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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

 

SENATE

 

MIGRATION Amendment (CLARIFYING INTERNATIONAL OBLIGATIONS FOR REMOVAL) BILL 2021

 

REVISED EXPLANATORY MEMORANDUM

 

(Circulated by authority of the Minister for Immigration, Citizenship, Migrant Services

and Multicultural Affairs, the Hon Alex Hawke MP)

 

THIS EXPLANATORY MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES

TO THE BILL AS INTRODUCED

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 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;

·            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 national security;

·            provide access to merits review for certain individuals who were previously determined to have engaged protection obligations but are subsequently found  by the Minister to no longer engage those obligations; and

·            ensure that an unlawful non-citizen will not be removed in accordance with section 198 of the Migration Act where the Minister has decided that the unlawful non-citizen no longer engages protection obligations before:

-           the period within which an application for merits review of that decision under Part 7 of the Migration Act could be made has ended without a valid application for review having been made; or

-           a valid application for merits review of that decision under Part 7 was made within the period but has been withdrawn; or

-           the Minister's decision is affirmed or taken to have been affirmed upon merits review.

The Bill also amends the Intelligence Services Act 2001 to require the Parliamentary Joint Committee on Intelligence and Security (PJCIS) to commence a review of the operation, effectiveness and implications of the provisions amended or inserted by Schedule 1 to the Bill, by the second anniversary of the commencement of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 .

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 an unlawful non-citizen, 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 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 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 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). 

The purpose of the Bill is also to ensure that in the rare circumstances where the Minister decides that an unlawful non-citizen no longer engages protection obligations, that the non-citizen will have access to merits review in the Migration and Refugee Division of the Administrative Appeals Tribunal. This amendment aligns with the Government’s policy intention that decisions that impact on the rights and interests of individuals should be reviewable on their merits.

The Bill is anticipated to operate in relation to the very small cohort of serious character/national security concern detainees who enliven Australia’s non-refoulement obligations.

Specifically, the provisions of Schedule 1 to the Bill:

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

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

·            insert a new section 197D to set out the Minister’s decision-making power in relation to certain individuals who were previously determined to have engaged protection obligations but are subsequently found by the Minister to no longer engage those obligations;

·            make related amendments in relation to merits review; and

·            provide for the application of the amendments in certain circumstances.

Schedule 2 to the Bill provides for an amendment to the Intelligence Services Act 2001 to provide for the PJCIS to consider whether the amendments made by Schedule 1 to the Bill are operating as intended and are effective in ensuring that the removal from Australia of an unlawful non-citizen who has been found to engage Australia’s protection obligations through the protection visa process is not required or authorised, unless relevant exceptions apply.

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 must consider and make a record of whether the Minister 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 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 considers, on reasonable grounds is a danger to Australia’s national 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 is satisfied Australia has protection obligations because the Minister 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 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 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 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 is not required to consider and make a record of whether the Minister 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 unlawful non-citizens under current section 198.

 

Item 3             At the end of section 197C

 

17.   This item adds new subsections 197C(3) to (9) 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 unlawful non-citizen . Subsection 197C(2) provides that 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 unlawful non-citizen . In general terms, section 198 currently provides for the circumstances in which an officer must remove an unlawful non-citizen 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 had already found that an unlawful non-citizen did not engage non-refoulement obligations. It was not intended to operate to require the removal of an unlawful non-citizen 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 unlawful non-citizen , section 197C of the Migration Act obliges an officer to remove the unlawful non-citizen , 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 an unlawful non-citizen ) and subsection 197C(2) (an officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen 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 an unlawful non-citizen 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:

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

-           a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6);

-           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.   New subsection 197C(3) operates (despite subsections 197C(1) and (2)) so that, if those matters set out in paragraphs 197C(3)(a)-(c) are met, section 198 will not require or authorise an officer to remove the unlawful non-citizen to a country. If any of those matters set out in paragraph 197C(3)(c) apply (including a decision made by the Minister under new subsection 197D(2) which is complete within the meaning of new subsection 197D(6)), then section 197C(3) will no longer apply, meaning section 198 would require or authorise an officer to remove that non-citizen to a 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 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 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 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(7A) provides that, for the purposes of new subsection 197C(3), if an unlawful non-citizen has made more than one valid application for a protection visa that has been finally determined, then new subsection 197C(3) applies only in relation to the last such application. This clarifies that in circumstances where an unlawful non-citizen has made more than one valid application for a protection visa, only the last such application is relevant for the purposes of new subsection 197C(3). 

