Proposed amendments to the Migration Act would significantly increase the risk of people being returned to persecution, the HRLC has said in a submission to the Legal and Constitutional Affairs Legislation Committee.
The Committee is conducting an inquiry into changes which would increase the risk threshold asylum seekers have to meet before being eligible for Australia’s protection under important human rights treaties.
HRLC Director of Legal Advocacy, Daniel Webb, explained that a person is currently eligible for Australia’s protection under these treaties if there is a “real risk” they’ll face significant harm on return. The changes would raise that threshold to “more likely than not” – that is, a probability of greater than 50%.
“These reforms would potentially see a woman 50% likely to be the victim of an honour killing forced to go home and take her chances. Someone at the centre of a blood feud, 50% likely to be executed on return, could also be sent packing,” said Mr Webb.
“Our own Government would assess these people as being in serious danger and then send them straight back to it.”
Mr Webb said the stringent test for protection undermined the Government’s claims to be motivated by a concern to save lives.
“Australia’s current asylum seeker policies inflict tremendous cruelty on anyone arriving by boat. We’re told this is necessary to save lives at sea. But if the Government was truly distressed at the prospect of asylum seekers dying it wouldn’t be seeking the power to return them to a 50/50 chance of death,” said Mr Webb.
The proposed reforms also require protection visas to be denied to asylum seekers who have refused or failed to establish their identity, nationality or citizenship or provided ‘bogus’ identity documents. The HRLC submission says such reforms overlook the nature of flight from persecution.
“Refugees often can’t ask the regimes from which they’re fleeing for help getting all their paperwork in order. Sometimes they require fake documentation to escape”, said Mr Webb.
The HRLC submission explains that it is therefore both unfair and unlawful to deny refugees protection on because they don’t have all the required documents.
“Australia’s basic legal and moral duty to protect isn’t extinguished just because someone arrives without a particular piece of paperwork”, said Mr Webb.
The proposed reforms would also impose a strict legal burden on asylum seekers to prove their protection claims. In practice that would be a very difficult burden for many asylum seekers to meet, especially given many claims are hard to back up with documentary evidence and recent funding cuts mean many asylum seekers have no access to lawyers.
“The UNHCR Handbook on refugee processing reminds Governments that ‘it is hardly possible for a refugee to prove every part of his case’. Yet that is precisely what our Government wants to demand of each and every person seeking our protection,” said Mr Webb.
“The risk created is that refugees with legitimate claims will struggle to conclusively prove them and be wrongfully sent back to harm.”