ºÚÁÏÇ鱨վ

Submission to the Senate Select
Committee on Ministerial Discretion in Migration Matters

1.
Introduction

2.
The Human Rights and Equal Opportunity Commission functions

3.
Australia’s international human rights obligations and non-refoulement

4.
Operation of s 417 powers within the broader visa application, decision-making,
and review and appeal processes

5.
Problems with relying on Ministerial discretion for ICCPR/CRC/CAT non-refoulement

6.
Exercise of the s 417 discretion in other situations

7.
Preliminary suggestions for ensuring protection under ICCPR/CRC/CAT

8.
Conclusion

1.
Introduction

This submission is made by the Human Rights Commissioner
on behalf of the Human Rights and Equal Opportunity Commission (‘the
Commission’) in response to the Terms of Reference issued by the
Select Committee on Ministerial Discretion in Migration Matters.

The Commission’s submissions are principally addressed
to the following terms of reference:

(b) the
appropriateness of these discretionary ministerial powers within the
broader migration application, decision-making, and review and appeal
processes; and



(d) the appropriateness of the ministerial discretionary powers continuing
to exist in their current form, and what conditions or criteria should
attach to those powers.

As regards term of reference (b), the Commission has
sought to bring to the Committee’s attention issues regarding the
appropriateness of the discretionary powers under section 417 of the
Migration Act 1958 (Cth) as the principal means of fulfilling Australia’s
non-refoulement obligations under the International Covenant on Civil
and Political Rights [1] (ICCPR), the Convention
on the Rights of the Child [2] and Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [3] (CAT). The Commission is of the view that protection
from refoulement is an obligation which is not appropriate to be left
solely to Ministerial discretion. Because of the complexity and gravity
of the issues involved the Commission recommends that a comprehensive
assessment of the means of meeting these obligations be undertaken by
the Commonwealth.

As regards term of reference (d), the Commission has
sought to make some constructive suggestions on how the law might be amended
or reformed to take into account the Commission’s concerns.

The following matters are outside the scope of this
submission:

• The appropriateness
  or otherwise of the use of discretionary powers under section 351 of
  the Migration Act 1958 (Cth);
• Matters
  falling within terms of reference (a) and (c), which appear to seek
  submissions on the specific practical operation of the discretions conferred
  by ss 417 and 351, particularly where those discretions have been exercised
  to substitute a more favourable decision.

The Commission does, however, deal with aspects of the
practical use of the s 417 discretion in addressing terms of reference
(b) and (d). In addition, the Commission does not seek to suggest that
the Ministerial discretionary power is an inappropriate safety net for
the grant of visas on humanitarian grounds.

2. The
Human Rights and Equal Opportunity Commission’s functions

The Commission administers the Human Rights and Equal
Opportunity Commission Act 1986 (‘the Act’). Under the
Act, the Commission is responsible for protecting and promoting human
rights, including through the exercise of the following functions:

• promoting
  an understanding and acceptance of human rights in Australia
• undertaking
  research to promote human rights
• examining
  laws relating to human rights
• advising
  the federal Attorney-General on laws and actions that are required to
  comply with our international human rights obligations.

The Commission also inquires into complaints of breaches
of human rights under the Act.

The definition of ‘human rights’ for the purposes of the Act
is discussed in Appendix A.

3.
Australia’s international human rights obligations and non-refoulement

3.1 Refugees’ Convention

Under the Refugees’ Convention [4],
a refugee is any person who has:

… a
well-founded fear of being persecuted for reasons of race, religion,
nationality or membership of a particular social group or political
opinion, is outside the country of his nationality or of habitual residence,
if stateless and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country.

Article 33 of the Refugees’ Convention prohibits
States Parties from returning (‘refouling’) a refugee to the
frontier of a country where, amongst other things, his or her life or
freedom would be threatened on account of his or her race, religion, nationality,
membership of a particular social group or political opinion.

However, international obligations of non-refoulement can also apply to
persons who may not have a fear of persecution for the reasons set out
under the Refugees’ Convention but who face a ‘real risk’
of a violation of their fundamental human rights, for example the right
to life and the right to be protected from torture under the ICCPR, the
CRC and CAT.

