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Migration Amendment (Clarifying International Obligations for Removal) Bill 2021

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2019-2020-2021

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

HOUSE OF REPRESENTATIVES

MIGRATION Amendment (CLARIFYING INTERNATIONAL OBLIGATIONS FOR REMOVAL) BILL 2021

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon Alex Hawke MP)



Migration AMENDMENT (CLARIFYING INTERNATIONAL OBLIGATIONS for removal) BILL 2021

OUTLINE

The Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (the Bill) amends the Migration Act 1958 (the Migration Act) to:

·            modify the effect of section 197C to ensure it does not require or authorise the removal of an unlawful non-citizen (UNC) who has been found to engage protection obligations through the protection visa process unless :

·            the decision finding that the non-citizen engages protection obligations has been set aside;

·            the Minister is satisfied that the non-citizen no longer engages protection obligations; or

·            the non-citizen requests voluntary removal; and

·            ensure that, in assessing a protection visa application, protection obligations are always assessed, including in circumstances where the applicant is ineligible for visa grant due to criminal conduct or risks to security.

Section 197C of the Migration Act provides that, for the purposes of section 198 (removal from Australia of unlawful non-citizens), it is irrelevant whether Australia has non-refoulement obligations in respect of a UNC, and that person must be removed as soon as reasonably practicable.

Section 197C was introduced to deter the making of unmeritorious protection claims as a means to delay an applicant’s departure from Australia.  In these cases, the Minister or delegate had already found the person did not engage non-refoulement obligations. Section 197C was therefore not intended to operate to require the removal of a person who had been found to engage non-refoulement obligations.

The need to modify section 197C follows the impact of two Federal Court judgments which have altered the intended effect of this provision on persons who have been found to engage protection obligations:

·          In DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 (DMH16) the Federal Court found that, where it is reasonably practicable to remove a UNC, section 197C obliges the Department to remove the UNC, even where the person had been found to engage Australia’s non-refoulement obligations. This was not the intended purpose of section 197C.

·          In AJL20 v Commonwealth of Australia [2020] FCA 1305 (AJL20), the Federal Court ordered the release from immigration detention of an individual (who was also the applicant in DMH16) who it found had no ongoing matters before the Department, Minister or the Courts and had not been removed from Australia as soon as reasonably practicable (in circumstances where removal may have been inconsistent with non-refoulement obligations).

The purpose of the Bill is to clarify that the duty to remove under the Migration Act should not be enlivened where to do so would breach non-refoulement obligations, as identified in a protection visa assessment process, including Australia’s obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). 

Specifically, the provisions of the Bill:

·          insert a new section 36A which ensures that, in considering a protection visa application, the Minister or the Minister’s delegate assesses protection obligations, including in circumstances where the applicant is ineligible for a visa due to criminal conduct or risks to security

 

·          amend current section 197C to provide for the relevance of Australia’s non-refoulement obligations to removal of UNCs under current section 198

 

·          provide for the application of the amendments in certain circumstances

 

FINANCIAL IMPACT STATEMENT

These amendments will have a low financial impact.

Statement of compatibility with human rights

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill and assesses that the amendments are compatible with Australia’s human rights obligations. A copy of the Statement of Compatibility with Human Rights is at Attachment A .

Migration Amendment (CLARIFYING INTERNATIONAL OBLIGATIONS for removal) BILL 2021

 

NOTES ON INDIVIDUAL CLAUSES

Clause 1            Short Title

1.       Clause 1 provides that the short title of the Bill, once enacted, will be the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 .

Clause 2            Commencement

2.                   Clause 2 of the Bill sets out the times at which the various provisions of the Act commence.

 

3.       Subclause 2(1) of the Bill provides that each provision of the Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table.  Any other statement in column 2 has effect according to its terms.

 

4.       Table item 1 provides that the whole of this Act will commence on the day after the Act receives the Royal Assent.

 

5.       The note in subclause 2(1) makes it clear that the table relates only to the provisions of the Act as originally enacted.  The table will not be amended to deal with any later amendments to the Act.

 

6.       Subclause 2(2) of the Bill provides that any information in column 3 of the table is not part of the Act.  Information may be inserted in this column, or information in it may be edited, in any published version of the Act.  There is currently no information in column 3 of the table.

