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Migration Amendment (Clarifying International Obligations for Removal) Bill 2021



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ISSN 1328-8091

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BILLS DIGEST NO. 63, 2020-21 12 MAY 2021

Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 Claire Petrie Law and Bills Digest Section

Contents

Purpose of the Bill ........................................................... 3

Background ..................................................................... 3

Australia’s protection obligations under international law ......................................................... 3

Legislative history ........................................................ 4

Section 197C .............................................................. 5

Recent court cases .................................................... 7

DMH16 v Minister for Immigration and Border Protection ................................................................ 7

AJL20 v Commonwealth of Australia ....................... 7

Committee consideration ................................................ 8

Selection of Bills Committee ....................................... 8

Senate Standing Committee for the Scrutiny of Bills .............................................................................. 9

Policy position of non-government parties/independents...................................................... 9

Position of major interest groups................................... 10

Financial implications .................................................... 10

Statement of Compatibility with Human Rights.............. 10

Parliamentary Joint Committee on Human Rights ... 10 Key issues and provisions .............................................. 11

Assessment of protection obligations ....................... 11 Current provisions ................................................... 11

Issue ......................................................................... 12

Proposed amendments ........................................... 12

Removal from Australia............................................. 13

Current provisions ................................................... 13

Issue ......................................................................... 14

Date introduced: 25 March 2021

House: House of Representatives

Portfolio: Immigration, Citizenship, Migrant Services and Multicultural Affairs

Commencement: The day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at May 2021.

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Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 2

Proposed amendments ........................................... 14

Scope of the amendments ...................................... 15

Concluding comments ................................................... 15

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Purpose of the Bill The purpose of the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (the Bill) is to amend the Migration Act 1958 to clarify that the Act does not authorise the removal of a person who is found to attract Australia’s protection obligations under international law. The Bill responds to two recent Federal Court decisions which found that section 197C of the Migration Act effectively overrides Australia’s international obligations not to return a person to a country where they face persecution or a real risk of significant harm (known as non-refoulement obligations). The Federal Court has found that currently, the Migration Act requires a person who is owed such obligations but is refused a protection visa, to either be removed from Australia or released from immigration detention.

The Bill also inserts an express requirement that Australia’s protection obligations be considered before a decision is made whether to grant or refuse a protection visa.

Background

Australia’s protection obligations under international law Australia has obligations to refugees and asylum seekers under international law, primarily under the 1951 Convention relating to the Status of Refugees (Refugee Convention) and its 1967 Protocol.1 Central to the Refugee Convention is the principle of non-refoulement—an obligation of Member States to the Convention not to expel or return a person to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.2 This obligation applies both in respect of recognised refugees, and those whose claims for protection have not been finally determined.3

Under the Refugee Convention, non-refoulement obligations do not apply to a refugee whom there are reasonable grounds for regarding as a danger to the security of the country they are in, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.4 Additionally, a person is not entitled to recognition as a refugee if there are serious reasons for considering they: have committed a crime against peace, a war crime or crime against humanity; have committed a serious non-political crime outside their country of refuge; or have been guilty of acts contrary to the purposes and principles of the United Nations.5

Australia is also party to the following international human rights instruments which include non-refoulement obligations:

• International Covenant on Civil and Political Rights (ICCPR)6

1. Convention relating to the Status of Refugees (as amended by the 1967 Protocol relating to the Status of Refugees [1973] ATS 37), opened for signature 28 July 1951, [1954] ATS 5 (entered into force for Australia 22 April 1954) (Refugee Convention). 2. Ibid., article 33(1). 3. United Nations High Commissioner for Refugees (UNHCR), ‘Advisory Opinion on the Extraterritorial Application of Non-

Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’, 26 January 2007, pp. 2-3. 4. Refugee Convention, article 33(2). 5. Ibid., article 1F. 6. International Covenant on Civil and Political Rights, done in New York on 16 December 1966, [1980] ATS 23 (entered into force for Australia (except art. 41) on 13 November 1980), articles 6, 7.

