22nd Sep 2014, 8:37 PM – Representatives Migration Amendment (Protection and Other Measures) Bill 2014 - Consideration in Detail - Complementary protection

The majority voted against amendments introduced by Labor MP Richard Marles, which means that they were unsuccessful. These amendments would have removed schedule 2 and item 17 of schedule 4 from the bill.

Schedule 2 relates to complementary protection, which comes from the principle of non-refoulement. This principle is drawn from provisions contained in the Convention relating to the Status of Refugees, the UN Convention Against Torture and the International Covenant on Civil and Political Rights. This bill increases the threshold required before Australia's non-refoulement obligations are activated. Previously, there needed to be "a real risk that the non-citizen will suffer significant harm" if they are removed from Australia. Under this bill, it needs to be "more likely than not that the non-citizen will suffer significant harm" if they are removed from Australia". (Read more about complementary protection under the bill in the bills digest. )

Item 17 of schedule 4 relates to oral decisions made by the Refugee Review Tribunal. Currently, the Tribunal can make an oral decision but must also make a written statement within 14 days. This bill provides that if the Tribunal makes an oral decision on review then it can choose to make either a written or an oral statement.

Background to the bill

The bill makes a number of changes to the Migration Act 1958, including:

• clarifying that it is the applicant and not the Minister who has the responsibility to specify all particulars of a protection claim and to provide sufficient evidence;(A protection claim is a claim for asylum that is made by asylum seekers.)
• creating grounds to refuse a protection visa application when an applicant refuses or fails to establish their identity, nationality or citizenship, and does not have a reasonable explanation for doing so;
• creating grounds to refuse a protection visa application when an applicant provides false documents to establish their identity or either destroys or discards identity evidence, or has caused that evidence to be destroyed or discarded;
• clarifying that a family member of a protection visa holder cannot be granted a protection visa on the basis of being a family member if they apply after the initial visa has been granted;
• providing that the Refugee Review Tribunal (RRT) must draw an unfavourable inference with regard to the credibility of claims or evidence that are raised for the first time before it if the review applicant has no reasonable explanation to justify why those claims and evidence were not raised before the primary decision was made by the Department of Immigration and Border Protection; and
• clarifying Australia’s interpretation of the likelihood of harm and the types of harm necessary to engage Australia’s non-refoulement obligations.

(See the bills digest for more information about these and other changes made by the bill.)

Both the Labor Party and Greens Party have expressed concern about the changes made in this bill. (Read more about the position taken by the opposition in relation to this bill in the bills digest.)