 

Clause 3          Schedules  

7.       This clause provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to this Act has effect according to its terms.

 

SCHEDULE 1 - Amendments

 

Migration Act 1958

 

Item 1             After section 36

8.       This item inserts a new section 36A after section 36 of the Migration Act.

 

9.       New subsection 36A(1) provides that, in considering a valid application for a protection visa made by a non-citizen, the Minister or the Minister’s delegate must consider and make a record of whether the Minister or the delegate is satisfied of any of the following:

 

·          that the non-citizen satisfies the criterion for a protection visa in current paragraph 36(2)(a) (a non-citizen in Australia in respect of whom the Minister or the delegate is satisfied Australia has protection obligations because the person is a refugee) with respect to a country, and that the non-citizen also satisfies the criterion for a protection visa in current subsection 36(1C) (that the applicant is not a person whom the Minister or the delegate considers, on reasonable grounds is a danger to Australia’s security or, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community)

 

·          that the non-citizen satisfies the criterion in current paragraph 36(2)(aa) (a non-citizen in Australia in respect of whom the Minister or the delegate is satisfied Australia has protection obligations because the Minister or the delegate has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm)

 

·          the non-citizen satisfies the criterion in current paragraph 36(2)(a) with respect to a country but does not satisfy the criterion in current subsection 36(1C); and would satisfy the criterion in current paragraph 36(2)(aa) with respect to the country except that the non-citizen is a non-citizen mentioned in current paragraph 36(2)(a)

 

10.   The purpose of new subsection 36A(1) is to ensure that the Minister or delegate considers and makes a record of their finding in respect of the refugee and complementary protection criteria in section 36 of the Migration Act. The provision is structured in a way that reflects Australia’s non-refoulement obligations, and allows for these obligations to be identified before considering whether the person is ineligible for grant of the visa on other grounds. This in turn supports the operation of amended section 197C, by ensuring that a protection finding (within the meaning of new subsections 197C(4) or (5) as described below) is made. This is also consistent with current Ministerial Direction No. 75, made under section 499 of the Migration Act, which provides that delegates considering an application for a protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria.

 

11.   New subsection 36A(2) provides that the Minister or the delegate must apply new subsection 36A(1):

 

·          before deciding whether to grant or refuse to grant the protection visa

 

·          before considering whether the non-citizen satisfies any other criteria for the grant of the visa

 

·          before considering whether the grant of the visa is prevented by any provision of the Migration Act or regulations; and

 

·          without regard to current subsections 36(2C) (ineligibility for grant of a protection visa) and 36(3) (protection in another country).

 

12.   New subsection 36A(2) provides timing for the Minister or the delegate in applying the new subsection 36A(1). The purpose of subsection 36A(2) is to further ensure that protection findings are made before considering whether the applicant meets other requirements for the grant of a protection visa. The provision recognises that, under the Migration Act, an application for a protection visa may be refused in circumstances where Australia’s international non-refoulement obligations are engaged. However, in conjunction with the amendments to section 197C, these provisions are intended to ensure that the person is protected from involuntary removal in circumstances that reflect Australia’s international non-refoulement obligations.

 

13.   New subsection 36A(3) provides that new subsection 36A(1) does not apply if:

 

·          the non-citizen (the family applicant) is a member of the same family unit as another non-citizen (the family visa holder) who holds a protection visa of the same class as the family applicant is applying for; and

·          the family applicant’s application for a protection visa was made before the family visa holder was granted a visa; and

·          the family visa holder is a non-citizen mentioned in paragraph 36(2)(a) or (aa).

 

14.   The purpose of new subsection 36A(3) is to ensure that the Minister or the Minister’s delegate is not required to consider and make a record of whether the Minister or the delegate is satisfied of those matters set out in paragraphs 36A(1)(a)-(c) in respect of a family applicant where the family applicant’s application for a protection visa was made before the family visa holder was granted a visa and the family visa holder is a non-citizen mentioned in paragraph 36(2)(a) or (aa). This reflects current policy that there is no requirement to independently assess protection obligations for members of the same family unit as a visa holder who holds a protection visa as those family members would be granted protection visas by virtue of satisfying the criteria in either paragraph 36(2)(b) or (c).