 

32.   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.

 

33.   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 3A          After section 197C

 

34.   This item inserts new section 197D into the Act after section 197C. Section 197D provides for merits review of a decision that a person is no longer a person in respect of whom a protection finding would be made.

 

35.   New subsection 197D(1) provides that a decision made under new subsection 197D(2) may only be made for the purposes of new subsection 197C(3).

 

36.   New subsection 197D(2) provides that if the Minister is satisfied that an unlawful non-citizen to whom new paragraphs 197C(3)(a) and (b) apply in relation to a valid application for a protection visa is no longer a person in respect of whom any protection finding within the meaning of new subsection 197C(4), (5), (6) or (7) would be made, the Minister may make a decision to that effect.

 

37.   In practice, it would be rare that a person who has been found to engage protection obligations, would no longer engage those obligations.

 

38.   New subsection 197D(3) provides that, for the purposes of new subsection 197D(2), if an unlawful non-citizen has made more than one valid application for a protection visa that has been finally determined, subsection (2) applies only in relation to the last such application.

 

39.   New subsection 197D(4) provides that, if the Minister makes a decision under new subsection 197D(2), the Minister must notify the non-citizen of the following matters:

·            the decision;

·            the reasons for the decision (other than non-disclosable information);

·            that the decision is reviewable under Part 7 of the Migration Act;

·            the period within which an application for review can be made;

·            who can apply for review;

·            where the application for review can be made.

 

40.   New subsection 197D(4) also includes a note referring to section 494A of the Migration Act. Section 494A provides that where a provision of the Migration Act or the Migration Regulations 1994 (the Migration Regulations) requires or permits the Minister to give a document to a person and that provision does not state that the document must be given by one of the methods in section 494B or by a prescribed method, then the Minister may give the documents to the person by any method the Minister considers appropriate which may include one of the methods in section 494B. Methods under section 494B include giving a document by hand, by prepaid post and transmission by fax, email or other electronic means. 

 

41.   The purpose of new subsection 197D(4) is to ensure that, where the Minister makes a decision under new subsection 197D(2), the Minister must notify the affected unlawful non-citizen of those matters set out in that new subsection. The Minister’s notification will put the affected unlawful non-citizen on notice of the fact that the Minister has decided 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) or (7) would be made, and that the decision is merits reviewable.

 

42.   New subsection 197D(5) provides that failure to comply with new subsection 197D(4) in relation to a decision does not affect the validity of the decision. The effect of this amendment is that, even if there is a failure with regards to any of the notification requirements, the decision itself will remain valid, even if the notification process may have to be rectified in order to ensure correct notification. This is consistent with other provisions within the Migration Act, for example subsection 66(4).

 

43.   New subsection 197D(6) provides that, for the purposes of new subparagraph 197C(3)(c)(ii), a decision under new subsection 197D(2) is complete if any of the following apply:

·            the period within which an application for review of the decision under Part 7 of the Migration Act can be made has ended without a valid application for review having been made;

·            a valid application for review of the decision under Part 7 was made within the period but has been withdrawn;

·            the decision is affirmed (or taken to have been affirmed) on review under Part 7.

44.   The purpose of new subsection 197D(6) is to clarify when a decision made by the Minister under new subsection 197D(2) is complete. New subsection 197D(6) provides that a decision under new subsection 197D(2) is complete if any of paragraphs 197D(6)(a), (b) or (c) apply. These new paragraphs effectively provide that a decision is complete where the period for merits review of the Minister’s decision under Part 7 has ended without a valid review application being made or where a valid application for review of the decision under Part 7 was made within the period but has been withdrawn or where the Minister’s decision has been affirmed (or taken to have been affirmed) by the AAT on review. 

 

Item 3B           Section 408 (paragraph beginning “Part 7-reviewable decisions”)

 

45.   This item amends section 408 so that after “circumstances” the following is inserted: “or to decisions under subsection 197D(1).”

 

46.   Section 408 sets out a simplified outline of Part 7 of the Migration Act. Part 7 provides for the review of Part 7-reviewable decisions (as defined in section 411) by the Administrative Appeals Tribunal (AAT). Section 408 sets out that Part 7-reviewable decisions relate to the grant or cancellation of protection visa in some circumstances.

 

47.   This amendment expands the scope of the simplified outline of Part 7 to provide that Part 7-reviewable decisions also include decisions made under new subsection 197D(2) on the basis that such decisions relate neither to the grant nor cancellation of protection visas. This is to ensure that in the rare circumstances a person is found to no longer be owed protection obligations, that merits review will be available, in line with the Government’s policy that decisions that impact the rights and interests of individuals should be reviewable on their merits.

 

Item 3C          At the end of subsection 411(1)

 

48.   This item amends subsection 411(1) to add new paragraph 411(1)(e), which provides for a new Part 7-reviewable decision being a decision under new subsection 197D(2) that an unlawful non-citizen is no longer a person in respect of whom a protection finding within the meaning of subsection 197C(4), (5), (6) or (7) would be made. Subsection 411(1) defines which decisions are Part 7-reviewable decisions and therefore capable of merits review by the AAT in accordance with Part 7 and any applicable regulations in the Migration Regulations.

 

49.   The purpose of this amendment is to ensure that a decision made under new subsection 197D(2) is a Part 7-reviewable decision, meaning that such decision, subject to the provisions of Part 7 and the Migration Regulations, is reviewable by the AAT.

 

Item 3D          At the end of Division 2 of Part 7

 

50.   This item adds new section 419 at the end of Division 2 of Part 7 of the Migration Act.

 

51.   New subsection 419(1) provides that, if an application for review of a Part 7-reviewable decision is made under section 412 and that Part 7-reviewable decision is a decision of a kind mentioned in paragraph 411(1)(e), then, subject to new subsection 419(2), the AAT must make its decision on review, and notify the applicant of the decision, within the prescribed period.

 

52.   The effect of this amendment is that, where the Minister has made a decision under new subsection 197D(2) and the affected unlawful non-citizen has applied for review of that decision in accordance with, and in compliance with, section 412 and any regulations made in the Migration Regulations under subsection 412(4), the AAT must make its decision on review, and notify the applicant of the decision, within the prescribed period.

 

53.   This amendment ensures that, where an application for review of a decision made under subsection 197D(2) has been made, the AAT must make a decision on review and notify the unlawful non-citizen within the prescribed period. The period will be prescribed in the Migration Regulations.

 

54.   New subsection 419(2) provides that the AAT may, with the agreement of the applicant, extend the period in subsection (1) for the purposes of a particular application. The effect of this amendment is to allow the AAT to extend the period within which it must make a decision on review of a decision made under new subsection 197D(2), but only where the applicant (that is, the affected unlawful non-citizen) agrees to an extension. 

 

55.   This provision provides flexibility if the decision on review is particularly complex or other circumstances arise which may result in the AAT not being able to notify the applicant of its decision within the prescribed period. However, any extension to such period must be agreed to by the affected unlawful non-citizen.

 

Item 3E           Subsection 423A(1)

 

56.   This item amends subsection 423A(1) so that it omits “an RRT-reviewable decision (the primary decision ) in relation to a protection visa” and, instead, substitutes “a Part 7-reviewable decision (the primary decision )”.

 

57.   In brief, section 423A provides for how the AAT is to deal with new claims or new evidence if an application for review has been made to the AAT in accordance with Part 7. Section 423A currently refers to “an RRT-reviewable decision”, which is a term no longer used in Part 7 of the Act. Item 135 of Part 2 of Schedule 2 to the Tribunals Amalgamation Act 2015 sought to replace all references to an “RRT-reviewable decision” with a “Part 7-reviewable decision” in Part 7 of the Migration Act. This amendment rectifies this oversight.

 

Item 3F           Paragraphs 423A(1)(a) and (b)

 

58.   This item amends both paragraphs 423A(1)(a) and (b) so that they omit “in the application before” and instead substitute “before”.

 

59.   The effect of these amendments is to expand the effect of section 423A in relation to how the AAT is to deal with new claims raised and new evidence presented by the applicant to include a decision under new subsection 197D(2).

 

Item 4             Application of amendments

 

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

 

61.   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.

 

62.   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.

 

63.   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.

 

64.   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.

 

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

 

66.   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.

 

67.   This ensures that protection findings made for a non-citizen with respect to a country where the Minister 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.

 

SCHEDULE 2 - Review of Amendments

 

Intelligence Services Act 2001

 

Item 1             Application of amendments

68.   This item amends the Intelligence Services Act 2001 to insert new paragraph 29(1)(cf) after current paragraph 29(1)(ce) of that Act.

 

69.   New paragraph 29(1)(cf) provides that the PJCIS is to commence, by the second anniversary of the commencement of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 , a review of the operation, effectiveness and implications of the amendments made by Schedule 1 to that Act.

 

70.   The purpose of this amendment is for the PJCIS to consider whether the amendments made by Schedule 1 to the Bill are operating as intended and are effective in ensuring that the removal of an unlawful non-citizen who has been found to engage Australia's protection obligations through the protection visa process is not required.

 

71.   The review by PJCIS will also apply to the new merits review provisions described above to ensure that they are operating as intended.



72.    

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; 

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

·            provide access to merits review for certain individuals who were previously determined to have engaged protection obligations but in respect of whom the Minister has decided that they no longer engage those obligations.

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. The Bill provides that where a person has had more than one protection visa application that has been finally determined, their removal will not be authorised under the Act where a protection finding was made in their most recent application.

New s197C(3)(c) will permit the removal powers in section 198 of the Migration Act to operate where:

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

·            there is a decision under new s197D that the non-citizen is no longer a person in respect of whom a protection finding would be made; or

·            the non-citizen requests, in writing, to be removed.

The Bill also amends the Migration Act to provide for merits review of the decision under new s197D that, for the purposes of s197C(3)(c), the non-citizen is no longer a person in respect of whom a protection finding would be made. The Bill further ensures that an unlawful non-citizen will not be removed in accordance with section 198 because the Minister decided that the unlawful non-citizen no longer engages protection obligations until:

·          the period within which an application for merits review of that decision under Part 7 of the Migration Act could be made has ended without a valid application for review having been made; or

·          a valid application for merits review of that decision under Part 7 was made within the period but has been withdrawn; or

·          the Minister's decision is affirmed or taken to have been affirmed upon merits review.

The Bill will also introduce a new section 36A to ensure that the Minister 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.

The Bill also amends the Intelligence Services Act 2001 to require the Parliamentary Joint Committee on Intelligence and Security (PJCIS) to commence a review of the operation, effectiveness and implications of the provisions amended or inserted by Schedule 1 to the Bill, by the second anniversary of the commencement of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 .

Human rights implications

Amendments to the Migration Act

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 197C of 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.

Where a person has had more than one protection visa application that has been finally determined, whether their removal is authorised under the Act will depend on whether a protection finding was made in their most recent application. This is consistent with non-refoulement obligations since removal will be authorised only if the most recent protection visa application decision, which is already merits reviewable under the Migration Act, has not resulted in a protection finding.

A merits review right will be available to unlawful non-citizens who were previously determined to have engaged protection obligations (but who were not granted a visa, or had that visa cancelled, including because of character or national security concerns) and are now found, under new s197D(2), to no longer engage those obligations. Further, the person will not be subject to removal while merits review of that decision is ongoing. The introduction of merits review where a decision is made under new s197D(2), and the protection from the duty to remove as soon as reasonably practicable while that merits review is completed, will act as an additional safeguard in relation to non-refoulement.

The new section 36A will ensure that, in assessing a protection visa application, protection obligations in relation to the relevant country are always assessed in circumstances where the applicant is ineligible for visa grant due to criminal conduct or risks to national 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 national 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 amendments to section 197C and the introduction of section 36A, 197D and related amendments 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 national 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.

Amendments to the Intelligence Services Act 2001

The Bill also amends the Intelligence Services Act 2001 to require the PJCIS to commence a review of the operation, effectiveness and implications of the provisions amended or inserted by Schedule 1 to the Bill, by the second anniversary of the commencement of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 .

The amendment to the Intelligence Services Act 2001 to require the PJCIS to commence a review of the legislation does not specifically engage human rights but will act as a further safeguard to ensure that the legislation is fit for purpose, including in its implications for affected individuals.

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