From humanitarian discretion to complementary protection - reflections on the emergence of human rights-based refugee protection in Australia.

• Author: McAdam, Jane

Abstract

For many years, Australia stood alone among industrialised countries for its failure to provide 'complementary protection' to people who are not refugees, but who are nonetheless at risk of return to serious human rights abuses in their country of origin or former habitual residence. The passage of the Migration Amendment (Complementary Protection) Act 2011 (Cth) on 19 September 2011 heralded a new era in protection in Australia, codifying obligations under international human rights treaties which preclude countries from returning people to a risk of arbitrary deprivation of life, the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. As Australia enters this new protection paradigm, it is useful to reflect upon the way that decision-makers have dealt historically with humanitarian claims falling outside the refugee definition. Legislative precursors relating to protection on humanitarian and compassionate grounds may provide the key to why Parliament stalled for so long on codifying Australia's extended non-refoulement obligations in domestic law. This article pieces together and examines the legislative and jurisprudential development of humanitarian protection in Australia from the 1980s through to the present day, providing a timely contribution to take stock of where we have come from, and where we are going.

I Introduction

For many years, Australia stood among industrialised countries for its failure to provide 'complementary protection' to people Who are not refugees, but who are nonetheless at risk of return to serious human rights abuses in their country of origin or former habitual residence. 'Complementary protection describes protection that is complementary to Australia's obligations under the Refugee Convention ('Convention'), (1) based on its expanded non-refoulement (non-removal) obligations tinder international human rights law. (2)

Such protection in Australia has traditionally been discretionary, even though the international human rights obligations on which it is based are absolute and non-derogable. Until the passage of the Migration Amendment (Complementary Protection) Act 2011 (Cth) on 19 September 2011, the only way that an individual could have claims based on a fear of return to torture, arbitrary deprivation or life, or a risk of cruel, inhuman or degrading treatment or punishment assessed was via the 'public interest' power of the Minister for Immigration and Citizenship under section 417 of the Migration Ad 1958 (Cth) ('Migration Acyl'). The Ministerial intervention process is non-compellable, non-reviewable and inefficient, since it requires people to proceed through the refugee determination process--including merits review by the Refugee Review Tribunal--before the power can be enlivened. 1t is not transparent or subject to procedural fairness considerations.

On 24 February 2011, the Migration Amendment (Complementary Protection) Bill 2011 was introduced into the Australian Parliament. The Bill was largely a reiteration of an earlier 2009 instrument, which had lapsed at the prorogation Of Parliament in August 2010. Its purpose was N) extend Australia's protection obligations to people at risk of torture or cruel, inhuman or degrading treatment or punishment if returned home, or who would be exposed to the death penalty or arbitrary deprivation of life. It was a response to numerous recommendations in Australian parliamentary and United Nations (UN) reports that Australia adopt a system of complementary protection, (3) thereby bringing Australian domestic law into line with Australia's international obligations (4) and State practice in comparable jurisdictions (including the EU, Canada, the US and New Zealand). (5)

The new law received royal assent on 14 October 2011 and took effect on 24 March 2012. (6) As Australia enters this new domestic protection paradigm, it is a useful moment to reflect upon the way that Australian decision-makers have historically dealt with humanitarian claims falling outside the refugee definition. Indeed, legislative precursors relating to protection on humanitarian and compassionate grounds may provide the key to why Parliament stalled for so long on codifying Australia's extended non-refoulemenl obligations in domestic law. While one can glean elements of the history of humanitarian claims by clipping into various parliamentary reports or scholarly articles, (7) the present article tries to make sense of the history as a coherent narrative leading to contemporary deliberations about complementary protection. By piecing together and examining the legislative and jurisprudential development of humanitarian protection, it provides a timely contribution to the literature to take stock of where we have come from, and where we are going. Elsewhere, I have extensively analysed Australian complementary protection legislation and its relationship to international and comparative jurisprudence. (8) The purpose of this article is not to retrace those arguments, but rather to provide a historical companion piece so as to complete the picture of the development of humanitarian protection in Australian law.

II Humanitarian protection pre-1981

Until 1981, (9) the asylum regime that operated in Australia was highly discretionary' (10) The 'skeletal framework' (11) of the Immigration Restriction Act 1901 (Cth) was characterised by a general prohibition on entry, combined with broad discretions to facilitate the entry of favoured groups. (12) Its successor, the Migration Act 1958 (Cth), introduced a simpler system of entry permits, but until 1980-81, no grounds for granting such permits were stipulated. This effectively left it to immigration officers' sole discretion as to the circumstances in which it would be appropriate to grant an entry permit. (13) At this time, an 'entry permit' was distinct from a 'visa'. (14) A visa authorised travel to Australia and indicated the type of entry permit to be issued on arrival: temporary, which could be subject to conditions, (15) or permanent. Visa holders, nonetheless, had no right to an entry permit and could he refused one on arrival. (16)

It was arguably not until 1977 that Australia articulated a distinct and deliberate refugee policy. (17) Although Australia had taken in large numbers of displaced people through humanitarian schemes after the Second World War, (18) such programmes were closely tied to labour shortages and, during the Cold War, to an anti-Soviet ideology. On 24 May 1977, the Minister for Immigration and Ethnic Affairs articulated a comprehensive refugee policy that recognised refugee protection as an international obligation, although noted that the decision 'to accept refugees must always remain with the Government of Australia'. (19) Importantly, the Minister noted that:

There will be people in refugee type situations who do not fall strictly within the UNHCR mandate or within Convention definitions. Government policy will be sufficiently flexible to enable the extension of this policy, where appropriate, to such People. (20) The broad, undefined discretionary framework of granting permanent resident status effectively continued until the 1980s, (21) when a variety or factors, including the impact of administrative law reforms on judicial intervention in migration decision-making, (22) led to an increasingly codified legal response to immigration. It was in this context that section 6A(1)(e) was introduced.

III Introduction of section 6A(1)(e)

In late 1980, the Migration Act was amended (23) to 'restrict the categories of immigrants eligible to be granted permanent residence subsequent to their arrival in Australia'. (24) The aim was to curb the 'principal incentive' of illegal migration--'entering as a visitor and subsequently gaining the right of legal permanent residence'. (25) The introduction of section 641) limited onshore grants of entry permits to certain categories of non-citizens already in Australia, thereby curtailing the previous generality of the discretion to grant such permits to any non-citizen. (26) Section 6A(2) indicated that the decision whether or not to grant the permit was discretionary: 'An officer may, in accordance with this section and at the request or with the consent of a non-citizen, grant: the non-citizen an entry permit'.

The grounds on which a permanent entry permit could be granted pursuant to section 6A(1) were as follows:

An entry permit (27) shall not be granted to an immigrant after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say-- (a) he has been granted, by instrument under the hand of a Minister, territorial asylum in Australia;

(b) he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit;

(c) he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;

(d) he is the holder of a temporary entry permit which is in force, is authorized to work in Australia and is not a prescribed immigrant; or

(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him.

The introduction of section 6A(l)(e) marked the first iteration of an onshore humanitarian entry permit in Australian immigration legislation. By contrast to offshore humanitarian programmes, it did not require applicants to demonstrate close ties to Australia (although sometimes such ties would be raised as part of the compassionate or humanitarian claim). Furthermore, although it was not conceptually linked to the refugee...