Bill threatens to remove last safety net for refugees fleeing death, torture and persecution

The federal government is having another crack at taking the “protection” out of “complementary protection” for asylum seekers. “Complementary protection” refers to Australia’s obligations under human rights treaties not to return people to torture or other serious harm – obligations that “complement” those under the UN Refugee Convention.

But if a new migration bill is passed – as was recently recommended, with some minor clarifications, by a Senate committee – it will redefine complementary protection so that it offers no real protection.

If passed, the bill could mean that, for example, a person at risk of torture by the Syrian government would have to prove that he could not have gone to a part of the country controlled by Islamic State.

The Coalition government has put up two earlier bills on complementary protection since taking office. The first tried to get rid of it, the second tried to drastically rewrite it. This third bill is more technical, which increases the likelihood of it passing parliament.

But because of changes to Australia’s refugee laws in 2014, the risks to asylum seekers have also increased.

Complementary protection and Australia

Australia’s complementary protection obligations were implemented into law in 2012. This offered an important safeguard for a small category of people who were otherwise not protected by the somewhat limited terms of the Refugee Convention.

For example, the convention focuses on the reasons a person fears harm, rather than the risk of serious harm itself. Complementary protection would, for example, protect a person from indiscriminate torture.

Until now, this has been a small, sensible extension of domestic law to protect existing international legal obligations. Only 216 visas have been granted as a result of this legislation. Yet the Coalition government has had it in its sights since 2013.

In December 2013, it introduced a bill that would have abolished complementary protection. This bill stalled.

In June 2014, the government introduced another bill, which sought to send a person back if the risk of torture was less than 50%. That part of the bill did not pass.

The third bill was introduced in October 2015 and has attracted much less scrutiny. Immigration Minister Peter Dutton has not even responded to a parliamentary committee’s concerns that the bill is inconsistent with Australia’s international legal obligations. These are concerns shared by, among others, the UN High Commissioner for Refugees and the Australian Human Rights Commission.

To their credit, both Labor and the Greens have so far steadfastly opposed these attempts to roll back complementary protection. Labor and the Greens have made it clear that they will oppose this bill. The crossbenchers will decide its fate.

Taking the ‘protection’ out of ‘refugee protection’

Immigration law has been in a state of constant flux in recent years as the government strives to keep people seeking asylum away from Australia and stave off the threat of legal challenges. In December 2014, dramatic changes were made to the definition of a refugee in Australian law, and to the way in which Australia determines that someone is a refugee.

These changes mean that a person now has to prove they could not move to any other country that might be “safe” – even if they would be destitute there, and even if that place is “safe” only because local militias or warlords control it.

Applying this definition strictly, it’s hard to see how even fleeing Syrians and Iraqis would currently qualify as refugees. The likely result is that many people who are refugees will no longer be given refugee status in Australia.

This is made even more likely because of the introduction in December 2014 of a new process for determining if a person was a refugee, known – misleadingly – as “fast track” processing.

The process, which applies to around 30,000 people in Australia, introduces strict new time limits for asylum seekers to put together their refugee claims and evidence. It removes the right to a full review of the initial decision by the Department of Immigration.

These changes came in after the government removed funding for legal help for those who came by boat. This means that most asylum seekers will be struggling through the new system alone.

A safety net

The combined effect of these changes is to make it much more likely that people will be refused protection as refugees – even if they are refugees.

As a result, many more people will need the safety net of complementary protection to save them from torture or persecution. Yet the government’s latest bill would remove that safety net by copying the changes to the refugee definition into the complementary protection context.

The government’s argument is that these changes are needed to make complementary protection “consistent” with the new refugee definition. But, as the Refugee and Immigration Legal Centre pointed out in its submission to the inquiry, complementary protection is there to complement. If the tests were identical, then there is no point to complementary protection.

The larger point is that two bad laws don’t make a good law. Both laws mean that we are now asking: is there anything you could theoretically have done to save yourself from harm, even if doing it would have been completely unreasonable, extraordinary or even in some cases impossible?

This question misses the whole purpose of these laws – to protect people in real danger.