Playing God with Sanctuary - a report on Complementary Protection

A dangerous gap exists in Australia's refugee system that means people threatened with torture and gross human rights violations are being sent back to their country of origin after years in detention centres because they do not fit the technical definition of a 'refugee', according to a joint report by refugee policy group A Just Australia (AJA) and Oxfam released today.

Under the current system, a person who faces danger if they return to their place of origin might slip through the gaps and only get asylum by applying for refugee status, knowing they will be rejected, apply for a second time once they are rejected and then seek ministerial intervention - which may not be granted.

The report, Playing God with Sanctuary: A study of Australia's approach to complementary protection obligations beyond the Refugee Convention, follows Immigration Minister Chris Evans' comments in February that he was uncomfortable 'playing God', expressing concern about 'the lack of transparency and accountability for those decisions'.

Executive Summary

?What is complementary protection?

??Complementary protection? refers to States? protection obligations under international law to people who cannot be returned to their home country safely, but who are not strictly ?refugees? as defined by the Refugee Convention.? These conventions impose non-refoulement obligations on signatory states, which prohibit the return of people to specific situations of danger, such as people who are at risk of being tortured, are fleeing civil war or generalised violence or are stateless.

?Purpose of the report

The object of this report is to examine Australia?s current approach to its international legal obligations in relation to non-Refugee Convention protection. This report examines whether the obligations are being properly met, as well as analysing the costs and efficiencies of the current approach to determine whether a new system to deliver ?complementary protection? should be introduced.

Current Australian law

• Australia is now one of the few developed countries that has no formal system of complementary protection. Instead, Australia currently uses ministerial intervention powers as an informal mechanism.

• Under current Australian law, all people seeking protection must file an application for refugee status with the Immigration Department even if they know from the outset that they will not fit this definition of a refugee. The claim is assessed against the Refugee Convention but not against other human rights treaties Australia has ratified, such as the Convention Against Torture (CAT).

• Unsuccessful applicants can appeal the decision to the Refugee Review Tribunal (RRT) which can again only review the application against the Refugee Convention. After a second negative decision the applicant may apply to the Minister for Immigration to assess their claim based on a much broader set of humanitarian criteria, which can include risk of torture or other claims under human rights treaties Australia has ratified.

• But the Minister does not have to intervene, no court can compel the Minister to intervene and s/he is under no obligation to give reasons for not intervening.
  If the Minister does intervene, s/he does not have to give reasons for his/her decision and no court can review the decision.

Why do we need a formal system of complementary protection?

• The current system fails people in need of protection, as it may result in the return of people to countries where they may be tortured or seriously harmed. It also results in psychologically harmful delays of protection to vulnerable people living in detention or in the community.
• The current system is more costly as it may result in prolonged detention, extra legal and financial costs and other hardships such as living in the community for extended periods without work rights or access to healthcare.
• The current system undermines the rule of law and democracy in Australia as it utilises a discretionary method to deliver international legal obligations.

CP-PlayingGod-Web_080604.pdf 211.37 KB [Download Adobe Reader to view PDF files]