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Proposed Tightening of Australian Asylum Seeker Laws Could Impact Thousands

"The Bill, if it becomes law, could deny protection to people fleeing war zones because the danger they face is 'generalized,' not personal."

by Paul Gregoire
Oct 28 2015, 7:50pm

Australian Immigration Minister addresses potential sea-borne refugees in January 2015.

Ali is a Hazara man from Afghanistan, who came to Australia seeking asylum in 2012. He fled his country of birth, as the area where his family lives is surrounded by the Taliban. The region is periodically attacked and it's dangerous to travel outside of. "My father was killed by the Taliban, when he was going to Kabul to get supplies for his work," he said, adding that his mother and uncle decided, as he was the oldest child, he should leave.

He traveled through Pakistan and was in Indonesia for six months, before continuing on by boat. "The sea is dangerous and expensive but I couldn't apply for a visa to visit Australia or any other country that would let me stay." Ali, who's in his 20s, applied for a protection visa when he arrived and is currently on a bridging visa. He's been allowed to work, the Australians he's met have been friendly, but the wait is worrying him. "While I've been in Australia, my little brother was also killed by the Taliban."

But since Ali arrived in the country, sweeping changes have been made to the process of applying for asylum via the Legacy Act 2014. Passed in December last year, this bill retrospectively deemed applications like Ali's to have actually been for temporary protection visas, meaning that after a period of three years a new application must be made.

Read: Australia's Mistreatment of a Pregnant, Allegedly Raped Refugee

The Legacy Act also narrowed the definition of a refugee and, according to Scott Cosgriff, a senior solicitor at the Refugee Advice and Casework Service, Ali may not be considered a refugee when applying for his next visa.

The decision to grant Ali refugee status was made prior to these changes. "He was successful because it was considered unreasonable—because of the security situation and because he was young—to relocate within Afghanistan to avoid persecution," Cosgriff explained.

But the Legacy Act has since removed the reasonableness principle from internal relocation considerations, meaning Ali would now need to show he'd be under the threat of the Taliban in every part of the country. So for instance, as Kabul is under government control, it may be considered a safe haven, even though it's being regularly attacked.

These Migration Act amendments mean proposed changes to complementary protection may have a far greater impact than what might be initially presumed.

On October 14, Australian immigration minister Peter Dutton tabled the Migration Amendment (Complementary Protection and Other Measures) Bill 2015. Complementary protection is granted to an individual who faces a real risk of significant harm if returned to the country they left, but are not classed as refugees.

"The categories of the Refugee Convention itself, while quite general, on the other hand, do not necessarily encompass a range of reasons why people need protection," said Ian Rintoul, spokesperson for the Refugee Action Coalition. He gave examples such as women under threat of honor killings or individuals facing revenge attacks.


Related: Watch VICE News's documentary 'Refugees' Dead End in Italy: Breaking Borders (Dispatch 7)'

Complementary protection is a recent addition to Australian immigration legislation. Since March 24, 2012, it's been required that if an asylum seeker fails the refugee definition, then a decision maker must consider them for complementary protection.

As of June 13, 2014, only a reported 49 successful complementary protection decisions had been made by the Refugee Review Tribunal, because most people deemed eligible for asylum were considered refugees. But this small reach could be about to change. With the narrowing of the refugee definition, more of the estimated 25 to 30,000 asylum seekers in Australia waiting for their cases to be heard, could find this their last line of protection.

However, the government's new bill is set to bring complementary protection into line with the changes made to refugee legislation by the Legacy Act. "The actual effect of this is bigger because there used to be two threads these people were hanging by," Cosgriff said, and went on to explain that it means "a lot of people are about to be excluded, if this passes."

Along with altering the provision for reasonable internal relocation, the bill also amends measures surrounding effective protection. Currently, if the State can provide protection against the risk of harm, an individual will not be granted a visa. However, under the new bill effective protection could be supplied by non-government actors, opening up the way for mercenary or militia groups to qualify.

Director at the Human Rights Law Centre Daniel Webb pointed to the personalized risk and generalized violence provision as a particular concern. "The Bill, if it becomes law, could deny protection to people fleeing war zones because the danger they face is 'generalized,' not personal," he said. "Danger is danger. We should never return a person to it, regardless of whether or not the government thinks the risk is sufficiently personal."

However, a Department of Immigration and Border Protection spokesperson said that, "the bill makes clear that if levels of generalized violence in a country become so dangerous, consistent, or targeted towards particular groups that a real risk of personal harm is faced."

The spokesperson told VICE that both amendment bills are designed "to deliver a more effective and efficient onshore protection status determination process." And the changes to the Legacy Act are not expected "to have a significant impact on the numbers of persons granted protection visas under the complementary protection provisions."

A new provision introduced by the bill concerns people "who could take reasonable steps to modify their behavior." Reverend Elenie Poulos, national director of Uniting Justice Australia said, this could affect outspoken journalists or human rights advocates. "You arrive in Australia and want protection because you face the risk of torture," she explained. "Then under this legislation the government is likely to say, 'Well no, because you can go back home, do some other work and you'll be fine.'"

Currently, the bill has been referred to a senate committee, with a report due February next year.

For Ali, contemplating a return to Afghanistan is too much. Since he left, the Taliban has grown stronger and many cities are being attacked. "What if the same thing happens to me that happened to my dad or brother?" he said. "Every day I try to be busy, so that I don't think about this too much."

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