Decades of case law conflict with Migration Bill
26th Jun 2014
Changes to the Migration Act introduced into Parliament yesterday by Immigration Minister Scott Morrison are at odds with decisions made in the High Court since 1989 and international case law, the Australian Lawyers Alliance said today.
The proposed legislation, the Migration Amendment (Protection and Other Measures) Bill 2014 (Cth), will introduce a threshold of whether an individual is ‘more likely than not’ to suffer significant harm (including death or torture) if deported from Australia to another country. The risk threshold of “more likely than not” means that ‘there would be a greater than fifty percent chance that a person would suffer significant harm in the receiving country.’
“These changes mean that a person with a 49.9 per cent risk of suffering significant harm could be sent back to the country that they fled and suffer persecution, serious harm or even death.”
“The proposed changes rip up Australia’s obligations under the Refugee Convention, and rebuff decades of case law at a domestic and international level,” said Greg Barns, Australian Lawyers Alliance spokesperson and barrister.
“The obligation not to return a person to a country where they may suffer significant harm is one of the core tenements of international law.”
“This legislation undermines Australia’s obligations under the Refugee Convention to ensure that applicants for refugee status in Australia are treated consistently with what the High Court has said since 1989. And that is, that a ‘well founded fear’, to use the Convention term, means that a person has a real chance of persecution or serious harm.”
“The High Court held in 1989 in the case of Chan Yee Kin v Minister for Immigration & Ethnic Affairs  HCA 62, that a well-founded fear was established if there was a ‘real chance’ of persecution, notwithstanding that there is a less than fifty per cent chance of persecution occurring.”
“Since 1989, the Chan decision has been significantly relied upon as a leading authority in subsequent cases in the Refugee Review Tribunal, the Federal Court and the High Court of Australia.”
“The proposed legislation completely rejects the internationally recognized legal test surrounding what constitutes a ‘well-founded fear’, and instead applies a ‘balance of probabilities’ test. This is entirely inappropriate.”
“The ‘real chance’ test, or a variant thereof, has been applied in many jurisdictions including the United States, Canada, New Zealand, and the United Kingdom,” said Mr Barns.
“The reason that the High Court says that a real chance can be as low as ten per cent is because this is consistent with the Refugee Convention and the purpose of the Convention, which is to ensure that the risk of persecution and serious harm if a person is returned to the country in which they live is as low as possible.”
“These proposed amendments are directly at odds with previous High Court rulings on this issue which have been part of Australian case law for decades.”
“This Bill should be rejected by the Senate as it substantially reduces protection for extremely vulnerable people who seek asylum in Australia. Furthermore, the Bill undermines Australia’s supposed commitment to the Refugee Convention,” said Mr Barns.
“Australia would be in breach of its obligations if there was even a 20 per cent chance of significant harm, and the harm occurred.”
“If these amendments were passed, they will certainly be challenged in the High Court and may be struck down given the weight of Australian and international case law on this very issue.”
In the High Court case of Chan Yee Kin v Minister for Immigration & Ethnic Affairs  HCA 62, Chief Justice Mason noted [at 12] that:
“If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.”
Justice Dawson also held [at 19] in that decision that “a real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.”
Further cases that reference the case of Chan can be seen on Austlii.
The Explanatory Memorandum to the Bill states that: ‘The Bill makes several changes to the framework of administrative measures which implement Australia‘s non refoulement obligations; it does not, however, affect the substance of Australia‘s adherence to these obligations.’
The Migration Amendment (Protection and Other Measures) Bill 2014 (Cth) was introduced into the House of Representatives yesterday, 25 June 2014.