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• Convention Against Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)7 and

• Convention on the Rights of the Child.8

These instruments protect people who do not fall within the definition of a ‘refugee’, but 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. These are generally referred to as ‘complementary protection’ obligations.9

Unlike under the Refugee Convention, non-refoulement obligations arising under the CAT and the ICCPR are absolute—there are no exclusions on security grounds.10

Legislative history The Migration Act historically included express references to the Refugee Convention; however, these were largely removed in 2014 by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Resolving the Asylum Legacy Caseload Act). That Act inserted into the Migration Act a ‘new, independent and self-contained statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention’.11 This framework provides a person may be eligible for a protection visa if they are a person in respect of whom the Minister is satisfied Australia has protection obligations because they are a refugee.12 Rather than defining ‘refugee’ by express reference to the Refugee Convention, the Resolving the Asylum Legacy Caseload Act inserted statutory definitions of most relevant terms.13 The Bills Digest for the originating Bill stated:

Removal of references to the 1951 Refugee Convention appears to be an attempt at the very least to limit Australia’s obligations under the Convention and curtail the way in which such obligations are interpreted by the judiciary. To this end it should be noted that the jurisprudence surrounding Australian refugee law is extremely dense, complex and continuously evolving. It is not immediately clear that these amendments will ultimately have their desired effect and whether they may in turn simply lead to greater litigation (in what is already a heavily litigated area).14

The complementary protection criterion was inserted into the Migration Act in 2012, as a distinct ground on which a protection visa may be granted.15 It recognises that a person may engage Australia’s protection obligations where the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a

7. Convention Against Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment, done in New York on 10 December 1984, [1989] ATS 21 (entered into force for Australia on 7 September 1989), article 3. 8. Convention on the Rights of the Child, done in New York 20 November 1989, [1991] ATS 4 (entered into force for Australia 16 January 1991), article 37(a). 9. Andrew & Renata Kaldor Centre for International Refugee Law, ‘Factsheet—complementary protection’, last updated August

2019.

10. C Bostock and J Cabarrús, ‘Short shrift to international non-refoulement obligations? Australia’s approach to criminal deportation’, International Journal of Refugee Law, 20(20), 2021, pp. 5-6 (accessed via Oxford Academic database). 11. Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, p. 10. 12. Migration Act 1958, paragraph 36(2)(a). 13. Ibid., sections 5H (meaning of refugee), 5J (meaning of well-founded fear of persecution), 5K (meaning of membership of a

particular social group consisting of family), 5L (meaning of membership of a particular social group other than family), 5LA (meaning of effective protection measures) and 5M (meaning of particularly serious crime). 14. E Karlsen, J Phillips and H Spinks, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, Bills digest, 40, 2014-15, Parliamentary Library, 23 October 2014, p. 21. 15. Migration Amendment (Complementary Protection) Act 2011 (Cth).

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receiving country, there is a real risk they will suffer significant harm.16 An applicant can only satisfy this criterion once a decision-maker is satisfied that they are not a refugee for the purposes of the Migration Act.17

Legal commentators and refugee organisations have argued that the scope of the protection provided for under the Migration Act is narrower than Australia’s obligations under international law. In particular, the grounds on which a person can be denied a protection visa—including for failing to pass the character test—are broader than the grounds for exclusion under international law.18

Section 197C As part of its broader amendments to the statutory framework for refugee protection, the Resolving the Asylum Legacy Caseload Act inserted section 197C into the Migration Act. This provides that for the purposes of removing an unlawful non-citizen from Australia under section 198 of the Act, ‘it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen’. Section 198 requires that unlawful non-citizens who are in immigration detention must be removed from Australia ‘as soon as reasonably practicable’. Subsection 197C(2) states:

An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen 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 non-citizen.

When making these changes in 2014, the Government stated that section 197C was a response to a ‘trend of jurisprudence’ in which the provisions of the Migration Act were being construed ‘in light of a presumed legislative intention for the Migration Act as a whole to facilitate Australia‘s compliance with its obligations under the Refugees Convention’.19 In particular, it pointed to Plaintiff M70/2011 v Minister for Immigration and Citizenship20 in which the High Court found the removal power under section 198 was to be read in light of, and subject to the obligations of the Refugee Convention, and Minister for Immigration and Citizenship v SZQRB21 in which the Full Federal Court found this also applied to non-refoulement obligations under the ICCPR and CAT.

The Government argued that these decisions, and others:

… have had a significant impact on the Government‘s ability to remove unlawful non-citizens from Australia under section 198 of the Migration Act.

Prior to this recent jurisprudence, section 198 of the Migration Act created an obligation to remove unlawful non-citizens in the circumstances prescribed in section 198 and this duty was not constrained by reference to Australia‘s international obligations… This was because it was understood that Australia‘s international obligations had already been considered during separate processes prior to

16. Migration Act, paragraph 36(2)(aa). Significant harm is defined under subsection 36(2A) as where the non-citizen will: be arbitrarily deprived of their life; have the death penalty carried out on them; be subjected to torture; or be subjected to cruel, inhuman or degrading treatment or punishment.