 

Item 2             Section 197C (heading)

 

15.   This item repeals the current section 197C heading and substitutes it with a new heading.

 

16.   The new heading clarifies that Australia’s non-refoulement obligations do have relevance to the removal of UNCs under current section 198.

 

Item 3             At the end of section 197C

 

17.   This item adds new subsections 197C(3) to (7) at the end of current section 197C.



18.   The purpose of the amendments to section 197C is to restore its intended effect. Subsection 197C(1) provides that, for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an UNC. Subsection 197C(2) provides that an officer’s duty to remove as soon as reasonably practicable an UNC under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the UNC. In general terms, section 198 currently provides for the circumstances in which an officer must remove an UNC from Australia as soon as reasonably practicable. 

 

19.   Section 197C was introduced in order to limit the opportunity for a person to obtain a court injunction to stop the removal process where the Minister or delegate had already found that an UNC did not engage non-refoulement obligations. It was not intended to operate to require the removal of an UNC who had been found to engage non-refoulement obligations.

 

20.   In 2017, the Federal Court found in DMH16 that, where it is reasonably practicable to remove an UNC, section 197C of the Migration Act obliges an officer to remove the UNC, even where the person has been found to engage Australia’s non-refoulement obligations.

 

21.   In 2020 in the matter of AJL20, Federal Court ordered the release from immigration detention of an individual (who was also the applicant in DMH16) who it found had no ongoing matters before the Department, Minister or the Courts and had not been removed from Australia as soon as reasonably practicable, in circumstances where removal may have been inconsistent with non-refoulement obligations.

 

22.   New subsection 197C(3) provides that, despite current subsections 197C(1) (for the purposes of current section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of a UNC) and subsection 197C(2) (an officer’s duty to remove as soon as reasonably practicable a UNC under current section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen), current section 198 does not require or authorise an officer to remove a UNC to a country if:

 

·          the non-citizen has made a valid application for a protection visa that has been finally determined; and

 

·          in the course of considering the application, a protection finding (within the meaning of new subsections 197C(4), (5), (6) and (7)) was made for the non-citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

 

·          none of the following apply:

 

o    the decision in which the protection finding was made has been quashed or set aside;

 

o    the Minister is satisfied that the non-citizen is no longer a person in respect of whom any protection finding within the meaning of new subsection 197C(4), (5), (6) and (7) would be made;

 

o    the non-citizen has asked the Minister, in writing, to be removed to the country.

 

23.   This amendment links current section 36 to the application of sections 197C and 198. 

 

24.   The purpose of subsection 197C(3) is to clarify that section 198 does not require or authorise an officer to remove an UNC to a country if the person made a valid application for a protection visa that has been finally determined, and in the course of considering the application, the Minister (or the Minister’s delegate), made a protection finding (within the meaning of new subsections 197C(4)(5), (6) and (7) as described below) with respect  to a country. There are exceptions if the decision in which the protection finding was made has been quashed or set aside including by a Court or Tribunal, the Minister is satisfied that the non-citizen is no longer a person in respect of whom any protection finding within the meaning of new subsection 197C(4)  (5), (6) and (7) would be made, or the non-citizen has asked the Minister, in writing, to be removed to the country.

 

25.   New subsection 197C(4) provides a definition of a protection finding for the purposes of new subsection 197C(3).  A protection finding is made for a non-citizen with respect to a country if a record was made in relation to the non-citizen under new section 36A that the Minister or the delegate is satisfied as mentioned in new paragraphs 36A(1)(a), (b) or (c) with respect to the country.

 

26.   New subsection 197C(5) also provides a definition of a protection finding for the purposes of new subsection 197C(3).  A protection finding is also made for the non-citizen with respect to the country if the Minister or the delegate was satisfied of any of the following (express or implied):

 

·          the non-citizen satisfied the criterion in current paragraph 36(2)(a) with respect to the country and also satisfied the criterion in current subsection 36(1C)

 

·          the non-citizen satisfied the criterion in current paragraph 36(2)(aa) with respect to the country

 

·          the non-citizen would have satisfied the criterion in current paragraph 36(2)(a) with respect to the country except that current subsection 36(3) applied in respect of the non-citizen; and the non-citizen satisfied the criterion in current subsection 36(1C)

