at risk of significant harm.
  • 3. Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted [2004] OJ L304/12, arts 2(e), 15 ( ‘Qualification Directive’); Council Directive 2011/95/EU of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons eligible for Subsidiary Protection, and for the Content of the Protection Granted (recast) [2011] OJ L337/9, arts 2(f), 15.
  • 4. Immigration and Refugee Protection Act, SC 2001, c 27, s 97.
  • 5. Immigration and Nationality Act, 8 CFR §§ 208.16, 208.17 (1952) (CAT-based protection only).
  • 6. Immigration Act 2009 (NZ) ss 130, 131.
  • 7. CAT-based protection only; refugee status determination is conducted by UNHCR. See also Kelley Loper, ‘Human Rights, Non-refoulement and the Protection of Refugees in Hong Kong’ (2010) 22 International Journal of Refugee Law 404.
  • 8. Decreto por el que se expide la Ley sobre Refugiados y Protección Complementaria y se reforman, adicionan y derogan diversas disposiciones de la Ley General de Población [Law on Refugees and Complementary Protection] (December 2010) http://www.dof.gob.mx/nota_detalle.php?codigo=5175823&fecha=27/01/2011 (accessed 2 December 2013). Mexico is the first country in Latin America to grant complementary protection: ‘UNHCR Welcomes Breakthrough Mexico Legislation on Protection’ (10 December 2010) http://www.unhcr.org/4d025a8a6.html (accessed 2 December 2013).
  • 9. Cartagena Declaration on Refugees (adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico, and Panama, 22 November 1984) in ‘Annual Report of the Inter-American Commission on Human Rights’ (1984–85) OAS Doc OEA/Ser.L/V/II.66/doc. 10, rev 1, 190–93.
  • 10. Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45.
  • 11. Parliamentary Joint Committee on Human Rights, Examination of legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, Second Report of the 44th Parliament, February 2014, 48 http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/44th/244/~/media/Committees/Senate/committee/humanrights_ctte/reports/2014/2_44/b05.ashx. See also: Parliamentary Joint Committee on Human Rights, Examination of legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, Fourth Report of the 44th Parliament, March 2014, 51-63 http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/44th/444/index. For further information about Complementary Protection under Australian migration law, and its application in refugee status determination, please see the Kaldor Centre’s resources: http://www.kaldorcentre.unsw.edu.au/complementary-protection-decisions.