17. Migration Act, paragraph 36(2)(aa). 18. For example, see: Bostock and Cabarrús, ‘Short shrift’, op. cit., pp. 10, 17-19; P Billings, ‘Refugee protection and state security in Australia: piecing together protective regimes’, Australian Journal of Administrative Law, 24(4), 2018; UNHCR, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Strengthening

the Character Test) Bill 2019, August 2019, pp. 4-6. 19. Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, op. cit., p. 165. 20. Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32. 21. Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

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removal, for example when considering the persons application for a protection visa or when the Minister was considering the use of his or her personal powers.22

The Government claimed that the intent of section 197C was therefore to ‘restore the situation to that arising prior to the jurisprudence noted above’, by making it clear that the removal powers under the Migration Act were ‘completely independent’ of Australia’s non-refoulement obligations.23 It stated that Australia would continue to meet its non-refoulement obligations through mechanisms other than the removal power, including through the protection visa application process and the use of the Minister’s personal, discretionary powers to grant a visa.24

However, legal groups and commentators have continued to express concern that adherence to Australia’s non-refoulement obligations occurs through administrative and discretionary means rather than being a legal requirement under the Migration Act. For example, the Kaldor Centre for International Refugee Law has stated:

Section 197C sits somewhat uncomfortably with … the policy intention that a person to whom Australia owes non-refoulement obligations will not be removed. In this sense, the [International Treaties Obligations Assessment (ITOA)] process intended to protect against non-refoulement is an inadequate safeguard, as it relies on executive discretion rather than being enshrined in legislation. Even if a person to whom Australia owes non-refoulement obligations is not removed as a consequence of visa cancellation, their indefinite and mandatory detention raises concerns about breaches of Article 9(1) of the International Covenant on Civil and Political Rights.25

Peter Billings, Associate Professor at the University of Queensland School of Law, has stated:

A non-citizen who is refused a protection visa (on the basis of one of the security exceptions, or on adverse character grounds) is liable to be removed from Australia, potentially in breach non-refoulement norms, unless and until the Minister elects (there being no means of compulsion) to manage the situation through alternative mechanisms that are not subject to administrative review.

It is wholly inadequate to rely on ministerial intervention, through discretionary, non-compellable and non-reviewable powers, to safeguard fundamental human rights principles when a person is subject to detention and the removal power.26

In its Concluding observations on the sixth periodic report of Australia in 2017, the United Nations Human Rights Committee expressed concern that Australia’s domestic legal framework ‘does not afford full protection against non-refoulement’, pointing to section 197C as one issue of particular concern. The Human Rights Committee recommended the provision be repealed, and the Government introduce ‘a legal obligation to ensure that the removal of an individual must always be consistent with [Australia’s] non-refoulement obligations’.27

22. Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, op. cit., pp. 165-166. 23. Ibid, p. 166. 24. Ibid. 25. Andrew & Renata Kaldor Centre for International Refugee Law, ‘Factsheet: Can Australia deport refugees and cancel visas on

‘character grounds’?’, 22 March 2017. 26. Billings, ‘Refugee protection and state security in Australia’, op. cit., p. 227. 27. United Nations Human Rights Committee, Concluding observations on the sixth periodic report of Australia,

CCPR/C/AUS/CO/6, 1 December 2017, at [33]-[34].

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Recent court cases The current Bill amends section 197C to clarify the scope and application of the provision. In his second reading speech, Immigration Minister Alex Hawke stated that this amendment responded to a number of court decisions which:

… have made it clear that section 197C, which was inserted to limit successful injunctions to prevent removal where a person has been assessed as not engaging protection obligations, also operates to require removal where the person has been assessed as engaging those obligations.

This is quite obviously not reflective of the original intent of section 197C under the Migration Act.28

The Explanatory Memorandum identifies two particular Federal Court judgments to which the Bill is responding: the 2017 case of DMH16 v Minister for Immigration and Border Protection (DMH16)29 and the 2020 case of AJL20 v Commonwealth of Australia (AJL20).30

DMH16 v Minister for Immigration and Border Protection The case of DMH16 involved the judicial review of a refusal to grant a protection visa to the applicant, a Syrian refugee to whom it was accepted that Australia had non-refoulement obligations, but whose previous visa had been cancelled on character grounds.31 The Minister’s reasons for the decision had included a statement acknowledging that while the applicant ‘will not be removed from Australia if his visa application is refused (notwithstanding s197C of the Act)’, he may face the prospect of indefinite immigration detention because of the operation of sections 189 and 198 of the Migration Act.32

The Court found that the Minister had fallen into jurisdictional error by misunderstanding the consequences of the decision to reject the applicant’s protection visa application. The Court held that advice from the Department of Home Affairs (the Department) to the Minister that section 197C did not abrogate Australia’s non-refoulement obligations was ‘an incorrect understanding of the operation of s 197C in conjunction with an officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under s 198’.33 The Court found that, based on the proper construction of section 197C, the real consequence of refusing the visa application was not immigration detention but the removal of the applicant to Syria:

Had the Minister properly understood the consequence of the refusal of the protection visa at the time he made the decision there is a possibility that he would have granted the protection visa in order to avoid the consequence that the applicant would be returned to Syria in contravention of Australia’s non-refoulement obligations in respect of the applicant.34

AJL20 v Commonwealth of Australia The applicant in AJL20 (who was the same applicant as in DMH16) had been in immigration detention since October 2014, with the Department determining that Australia had non-refoulement obligations towards him in 2015, but ultimately declining to grant a visa.35 The

28. A Hawke, ‘Second reading speech: Migration Amendment (Clarifying International Obligations for Removal) Bill 2021’, House of Representatives, Debates, [proof], 25 March 2021, p. 2. 29. DMH16 v Minister for Immigration and Border Protection [2017] FCA 448. 30. AJL20 v Commonwealth of Australia [2020] FCA 1305; Explanatory Memorandum, Migration Amendment (Clarifying

International Obligations for Removal) Bill 2021, p. 2. 31. DMH16 at paragraphs 2-4. 32. DMH16 at paragraph 12[44]. 33. DMH16 at paragraph 27. 34. DMH16 at paragraph 30. 35. DMH16 at paragraphs 5-6; AJL20 at paragraphs 4-5, 97.

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applicant brought a claim against the Commonwealth for false imprisonment and sought a writ of habeas corpus for his release from immigration detention.36 He contended that as section 198 of the Migration Act required his removal from Australia as soon as reasonably practicable, the Government’s failure to carry this out rendered his detention unlawful, as it could no longer be classified as detention for the purposes of removing the applicant from Australia.37

The Commonwealth did not contest that it was obliged to remove the applicant from Australia, but contended that the removal power under section 198 rendered the applicant’s continuing detention lawful until the removal occurred—the lawfulness of detention did not depend on the applicant being removed as soon as reasonably practicable.38

The Court accepted the applicant’s argument, finding that the Commonwealth had taken no steps to remove the applicant to Syria, despite the terms of section 197C requiring Australia’s non-refoulement obligations be treated as irrelevant.39 The Court found that the combined result of sections 197C and 198 is that an unlawful non-citizen must be removed from Australia as soon as reasonably practicable, irrespective of whether Australia has non-refoulement obligations in respect of the person:

A policy of non-refoulement is morally justifiable. However, in relation to removal required by s 198 of the Act and in the light of s 197C, the pursuance of such a policy is not legally justifiable. As the applicant contended, by a submission to which the Commonwealth did not respond, the Commonwealth cannot act as though s 197C does not exist. If the policy was an obstacle to the applicant’s removal from Australia as soon as reasonably practicable, that obstacle was self-imposed by the Commonwealth, is contrary to the Act’s requirements, and cannot justify the inactivity in question.40

The Court effectively found that section 197C overrides Australia’s non-refoulement obligations and the Government cannot continue to adhere to these obligations by policy means where it will be in breach of the provisions of the Migration Act. Where a refugee or other person to whom Australia owes protection obligations, has been refused a protection visa, the current provisions of the Migration Act require the Government to either release them from detention or remove them from Australia as soon as reasonably practicable—even if this means returning them to a country where they face persecution or serious harm.

The Commonwealth has appealed AJL20 to the High Court, with a hearing held on 13 April 2021.41 The High Court has reserved its decision.42

Committee consideration

Selection of Bills Committee The Selection of Bills Committee has not considered the Bill at the time of writing.43

36. AJL20 at paragraphs 1, 6. 37. AJL20 at paragraph 6. 38. AJL20 at paragraphs 7, 13-14. 39. AJL20 at paragraph 10. 40. AJL20 at paragraph 123. 41. High Court of Australia, ‘Case C16/2020—Commonwealth of Australia v. AJL20’, High Court of Australia website. 42. Commonwealth of Australia v AJL20 [2021] HCATrans 68 (13 April 2021). 43. Senate Standing Committee for Selection of Bills, ‘Reports for 2021’, Australian Parliament website.

