We shouldn’t even contemplate returning a person to a place where there’s a 50/50 chance they’ll be killed. But that’s precisely the power the Government is trying to give itself.
Proposed changes to the Migration Act, announced last week by Immigration Minister Scott Morrison, will significantly increase the risk threshold a person has to meet before being eligible for Australia’s protection under important human rights treaties.
Australia has protection obligations under the Refugee Convention, the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture (CAT). The Refugee Convention covers people facing persecution because of their race, religion, nationality, political opinion, or membership of a particular social group. The ICCPR and the CAT cover people fleeing similar dangers but for different reasons – people fleeing civil war, honour killings, domestic violence, revenge attacks or blood feuds, for instance.
The changes being proposed dramatically raise the threshold for Australia’s protection under the ICCPR and CAT.
A person is currently eligible for Australia’s protection under these treaties if there is a “real chance” they’ll face significant harm on return. It’s difficult to translate such qualitative concepts into precise percentages but the Courts have roughly equated the “real chance” test with a 10% risk of significant harm.
Morrison’s reforms would up that threshold to “more likely than not” – that is, a probability of greater than 50%. Consequently, a person facing a 50/50 risk of serious harm for a reason not covered by the Refugee Convention could be returned.
The 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.
Our own Government would assess these people as being in serious danger and then send them straight back to it. And at those odds, even if we only returned 10 people, five would suffer the harm they’d fled.
The proposed reforms also require the rejection of protection applications where an asylum seeker doesn’t provide evidence of identity and citizenship or hands up “bogus documents”.
The nature of flight from persecution means that refugees often can’t ask the regimes from which they’re fleeing for help getting all their paperwork in order. Sometimes they require fake ones to escape.
So when someone does flee without documents or with fake ones which they then discard, they shouldn’t automatically be viewed with suspicion. They’re not necessarily “gaming the system”, as the Immigration Minister puts it. They may simply be the victims of circumstance.
It’s unfair to deny someone protection just because they arrive without particular documents or with fake ones. It’s also unlawful. Australia has made commitments under international law to protect people who need it. That basic legal and moral duty isn’t extinguished just because someone arrives without a particular piece of paperwork.
More broadly, these reforms are part of a range of measures effectively shutting our doors at a time of unprecedented global need. Just last week, the UN Refugee Agency revealed that there are now 51.2milion displaced people worldwide – the most since the end of the Second World War.
Yet rather than stepping up to the plate to help share the burden, Australia is pulling out all stops to shift it.
Our humanitarian resettlement program has been cut by over 6000 places. Those who arrive are mistreated to warn off anyone else thinking of coming. Those already here are denied permanent protection and pressured to return.
The Government says all this is necessary to stop deaths at sea. But if the Government were truly distressed at the prospect of asylum seekers dying it wouldn’t contemplate returning them to a 50/50 chance of death.
Daniel Webb is Director of Legal Advocacy at the Human Rights Law Centre. He is on twitter @DanielHRLC