 

·          the non-citizen satisfied the criterion in current paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in current subsection 36(1C); and the non-citizen would have satisfied the criterion in current paragraph 36(2)(aa) with respect to the country except that the non-citizen was a non-citizen mentioned in current paragraph 36(2)(a)

 

·          the non-citizen satisfied the criterion in current paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in current subsection 36(1C); and the non-citizen would have satisfied the criterion in current paragraph 36(2)(aa) with respect to the country except that the non-citizen was a non-citizen mentioned in current paragraph 36(2)(a) and current subsections 36(2C) or (3) applied in respect of the non-citizen

 

·          the non-citizen would have satisfied the criterion in current paragraph 36(2)(aa) with respect to the country except that current subsections 36(2C) or (3) applied in respect of the non-citizen

 

27.   The structure of new subsection 197C(5) reflects the same broad structure as in new section 36A. The primary purpose of subsection 197C(5) is to ensure that protection findings are defined to include findings made by the Minister (or delegates of the Minister) in relation to protection visa applications decided prior to the commencement of these amendments and which may not use the precise wording of the current protection visa criteria, or reflect the order of consideration in new section 36A.This is to ensure that persons currently in Australia, and who have a protection finding from an earlier decision in respect of an application for a protection visa, are also protected by the amended section 197C from involuntary removal in circumstances that reflect Australia’s non-refoulement obligations.  

 

28.   New subsection 197C(6) provides that, for the purposes of subsection 197C(3), a protection finding is also made for a non citizen with respect to a country if:

 

·          the Minister was satisfied (however expressed and including impliedly) that, because subsection 36(4), (5) or (5A) applied to the non-citizen in relation to the country, subsection 36(3) did not apply in relation to the country; and

 

·          a protection finding within the meaning of subsection 197C(4) or (5) was made for the non-citizen with respect to another country.

 

29.   The purpose of new subsection 197C(6) is to ensure that a protection finding is made for a non-citizen where a protection finding has been made in respect of a country within the meaning of subsection 197C(4) or (5) as well where non-refoulement obligations are identified as in respect of another country where the Minister was satisfied that subsection 36(4), (5) or (5A) applied to the non-citizen so that subsection 36(3) did not apply in relation to that country - that is to say that there is no other country in respect of which the non-citizen has taken all reasonable steps to enter or reside in because protection obligations are engaged with respect to that non-citizen in that country or because that country will return the non-citizen a country in contravention of Australia’s non-refoulement obligations.

 

30.   New subsection 197C(7) provides that, for the purposes of new subsection 197C(3), a protection finding is also made for a non-citizen with respect to a country in circumstances prescribed by the Migration Regulations 1994 (the Migration Regulations).  A power to prescribe additional circumstances in the Migration Regulations is an appropriate delegation as its effect is such that, were circumstances so prescribed, it would expand the scope of a protection finding meaning that, were such a finding made as a result of circumstances prescribed in the Migration Regulations, the affected unlawful non-citizen would not be required or authorised to be removed.

 

31.   New subsection 197C(8) provides that, for the purposes of new subsection 197C(5), it is irrelevant whether or not the non-citizen satisfied any other criteria for the grant of a protection visa.  This highlights the focus of new subsection 197C(5) on protection findings.

 

32.   New subsection 197C(9) provides that, for the purposes of new subparagraph 197C(3)(c)(iii), a non-citizen who withdraws their written request to be removed to a country is taken not to have made that request.  This discrete situation is addressed in a new subsection, rather than within the new subparagraph itself, to provide clarity.

 

Item 4             Application of amendments

 

33.   This item sets out the application provisions that relate to items 1 to 3 of Schedule 1 to the Bill.

 

34.   Subitem 4(1) provides that new section 36A (as inserted by item 1 of Schedule 1 to the Bill), other than paragraphs 36A(2)(a), (b) and (c), applies in relation to applications for visas made but not decided before Schedule 1 commences.

 

35.   This application provision ensures that the amendments made in new section 36A, other than paragraphs 36A(2)(a), (b) and (c), will apply to any relevant visa applications made and on foot when the amendment commences.