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Senate Standing Committee for the Scrutiny of Bills The Scrutiny of Bills Committee reported on the Bill on 21 April 2021.44 The Committee raised concerns that the Bill may unduly trespass on personal rights and liberties, noting that the Statement of Compatibility acknowledges that the proposed amendments may result in ongoing immigration detention of a person under section 189 of the Migration Act.45 The Committee noted the ‘highly discretionary and non-compellable’ nature of the Minister’s personal powers to grant a visa or make a ‘residence determination’ to ensure that immigration detention will be 'reasonable, necessary and proportionate' to the person's individual circumstances.46 It requested the Minister’s detailed advice as to:

• the effectiveness of safeguards and other measures contemplated by the Bill to ensure that the immigration detention of persons affected by the Bill will not unduly trespass on fundamental personal rights and liberties

• any other legislative or non-legislative options to address the Government’s concerns arising from the decisions in DMH16 and AJL20, including any consideration by the Minister of the extent to which an alternative option would impact personal rights and liberties and

• how often current and former Ministers have exercised their personal discretionary powers under sections 195A and 197AB of the Migration Act, particularly in relation to persons in immigration detention to whom protection obligations are owed but who are ineligible for a grant of a visa on character or other grounds.47

The Committee also raised concerns that the explanatory materials do not provide sufficient justification for allowing significant matters to be provided for in delegated legislation in respect of proposed subsection 197C(7), which provides that Regulations may prescribe additional meanings of the term protection finding.48 The Committee further noted that the measures in the Bill have retrospective effect and expressed concern that this may potentially impact on persons involved in current litigation, or who have been unlawfully detained based on the decision in AJL20.49 The Committee requested further advice from the Minister on both of these points.

At the time of writing, the Minister’s response had not been received by the Committee.50

Policy position of non-government parties/independents Non-government parties and independents do not appear to have commented on the Bill at the time of writing.

The ALP, Australian Greens and Senator Jacqui Lambie did not support the passage of the Resolving the Asylum Legacy Caseload Act, which inserted section 197C into the Migration Act.51

44. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 6, 2021, The Senate, Canberra, 21 April 2021, pp. 19-24. 45. Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021, p. 13. 46. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, op. cit., pp. 19-21. 47. Ibid., pp. 21-22. 48. Ibid., pp. 22-23. 49. Ibid., pp. 23-24. 50. A response is due by 19 May 2021: Senate Standing Committee for the Scrutiny of Bills, ‘Ministerial responses’, The Senate,

Canberra. 51. Labor and Greens Senators, and Senator Lambie, voted against Schedule 5 of the Bill (which included proposed section 197C) during the Committee stage, and also voted against the passage of the Bill as a whole: Australia, Senate, ‘Migration and

Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014’, Journals, 74, 4 December 2014, 1995. Also see: Australia, House of Representatives, ‘Message from the Senate—Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014’, Votes and proceedings, 91, 4 December 2014, p. 1058.

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Position of major interest groups Major interest groups do not appear to have commented on the Bill at the time of writing.

Financial implications The Explanatory Memorandum states that the Bill will have a low financial impact.52

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.53

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights reported on the Bill on 29 April 2021.54 The Committee noted that the Bill appears to support Australia’s ability to adhere to its non-refoulement obligations to the extent that it would provide a statutory protection against the removal from Australia of a person to whom Australia owes protection obligations.55

However, the Committee found that Bill also engages and limits the right to liberty and the rights of the child, noting that a potential consequence of the Bill is prolonged or indefinite immigration detention.56 While the Committee found the measure to pursue, and be rationally connected to, a legitimate objective of supporting Australia to uphold its non-refoulement obligations, it stated that there are ‘serious concerns’ as to whether the measure is proportionate. The Committee noted that the Minister’s powers to grant a visa or allow a detainee to reside outside of immigration detention are ‘non-reviewable and non-compellable’, suggesting that ‘it is not apparent that they would necessarily serve as an effective safeguard in practice’.57 It also expressed concern that the measure might make it more difficult to mount a successful legal challenge against detention, noting:

… this bill seeks to remove the basis on which the applicant was released in AJL20 by clarifying that there is no requirement to remove an unlawful non-citizen from Australia to a country in respect of which there has been a protection finding in a protection visa process in relation to that person.58

The Committee further pointed to the absence of any legislative maximum period of detention and suggested that in the absence of effective safeguards, there is ‘a real risk that detention may become indefinite, particularly where the circumstances in the relevant country are unlikely to improve in the reasonably foreseeable future’.59 Finally, the Committee stated that to the extent that it results in prolonged or indefinite detention, the Bill may have implications for Australia’s obligation not to subject any person to torture or to cruel, inhuman or degrading treatment or punishment, and noted that the Statement of Compatibility does not address this point.60

52. Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021, p. 3. 53. The Statement of Compatibility with Human Rights can be found at pages 11-14 of the Explanatory Memorandum to the Bill. 54. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 5, 2021, 29 April 2021, pp. 13-28. 55. Ibid., pp. 15-16. 56. Ibid., pp. 16-19, 27-28. 57. Ibid., pp. 21, 26. 58. Ibid., p. 24. 59. Ibid., p. 25. 60. Ibid., pp. 25-26.

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The Committee stated that it had ‘serious concerns’ as to the proportionality of the measures in the Bill and their compatibility with the rights to liberty and rights of the child. While not yet forming a concluded view, it requested further information from the Minister regarding:

• in respect of those people to whom protection obligations are owed but who were ineligible for a visa, in the last five years:

- the number who were, or are currently, detained in immigration detention and the length of their detention - the number granted a visa or released into community detention by exercise of the Minister’s personal discretionary powers and - the number returned to a country in relation to which there had been a protection finding

due to conditions in that country improving, or sent to a third country • what effective safeguards exist to ensure the limits on the right to liberty and the rights of the child are proportionate

• what effective safeguards exist to ensure that persons affected by the measure who are in immigration detention will not be detained indefinitely and consequently at risk of ill-treatment, and how the measure is compatible with the prohibition against torture or other forms of cruel, inhuman or degrading treatment or punishment and

• whether the measure will have any impact on persons involved in current litigation or who have been unlawfully detained based on the caselaw established by the Federal Court’s decision in AJL20.61

The Minister’s response had not been received at the time of writing.62

Key issues and provisions

Assessment of protection obligations

Current provisions Section 36 of the Migration Act sets out the criteria that an applicant for a protection visa must satisfy. An applicant must either be:

• a person in respect of whom the Minister is satisfied Australia has protection obligations because they are a refugee (the refugee criterion)63

• a person in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk they will suffer significant harm (the complementary protection criterion) or

• a member of the same family unit as a person who falls into one of the above two categories and holds a protection visa of the same class as that being applied for by the applicant.

An applicant must also satisfy certain security and national interest criteria. They must not be a person:

• assessed by ASIO as a direct or indirect risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 (Cth))64 or

61. Ibid., pp. 26-28. 62. A response is due by 19 May 2021: Parliamentary Joint Committee on Human Rights, ‘Ministerial responses’, Australian Parliament website. 63. Refugee is defined in section 5H of the Migration Act. 64. Migration Act, subsection 36(1B).

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• whom the Minister considers, on reasonable grounds, to be a danger to Australia’s security or, having been convicted by a final judgment of a particularly serious crime,65 to be a danger to the Australian community.66

Additionally, subsections 5H(2) and 36(2C) set out circumstances in which a person who may otherwise satisfy the refugee or complementary protection criterion, respectively, will not qualify for a protection visa. These are where the person has: committed a crime against peace, a war crime or a crime against humanity; committed a serious non-political crime before entering Australia; or been guilty of acts contrary to the purposes and principles of the United Nations.

In addition to these specific exclusionary criteria, there are other general grounds on which a person may be prevented from being granted a protection visa. This includes failing the character test under section 501 of the Migration Act.

Ministerial Direction no. 75, issued by the Minister under section 499 of the Migration Act, directs departmental delegates as to the order in which they are to consider matters arising in connection with a Protection Visa application that raises character or security concerns. This requires decision-makers to first assess the applicant’s refugee claims under paragraph 36(2)(a) and any complementary protection claims under paragraph 36(2)(aa) before considering any character or security concerns.67

Issue Currently, although the Ministerial Direction provides an order in which decision-makers must consider various matters in connection with a visa application, the Migration Act itself does not prescribe any requirements as to the order in which a decision-maker must consider the various qualifying and exclusionary criteria. This has given rise to concerns that the Minister could, legally, reject a person’s visa application on character or security grounds without even considering whether Australia has protection obligations in respect of the person. This has the potential to result in a person being removed in breach of Australia’s non-refoulement obligations.

Peter Billings has described the issue as follows:

… the concern here is that refugees may be refused protection on character grounds or national security grounds before any active assessment of whether they positively engage protection obligations and this is not a fanciful concern. There are reported cases where character issues have been considered ahead of other legal criteria. Under the Act, as currently configured, refugees may not (and need not) be identified before broad exclusionary provisions are invoked and removal processes are engaged. Consequently, non-refoulement obligations may be breached, precisely because the statutory power of removal is now unconditioned by the requirement to consider the non-refoulement principle.68

Proposed amendments The Bill addresses this gap in the statutory scheme by imposing an obligation on decision-makers to consider whether a person engages Australia’s non-refoulement obligations regardless of any exclusionary factors which may affect their protection visa application.

65. Particularly serious crime is defined under section 5M as either a serious Australian offence or a serious foreign offence. These terms are defined under subsection 5(1), and capture offences involving violence against a person, a serious drug offence, serious property offence or an offence relating to immigration detention, where the offence is punishable by at least a three year fixed or maximum term of imprisonment.

66. Ibid., subsection 36(1C). 67. Minister for Immigration and Border Protection, ‘Direction no. 75 - Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b)’, 2017, LEGENDcom database (available via the Parliamentary Library). 68. Billings, ‘Refugee protection and state security in Australia’, op. cit., p. 228.

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Item 1 inserts proposed section 36A into the Migration Act, requiring the Minister (or their delegate) to, when assessing a protection visa application, consider as a first step whether Australia owes any protection obligations towards the applicant. Proposed subsection 36A(1) states that the Minister must consider and make a record of whether they are satisfied of any of the following:

• the person satisfies the refugee criterion under paragraph 36(2)(a) with respect to a country and also satisfies the security criterion under subsection 36(1C)69

• the person satisfies the complementary protection criterion under paragraph 36(2)(aa) with respect to a country or

• the person satisfies the refugee criterion under paragraph 36(2)(a) but does not satisfy the security criterion under subsection 36(1C), but would also satisfy the complementary protection criterion under paragraph 36(2)(aa) if they didn’t meet the refugee criterion.

Proposed subsection 36A(2) provides that this must occur before the Minister considers any other matters in connection with the visa application or makes a decision on whether to refuse or grant the visa.

This obligation does not apply in respect of protection visa applications made by members of the same family unit as a protection visa holder, if their applications were made before the family visa holder was granted a visa. The Explanatory Memorandum states that this ‘reflects current policy’ that there is no requirement to independently assess protection obligations for members of the same family unit as a protection visa holder—such family members would be granted protection visas by virtue of satisfying the criteria in either paragraph 36(2)(b) or (c).70

While the amendments ensure that protection obligations are assessed as part of the protection visa application, they do not affect the subsequent application of any exclusionary factors to refuse the visa application. A visa may still be cancelled on character or security grounds even where protection obligations are found to exist.

Removal from Australia

Current provisions Section 189 of the Migration Act requires all ‘unlawful non-citizens’ (a person in Australia without a valid, in-force visa) to be detained.71 Section 198 then provides that unlawful non-citizens in immigration detention must be removed from Australia.

Section 197C provides that for the purposes of section 198, it is ‘irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen’, and that an officer’s duty to remove a person from Australia as soon as reasonably practicable arises irrespective of whether there has been an assessment of Australia’s non-refoulement obligations in respect of that person. Sections 197C and 198 have been interpreted as having the combined effect of requiring the

69. While for the purposes of being granted a protection visa, paragraph 36(1A)(a) requires an applicant to satisfy both of the criteria in subsections 36(1B) and (1C) of the Migration Act, for the purposes of Australia’s non-refoulement obligations only a person seeking to qualify as a refugee must satisfy the security obligations in subsection 36(1C). A person may still attract Australia’s complimentary protection obligations (and be protected from refoulement) even if they don’t satisfy the security criterion in subsection 36(1C) (which is different to the criteria for being granted a protection visa). This reflects the fact that, unlike under the Refugee Convention, under the ICCPR and CAT Australia’s non-refoulement obligations are absolute and are not subject to any national security exceptions.

70. Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021, p. 6. 71. Migration Act, sections 13 and 14 (definitions of lawful non-citizens and unlawful non-citizens, respectively) and section 189.

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Government to remove an unlawful non-citizen from Australia as soon as reasonably practicable, irrespective of whether Australia has non-refoulement obligations in respect of the person.

Issue As discussed above, the Federal Court has interpreted section 197C as being inconsistent with Australia’s non-refoulement obligations under international law, with the effect that the Government’s policy of indefinitely detaining, but not removing, an unlawful non-citizen who is owed protection obligations is not ‘legally justifiable’ under the provisions of the Migration Act.72 Legal academics Chantal Bostock and Jason Cabarrús have described the issue as follows:

… in some cases Australia may be placed in an unenviable situation where it must either breach its domestic laws by failing to remove an individual (with implications for the rule of law), or breach its international obligations by removing the person to harm.73

The Government has stated that this judicial interpretation is contrary to its intention in enacting section 197C, and is amending the provision to address this:

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.74

Proposed amendments Item 3 amends section 197C to insert proposed subsections 197C(3) to (9). These provisions are aimed at clarifying the scope and application of the section. Proposed subsection 197C(3) provides that despite subsections 197C(1) and (2), the removal power under section 198 does not authorise the removal of an unlawful non-citizen to a particular country if:

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

• in the course of considering the application, a protection finding was made for the non-citizen with respect to the particular country (regardless of the outcome of the visa application) and

• none of the following apply:

- the decision in which the protection finding was made has been quashed or set aside - the Minister is satisfied the non-citizen is no longer a person in respect of whom a protection finding would be made or - the non-citizen has asked the Minister, in writing, to be removed to the particular country. The effect of the provision is that where a protection finding has been made in respect of a person during the consideration of a protection visa application, that person cannot be removed from Australia to the particular country, even if their protection visa application is unsuccessful. Section 198 will only apply to require the person’s removal where the protection finding is found to no longer apply or where the person requests to be removed from Australia.

Proposed subsections 197C(4)-(7) set out the circumstances in which a protection finding will be made. These are:

72. AJL20 at paragraph 123. 73. Bostock and Cabarrús, ‘Short shrift’, op. cit., pp. 4-5. 74. Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021, p. 11.

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• where a record is made under proposed section 36A (discussed above) that the Minister is satisfied a protection visa applicant is a person in respect of whom Australia has protection obligations with respect to a particular country75

• where the Minister is satisfied, however expressed and even if impliedly, that the person satisfies the refugee criterion or the complementary protection criterion with respect to a particular country, including if they did not satisfy other criteria or are otherwise ineligible for grant of the visa76

• where a protection finding is made for a person in respect of a particular country on one of the above grounds, and the Minister is satisfied (however expressed and even if impliedly) that although the person may have a right to enter and reside in a third country, they have a well-founded fear of persecution or real risk of significant harm in that country, or have a well-founded fear that the third country would return them to another country in which this would arise77 or

• in circumstances prescribed by the Regulations.78

Scope of the amendments The proposed amendments to section 197C apply in the context of protection visa applications. They do not capture people who raise non-refoulement issues outside of this context—for example, where their visa has been cancelled on character grounds.

While non-refoulement obligations may be one of the factors considered by a decision-maker in deciding whether to cancel a visa on character grounds, they are not primary considerations and such obligations must be weighed against ‘the seriousness of the non-citizen’s criminal offending or other serious conduct’.79 Furthermore, the relevant Ministerial Direction states:

It may not be possible at the [character test] stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under [the character test provisions], is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.80

Where a person’s visa is cancelled on character grounds and they have not subsequently applied for a protection visa, section 197C may continue to be interpreted by the courts as requiring that person’s removal from Australia (unless they are granted a visa and released from immigration detention) even where they are owed protection obligations.

Concluding comments Section 197C of the Migration Act has been the subject of significant criticism. The Bill’s amendments seek to clarify the scope of the provision, by specifying that it does not operate to authorise removal of a person who has a protection visa application refused but is nonetheless found to attract Australia’s protection obligations. Additionally, the Bill inserts a statutory

75. Proposed subsection 197C(4). 76. Proposed subsection 197C(5). 77. Proposed subsection 197C(6). 78. Proposed subsection 197C(7). 79. A Hawke (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), ‘Direction no. 90—Visa refusal and

cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’, 2021, LEGENDcom database (available via the Parliamentary Library), clause 9.1(2). 80. Ibid., clause 9.1(6).

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requirement that in considering a protection visa application, the Minister and delegates must assess Australia’s non-refoulement obligations towards a person before considering any other factors relevant to deciding whether to refuse or grant the visa.

Collectively, the amendments appear to provide a stronger statutory safeguard against refoulement and ensure the Migration Act reflects what has, until now, been Departmental policy and practice even where the legislation requires that a person be removed from Australia.

However, it is also important to note that the Bill has been introduced in response to recent court decisions which have held that the Migration Act does not authorise the indefinite detention of a person who is found to attract Australia’s non-refoulement obligations but has not been granted a protection visa. As noted by the Parliamentary Joint Committee on Human Rights and the Scrutiny of Bills Committee, the Bill may therefore have the practical effect of authorising the indefinite detention of such persons. Both Committees have raised concerns that there are insufficient legal safeguards in place to ensure that immigration detention in such cases is reasonable, necessary and proportionate.

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