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Neda - National Ethnic Disability Aliance

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NEDA’s response to: The Inquiry into the Migration Amendment (Regaining Control over Australia’s Protection Obligations) Bill 2013

Preamble

 

The National Ethnic Disability Alliance (NEDA) is the national peak organisation representing the rights and interest of individuals from culturally and linguistically diverse backgrounds (CaLD) and/or non-English speaking backgrounds (NESB) with a disability, their families and carers throughout Australia.

 

On 4 December 2013, the Government introduced the Migration Amendment (Regaining

Control over Australia’s Protection Obligations) Bill 2013 which seeks to revoke the complementary protection provisions in the Migration Act 1958.

 

NEDA welcomes this opportunity to comment on the Migration Amendment (Regaining

Control over Australia’s Protection Obligations) Bill 2013 and the possible dismantling of the complementary protection framework for asylum seekers who face a real risk of serious harm.

 

The complementary protection framework was introduced into the Act on 24 March 2012 to allow consideration of claims raising Australia’s non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) as part of the protection visa process and to allow a protection visa to be granted if those obligations are engaged and other visa requirements are met.[1]

 

The Complementary Protection provisions allow that a person is eligible for a Protection Visa

if there are 'substantial grounds for believing that, as a necessary and foreseeable consequence of their removal, there is a real risk that [they] will suffer significant harm'.[2]

 

NEDA believes that it is crucial for the Government to offer protection to asylum seekers facing harm in their home, especially for asylum seekers with a disability and/or mental health issues, who are already disadvantaged to obtain protection and to gain asylum status in Australia.

 

 

Implications of the Migration Amendment (Regaining Control over Australia’s Protection Obligations) Bill 2013

 

Protection for asylum seekers with disabilities

 

NEDA believes that asylum seekers facing mental or physical impairments are especially vulnerable people for which the Government has a humanitarian obligation to protect and not repeal existing complementary protection laws.

 

The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) obliges signatories to provide protection, recognise the equality and capabilities of persons with disabilities and provide reasonable accommodation for disability-specific needs. [3]

 

NEDA argues that asylum seekers with disabilities may face significant barriers in accessing protection and assistance in the process of seeking asylum or protection; and if these provisions are repealed there could be a risk that asylum seekers with disabilities will be exposed to serious human rights violations, when returned to their country of origin, often countries that have limited supports and services for people living with disability.

 

For people living with cognitive or intellectual disabilities or who may be illiterate in their spoken language the possibly of being serviced and supported via self advocacy is very limited. Other issues such as how disabilities are considered with in a cultural context may preclude people living with disability form any form of support, as in some communities disabilities and illness can be viewed as a punishment within a religious context.

 

The result is that these people may be returned to their country of origin without support, they may be victimised and punished for seeking asylum and this process even further exacerbated by the cultural perspective of disability.    

 

Grants for Complementary Protection Visa in Australia

Between 24 March 2012 and 19 November 2013, a total of 55 out of 1, 200 protection visas were granted on the complementary protection grounds. [4]   This reflects the extremely low number of protection visas which are granted on complementary protection grounds.

The complementary protection framework allowed a transparent process for refugees and/or asylum seekers who were at risk of torture or death, in which claims could be heard in line with Australia’s international legal obligations.

Furthermore, under the introduction of the Migration Amendment (Regaining Control over Australia’s Protection Obligations) Bill 2013, the Minister will have the power to grant a visa depending on the “circumstances of the individual.”

NEDA suggests for the Government to have a balance on the exercise of the ministerial power and to ensure that provisions are in place to vulnerable individuals, for example persons with disabilities, who may be in danger of serious harms if returned to their country of origin, which would be a breach of his or her rights under the UN CRPD.  

The introduction of complementary protection allowed a transparent process, in which claims for protection could be heard and it was comparable to Australia’s international human rights obligations.

Conclusion

NEDA is concerned by the introduction of the Migration Amendment (Regaining Control over Australia’s Protection Obligations) Bill 2013, into Parliament on 4 December 2013; and we strongly advocate for the Australian Government to uphold its international non-refoulement obligations and to consider that there is a real risk, especially for asylum seekers with a disability, to suffer serious violations of human rights if they are returned to their country of origin.

As such, NEDA suggests that the Bill not be passed and we do believe that the Bill will have a detrimental impact on the well-being of some asylum seekers, particularly for those with a disability and/or mental health disorders.

NEDA argues for the Australian Government to recognise that it has signed international human rights conventions for which Australia has an obligation to protect any persons who has a real risk of suffering significant harm if they are removed from Australia, especially for persons with disabilities or mental disorders..... (END)



[2] Migration Act 1958 (Cth) s 36(2)(aa)

[4] Senate Legal and Constitutional Affairs Legislation Committee, Estimates (19 November 2013) 61 (Alison Larkins, Department of Immigration and Border Protection)