The Migration Amendment (Complementary Protection) Bill 2011 reintroduces Complementary Protection legislation that was before a Senate Committee in 2010. Critically, the criteria for a protection visa will be amended with the addition of subsection (2aa). This means that all current and future applications will be assessed against two criteria. Firstly, the refugee criteria, then if that were unsuccessful against the complementary protection criteria. :
2(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) to whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;
There are definitions for a number of terms. Significant harm is defined and qualified and has five criteria:
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life;
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Other terms that are defined include ‘torture’, ‘cruel or inhuman treatment or punishment,’ and ‘degrading treatment or punishment’. These definitions are in section 5 and will be discussed in separate articles. A new subsection effectively sets out the exclusion criteria of article 1F, which was previously at s91T.
The good parts of the amendments mean that strong cases which previously did not meet the refugee criteria and previously had to go through the s417 intervention route can now be considered at the first stage. This also applies to the RRT. However there are gaps such as for Stateless Persons, who still do not have a way of directly accessing Australia’s obligations under the Statelessness Convention.
The terminology is thought to have introduced a test that will not be easily reached by many applicants, but these are early days and as yet the legislation has not had the opportunity to be used or interpreted by the Courts. Practitioners should refresh their understanding of a number of International Treaties and Conventions such as the ICCPR, Conventions Against Torture, Convention of the Rights of the Child and Second Optional Protocol to the ICCPR Aiming at the Abolition of the Death Penalty.