Migration changes introduced mark a new low
25th Jun 2014
Changes to the Migration Act introduced into Parliament today by Immigration Minister Scott Morrison marks a new low in respect of Australia meeting its international human rights protections, and a new attack on procedural fairness and the separation of powers, 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.’
“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,” said Greg Barns, Australian Lawyers Alliance spokesperson and barrister.
“Australia would be in breach of its obligations if there was even a 20 per cent chance of significant harm, and the harm occurred.”
“These legislative amendments also appear to be directly at odds with previous High Court rulings,” said Mr Barns.
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.”
“The migration amendments introduced today are clearly at odds with Australian case law and our international obligations,” said Mr Barns.
“These provisions reduce a person’s life to a balance of probabilities and should be rejected.”
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.’
“It is embarrassing that our Federal government has such an appalling knowledge and recognition of basic international principles of human rights,” said Mr Barns.
The Bill also appears to be providing ministerial guidance to the Refugee Review Tribunal to draw ‘unfavourable inferences’.
“Providing directions to the Refugee Review Tribunal regarding inferences to be made is grossly inappropriate. Such legislative directions undermine the independence of the Tribunal and dilute the separation of powers, which are crucial to the effective operation of our parliamentary and judicial system.”
“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.