Complementary protection for asylum seekers—overview of the international and Australian legal frameworks (PDF; 520 KB)
Source: Parliamentary Library of Australia

+ There is no universally accepted definition of the term ‘complementary protection’. However, in general terms, it describes States’ obligations to non-refugees (that is those that do not satisfy the 1951 Refugee Convention definition) who are nonetheless in need of protection on the basis that they face serious violations of their human rights if returned to their country of origin.

+ The precise scope of the principle remains unclear largely due to the evolving nature of international human rights law. It is widely acknowledged, however, that complementary protection principally stems from two treaty-based sources of international human rights law. Firstly, article 3 of the Convention Against Torture which expressly prohibits removal to another State where there are substantial grounds for believing that a person would be in danger of being subjected to torture. Secondly, articles 6 and 7 of the International Covenant on Civil and Political Rights which preclude removal to torture or cruel, inhuman or degrading treatment or punishment or to a place where a person may be arbitrarily deprived of their life.

+ Whether the principle more broadly encompasses protection from indiscriminate or generalized violence, natural disasters, or from statelessness depends upon numerous legal and non-legal considerations. These include a State’s protection obligations arising from the treaties to which they are a Party and such factors as a State’s burden sharing capacity and so forth.

+ Most western countries have a system of complementary protection in place and Australia is arguably no exception, although it has not previously sought to label the protection it provides on humanitarian grounds as complementary protection. One reason for this may be that it has not incorporated the non-refoulement (non-return) obligations arising from various human rights treaties into domestic law which means it remains a purely discretionary matter. Nor has Australia created legally enforceable criteria against which such cases can be assessed and reviewed. Rather, for over twenty years, Australia has principally relied on the ministerial intervention process to attempt to satisfy its non-refoulement obligations notwithstanding mounting criticism of the process from several parliamentary inquiries, United Nations treaty monitoring bodies, refugee and human rights advocacy groups and most recently, the immigration minister himself.

This entry was posted on Tuesday, November 10th, 2009 at 9:17 am and is filed under Human rights, International Relations, Legal and law enforcement, Social and cultural issues. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.