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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- 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  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)  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.