3.2 ICCPR

Under the ICCPR, when considering the potential deportation
or removal of a person, Australia is obliged to consider whether there
is a real risk that the following rights, at a minimum, will be violated:

• the right
  to life (article 6 of the ICCPR);
• the right
  not to be subjected to torture or to cruel, inhuman or degrading treatment
  or punishment (article 7 of the ICCPR);
• the right
  not to be arbitrarily detained (article 9(1) of the ICCPR); and
• the right
  of persons deprived of their liberty to be treated with humanity and
  with respect for the inherent dignity of the human person (article 10(1)
  of the ICCPR).

Australia’s responsibility for such potential
breaches of the ICCPR follows in part from the primary obligation of each
State party, pursuant to article 2 of the ICCPR:

to respect
and ensure to all individuals within its territory and subject to its
jurisdiction the rights recognised in the present Covenant.

Australia’s obligations under that provision are
owed to all those within its territory and subject to its jurisdiction.

The United Nations Human Rights Committee (the ‘UNHRC’)
has stated, as a general principle:

If a State
party deports a person within its territory and subject to its jurisdiction
in such circumstances that as a result, there is a real risk that his
or her rights under the Covenant will be violated in another jurisdiction,
that State party itself may be in violation of the covenant. [5]

It would contravene Australia’s obligations under
the ICCPR to deliver a person by compulsion into the hands of another
state or third party which might inflict harm proscribed by the ICCPR,
or which may expel that person to a third state which might inflict such
harm. That is so regardless of whether that person falls within the definition
of a refugee in the Refugees’ Convention.

3.3 CRC

Like the ICCPR, the CRC:

• recognises
  the child’s inherent right to life (article 6);
• protects
  children from torture and other cruel, inhuman and degrading treatment
  and punishment (article 37(a));
• proscribes
  arbitrary detention (article 37(b));
• provides
  that children deprived of their liberty to be treated with humanity
  and with respect for the inherent dignity of the human person (article
  37(c)); and
• provides
  Australia is obliged to undertake all appropriate legislative, administrative
  and other measures to implement those rights and the other rights guaranteed
  by the CRC (article 4).

Australia will breach the CRC if it places a child in
a situation such that a breach of the above rights, at a minimum, are
likely to take place. Again, that is so regardless of whether the child
in question meets the definition of a ‘refugee’ in the Refugees’
Convention.

3.4 CAT

Article 3 of CAT provides ‘No State Party shall
expel, return (‘refouler’) or extradite a person to another
State where there are substantial grounds for believing that he would
be in danger of being subjected to torture’. [6]

The right of such a person to resist expulsion is not
made dependent upon him or her satisfying the Refugees’ Convention
definition of ‘refugee’.

4.
Operation of s 417 powers within the broader visa application, decision-making,
and review and appeal processes

4.1 Background

The use of the s 417 powers within the broader scheme
of the Migration Act 1958 (Cth) should be considered in respect of the
following classes of people:

• people seeking
  to invoke Australia’s protection obligations under the Refugees’
  Convention;
• people seeking
  to invoke Australia’s protection obligations under the ICCPR,
  the CRC and the CAT; and
• people who
  fall within neither of the first two categories but who nevertheless
  represent ‘exceptional or unique’ cases.

4.2 Refugees’ Convention

A person seeking to invoke Australia’s protection
obligations under the Refugees’ Convention must make a valid visa
application for a protection visa. [7] Having received
a valid application, the Minister or Minister’s delegate must consider
it and determine whether certain criteria have been met. [8]

The core criterion for the grant of a protection visa
is satisfaction of the Minister that the applicant is a person to whom
Australia owes protection obligations under the Refugees’ Convention. [9] If a person’s application for a protection
visa is refused by the primary decision-maker, the person may then apply
to the Refugee Review Tribunal for review of that decision. [10] An applicant may also seek review, in the High Court, the Federal Court
or Federal Magistrates Service, in relation to ‘jurisdictional errors’
made by the Minister, the Minister’s delegate or the Refugee Review
Tribunal. [11]

In addition, if the applicant is unsuccessful in overturning
an unfavourable decision at the Refugee Review Tribunal, the Minister
may, if she or he thinks that it is in the public interest to do so, exercise
her or his discretion under s 417 to substitute a ‘more favourable’
decision for a decision of the Refugee Review Tribunal. [12] The Minister’s Department appears to see the discretion operating
as a ‘safety net’ in the context of Refugees’ Convention
applications, providing:

a framework
for granting permission to remain in Australia, under the Ministerial
Guidelines, to persons who do not fit the category of refugee under
the Refugee Convention, but who face a significant threat to personal
security, human rights or human dignity if returned to their country
of origin. [13]

The discretion is only exercisable by the Minister personally
– that is, it cannot be delegated. [14] However,
the Minister has put in place guidelines (Ministerial Series Instruction
225 (MSI 225)) providing for an assessment and referral process in relation
to matters in which the Minister may wish to exercise his discretion under
s 417. Referrals can be made by officers of the Department of Immigration
and Multicultural and Indigenous Affairs (the Department), the Refugee
Review Tribunal or the applicants themselves and their agents. [15]

There are very few rights of review in relation to the
exercise of the s 417 discretion by reason of section 476(2) of the Migration
Act 1958 (Cth) which provides that the Federal Court and Federal
Magistrates Service have no jurisdiction to review a decision by the Minister
not to exercise, or not to consider the exercise, of the discretion conferred
by s 417. [16]

Despite the obstacles to reviewing s 417 decisions,
the above scheme, taken as a whole, provides a number of significant avenues
for review before it reaches the Minister, including merits review of
the initial decision regarding a person’s visa application. Provision
of such review is, in the Commission’s submission, necessary in
light of the fact that one is potentially dealing with threats to a person’s
life and bodily integrity. A flaw in the decision making process may be
literally fatal.

4.3 ICCPR, CRC and CAT

Not only is the Ministerial discretion under s 417 seen
as a ‘safety net’ for people making applications invoking
Australia’s obligations under the Refugees’ Convention, it
seems also to be viewed by the Commonwealth as the sole means by which
Australia implements its non-refoulement obligations under the ICCPR,
CRC and CAT. The Commission considers it to be unclear whether or not
s 417 has such a scope. However, for the purposes of sections 4, 5 and
6 of this submission, the Commission treats that assumption as correct.

The Department of Immigration and Multicultural and
Indigenous Affairs has contended that Australia meets its non-refoulement
obligations for ICCPR/CRC/CAT asylum seekers through the exercise of the
Minister’s discretion. [17] The Attorney-General’s
Department has also contended that it is a basic principle of international
law that each state has a margin of appreciation as to how it gives effect
to its treaty obligations. [18] Australia has chosen
to exercise this obligation through this means.

The definition of a refugee under the Refugees’
Convention was set out in section 3 above. Under the Refugees’ Convention
it is necessary to show a well-founded fear of persecution based on certain
grounds, being race, religion, nationality, membership of a particular
social group or political opinion. A refugee must also be unable or, owing
to such fear, unwilling to avail himself or herself of the protection
of that country. Recent amendments to the Migration Act 1958 (Cth) have
narrowly interpreted the circumstances that meet those requirements. [19]

The definition of refugee may exclude people who must
be protected from refoulement under the ICCPR, the CRC or CAT. [20]

Some illustrative examples of these types of cases are

• women and
  children who have been the subject of trafficking and, if returned,
  may fail to be protected by their government from the risk of torture
  and cruel treatment at the hands of the same criminal networks which
  trafficked them to Australia
• women who
  are at risk of domestic violence if returned to their countries where,
  for various reasons, they cannot seek adequate protection from the authorities
• witnesses
  of crime who have been threatened with death or physical injury by criminal
  elements in countries where those criminal elements operate with impunity.

Several examples of cases were also included in the
Senate Legal and Constitutional References Committee 2000 report, A
Sanctuary under Review: An Examination of Australia’s Refugee and
Humanitarian Determination Processes. [21]

The Migration Act makes no specific provision for asylum
seekers who seek to invoke Australia’s protection obligations under
ICCPR/CRC/CAT, and not on the ground that they are refugees under the
Refugees’ Convention. Such people do not have the benefit of merits
review and access to the Courts to review unfavourable decisions by the
Department of Immigration and Multicultural and Indigenous Affairs. The
decision making process regarding their claims, which again may be literally
a matter of life and death, effectively defaults into a non-reviewable,
non-compellable exercise of Ministerial discretion.

The Commission considers that the preferable approach
would be to treat applications based upon Australia’s protection
obligations under the ICCPR, the CRC and the CAT in a similar manner as
those invoking Australia’s protection obligations under the Refugees’
Convention. This is discussed in more detail in section 7 below.

4.4 Other ‘exceptional or unique’
cases requiring the exercise of the discretion conferred by s 417.

MSI 225 also provides for consideration of other ‘exceptional
or unique’ circumstances which are not related to persecution or
other ill treatment likely to be experienced in a country to which a person
is returned.

Those matters include:

• circumstances
  that the legislation could not have anticipated [22]
• clearly
  unintended consequences of legislation [23]
• intended,
  but in the particular circumstances, particularly unfair or unreasonable,
  consequences of legislation [24]
• strong
  compassionate circumstances such that failure to recognise them would
  result in irreparable harm and continuing hardship to an Australian
  family unit (where at least one member of the family is an Australian
  citizen or Australian permanent resident) or an Australian citizen [25]
• exceptional
  economic, scientific, cultural or other benefit to Australia [26]
• the length
  of time the person has been present in Australia (including time spent
  in detention) and their level of integration into the Australian community [27]
• the health
  and psychological state of the person. [28]

MSI 225 also specifically refers to circumstances requiring
consideration of Australia’s obligations under article 3 of the
CRC which provides:

In all actions
concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary consideration.

The use of the s 417 discretion to provide for such
circumstances does not raise the same issues of concern for the Commission
as potential refoulement situations. Nevertheless, the Commission has
made some comments on those matters in section 6 below.

5.
Problems with relying on Ministerial discretion for ICCPR/CRC/CAT non-refoulement

5.1 Non-refoulement obligations are not discretionary

Australia’s non-refoulement obligations under the
ICCPR, the CRC and CAT are not discretionary and subject to few, if any,
exceptions. Indeed, the non-refoulement obligation under CAT has been
described as ‘absolute’. [29] The provisions
of s 417 do not direct the Minister’s attention to those obligations
or require his consideration of them. Rather the Minister is required
to be satisfied that the exercise of the discretion would be ‘in
the public interest’. While Australia’s non-refoulement obligations
may raise ‘public interest’ considerations, it seems that
those considerations could be outweighed by other public interest considerations
(such as the Ministers’ assessment that the applicant would not
make a useful contribution to Australian society).

Moreover, there is no requirement that the Department
refrain from removing the applicant until the Minister has decided whether
to exercise his discretion. [30] Indeed, paragraph 7.1
of the MSI 225 specifies that a request to the Minister to exercise his
public interest powers has no effect on the provisions in the Migration
Act for the removal of unlawful non-citizens. An ICCPR/CRC/CAT asylum
seeker could therefore be removed prior to any consideration of their
claims for protection under those international instruments.

This fragile process for protection from refoulement
appears incompatible with the nature of the obligations Australia has
assumed.

5.2 The current scheme does not make adequate
provision for the possibility of flaws in the decision making process

MSI-255 does indicate that ‘unique or exceptional
circumstances’ requiring the exercise of the discretion may arise
by reason of Australia’s obligations under the CAT, the CRC and
the ICCPR. [31] The obligations
not to refoule under the ICCPR and the CAT are specifically referred to. [32] However, even assuming that the Minister will exercise
the discretion in favour of an applicant in every case where it appears
there is a risk of refoulement (despite being under no obligation to do
so), the current scheme does not, in the Commission’s submission,
make appropriate provision for the possibility of flaws in the decision
making process.

As discussed above, the overall scheme for considering
applications made by Refugees’ Convention applicants provides a
number of avenues for review. One aspect of the rationale underlying the
provision of such review is that decision makers and those assisting them
are not perfect. The possibility of an ‘incorrect’ decision
arises from matters such as:

• a decision
  maker not having all relevant material before them;
• a decision
  maker misinterpreting or misapplying the law;
• a decision
  maker making an error as to the factual material before them; or
• a decision
  maker not giving an applicant an opportunity to respond to adverse material
  which is significant to the decision makers’ decision.

In raising those possibilities, the Commission intends
no criticism of the Minister or the Department. The risk of error inevitably
attends all administrative decision making.

By providing a multilayered combination of judicial
and merits review for Refugees’ Convention applicants (with the
s 417 discretion as a safety net), Parliament has reduced the risk that
any such errors will put Australia in breach its non-refoulement obligations
under the Refugees’ Convention.

In contrast, ICCPR/CRC/CAT asylum seekers must hope that:

• Departmental
  staff do not err in considering and processing a request that the Minister
  exercise his discretion; and
• That all
  relevant material is presented to and correctly construed by the Minister
  and that the Minister has due regard to their attempts to invoke Australia’s
  non-refoulement obligations and correctly construes those obligations
  (which may involve difficult questions of international law).

Further, there is no free legal assistance provided
by the government for s417 requests. All s417 applications are determined
by written evidence only. There are no opportunities for hearings or interviews.

If errors are made, the applicant will most likely have
no opportunity to seek to correct them, there being effectively no rights
of review for the reasons outlined above. Moreover, there is little protection
in the way of scrutiny of such decisions. Section 417(4) requires the
Minister to provide to each House of Parliament a statement outlining
her or his reason for substituting a more favourable decision for a decision
by the Refugee Review Tribunal. The Minister’s statements appear
to be pro forma and do not outline whether the decision was based on non-refoulement
obligations or other humanitarian considerations. [33] Further, the Minister is not required to table reasons for refusing or
not considering cases.

There is no reason in principle why a less rigorous approach
should be taken in relation to ICCPR/CRC/CAT asylum seekers as compared
to people seeking to invoke Australia’s obligations under the Refugees’
Convention. Australia’s non-refoulement obligations under the ICCPR,
CRC and CAT are no less important than those under the Refugees’
Convention. The potential harm flowing from an error in a decision regarding
those obligations is equally severe.

5.3 Australia’s obligation to provide
‘effective remedies’ for breaches of international human rights
obligations.

The exclusive reliance upon the s 417 discretion for
ICCPR/CRC/CAT asylum seekers not only increases the risk of breaching
Australia’s non-refoulement obligations, it also places Australia
in breach of the continuing obligation to ensure that there are appropriate
systems in place to provide ‘effective remedies’ for breaches
of human rights instruments.

In particular, such an obligation may be seen in article
2(3) of the ICCPR, which states:

Each State
Party to the present Covenant undertakes:

(a) To ensure
that any person whose rights or freedoms as herein recognized are violated
shall have an effective remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity;

(b) To ensure
that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities,
or by any other competent authority provided for by the legal system
of the State, and to develop the possibilities of judicial remedy;

(c) To ensure
that the competent authorities shall enforce such remedies when granted. [34]

Article 2(3) obliges states to develop effective remedies
to prevent future (as well as existing) breaches of rights and freedoms
guaranteed by the ICCPR. [35] The UNHRC has said, regarding
those issues:

…
if the alleged offence is particularly serious, as in the case of violations
of basic human rights, in particular the right to life, purely administrative
and disciplinary remedies cannot be considered adequate and effective. [36]

The non-reviewable, non-compellable s 417 discretion
is a very limited form of administrative remedy, operating in the context
of breaches of the most fundamental of human rights (including the right
to life). In the Commission’s view, the s 417 discretion does not
meet the requirement of ‘effectiveness’ in this context.

5.4 Burdens the refugee status determination
system and s417 process with cases that should be dealt with elsewhere

There are a large number and variety of requests made
under s 417. In 2001/02, 9422 requests were made to the Minister. Of these
2870 were referred to the Minister. It appears that he exercised his discretion
in only 199 in the same year. [37] The Sydney Morning
Herald reported that Minister Ruddock has used his powers of intervention
1751 times since becoming Immigration Minister in 1996 - an average of
250 times a year, as much as three to one times more than his three predecessors. [38]

Alternative arrangements for the protection of Australia’s
non-refoulement obligations, like those suggested in section 7 of this
submission, would relieve (at least some) stress on that part of the system.
The Ministerial discretion could then be more appropriately reserved for
cases falling between the cracks where a more significant element of subjective
judgement might be required.

5.5 Pathway to the Minister is long and may
involve arbitrary detention

To get to the stage at which exercise of the s 417 may
be considered, asylum seekers must first make an application for a refugee
protection visa and apply for review of that decision. It is not until
they have exhausted that process that they can be considered by the Minister
under s 417. Once they reach the s 417 stage, the process can take months.

Further, many of these applicants are unauthorised non-citizens
who must be detained during the process of visa application and consideration,
review by the Refugee Review Tribunal and request to the Minister. [39] In Those Who’ve Come Across the Seas, [40] the Commission reported to the Parliament on the ‘mandatory detention’
of unauthorised non-citizens generally and found that their detention
was ‘arbitrary’ within the meaning of article 9(1) of the
ICCPR and article 37(b) of the CRC. [41] The Commonwealth
has indicated that it does not agree with the Commission’s findings
in Those Who’ve Come Across the Seas. [42] However, leaving aside the differences between the Commonwealth and the
Commission on that more general issue, the position of ICCPR/CRC/CAT asylum
seekers appears to be a special case. Under the current scheme, ICCPR/CRC/CAT
asylum seekers may be detained for an extended period while they work
their way through a process which has no direct application to them. It
is difficult to see how their detention during that period can be said
to be necessary or proportional as required by article 9(1) of the ICCPR
and article 37(b) of the CRC.

6.
Exercise of the s 417 discretion in other situations

As noted above, MSI 225 also provides for consideration
of other ‘exceptional or unique’ circumstances which are not
related to persecution or other ill treatment likely to be experienced
in a country to which a person is returned. The Commission supports the
continued retention of a general, ‘safety net’ discretion
to catch cases in which broader ‘humanitarian concerns’ arise
or where the legislation operates in an unintended or unfair manner or
against the public interest.

However, the Commission is concerned that some of the
matters falling within that broad category may require consideration of
the exercise of Ministerial discretion prior to the applicant receiving
an unfavourable decision from the Refugee Review Tribunal. That is particularly
so when some of those cases appear to involve Australia’s international
human rights obligations.

For example, under article 3 of the CRC the best interests
of the child should be a primary consideration in all actions concerning
the child. A child may not activate Australia’s non-refoulement
obligations under any of the international instruments referred to above
but may nonetheless have a compelling and urgent need to be granted a
visa on compassionate grounds. It may be many months before those needs
can be considered under the s 417 discretion. If a child applicant is
in detention, he or she may suffer unduly in the meantime, including physical
and mental harm. It may be in the child’s best interests for their
case to be considered on public interest grounds earlier in the process,
rather than being detained for months while their visa application is
rejected at the primary decision stage and that decision affirmed by the
Refugee Review Tribunal.

There may, therefore, be a case for the earlier assessment
of claims by Departmental officers, and immediate referral to the Minister
in certain cases if the human rights of children in detention are not
met by other means (for example bridging visas). This would obviously
require amendment of the Act to empower the Minister to exercise a discretion
to grant a visa of some sort at any time on compassionate grounds. At
present the discretion can only be exercised after an unfavourable decision
of the Refugee Review Tribunal. [43]

7.
Preliminary suggestions for ensuring protection under ICCPR/CRC/CAT

In the Commission’s view, in order to ensure that
Australia complies with its non-refoulement obligation under the ICCPR,
CRC and CAT, the Parliament should institute procedures incorporating
the following features:

• Clear criteria
  setting out when a person should be protected from non-refoulement under
  the ICCPR, CRC or CAT
• Procedures
  that protect against errors in applying that criteria (due process)
• Mechanisms
  to implement Australia’s protection obligations for those who
  meet the criteria (visas)

The creation of a specific visa class directed to Australia’s
protection obligations under the ICCPR, CRC and CAT, which requires consideration
of the relevant criteria, provides for administrative and judicial review
as well as the ultimate ‘safety net’ of the Ministerial discretion,
would be one method of incorporating these features. The current procedures
for protection under the Refugees’ Convention provides a useful
start in this regard.

The Commission would be willing to assist the Committee
in developing a more detailed model if requested.

8.
Conclusions

Australia has an obligation, under the ICCPR, CRC and
CAT, not to refoule people, even if those people do not meet the definition
of refugee under the Refugees’ Convention. The present system of
ensuring non-refoulement is directed to protecting those who fall within
the Refugees’ Convention definition. The Commonwealth asserts that
Ministerial discretion is the primary means by which ICCPR/CRC/CAT asylum
seekers are protected.

For the reasons outlined above, that is unsatisfactory.

Australia should take positive action to ensure that
it complies with its obligations not to refoule ICCPR/CRC/CAT asylum seekers.
The Commission has suggested that those obligations might more appropriately
be met through the creation of an appropriate visa class, access to an
administrative tribunal for review of primary decisions and to judicial
review. Those matters should also be able to be referred to the Minister
for consideration as a final safety check.

The Commission notes that in 2000, the Senate Legal
and Constitutional References Committee made a number of recommendations
about the section 417 Ministerial discretion process and non-refoulement.[44] While concluding that the discretion should be retained, the Committee
recommended that the Attorney-General’s Department, in conjunction
with DIMIA, examine the most appropriate means by which Australia’s
laws could be amended so as to explicitly incorporate the non-refoulement
obligations of the CAT and ICCPR into domestic law. [45] To date, this recommendation has not been implemented.

The Commission supports this recommendation and urges
the Government to examine the most appropriate means of fully implementing
its obligations of non-refoulement.

The question also arises whether other humanitarian
obligations should be assessed earlier in the process of visa application
and subject to review by a tribunal and court system. In particular, cases
involving the best interests of the child under the CRC could be assessed
by Department officers at the primary application stage.

The Commission would be willing to assist the Committee
in developing a model that would better protect the right to non-refoulement
under the ICCPR, CRC and CAT, if requested.

Appendix A:
‘Human rights’ under the Human Rights and Equal Opportunity
Commission Act 1986 (Cth).

For the purposes of the Act, ‘human rights’
are defined in the international human rights instruments which are scheduled
or declared under this Act. These instruments are

• International
  Covenant on Civil and Political Rights (ICCPR)
• International
  Labour Organisation Discrimination (Employment) Convention ILO 111
• Convention
  on the Rights of the Child (CRC)
• Declaration
  of the Rights of the Child
• Declaration
  on the Rights of Disabled Persons
• Declaration
  on the Rights of Mentally Retarded Persons, and
• Declaration
  on the Elimination of All Forms of Intolerance and of Discrimination
  Based on Religion or Belief.

The two instruments of relevance to this submission are
the ICCPR and the CRC.

Australia also has obligations under several other treaties
of relevance to this inquiry, which are not scheduled to or declared under
the Act. The Convention relating to the Status of Refugees (1951)
and the Protocol relating to the Status of Refugees (1967) (‘the
Refugees’ Convention’) and the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
are of direct relevance to this submission as they include the principle
of non-refoulement.

The Commission is required to consider those international
instruments because Article 22 of the CRC provides that State Parties
must ensure child asylum seekers ‘receive appropriate protection
and humanitarian assistance in the enjoyment of applicable rights set
forth … in other international human rights or humanitarian instruments
to which the said States are Parties’. As Australia is a State Party
to the Refugees’ Convention and CAT, it is obliged to ensure the
rights outlined in its provisions are afforded to children.

1. Opened for signature 16 December 1966,
[1980] ATS 23, (entered into force for Australia 13 November 1980).

2. Opened for signature 20 November
1989, [1991] ATS 4 , (entered into force for Australia 16 January 1991).

3. Opened for signature 10 December
1984, [1989] ATS 21, (entered into force for Australia 8 August 1989).

4. The term ‘Refugees’ Convention’
is used to refer to the Convention Relating to the Status of Refugees,
opened for signature 28 July 1951, [1954] ATS 5, (entered into force for
Australia 22 April 1954) as applied in accordance with the Protocol
Relating to the Status of Refugees, opened for signature on 31 January
1967, [1973] ATS 37, (entered into force for Australia 13 December 1973).

5. T.T. v Australia (706/96)
paragraph 8.1, also referred to as G.T. v Australia – complaint
brought by Mrs G.T. on behalf of her husband T. See similar comments made
in Kindler v Canada (470/91). See also General Comment 20 of
the UNHRC where it was said ‘In the view of the Committee, State
parties must not expose individuals to the danger of torture or cruel,
inhuman or degrading treatment or punishment upon their return to another
country by way of their extradition, expulsion or refoulement.’
This General Comment has been interpreted as ‘prohibit[ing] refoulement
with regard to all article 7 treatment’ (S Joseph et al, The
International Covenant on Civil and Political Rights (2000) OUP at
p162).

6. While the requirement for ‘substantial
grounds’ means that the risk of torture must go beyond mere theory
or suspicion, it does not need to meet the test of being highly probable:
CAT Committee General Comment 1, paragraph 1.

7. See ss 45 and 46 Migration Act
1958 (Cth).

8. See s47 Migration Act 1958 (Cth).

9. See s 36(2) Migration Act 1958 (Cth). Recent amendments to the Migration Act 1958 (Cth) have introduced
statutory limitations to aspects of the traditional convention definitions
(see ss 91R and S Migration Act 1958 (Cth)). The Commission has previously
expressed to the Senate Legal and Constitutional Committee concerns regarding
those amendments, in a submission to the Senate’s inquiry into Migration
Legislation Amendment Bill (No.6) 2001. Nevertheless, the protection visa
provisions of the Migration Act 1958 (Cth) still constitute a
statutory acceptance by Australia of obligations, in the circumstances
identified in the Refugees’ Convention, to protect persons who qualify
as refugees.

10. See s412 Migration Act 1958 (Cth)
and, more generally, Part 7.

11. See s 474 Migration Act 1958 (Cth)
and the High Court’s decision regarding that provision in S157
of 2002 v Commonwealth of Australia (2003) 77 ALJR 454.

12. See s417(1) Migration Act 1958 (Cth).

13. Evidence given by the Department
to the Senate Legal and Constitutional References Committee, reported
in A Sanctuary under Review: An Examination of Australia’s Refugee
and Humanitarian Determination Processes, Commonwealth of Australia,
June 2000, pp241-2.

14. See s 417(3) Migration Act
1958 (Cth).

15. See paras 6.2-6.5 of MSI 225.

16. Re judicial review see further S134 of 2002 v Minister for Immigration & Multicultural &
Indigenous Affairs (2003) 77 ALJR 437 at para [48] per Gleeson CJ
and McHugh, Gummow, Hayne and Callinan JJ and at para [100] per Kirby
and Gaudron JJ; NAQG of 2002 v Minister for Immigration & Multicultural
& Indigenous Affairs [2002] FCAFC 414; Re MIMIA; ex parte Applicant
S190 of 2002 [2002] HCA 39 (19 August 2002).

17. A Sanctuary under Review’,
p58. For the purposes of this submission ‘ICCPR/CRC/CAT asylum seekers’
will be used to describe people who are not owed protection obligations
under the Refugees’ Convention but to whom Australia nevertheless
owes non-refoulement obligations under the ICCPR, CRC and/or CAT.

18. Ibid.

19. Migration Act 1958 (Cth), ss 91R,
91S.

20. For the purposes of this submission
‘ICCPR/CRC/CAT asylum seekers’ will be used to describe people
who are not owed protection obligations under the Refugees’ Convention
but to whom Australia nevertheless owes non-refoulement obligations under
the ICCPR, CRC and/or CAT.

21. A Sanctuary under Review,
pp49-50 and the cases of Mr SE and Ms Z.

22. See paragraph 4.2.5 of MSI 225.

23. See paragraph 4.2.6 of MSI 225

24. See paragraph 4.2.7 of MSI 225

25. See para 4.2.8 of MSI 225.

26. See para 4.2.9 of MSI 225.

27. See para 4.2.10 of MSI 225.

28. See para 4.2.12 of MSI 225.

29. A Sanctuary under Review’,
p53.

30. See s198(6) and the definition
of ‘finally determined’ in s5(9) of the Migration Act
1958 (Cth).

31. See paras 4.2.2, 4.2.3 and 4.2.4.

32. See paras 4.2.2 and 4.2.4 (first
dot point) of MSI 225.

33. In contrast, he is required to
set out case specific reasons for the exercise of his discretion under
s351.

34. The CRC contains no parallel provision.
However, the CRC does require that ‘States Parties shall undertake
all appropriate legislative, administrative, and other measures for the
implementation of the rights recognized in the present Convention.’
(article 4). The Committee on the Rights of the Child has indicated that
the ‘remedies available in the case of violations of the rights
recognised by the Convention’ is a matter it will consider when
assessing compliance with that article. CAT more specifically focuses
upon the effectiveness of such measures, providing: ‘Each State
Party shall take effective legislative, administrative, judicial or other
measures to prevent acts of torture in any territory under its jurisdiction’.

35. Herrara Rubio v Colombia No 161/1983. See also M Nowak UN Covenant on Civil and Political Rights:
CCPR Commentary (1993), NP Engel p62, cf CF v Canada No
113/1981.

36. See Vicente v Colombia 612/1995.

37. Johanna Stratton, Humanitarian
Intervention in the Public Interest? A Critique of the Recent Exercise
of the s 417 Migration Act 1958 (Cth), a paper submitted for the
Research Paper Faculty of Law, The Australian National University, 4 November
2002, p20. The author notes that she hand-counted the Statements to Parliament
of the number of times discretion has been granted and, also, that these
are annual activity rather than cohort figures.

38. Sydney Morning Herald, June 29,
p20.

39. See ss 189 and 196 of the Migration
Act 1958 (Cth).

40. HREOC, 1998.

41. See A v Australia (560/93)
at para 9.2 and C v Australia (No 900/1999) at para 8.2.

42. ‘Government Response
to the Human Rights and Equal Opportunity Commission Report into Those
Who’ve Come Across the Seas Detention of Unauthorised Arrivals’,
no publication date.

43. See s417(1) of the Migration
Act 1958 (Cth).

44. A Sanctuary under Review’,
p53.

45. A Sanctuary under Review’,
p53, Recommendation 2.2, p60.

Last
updated 27 August 2003