Complementary Protection Framework under the Migration Act

19/03/2012

The Migration Amendment (Complementary Protection) Act 2012 and associated regulations�is proposed to�commence�on 24 March 2012. The following information will be of particular interest to providers of legal assistance to failed asylum seekers under the Legal Assistance Scheme.

Under the current legislation, Protection visa applicants are assessed against Australia's nonrefoulement obligations contained in the Convention Relating to the Status of Refugees, as implementced in Section 36 of the Migration Act 1958.

The purpose of the Complementary Protection framework is to allow claims that may engage Australia's non-refoulement obligations found in other key international treaties to be considered under a single Protection visa application under the Migration Act 1958.

From 24 March 2012, Protection visa applicants will be assessed against new, further criteria (including those outlined below). Such assessments may be the subject of Refugee Review Tribunal proceedings.

Key amendments to the Migration Act 1958 include the following:

1. Introduction of paragraph 36(2)(aa): This paragraph outlines a further criterion for the grant of a Protection visa being that the applicant is a non-citizen of Australia (other than an non-citizen mentioned in paragraph 36(2)(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 ofthe noncitizen being removed from Australia to the receiving country, there is areal risk that the non-citizen will suffer significant harm.

2. Introduction of subsection 36(2A): This subsection provides a definition of "significant harm" as it relates to paragraph 36(2)(aa). "Significant harm" includes arbitrary deprivation of life; or the death penalty; or cruel or inhuman or degrading treatment or punishment or degrading treatment or punishment.

3. Introduction of subsection 36(28): This subsection outlines circumstances in which an applicant will not be taken to be at real risk of significant harm. Such circumstances include whether it is reasonable for the non-citizento relocate to an area of the country in question where there would not be areal risk of significant harm; or the ability of the non-citizen to obtain, with the authority of the country in question, protection such that there would not be a real risk of significant harm; or the risk is such that it is faced by the population in general and not the non-citizen personally.

4. Introduction of subsection 36(2C): This subsection outlines the circumstances in which anon-citizen will notbe owed protection obligations under paragraph 36(2)(aa). This includes where the Minister has serious reasons for considering that the non-citizen has committed a crime against peace, a war crime or a crime against humanity; or a serious non-political crime; or acts contrary to the purposes and principles of the United Nations. Further, anon-citizen may be found not to be owed protection obligations in accordance with paragraph 36(2)(aa) where the Minister considers, on reasonable grounds, that the non-citizen is a danger to Australia's community; or a non-citizen, having been convicted by final judgment of a serious crime, is a danger to the Australian community.

Amendments to the Migration Regulations 1994 are also proposed to provide further clarity and guidance in respect of the above powers in the Migration Act 1958.

The Bar Association's Professional Development Department is planning a number of CPD sessions on this subject and members will be advised in due course as to when they will be held.

19 March 2012