Comment: Complementary Protection seems anything but

Scott Morrison wants to reduce the number of protection visas he issues by scrapping Complementary Protection. That’s an unwise decision, writes Mark Fletcher.

The Coalition wants to scrap Complementary Protection. That’s an unwise decision, writes Mark Fletcher.

There’s something about the name of the Government’s Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Bill 2013 that screams focus group.

Beneath the Action Man title is quite a sinister piece of work. The Bill, should it become law, would scrap the Complementary Protection framework introduced by the former ALP Government.  To explain why this is a big deal, we have to unlearn most of the politically convenient rhetoric we’ve been taught over the past few years.

It turns out that not all refugees are ‘genuine’ refugees, depending on how we use the word ‘refugees’. Come the end of the 1960s, it seemed that the international community had come to a definition of a refugee:

A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Up until 2012, this was how Australia understood its obligation.  A refugee was a person who had a well-founded fear of being persecuted for one of five reasons, and was outside their country of nationality.

But there’s a deeper magic to the Refugees Convention: the principle of non-refoulement.  Article 33(1) of the Convention says:

No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Although this article explicitly states ‘a refugee’, this provision has been interpreted more broadly.  Australia will never refoule a person, regardless of whether or not they’re recognised as a refugee.

It was increasingly apparent that this would cause problems.  What happens if somebody is fleeing persecution other than one of the five kinds listed under the Refugees Convention?  They’re not entitled to protection under Convention, but our non-refoulement obligations prevent us from repatriating them.  They end up stuck between two administrative mechanisms.

Enter section 417 of the Migration Act.  After an applicant has been through the Byzantine world of Australia’s migration system and has been found not to be a refugee by a Tribunal, the Minister may substitute a more favourable decision for the applicant.  For example, a woman might have fled gendered violence that was unrelated to her being a particular race, religion, nationality, member of a social group, or her political opinions.  She seeks Australia’s protection.  Up until 2012, she would have had to submit a protection claim even though she might know that she’s not eligible to be considered a refugee, go through the entire process, and then wait to see if the Minister would use their completely arbitrary power to grant a visa under s417.

Needless to say, this power has not been viewed in the most favourable light.  About a decade ago, the Senate Standing Committee on Legal and Constitutional Affairs released a report into the Refugee and Humanitarian Determination Process.  Chapter 8 of the reportcovered the Minister’s discretionary power in quite some detail.

The extent of Ministerial discretion is laid out in s417 of the Migration Act to include the following:

1. The Minister may substitute a more favourable decision if the Minister thinks it is in the public interest to do so;
2. The power may only be exercised by the Minister personally;
3. If the Minister substitutes a more favourable decision he/she must inform Parliament of the reasons and the new decision reached;
4. Certain information is not to be disclosed to Parliament in the statement made. In particular, the person's identity and the identity of associated persons must not be disclosed;
5. Statements must be made to Parliament at the times specified in the legislation; and
6. The Minister is under no duty to consider whether to exercise this power.

In 2012, this regime changed.  Instead of waiting for the Minister to use an uncompellable power, applicants could lodge protection claims under both the Refugees Convention and under other conventions, such as the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).  This was known as Complementary Protection.

So some ‘non-genuine’ refugees were being treated as if they were refugees.  This was clearly a good outcome, but Complementary Protection muddied the infantile public debate we were having about the quality of our determination process.  The success rate for asylum claims lodged in Australia is unusually high and policy analysts are interested in why that’s the case (there are some crackpot theories circulating the traps, such as ‘People only risk their lives trying to enter Australia if they’re genuine’).

Between the Greens trying to paint everybody as heartless, cruel, and in a race to the bottom, the ALP trying to convince everybody that they were tough on people smuggling and the causes of people smuggling, and the Liberal Party saying anything it could to get elected, Complementary Protection did not get a lot of airtime.

Over the past few weeks, the current Government’s language has subtly changed with regard to protection visas. On Wednesday last week, Morrison answered a Dixer with:

The previous minister for immigration, now Manager of Opposition Business, handed out 539 permanent protection visas during the few short months that he sat in the chair. He also had the highest month of arrivals of any month under their deplorable record in government of 4,239. Then there is the member for Gorton. He handed out 977 permanent protection visas to people who came to Australia illegally by boat, over which time 12,386 people turned up on his watch. His gold-medal performance was ensuring that the boats continued to come on his watch. But the stayer was the member for McMahon, now the shadow Treasurer, who handed out 11,122 permanent protection visas to people who came illegally by boat. That is the record. For six years those opposite ran a visa shop for people smugglers. That shop is now shut under this government.

It seems strange to make the argument ‘Isn’t the Opposition stupid for giving refugees protection visas?’ but there we have it.  The goal of Morrison’s asylum seeker policy is to … refuse protection visas to refugees?

Through this rhetoric, we can begin to understand the Regaining Control Over Australia’s Protection Obligations Bill.  Morrison wants to reduce the number of protection visas he issues, so he is scrapping Complementary Protection.  Only ‘genuine’ refugees will get protection in Australia, and only if they don’t come to Australia.

It is difficult to understand the policy intent beyond fiddling the numbers. By reducing the availability of protection visas, the number of visas issued will drop and Morrison will be able to gloat that he’s handed out fewer than his predecessors. This does not leave him with a durable solution for easing the irregular migration flows to Australia: he ends up with a group of people that neither he nor a country cooperating with his offshore processing regime can refoule. Thus, they have to languish in our immigration detention facilities indefinitely.

Not only does this present a durability problem for irregular migration flows, it also presents a durability problem for Australia’s immigration policy.  Do we really want to see Governments waste time laying down more coherent protection mechanisms only to see them ripped up again when power shifts hands?

The Senate is holding an inquiry into this Bill.  I can only suggest that if you believe Australia’s protection framework should be more than a legalistic, bare minimum approach to the Refugees Convention, you should use this inquiry to make yourself heard.

Mark Fletcher is a Canberra-based blogger and policy wonk who writes about conservatism, atheism, and popular culture. He blogs at OnlyTheSangfroid. This article was originally published onAusOpinion.com.