Asylum Seekers: Right to Protection and Non-Refoulement

On 29 September 2010, the Human Rights Law Resource Centre sent a letter to to the Australian Government calling for the urgent enactment of legislation to provide complementary protection to asylum seekers at risk of persecution, torture or death if deported. Further, on 5 November 2010, the HRLRC, together with a coalition of leading refugee law academics and NGOs, sent a Briefing Note to Members of Parliament regarding the extension of protection to people at risk of torture and other serious human rights violations.

Complementary protection is the protection owed by a State that falls outside the scope of the Refugee Convention.  Complementary protection obligations are found in the non-refoulement provisions of various human rights treaties, including the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Australia has failed to give full effect to these obligations, with the result that some asylum seekers have been deported in contravention of fundamental human rights standards to situations of potential torture or death.

In 2009, the Australian Government introduced a Complementary Protection Bill in parliament, but the Bill lapsed and has not been re-introduced.  The 2009 Bill provided for a protection visa to be granted to a person where there is a real risk that he or she will:

  • be arbitrarily deprived of his or her life; or
  • have the death penalty imposed on him or her and it will be carried out; or
  • be subjected to torture; or
  • be subjected to cruel or inhuman treatment or punishment; or
  • be subjected to degrading treatment or punishment.

Enactment of such a Bill would be an important step towards the recognition of Australia’s non-refoulement obligations and the protection of very vulnerable people.  To date, these obligations have received insufficient legislative protection.  This failure has been commented upon by the Committee against Torture, the Human Rights Committee and the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.

A full analysis of the 2009 Bill, including the ways in which it could be strengthened, is available here.