Steven Ciobo (Moncrieff, Liberal Party, Minister for International Development and the Pacific) Share this | Hansard source

I am very pleased to thank members for their contributions to this important debate on the Migration Amendment (Complementary Protection and Other Measures) Bill 2015. This bill is a continuation of the government's protection reform agenda to deliver a more effective and efficient onshore protection status determination process.

Following the passage of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014—the legacy act—in December 2014 and the Migration Amendment (Protection and Other Measures) Act 2015 in March last year, this bill amends the statutory framework in the Migration Act relating to the determination process for a person seeking protection on complementary protection grounds. 'Complementary protection' is the term used to describe a category of protection for people who are not refugees but who also cannot be returned to their country of origin because there is a real risk that they would suffer a certain type of harm that would engage Australia's international nonrefoulement obligations under the International Covenant on Civil and Political Rights or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Specifically, the bill will amend the Migration Act to clarify the interpretation of various concepts used to determine whether a person will face a real risk of significant harm so as to give rise to a nonrefoulement obligation under the ICCPR or under the CAT. These amendments will provide that a real risk of significant harm to the person must relate to all areas of the receiving country. It will: clarify that a person must face a personal risk of significant harm in the receiving country rather than a risk that is purely indiscriminate; clarify that a person will not face a real risk of significant harm if effective protection measures are available to the person through state or non-state actors in the receiving country; and, finally, clarify that a person who can take reasonable steps to modify their behaviour so as to avoid significant harm does not face a real risk of that harm as a necessary and foreseeable consequence of their removal to the receiving country, provided that the behaviour modification would not conflict with their identity or core belief system.

These amendments will more closely align the complementary protection framework in the Migration Act with the current statutory refugee framework, as inserted by the legacy act. Without these amendments, there is an inconsistency between the two frameworks in the Migration Act. In particular, under the current statutory protection visa process, a person may not meet one of the elements of the refugee test used to determine whether a person has a well-founded fear of persecution relating to internal relocation alternatives, effective protection and behaviour modification. However, they may then be found to satisfy the complementary protection test because those same elements used to determine whether a person faces a real risk of significant harm are currently not aligned. The bill addresses this inconsistency. In doing so, it will ensure consistency in decision making and continued public confidence in Australia's capacity to assess protection claims, consistent with our international obligations.

The bill is consistent with Australia's international obligations and will not result in people of genuine need of protection being returned to danger. The government will continue to comply with these obligations. Australia remains bound by them as a matter of international law. The bill will not alter the criterion for a protection visa on complementary protection grounds under paragraph 36 2(aa) of the Migration Act. Furthermore, the bill does not amend the risk threshold for assessing Australia's nonrefoulement obligations under the ICCPR and the CAT. The 'real chance' risk threshold for assessing complementary protection in the Migration Act will remain intact. It currently applies to both the refugee and complementary protection contexts, and is not amended in either context by the bill.

The amendments are necessary as, since the introduction of complementary protection into Australia's protection visa processes in March 2012, various judicial interpretation issues have arisen and resulted in the broadening of Australia's complementary protection obligations. As a result, there have been instances of several persons having been found to meet the complementary protection criterion on a wide variety of grounds, such as selling adult movies and drinking or supplying alcohol in countries which punish those activities, despite the fact that the government, consistent with our international obligations, did not intend for such cases to be covered by the legislation. There have also been several persons who have been found to meet the complementary protection criteria where they have been involved in serious crimes in their home countries, or who have been fleeing their home countries due to their association with criminal gangs. The bill will, therefore, restore the government's intended interpretation of the complementary protection provisions in the Migration Act.

The bill also makes several technical amendments to the statutory framework in the Migration Act relating to protection visas and related matters. These amendments will ensure that the existing provisions in the Migration Act work as originally intended and will not change the substance of the amended provision. I commend the bill to the chamber.

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