 

36.   Subitem 4(2) provides that section 36A (as inserted by item 1 of Schedule 1 to the Bill) applies in relation to applications for visas made after Schedule 1 commences.

 

37.   This application provision ensures that new section 36A (including new paragraphs 36A(2)(a), (b) and (c)) will apply to any relevant visa applications made after the amendment commences.

 

38.   Schedule 1 to the Bill commences the day after the Act receives the Royal Assent.

 

39.   Subitem 4(3) provides that a reference in section 197C of the Migration Act to a protection finding within the meaning of new subsection 197C(5) or (6) includes a reference to a protection finding made before the Schedule commences.

 

40.   This ensures that protection findings made for a non-citizen with respect to a country where the Minister or the delegate was satisfied of, however expressed and including impliedly, those matters set out in paragraphs 197C(5)(a)-(f) will include protection findings made before Schedule 1 commences.



 

Attachment A

Statement of Compatibility with Human Rights

 

Prepared in accordance with part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Amendment (Clarifying International Obligations for Removal) Bill 2021

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The  Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (the Bill) amends the Migration Act 1958 (the Migration Act) to:

·            modify the effect of section 197C of the Migration Act to ensure it does not require or authorise the removal of an unlawful non-citizen who has been found to engage protection obligations through the protection visa process; and

·            ensure that, in assessing a protection visa application, protection obligations are always assessed, including in circumstances where the applicant is ineligible for visa grant due to criminal conduct or risks to security.

Section 197C of the Migration Act provides that Australia’s non-refoulement obligations are irrelevant to the duty in section 198 of the Migration Act to remove unlawful non-citizens from Australia as soon as reasonably practicable. Broadly, section 198 applies to unlawful non-citizens who have exhausted visa options.

Section 197C was introduced to deter the making of unmeritorious protection claims as a means to delay an applicant’s departure from Australia.  It was not intended to operate to require the removal of a person who had been found to engage protection/ non-refoulement obligations.

The need to modify section 197C follows the impact of two Federal Court judgments.

·          In DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 (DMH16) the Federal Court found that, where it is reasonably practicable to remove an unlawful non-citizen, section 197C obliges the Department to remove the unlawful non-citizen, even where the person had been found to engage Australia’s non-refoulement obligations. This was not the intended purpose of section 197C.

·          In AJL20 v Commonwealth of Australia [2020] FCA 1305 (AJL20), the Federal Court ordered the release from immigration detention of an individual (who was also the applicant in DMH16) who it found had no ongoing matters before the Department, Minister or the Courts and had not been removed from Australia as soon as reasonably practicable (in circumstances where removal may have been inconsistent with non-refoulement obligations).

The purpose of the Bill is to clarify that the duty to remove under the Migration Act should not be enlivened where to do so would be in breach of non-refoulement obligations, as identified in a protection visa assessment process.

Specifically, the Bill will amend section 197C of the Migration Act to provide that removal of an unlawful non-citizen under section 198 of the Migration Act is not required or authorised to a country in respect of which there has been a protection finding in a protection visa process in relation to that person. The term protection finding in this context reflects the situations in which Australia will have non-refoulement obligations in respect of a person under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (together ‘the Refugees Convention’), the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Protection findings will include those made before the commencement of the amendments to ensure that there is no requirement to remove unlawful non-citizens who currently have such findings and may otherwise be liable for removal.  Removal can proceed where the person no longer engages non-refoulement obligations or where they have requested in writing to be removed.

The Bill will also introduce a new section 36A to ensure that the Minister or delegate always assesses and records findings against the protection obligations criteria when considering a valid protection visa application, even where the visa can be refused on other grounds. This will reflect the current administrative practices that are in place pursuant to Ministerial Direction 75, made under section 499 of the Migration Act.

 

Human rights implications

Rights relating to non-refoulement

Article 3 of the CAT states:

No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

Non- refoulement obligations also arise, by implication, in relation to Articles 6 and 7 of the ICCPR. 

