This week, calls for reform of the mandatory detention policy coincide with the reintroduction of the Complementary Protection Bill to Parliament. The latter ought be welcomed, while the former is long overdue. It is important to adumbrate the key issues in these areas.
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The Complementary Protection Bill was originally introduced in 2009 and reintroduced in early 2011. It is one of the most significant changes to Australia immigration law in the area of refugee and humanitarian visas for many years.
'Complementary Protection' is about providing a mechanism for accessing the non refoulement (no return) provisions in several human rights treaties, such as the Convention Against Torture (CAT), the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.
Previously, the only way to access protection under these international treaties in Australia was through the cumbersome and sometimes arbitrary process of ministerial invention. This is popularly known as a section 417 request. Section 417 of the Migration Act gives the Minister power to grant any visa the Minister wants to grant, if there are circumstances in the public interest. The Minister's power is only available if there is a review decision by the Refugee Review Tribunal (RRT).
According to the changes proposed under the Complementary Protection Bill, issues that would underpin claims for complementary protection can now be considered at the first stage of a case, at the same time as the factors that determine whether someone meets the refugee criteria.
In other words, a case officer will in the first instance assess two separate issues: Does this person meet the refugee criteria? If no, then do they meet the complementary protection criteria?
This is a sensible and worthwhile change and should reduce the need for cases to have to go through the long path to the Minister. It also brings Australian law more in line with similar complementary protection provisions in the European Union, Canada, US and New Zealand, among other countries.
I recall a case where someone did not meet the refugee criteria, but had strong evidence that they would face torture as part of a routine police investigation for a minor matter in their home country. This was accepted by Immigration and by the RRT, but still we had to take this case to the Minister to access the protection offered in the CAT.
Under the new provisions the case could be dealt with at the first level and would not waste resources further up the administrative review chain.
It will take a period of time for the impact of the changes to seep through, and case officers, review officers and advocates will need training on the new provisions. Fortunately they apply to all current cases, even those on review. These reforms are long overdue and the Minister ought be supported.
Given the protests in Christmas Island, it is also time to reform the mandatory detention policy.
A major cause of the protests were the delays in security checks that occur after the Department of Immigration and Citizenship (DIAC) accepts someone is a refugee.
One of the major frustrations is that there is no way to know why the security check is taking so long. I contact DIAC and are told things like: Mr A is currently awaiting security clearance. This is obvious, but fails to tell me anything about how long the delay might be, or whether there is some reason for it.
I think DIAC are as much in the dark as I am about the delays. I accept that security checks must be done, but it is frustrating when the process is so opaque and takes so long, and when information about progress is non-existent.
If I am annoyed and frustrated as an advocate, how much worse must it be for refugees, especially those in detention? Detention periods are arbitrary. The longer someone is in detention, the worse are the psychological effects. The build-up of tension and psychological harm will go on unless there is reform of mandatory detention.
ASIO and the security assessors need to be better resourced to process these cases more quickly. A system of release into the community with strict reporting conditions would reduce some of the tension and stress of prolonged detention. Hopefully the Government will seek to reform the system, not vilify the victims — the refugees.
Kerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers. He is a student of Arabic, former Jesuit Refugee Service coordinator, teaches at ANU and was recognised by AFR best lawyers survey as one of Australia's top immigration lawyers .