In October 2015 the Australian Government introduced proposed legislation called the Migration Amendment (Complementary Protection and Other Measures) Bill 2015, (“the Bill”) which aims to change aspects of the complementary protection test.
The Bill is the latest in a series of proposed legislative amendments to the Migration Act 1958 (Cth) over the past 12 months. In many respects this Bill does not come as a surprise and is in line with a clear government agenda to strip back Australia’s protection regime and to raise the threshold for the grant of a protection visa. What is concerning, however, is that the very people complementary protection was introduced to protect, including women at risk of domestic violence, will be the ones who find Australia may no longer offer them safety.
The complementary protection process is a relatively new but important part of Australia’s protection regime and came into effect on 24 March 2012. Complementary protection refers to the type of protection owed to people who are at risk of significant harm in their home country but who are not protected by the Refugees Convention. This might include, for example, people who do not fit into one of the five refugee categories but who are at risk under the Convention Against Torture, the International Covenant on Civil and Political Rights or the Convention on the Rights of the Child.
Interestingly, most protection visas are granted under the Refugees Convention, rather than under complementary protection. However, complementary protection still forms an important part of our process and to the people it protects, it means the difference between safety and facing harm. This is why it is concerning to see amendments being made which lower the protection offered by our system.
The Bill seeks to make four significant changes:
- The Bill introduces an expectation that people must modify their behaviour in some circumstances. (See proposed section 5LAA(5))
- The Bill introduces a change to the effective protection, so that protection offered by an organisation or other party must be considered in some circumstances. (See proposed changes to section 5LA)
- The Bill seeks to make it clear that the risk faced by individuals must be personal and not general. (See proposed section 5LAA(1) and (2))
- The Bill changes the relocation test, so that a person must show their real risk relates to all areas of the country. (See proposed section 5LAA(5))
While each of these changes is significant, we are of the view that the change to the relocation test is likely to have the most detrimental impact on the people complementary protection is designed to protect and in particular, to effect women. The new changes will remove the Department and Tribunal’s ability to consider whether relocation would be reasonable in that person’s circumstances.
In this post we will apply the change to the relocation test to the scenario frequently cited by the government when complementary protection was introduced, being a woman at risk of so-called ‘honour killings’.
Noor is a Pakistani woman who is married with a young baby. She is accused of cheating on her husband and her family vows to carry out an ‘honour killing’. With the help of friends, Noor and her baby manage to flee and arrive in Australia to seek protection.
Noor’s application for protection in Australia
The Department of Immigration believes that Noor’s family intends to kill her.
When asked if she can move to another part of the country, Noor explains that if she moves she will face a number of other problems that mean it won’t be possible. She will be a single unaccompanied mother which is culturally not accepted in Pakistan and she would be unable to support herself and her child away from family support. She would be destitute with nowhere to turn.
Likely decision under the current law
Although Noor fear being killed by her family in a particular area of Pakistan, the Department would find that requiring Noor to relocate would be unreasonable as it would put both Noor and her baby at risk.
Noor would be found to have a significant fear under complementary protection and would be granted protection.
Likely decision under the propose changes to the law
As Noor’s fear relates to a particular area in Pakistan, the Department would likely find that she can move to another part of the country to avoid being killed by her family. The Department would be unable to look at whether moving to another part of the country would be reasonable for Noor and her baby. Noor would not be granted protection and would be required to return to Pakistan.
Our firm is concerned that these changes will result in the return of people to situations of harm and will be advocating for our clients that they are not introduced.
For more information about the changes to Complementary protection see http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5556.