Article 6 of the ICCPR states:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Article 7 of the ICCPR states:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

The amendments to section 197Cof the Migration Act ensure that the power at section 198 of the Migration Act does not require or authorise an officer to remove an unlawful non-citizen whose valid application for a protection visa has been finally determined, and for whom a protection finding has been made through the protection visa process, in circumstances where to do so would be inconsistent with Australia’s non-refoulement obligations. That is, the person cannot be removed to the country in relation to which their protection claims have been accepted, unless they no longer engage non-refoulement obligations or have requested, in writing, to be removed. Importantly, the amendments operate to uphold these obligations regardless of whether or not the non-citizen satisfied any other criteria for the grant of a protection visa.

The new section 36A will ensure that, in assessing a protection visa application, protection obligations in relation to the relevant country are always assessed, including in circumstances where the applicant is ineligible for visa grant due to criminal conduct or risks to security or because, at the time of the visa decision, the person is able to access protection in another country but where that right may no longer exist at the time of removal. This amendment further enhances Australia’s ability to uphold non-refoulement obligations by ensuring these are identified in all cases, regardless of eligibility for grant of a protection visa.

Currently, it is possible for a protection visa applicant to have their application finally determined without having a finding made on whether or not the person engages protection obligations in relation to the country in relation to which they are claiming protection. This could be, for example, because they fail other criteria for the grant of the protection visa, such as those relating to criminal conduct or risks to security. The amendments address this issue by ensuring those obligations are always assessed, rather than relying, as currently, on policy processes to ensure that they are assessed.

Together, the amendment to section 197C and the introduction of section 36A promote human rights by strengthening protections from removal where a person engages non-refoulement obligations under the CAT and the ICCPR, as well as under the Refugees Convention.

Rights relating to arbitrary detention

Article 9(1) of the ICCPR states:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

The amendments in the Bill are primarily aimed at protecting from removal those persons who engage Australia’s non-refoulement obligations, but where character or security concerns mean they are ineligible for the grant of a protection visa. Persons who are granted a visa are not subject to removal. This means that persons affected by the amendments may be subject to ongoing immigration detention under section 189 of the Migration Act.

Immigration detention remains a key component of border management and assists in managing potential threats to the Australian community - including national security and character risks - and ensures people are available for removal.

Unlawful non-citizens who are unable to be removed due to barriers which include, but are not limited to, the situation where the amendments to section 197C made by this Bill will operate to protect them from removal in breach of non-refoulement obligations, may be detained until their removal is reasonably practicable. Removal in such cases may become possible if, for example, the circumstances in the relevant country improve such that the person no longer engages non-refoulement obligations, or if a safe third country is willing to accept the person. An unlawful non-citizen may also request in writing to be removed from Australia.

Held detention in an immigration detention centre is a last resort for the management of unlawful non-citizens, particularly individuals whose removal may not be practicable in the reasonably foreseeable future. The Government’s preference is to manage non-citizens in the community wherever possible, subject to meeting relevant requirements, including not presenting an unacceptable risk to the safety and good order of the Australian community.

The Minister has a personal discretionary power under the Migration Act to intervene in an individual case and grant a visa, including a bridging visa, to a person in immigration detention, if the Minister thinks it is in the public interest to do so. What is and what is not in the public interest is for the Minister to decide.

The Minister also has a personal discretionary power to allow a detainee to reside outside of an immigration detention facility, at a specified address in the community (residence determination). While a residence determination permits an individual to be placed in the community subject to certain conditions, it continues to be a detention placement.

The Minister’s powers to consider whether to grant a visa to permit an unlawful non-citizen’s release from immigration detention, or to permit a community placement under a residence determination, until they are able to be removed from Australia consistently with non-refoulement obligations, means that the person’s individual circumstances, and the risk they may pose to the Australian community can be taken into account. This enables the least restrictive option to be implemented for the person having regard to their circumstances.

While some unlawful non-citizens affected by the amendments made by the Bill will be subject to immigration detention while awaiting removal, the Minister’s decision not to grant them a visa or place them in community detention will be made in consideration of their individual circumstances. This helps to ensure that an immigration detention placement is reasonable, necessary and proportionate to their individual circumstances and therefore not be arbitrary and contrary to Article 9.

Conclusion

This Bill is compatible with human rights because it is consistent with Australia’s human rights obligations and to the extent that it may also have the consequence of limiting human rights in some circumstances, those limitations are reasonable, necessary and proportionate .

 

 

The Hon Alex Hawke MP, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs