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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (CLARIFYING INTERNATIONAL
OBLIGATIONS FOR REMOVAL) BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration, Citizenship, Migrant Services
and Multicultural Affairs, the Hon Alex Hawke MP)
MIGRATION AMENDMENT (CLARIFYING INTERNATIONAL OBLIGATIONS
FOR REMOVAL) BILL 2021
OUTLINE
The Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (the
Bill) amends the Migration Act 1958 (the Migration Act) to:
modify the effect of section 197C to ensure it does not require or authorise the removal
of an unlawful non-citizen (UNC) who has been found to engage protection obligations
through the protection visa process unless:
the decision finding that the non-citizen engages protection obligations has been
set aside;
the Minister is satisfied that the non-citizen no longer engages protection
obligations; or
the non-citizen requests voluntary removal; and
ensure that, in assessing a protection visa application, protection obligations are always
assessed, including in circumstances where the applicant is ineligible for visa grant due
to criminal conduct or risks to security.
Section 197C of the Migration Act provides that, for the purposes of section 198 (removal
from Australia of unlawful non-citizens), it is irrelevant whether Australia has non-
refoulement obligations in respect of a UNC, and that person must be removed as soon as
reasonably practicable.
Section 197C was introduced to deter the making of unmeritorious protection claims as a
means to delay an applicant's departure from Australia. In these cases, the Minister or
delegate had already found the person did not engage non-refoulement obligations. Section
197C was therefore not intended to operate to require the removal of a person who had been
found to engage non-refoulement obligations.
The need to modify section 197C follows the impact of two Federal Court judgments which
have altered the intended effect of this provision on persons who have been found to engage
protection obligations:
In DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
(DMH16) the Federal Court found that, where it is reasonably practicable to remove a
UNC, section 197C obliges the Department to remove the UNC, even where the
person had been found to engage Australia's non-refoulement obligations. This was
not the intended purpose of section 197C.
In AJL20 v Commonwealth of Australia [2020] FCA 1305 (AJL20), the Federal Court
ordered the release from immigration detention of an individual (who was also the
applicant in DMH16) who it found had no ongoing matters before the Department,
Minister or the Courts and had not been removed from Australia as soon as
reasonably practicable (in circumstances where removal may have been inconsistent
with non-refoulement obligations).
The purpose of the Bill is to clarify that the duty to remove under the Migration Act should
not be enlivened where to do so would breach non-refoulement obligations, as identified in a
3
protection visa assessment process, including Australia's obligations under the 1951
Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees
Convention), the International Covenant on Civil and Political Rights (ICCPR), and the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT).
Specifically, the provisions of the Bill:
insert a new section 36A which ensures that, in considering a protection visa
application, the Minister or the Minister's delegate assesses protection obligations,
including in circumstances where the applicant is ineligible for a visa due to criminal
conduct or risks to security
amend current section 197C to provide for the relevance of Australia's
non-refoulement obligations to removal of UNCs under current section 198
provide for the application of the amendments in certain circumstances
FINANCIAL IMPACT STATEMENT
These amendments will have a low financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
amendments in this Bill and assesses that the amendments are compatible with Australia's
human rights obligations. A copy of the Statement of Compatibility with Human Rights is at
Attachment A.
4
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.
5
SCHEDULE 1 - Amendments
Migration Act 1958
Item 1 After section 36
8. This item inserts a new section 36A after section 36 of the Migration Act.
9. New subsection 36A(1) provides that, in considering a valid application for a protection
visa made by a non-citizen, the Minister or the Minister's delegate must consider and make a
record of whether the Minister or the delegate is satisfied of any of the following:
that the non-citizen satisfies the criterion for a protection visa in current paragraph
36(2)(a) (a non-citizen in Australia in respect of whom the Minister or the
delegate is satisfied Australia has protection obligations because the person is a
refugee) with respect to a country, and that the non-citizen also satisfies the
criterion for a protection visa in current subsection 36(1C) (that the applicant is
not a person whom the Minister or the delegate considers, on reasonable grounds
is a danger to Australia's security or, having been convicted by a final judgment
of a particularly serious crime, is a danger to the Australian community)
that the non-citizen satisfies the criterion in current paragraph 36(2)(aa) (a
non-citizen in Australia in respect of whom the Minister or the delegate is
satisfied Australia has protection obligations because the Minister or the delegate
has substantial grounds for believing that, as a necessary and foreseeable
consequence of the non-citizen being removed from Australia to a receiving
country, there is a real risk that the non-citizen will suffer significant harm)
the non-citizen satisfies the criterion in current paragraph 36(2)(a) with respect to
a country but does not satisfy the criterion in current subsection 36(1C); and
would satisfy the criterion in current paragraph 36(2)(aa) with respect to the
country except that the non-citizen is a non-citizen mentioned in current paragraph
36(2)(a)
10. The purpose of new subsection 36A(1) is to ensure that the Minister or delegate considers
and makes a record of their finding in respect of the refugee and complementary protection
criteria in section 36 of the Migration Act. The provision is structured in a way that reflects
Australia's non-refoulement obligations, and allows for these obligations to be identified
before considering whether the person is ineligible for grant of the visa on other grounds.
This in turn supports the operation of amended section 197C, by ensuring that a protection
finding (within the meaning of new subsections 197C(4) or (5) as described below) is made.
This is also consistent with current Ministerial Direction No. 75, made under section 499 of
the Migration Act, which provides that delegates considering an application for a protection
visa must first assess whether the refugee and complementary protection criteria are met
before considering ineligibility criteria.
11. New subsection 36A(2) provides that the Minister or the delegate must apply new
subsection 36A(1):
before deciding whether to grant or refuse to grant the protection visa
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before considering whether the non-citizen satisfies any other criteria for the grant
of the visa
before considering whether the grant of the visa is prevented by any provision of
the Migration Act or regulations; and
without regard to current subsections 36(2C) (ineligibility for grant of a protection
visa) and 36(3) (protection in another country).
12. New subsection 36A(2) provides timing for the Minister or the delegate in applying the
new subsection 36A(1). The purpose of subsection 36A(2) is to further ensure that protection
findings are made before considering whether the applicant meets other requirements for the
grant of a protection visa. The provision recognises that, under the Migration Act, an
application for a protection visa may be refused in circumstances where Australia's
international non-refoulement obligations are engaged. However, in conjunction with the
amendments to section 197C, these provisions are intended to ensure that the person is
protected from involuntary removal in circumstances that reflect Australia's international
non-refoulement obligations.
13. New subsection 36A(3) provides that new subsection 36A(1) does not apply if:
the non-citizen (the family applicant) is a member of the same family unit as another
non-citizen (the family visa holder) who holds a protection visa of the same class as
the family applicant is applying for; and
the family applicant's application for a protection visa was made before the family
visa holder was granted a visa; and
the family visa holder is a non-citizen mentioned in paragraph 36(2)(a) or (aa).
14. The purpose of new subsection 36A(3) is to ensure that the Minister or the Minister's
delegate is not required to consider and make a record of whether the Minister or the delegate
is satisfied of those matters set out in paragraphs 36A(1)(a)-(c) in respect of a family
applicant where the family applicant's application for a protection visa was made before the
family visa holder was granted a visa and the family visa holder is a non-citizen mentioned in
paragraph 36(2)(a) or (aa). This reflects current policy that there is no requirement to
independently assess protection obligations for members of the same family unit as a visa
holder who holds a protection visa as those family members would be granted protection
visas by virtue of satisfying the criteria in either paragraph 36(2)(b) or (c).
Item 2 Section 197C (heading)
15. This item repeals the current section 197C heading and substitutes it with a new heading.
16. The new heading clarifies that Australia's non-refoulement obligations do have relevance
to the removal of UNCs under current section 198.
Item 3 At the end of section 197C
17. This item adds new subsections 197C(3) to (7) at the end of current section 197C.
7
18. The purpose of the amendments to section 197C is to restore its intended effect.
Subsection 197C(1) provides that, for the purposes of section 198, it is irrelevant whether
Australia has non-refoulement obligations in respect of an UNC. Subsection 197C(2)
provides that an officer's duty to remove as soon as reasonably practicable an UNC under
section 198 arises irrespective of whether there has been an assessment, according to law, of
Australia's non-refoulement obligations in respect of the UNC. In general terms, section 198
currently provides for the circumstances in which an officer must remove an UNC from
Australia as soon as reasonably practicable.
19. Section 197C was introduced in order to limit the opportunity for a person to obtain a
court injunction to stop the removal process where the Minister or delegate had already found
that an UNC did not engage non-refoulement obligations. It was not intended to operate to
require the removal of an UNC who had been found to engage non-refoulement obligations.
20. In 2017, the Federal Court found in DMH16 that, where it is reasonably practicable to
remove an UNC, section 197C of the Migration Act obliges an officer to remove the UNC,
even where the person has been found to engage Australia's non-refoulement obligations.
21. In 2020 in the matter of AJL20, Federal Court ordered the release from immigration
detention of an individual (who was also the applicant in DMH16) who it found had no
ongoing matters before the Department, Minister or the Courts and had not been removed
from Australia as soon as reasonably practicable, in circumstances where removal may have
been inconsistent with non-refoulement obligations.
22. New subsection 197C(3) provides that, despite current subsections 197C(1) (for the
purposes of current section 198, it is irrelevant whether Australia has non-refoulement
obligations in respect of a UNC) and subsection 197C(2) (an officer's duty to remove as soon
as reasonably practicable a UNC under current section 198 arises irrespective of whether
there has been an assessment, according to law, of Australia's non-refoulement obligations in
respect of the non-citizen), current section 198 does not require or authorise an officer to
remove a UNC to a country if:
the non-citizen has made a valid application for a protection visa that has been
finally determined; and
in the course of considering the application, a protection finding (within the
meaning of new subsections 197C(4), (5), (6) and (7)) was made for the non-
citizen with respect to the country (whether or not the visa was refused or was
granted and has since been cancelled); and
none of the following apply:
o the decision in which the protection finding was made has been quashed
or set aside;
o the Minister is satisfied that the non-citizen is no longer a person in
respect of whom any protection finding within the meaning of new
subsection 197C(4), (5), (6) and (7) would be made;
8
o the non-citizen has asked the Minister, in writing, to be removed to the
country.
23. This amendment links current section 36 to the application of sections 197C and 198.
24. The purpose of subsection 197C(3) is to clarify that section 198 does not require or
authorise an officer to remove an UNC to a country if the person made a valid application for
a protection visa that has been finally determined, and in the course of considering the
application, the Minister (or the Minister's delegate), made a protection finding (within the
meaning of new subsections 197C(4)(5), (6) and (7) as described below) with respect to a
country. There are exceptions if the decision in which the protection finding was made has
been quashed or set aside including by a Court or Tribunal, the Minister is satisfied that the
non-citizen is no longer a person in respect of whom any protection finding within the
meaning of new subsection 197C(4) (5), (6) and (7) would be made, or the non-citizen has
asked the Minister, in writing, to be removed to the country.
25. New subsection 197C(4) provides a definition of a protection finding for the purposes of
new subsection 197C(3). A protection finding is made for a non-citizen with respect to a
country if a record was made in relation to the non-citizen under new section 36A that the
Minister or the delegate is satisfied as mentioned in new paragraphs 36A(1)(a), (b) or (c) with
respect to the country.
26. New subsection 197C(5) also provides a definition of a protection finding for the
purposes of new subsection 197C(3). A protection finding is also made for the non-citizen
with respect to the country if the Minister or the delegate was satisfied of any of the
following (express or implied):
the non-citizen satisfied the criterion in current paragraph 36(2)(a) with respect to
the country and also satisfied the criterion in current subsection 36(1C)
the non-citizen satisfied the criterion in current paragraph 36(2)(aa) with respect
to the country
the non-citizen would have satisfied the criterion in current paragraph 36(2)(a)
with respect to the country except that current subsection 36(3) applied in respect
of the non-citizen; and the non-citizen satisfied the criterion in current subsection
36(1C)
the non-citizen satisfied the criterion in current paragraph 36(2)(a) with respect to
the country but did not satisfy the criterion in current subsection 36(1C); and the
non-citizen would have satisfied the criterion in current paragraph 36(2)(aa) with
respect to the country except that the non-citizen was a non-citizen mentioned in
current paragraph 36(2)(a)
the non-citizen satisfied the criterion in current paragraph 36(2)(a) with respect to
the country but did not satisfy the criterion in current subsection 36(1C); and the
non-citizen would have satisfied the criterion in current paragraph 36(2)(aa) with
respect to the country except that the non-citizen was a non-citizen mentioned in
current paragraph 36(2)(a) and current subsections 36(2C) or (3) applied in
respect of the non-citizen
9
the non-citizen would have satisfied the criterion in current paragraph 36(2)(aa)
with respect to the country except that current subsections 36(2C) or (3) applied in
respect of the non-citizen
27. The structure of new subsection 197C(5) reflects the same broad structure as in new
section 36A. The primary purpose of subsection 197C(5) is to ensure that protection findings
are defined to include findings made by the Minister (or delegates of the Minister) in relation
to protection visa applications decided prior to the commencement of these amendments and
which may not use the precise wording of the current protection visa criteria, or reflect the
order of consideration in new section 36A.This is to ensure that persons currently in
Australia, and who have a protection finding from an earlier decision in respect of an
application for a protection visa, are also protected by the amended section 197C from
involuntary removal in circumstances that reflect Australia's non-refoulement obligations.
28. New subsection 197C(6) provides that, for the purposes of subsection 197C(3), a
protection finding is also made for a non citizen with respect to a country if:
the Minister was satisfied (however expressed and including impliedly) that,
because subsection 36(4), (5) or (5A) applied to the non-citizen in relation to the
country, subsection 36(3) did not apply in relation to the country; and
a protection finding within the meaning of subsection 197C(4) or (5) was made
for the non-citizen with respect to another country.
29. The purpose of new subsection 197C(6) is to ensure that a protection finding is made for
a non-citizen where a protection finding has been made in respect of a country within the
meaning of subsection 197C(4) or (5) as well where non-refoulement obligations are
identified as in respect of another country where the Minister was satisfied that subsection
36(4), (5) or (5A) applied to the non-citizen so that subsection 36(3) did not apply in relation
to that country - that is to say that there is no other country in respect of which the non-
citizen has taken all reasonable steps to enter or reside in because protection obligations are
engaged with respect to that non-citizen in that country or because that country will return the
non-citizen a country in contravention of Australia's non-refoulement obligations.
30. New subsection 197C(7) provides that, for the purposes of new subsection 197C(3), a
protection finding is also made for a non-citizen with respect to a country in circumstances
prescribed by the Migration Regulations 1994 (the Migration Regulations). A power to
prescribe additional circumstances in the Migration Regulations is an appropriate delegation
as its effect is such that, were circumstances so prescribed, it would expand the scope of a
protection finding meaning that, were such a finding made as a result of circumstances
prescribed in the Migration Regulations, the affected unlawful non-citizen would not be
required or authorised to be removed.
31. New subsection 197C(8) provides that, for the purposes of new subsection 197C(5), it is
irrelevant whether or not the non-citizen satisfied any other criteria for the grant of a
protection visa. This highlights the focus of new subsection 197C(5) on protection findings.
32. New subsection 197C(9) provides that, for the purposes of new subparagraph
197C(3)(c)(iii), a non-citizen who withdraws their written request to be removed to a country
10
is taken not to have made that request. This discrete situation is addressed in a new
subsection, rather than within the new subparagraph itself, to provide clarity.
Item 4 Application of amendments
33. This item sets out the application provisions that relate to items 1 to 3 of Schedule 1 to the
Bill.
34. Subitem 4(1) provides that new section 36A (as inserted by item 1 of Schedule 1 to the
Bill), other than paragraphs 36A(2)(a), (b) and (c), applies in relation to applications for visas
made but not decided before Schedule 1 commences.
35. This application provision ensures that the amendments made in new section 36A, other
than paragraphs 36A(2)(a), (b) and (c), will apply to any relevant visa applications made and
on foot when the amendment commences.
36. Subitem 4(2) provides that section 36A (as inserted by item 1 of Schedule 1 to the Bill)
applies in relation to applications for visas made after Schedule 1 commences.
37. This application provision ensures that new section 36A (including new paragraphs
36A(2)(a), (b) and (c)) will apply to any relevant visa applications made after the amendment
commences.
38. Schedule 1 to the Bill commences the day after the Act receives the Royal Assent.
39. Subitem 4(3) provides that a reference in section 197C of the Migration Act to a
protection finding within the meaning of new subsection 197C(5) or (6) includes a reference
to a protection finding made before the Schedule commences.
40. This ensures that protection findings made for a non-citizen with respect to a country
where the Minister or the delegate was satisfied of, however expressed and including
impliedly, those matters set out in paragraphs 197C(5)(a)-(f) will include protection findings
made before Schedule 1 commences.
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Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Clarifying International Obligations for Removal) Bill 2021
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Migration Amendment (Clarifying International Obligations for Removal) Bill 2021
(the Bill) amends the Migration Act 1958 (the Migration Act) to:
modify the effect of section 197C of the Migration Act to ensure it does not require or
authorise the removal of an unlawful non-citizen who has been found to engage
protection obligations through the protection visa process; and
ensure that, in assessing a protection visa application, protection obligations are always
assessed, including in circumstances where the applicant is ineligible for visa grant due
to criminal conduct or risks to security.
Section 197C of the Migration Act provides that Australia's non-refoulement obligations are
irrelevant to the duty in section 198 of the Migration Act to remove unlawful non-citizens
from Australia as soon as reasonably practicable. Broadly, section 198 applies to unlawful
non-citizens who have exhausted visa options.
Section 197C was introduced to deter the making of unmeritorious protection claims as a
means to delay an applicant's departure from Australia. It was not intended to operate to
require the removal of a person who had been found to engage protection/non-refoulement
obligations.
The need to modify section 197C follows the impact of two Federal Court judgments.
In DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
(DMH16) the Federal Court found that, where it is reasonably practicable to remove
an unlawful non-citizen, section 197C obliges the Department to remove the unlawful
non-citizen, even where the person had been found to engage Australia's non-
refoulement obligations. This was not the intended purpose of section 197C.
In AJL20 v Commonwealth of Australia [2020] FCA 1305 (AJL20), the Federal Court
ordered the release from immigration detention of an individual (who was also the
applicant in DMH16) who it found had no ongoing matters before the Department,
Minister or the Courts and had not been removed from Australia as soon as
reasonably practicable (in circumstances where removal may have been inconsistent
with non-refoulement obligations).
The purpose of the Bill is to clarify that the duty to remove under the Migration Act should
not be enlivened where to do so would be in breach of non-refoulement obligations, as
identified in a protection visa assessment process.
12
Specifically, the Bill will amend section 197C of the Migration Act to provide that removal
of an unlawful non-citizen under section 198 of the Migration Act is not required or
authorised to a country in respect of which there has been a protection finding in a protection
visa process in relation to that person. The term protection finding in this context reflects the
situations in which Australia will have non-refoulement obligations in respect of a person
under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (together
'the Refugees Convention'), the International Covenant on Civil and Political Rights
(ICCPR), and the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT). Protection findings will include those made before the
commencement of the amendments to ensure that there is no requirement to remove unlawful
non-citizens who currently have such findings and may otherwise be liable for removal.
Removal can proceed where the person no longer engages non-refoulement obligations or
where they have requested in writing to be removed.
The Bill will also introduce a new section 36A to ensure that the Minister or delegate always
assesses and records findings against the protection obligations criteria when considering a
valid protection visa application, even where the visa can be refused on other grounds. This
will reflect the current administrative practices that are in place pursuant to Ministerial
Direction 75, made under section 499 of the Migration Act.
Human rights implications
Rights relating to non-refoulement
Article 3 of the CAT states:
No State Party shall expel, return ("refouler") or extradite a person to another State
where there are substantial grounds for believing that he would be in danger of being
subjected to torture.
Non- refoulement obligations also arise, by implication, in relation to Articles 6 and 7 of the
ICCPR.
Article 6 of the ICCPR states:
Every human being has the inherent right to life. This right shall be protected by law.
No one shall be arbitrarily deprived of his life.
Article 7 of the ICCPR states:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent to
medical or scientific experimentation.
The amendments to section 197Cof the Migration Act ensure that the power at section 198 of
the Migration Act does not require or authorise an officer to remove an unlawful non-citizen
whose valid application for a protection visa has been finally determined, and for whom a
protection finding has been made through the protection visa process, in circumstances where
to do so would be inconsistent with Australia's non-refoulement obligations. That is, the
person cannot be removed to the country in relation to which their protection claims have
been accepted, unless they no longer engage non-refoulement obligations or have requested,
in writing, to be removed. Importantly, the amendments operate to uphold these obligations
13
regardless of whether or not the non-citizen satisfied any other criteria for the grant of a
protection visa.
The new section 36A will ensure that, in assessing a protection visa application, protection
obligations in relation to the relevant country are always assessed, including in circumstances
where the applicant is ineligible for visa grant due to criminal conduct or risks to security or
because, at the time of the visa decision, the person is able to access protection in another
country but where that right may no longer exist at the time of removal. This amendment
further enhances Australia's ability to uphold non-refoulement obligations by ensuring these
are identified in all cases, regardless of eligibility for grant of a protection visa.
Currently, it is possible for a protection visa applicant to have their application finally
determined without having a finding made on whether or not the person engages protection
obligations in relation to the country in relation to which they are claiming protection. This
could be, for example, because they fail other criteria for the grant of the protection visa, such
as those relating to criminal conduct or risks to security. The amendments address this issue
by ensuring those obligations are always assessed, rather than relying, as currently, on policy
processes to ensure that they are assessed.
Together, the amendment to section 197C and the introduction of section 36A promote
human rights by strengthening protections from removal where a person engages non-
refoulement obligations under the CAT and the ICCPR, as well as under the Refugees
Convention.
Rights relating to arbitrary detention
Article 9(1) of the ICCPR states:
Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his
liberty except on such grounds and in accordance with such procedure as
are established by law.
The amendments in the Bill are primarily aimed at protecting from removal those persons
who engage Australia's non-refoulement obligations, but where character or security
concerns mean they are ineligible for the grant of a protection visa. Persons who are granted a
visa are not subject to removal. This means that persons affected by the amendments may be
subject to ongoing immigration detention under section 189 of the Migration Act.
Immigration detention remains a key component of border management and assists in
managing potential threats to the Australian community - including national security and
character risks - and ensures people are available for removal.
Unlawful non-citizens who are unable to be removed due to barriers which include, but are
not limited to, the situation where the amendments to section 197C made by this Bill will
operate to protect them from removal in breach of non-refoulement obligations, may be
detained until their removal is reasonably practicable. Removal in such cases may become
possible if, for example, the circumstances in the relevant country improve such that the
person no longer engages non-refoulement obligations, or if a safe third country is willing to
accept the person. An unlawful non-citizen may also request in writing to be removed from
Australia.
Held detention in an immigration detention centre is a last resort for the management of
unlawful non-citizens, particularly individuals whose removal may not be practicable in the
reasonably foreseeable future. The Government's preference is to manage non-citizens in the
14
community wherever possible, subject to meeting relevant requirements, including not
presenting an unacceptable risk to the safety and good order of the Australian community.
The Minister has a personal discretionary power under the Migration Act to intervene in an
individual case and grant a visa, including a bridging visa, to a person in immigration
detention, if the Minister thinks it is in the public interest to do so. What is and what is not in
the public interest is for the Minister to decide.
The Minister also has a personal discretionary power to allow a detainee to reside outside of
an immigration detention facility, at a specified address in the community (residence
determination). While a residence determination permits an individual to be placed in the
community subject to certain conditions, it continues to be a detention placement.
The Minister's powers to consider whether to grant a visa to permit an unlawful non-citizen's
release from immigration detention, or to permit a community placement under a residence
determination, until they are able to be removed from Australia consistently with non-
refoulement obligations, means that the person's individual circumstances, and the risk they
may pose to the Australian community can be taken into account. This enables the least
restrictive option to be implemented for the person having regard to their circumstances.
While some unlawful non-citizens affected by the amendments made by the Bill will be
subject to immigration detention while awaiting removal, the Minister's decision not to grant
them a visa or place them in community detention will be made in consideration of their
individual circumstances. This helps to ensure that an immigration detention placement is
reasonable, necessary and proportionate to their individual circumstances and therefore not be
arbitrary and contrary to Article 9.
Conclusion
This Bill is compatible with human rights because it is consistent with Australia's human
rights obligations and to the extent that it may also have the consequence of limiting human
rights in some circumstances, those limitations are reasonable, necessary and proportionate.
The Hon Alex Hawke MP, Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs