Chapter 9 - Removal and deportation
This chapter deals with two important aspects of the
administration of the removal and deportation provisions of the Migration Act:
the implementation of section 198 and the
practices associated with the removal of unlawful non-citizens; and
the deportation of long term Australian
residents convicted of a criminal offence.
An outline of Australia's
international legal obligation of non-refoulement
and the need for a system of 'complementary
protection' are discussed in Chapter 4.
Removal of unlawful non-citizens from Australia
mandatory detention policy requires unlawful non-citizens to be detained until
they are granted a visa or are removed from country. Section 198 is one of the
key provisions. It requires that 'unlawful
non-citizens' must be removed as soon as 'reasonably
practicable', and is generally believed to
impose a duty on officials to act promptly to achieve the objects of the
Nicholls argued that since the extension of
mandatory detention to all classes of unlawful non-citizen, any person in Australia may be required to provide evidence of a
valid visa to avoid removal:
Removal follows from
failure to do so, or after a person’s applications and appeal opportunities are
exhausted. There is no requirement for independent review of removal actions
The committee agrees with the general view that the recent
cases of Ms Vivian
Solon and Ms
Cornelia Rau illustrate
the lack of procedural safeguards in the current provisions of the Migration
Act. The details of these cases are recorded in detail elsewhere and the issue
of procedural safeguards in the context of mandatory detention generally is
explored in detail in Chapters 5 and 6.
In respect of removals, Dr
Nicholls observed that the Palmer
the importance of independent review of removal actions and that:
the pendulum has swung so far away from reviewable orders that
the Palmer inquiry encountered an attitude in
the (D)epartment of (I)mmigration that the power to remove a person from Australia
does not require a formal decision at all because it is seen to be required by
the (A)ct .
further argued that:
'(i)n moving away from
deliberate decision-making on deportations subject to independent scrutiny, the
removal system has lost contact with the body of law that enunciated the
conditions for lawfully deporting somebody'.
The ASRC also alleged that DIMIA often exercises its
power under section 198:
Over-zealously and without regard to physical or mental health
issues, welfare issues or human rights concerns in the country of repatriation.
The committee is particularly aware to the vulnerability
of people living with disability or suffering mental illness. In relation to
pre-departure assessments, ASRC said that:
Whilst there is an
obligation upon DIMIA to conduct a pre-departure assessment of a person’s
physical fitness to travel, DIMIA do not assess a person’s mental fitness to
travel. Persons with chronic mental illness are routinely removed from Australia in circumstances where there is no
treatment for them upon arrival in the country of repatriation. This does not
mean that DIMIA should never remove a person who is psychologically unwell,
merely that this should be done in a sensitive and appropriate way in
accordance with best mental health practice standards. In many cases it may be
appropriate to organise counselling and or psychological treatment prior to
The Australian Psychological Society (APS) concurred
with this view. The APS argued that the
involuntary return of people with a mental illness is 'unacceptable'
and that 'consideration must be given, in
determining if a person is 'fit to travel',
to the person's ability to survive, cope and
integrate into the other country upon their repatriation'. The committee notes Australian
international obligations not to return a person to a country where there is a
serious risk of violation of their fundamental human rights. There will be circumstances where the
extent and nature of an illness and the conditions on return are likely to
engage those obligations.
generally, there are significant practical issues that face a person who is
subject to involuntary removal, especially where that person is being returned to a place which is not their country of
origin. The APS argued that in these circumstances:
... it is essential that
certain minimum standards are met to ensure that the person is able to
integrate into this country, such as some significant prior connection with the
country, access to healthcare and mental healthcare, and ability to access
other basic rights such as work, education, and legal protection.
The ASRC also emphasised the importance of undertaking
the removal process in a respectful way and using the minimum level of force:
Restraint may be used
only if absolutely necessary to ensure the safety of staff and others, and the
use of restraints must be strictly proportionate to the risk posed by the
returnee. Escorts, where used, should be adequately
trained to conduct the removal safely and appropriately. Clear standards and
procedures for the forcible removal of individuals from Australia must be developed and adhered to.
relation to the use of physical restraint, the ASRC continued:
Minimum forms of
physical restraint may be used only in exceptional circumstances, and
restraints that pose a significant risk to the health or wellbeing of the
returnee must never be used. Numerous reports internationally have highlighted
instances where severe injury or death by asphyxiation have resulted from the
excessive use of force and inappropriate means of restraint. Such cases are
clear breaches of fundamental human rights, and Australia must seek to avoid any such further cases.
On the issue of medicating removees, DIMIA assured the
committee that it has a clear policy that medication (including sedatives) must
not be used for the purpose of restraint in removals.
ASRC also argued that the removals process must be open and transparent:
The returnee should be
given sufficient time to prepare for the departure, should be provided with all
appropriate information relating to the journey, and should also be given
choices about aspects such as the timing of the return.
Lack of independent pre-removal
assessment of returnees
It was against the background of these concerns that
some witnesses argued for independent review of the removal decision, including
a person's fitness to travel. The Canadian system, which provides for a
Pre-Removal Risk Assessment, was generally regarded as having merit. For example, Uniting Justice Australia and the Hotham
... with recommendation 8.3 [of the Palmer Report], particularly in developing a briefing program to assess the reason
behind a removal, and responsibilities associated with removals. We would ask
that clear guidelines be developed in this regard, including an exploration of
the Canadian practice of pre-removal assessment to ensure all removals are
appropriate and that no refoulement, humanitarian or welfare concerns are present.
argued that independent assessment of removal decisions should be built into
the system. Mr John von Doussa QC, President of HREOC said:
There ought to be some
additional procedure beyond that which there presently is, a procedure which
can be compelled - in other words, a person can require that it be fulfilled - and
a procedure that has some review mechanisms at the end. Whether you set up a
new tribunal or whether you adopt some of the other procedures, if the exercise
were compelled to be done by the department, with reviews thereafter, that
might be sufficient. The problem is that at the moment there is no compulsion.
adopted a similar view. He suggested that the Federal Magistrates Court would
be an appropriate body to supervise removal decisions:
The check I have in
mind would not be a further merits review but a check of the person's identity
and fitness to travel and on the existence of permissions both from transit
countries and from the person's country of citizenship. The costs would be
modest and there would be three benefits: first, it would prevent any wrongful
removals; second, it would entrench standards for the arrangements that need to
be in place to ensure a person’s health and wellbeing; and, third, it would give
the minister and parliament assurance that the removal powers under the act are
being exercised appropriately in all circumstances. This is important in the
absence of formal deportation orders issued under the minister’s authority.
ASRC agreed that there should be independent scrutiny to ensure all removal
safeguards have been complied with. ASRC also argued that:
assessment of the removee's individual circumstances is conducted to ensure
that Australia's human rights obligations are being
met. In the course of such an assessment
any health or welfare needs of the removees must be considered and serious
consideration given to their reception upon return. It is not sufficient, in an
area where individual human rights are the concern of the global community to
abdicate responsibility for a person once they depart our shores.
Insufficient notice of deportation
The lack of notice to detainees was raised by a number
of witnesses. The Law Society of South Australia commented that:
Reports from legal
practitioners who have acted for many detainees is that the Department gives at
best brief notice that a deportation will be likely to occur, and at worst
often gives notice to legal practitioners or migration agents which only becomes
known in circumstances after the deportation has occurred. It is believed by
many that this is part of the culture of the Department which views both the
detainees and those who may wish to be involved in their dealings with the
Department with scant regard.
argued that the Migration Act should be amended to require reasonable notice as
a procedural safeguard and an opportunity to raise outstanding issues.
reply, DIMIA informed the committee that:
There is a Migration
Series Instruction on Removals, which provides removals officers guidance in
providing notification of removal to unlawful non-citizens.
All detainees are
notified of the Department’s obligation to remove them from Australia by means of a notice provided by the
department upon their induction into detention. Detention case managers also
raise the issue of removal with detainees at regular meetings.
There is no legislative
requirement that detainees be notified of their removal arrangements. However,
once arrangements are in place, the detainee is generally advised in advance of
their removal by way of a removals notice. This notice also outlines the
exclusion periods which may apply (ie time restrictions on their re-entry to Australia).
A notice outlining
debts to the Commonwealth may also be provided at this time.
The timing of delivery
of these notices will depend upon the particular circumstances of the removal.
Generally, for low risk compliant removals, the detainee can be advised 48
hours prior, or whenever the arrangements are in place.
If a removals officer
believes that the early notification of a removal to a detainee may pose a
significant risk to the effective removal of the person, and/or to the
detainee’s or other person’s safety, notification can be deferred until just
prior to the commencement of the actual removal process.
If a removee has
immediate family in Australia (eg a spouse or parent) then it will be the
removee's responsibility to notify their family of their removal.
If a removee is unable
to do this because he or she is notified of their removal immediately before it
occurs, officers ask the removee if he or she wants their immediate family in Australia to be notified of the removal. If the
removee requests that their family be notified of the removal, officers notify
the family as soon as practicable after the removee has departed Australia.
Senate Foreign Affairs, Defence and
Trade Committee's report on Ms Vivian
The Senate Foreign Affairs, Defence and Trade Committee
(FADTC) inquiry into the circumstances surrounding the removal of Ms
made several findings relevant to this inquiry. The FADTC expressed the view that:
It is quite clear that DIMIA was ultimately responsible for Ms
Solon's removal, which includes all the
associated arrangements on arrival. Records on who was to meet here were
confusing. It would appear that these arrangements were left to third parties
and were not even checked or confirmed by DIMIA officials.
The FADTC recommended that DIMIA review its removal
processes to ensure that:
clear and comprehensive records of arrangements
should be kept in relation to such removals;
formal and proper procedures are in place for
the reception of people being removed from Australia in circumstances similar
to Ms Solon.
The FADTC also noted the 'lack of clarity over when
DIMIA's responsibility for a detainee formally ends'. The committee expressed
the view that:
... there should be no 'grey area' with regard to Australia's
responsibility for those persons removed from Australia.
There must be an indisputable and identifiable point at which Australia's
responsibility to these people starts and ends. Ms
Solon's circumstances have highlighted the
need for the Australian government to review and clarify this area of
The FADTC recommended that 'DIMIA review and advise
staff when their responsibilities for a detainee begin and end, noting there
may be circumstances like that of Ms Solon where there may not be a strict
legal obligation but a moral obligation to ensure their welfare'.
This committee agrees with the views and recommendations
of the FADTC concerning the process of removing Ms
Solon The committee also accepts the evidence
received in the course of its inquiry suggesting that a pre-removal risk assessment
system should be instituted as a safeguard to ensure that any 'refoulement',
humanitarian or welfare concerns are dealt with. The committee considers the
practice in Canada
to be a worthy example and one that might usefully be followed in Australia.
The provision of reasonable notice is a procedural safeguard against illegal or
improper removals and should also be provided for by statute.
Were such a pre-removal risk assessment implemented, it
would address many of the committee's concerns, and there would be less cause
to consider the need for a review process for removal decisions.
The committee recommends that the Migration Act be
amended to require a comprehensive pre-removal risk assessment to ensure no
'refoulement', humanitarian or welfare concerns exist.
The committee recommends that the Migration Act be
amended to require that all prospective removees be provided with reasonable
Deportation of long term Australian residents
The committee received a considerable amount of
evidence about the use of section 501 to deport long term Australian residents
on character grounds. The evidence indicates that the Commonwealth has
abandoned reliance on the criminal deportation provisions (section 201) in
favour of the wider power to cancel visas on character grounds under section
501, where a person has been convicted of a criminal offence.
Section 201 of the Migration Act provides for the
deportation of non-citizens who have been in Australia
for less than 10 years, convicted of a serious criminal offence and sentenced
to imprisonment for one year or more. Under section 201, a person cannot be
deported after being lawfully resident in Australia
for more than 10 years, except in very exceptional circumstances.
A decision to cancel a visa under section 501 consists
of two stages:
the decision-maker must find that the visa
holder does not pass the 'character test' (defined in subsection 501(6)); and
if it is found that the visa holder does not
pass the character test, then the decision-maker must decide whether it is
appropriate to cancel the visa, given all of the relevant circumstances.
Direction No. 21 – Visa Refusal and Cancellation provides guidance
on the exercise of discretion under section 501.
However, evidence indicated that since the introduction
of a broader character and conduct test in section 501 of the Migration Act, it has become routine practice to
deal with convicted non-citizens by cancelling their visas on character and
conduct grounds, rendering them unlawful non-citizens and liable to removal.
Several witnesses argued that section 501 is being used
increasingly as a way of 'bypassing'
the specific deportation power contained in section 201. For example, the South
Brisbane Immigration & Community Legal Service (SBICLS) informed the
committee that, in its experience, 's[ection]
501 is being used far more than the s[ection] 201 power'.
It was said that the change in Commonwealth practice
reflected a tension between the executive and the judiciary. CCHRL explained:
Recently, following a battle between the executive and the
courts and tribunals over the implementation of the [criminal deportation power
under section 201 of the Migration Act], the Department of Immigration has
abandoned the use of the [criminal deportation power] in favour of the powers
to cancel visas on character grounds...
There is evidence that the current section 501 is being used as
a form of 'disguised'
deportation to bypass the specific power in section 201 of the Act – the
Criminal Deportation Power (CDP) ... The use of section 501 (the 'character
test' power) in lieu of section 201 (the CDP)
is significant because of several important differences between the powers...
During hearings DIMIA provided background to the amendments to section 501:
My recollection is that [amendments to section 501 in 1998 were]
against the background of a number of cases that occurred in the mid-1990s
where the government was unable to remove non-citizens who had committed very
serious violent crimes in Australia, but because of the nature of the
provisions the government decisions were overturned in the courts. The
government took the view at the time that that was an outcome that it did not
DIMIA argued that the primary purpose of the 1998 amendments
ensure that the Government can effectively discharge its
fundamental responsibility to prevent the entry and stay in Australia
of non-citizens who have a criminal background or have criminal associations.
DIMIA also noted that the
amendments were supported, at the time, by both the major parties.
A brief review of the second reading debate on
the Migration Legislation Amendment (Strengthening of Provisions Relating to
Character and Conduct Bill 1998, indicates that the bill was intended to:
broaden the criteria upon which a person might
be refused entry or have their visa cancelled on character grounds; and
facilitate quicker removal.
emphasis during debate was on screening of people seeking to enter Australia
and the prompt removal of people who committed a serious offence while in Australia.
There is no evidence that the bill was intended to apply to long term permanent
residents and no suggestion that section 201 should be repealed. The committee is only aware of one
case in mid 1997 in which the Minister sought to cancel a visa and subsequently
abandoned the action.
Differences between sections 201 and 501 of the Migration Act
The committee notes the important differences between
section 201 and section 501; and the human rights and legal concerns raised by
the Commonwealth's preferred use of section
501. Some of these concerns are:
section 201 assumes that a person, 'integrated'
into the Australian community after a period of 10 years, with extensive ties
in Australia should be removed. This includes permanent residents who have
spent the majority of their lives in Australia, have children and other
dependents who are Australian citizens, or have already served their time in
prison. In contrast there is no time limit in section 501.
section 201 is confined to persons sentenced to
a term of imprisonment of not less than one year but no more than 10 years. In
this way, section 201 reflected a certain level of seriousness about the crime.
By contrast, the 'character
test' in section 501 captures a far wider
range of behaviour. Mere association with someone else reasonably suspected of
criminal activity by the Minister is sufficient to establish that a person is
not of good character; and cumulative periods of periodic detention count
toward the calculation of a term of imprisonment which constitute a 'substantial
section 501 is intended to facilitate refusing visa applications from people seeking
to enter Australia or cancel a visa where the person present a significant
risk. It was not intended to be relied
on for the purpose of deporting Australian residents convicted of minor or even
serious criminal offences if they lived in Australia more than ten years;
decisions under sections 201 and 501 are
reviewable by the AAT. However, the section 501 is subject to personal
intervention by the Minister (which is unreviewable, and not subject to
independent scrutiny or the rules of procedural fairness);
the policy directions which govern the exercise
of powers under sections 201 and 501 are significantly different. For example,
the power to deport under section 201 requires a range of personal considerations
relating to family unity to be taken into account. By contrast, section 501 emphasises the 'expectations
of the Australian community';
It was also argued that section 501 effectively exposes
a long term Australian resident to an additional penalty: The ICJ said:
Someone has done their
time and yet they are further penalised as a result of the immigration
implications once they are released. That is one of the public interest
considerations that should be taken into account in the discretion not to
The committee understands that the ICJ is emphasising
the practical effect of deportation rather than making a legal argument that
deportation constitutes double jeopardy and questioning the policy of
deportation. Based on the evidence
before the committee, it does appear that the policy considerations for criminal
deportation overlaps with, but is substantially different to, those which
inform cancellation on character grounds.
No right to legal representation
LACNSW criticised the lack of legal assistance
available to permanent residents who face criminal deportation under section
201. LACNSW informed the committee that DIMIA notifies the person that they
will be deported after completion of their custodial sentence. The letter of
notice includes information about appeal rights. Where DIMIA is unable to
deport immediately, section 253 of the Migration Act provides that such persons
may be held in immigration detention on expiration of the custodial sentence
According to LACNSW, the notice also advises the
individual to contact the Legal Aid Office or Commission in their state or territory
for assistance with their appeal.
However, as LACNSW explained:
The fact that the letter directs the applicant to the Legal Aid
Office or Commission in their state or territory, clearly attests to the
necessity for legal assistance in these proceedings. However ... this assistance
is not available. The applicant is denied the right to access the advice and
assistance they require.
A challenge against a DIMIA decision is a complex and lengthy
process. At the AAT, DIMIA is represented by a solicitor; the non-citizen (the
applicant) is often unrepresented because free legal representation is not
available either under the IAAAS or under Commonwealth legal aid guidelines ... The
only remaining option is private representation, which is often not affordable,
or pro bono assistance, which is in short supply.
It was argued that people serving custodial sentences
who have their visas cancelled under section 501 of the Migration Act are
extremely vulnerable and need legal assistance:
DIMIA detains or deports them immediately after they complete
their custodial term. Whilst in custody or detention they are not referred to a
registered migration agent for advice on their legal rights. This group is
largely unrepresented throughout this process. The visa cancellation process is
complex. DIMIA is represented by a solicitor or trained officer of the
Department of Immigration throughout the process. The unrepresented applicant
is greatly disadvantaged as he or she cannot effectively participate in this
Legal assistance and representation in this process is essential
in enabling individuals to exercise their legal rights, given the serious
consequences to people who have, in many cases, spent much of their lives in Australia
and face being returned to the country of their birth with which they have
little or no connection.
The risk of breaching Australia's
The committee received evidence suggesting that Australia
may be acting in breach of its international obligations if it has or is deporting
someone originally accepted by Australia
as refugee. Mr David
Bitel from the Refugee Council of Australia argued
In the criminal
deportation area, one commonly hears of cases involving people, particularly
from Vietnam, who have come to Australia as refugees, as minors in earlier
years, who have then got themselves caught up in serious criminal activity and
in respect of whom deportation orders have been signed following section 501
orders or decisions. In my mind, that certainly does enliven the question as to
whether Australia is in breach of its obligations, because
there has been no change in country situation in Vietnam in terms of the refugee convention.
... I cannot give you a settled, learned opinion as to whether Australia
is in breach of its obligations. My gut reaction is that Australia
may well be, but then other considerations may come into play such as the
effluxion of time and the cessation provisions under the convention.
The committee notes that whether the expulsion from Australia
is executed under sections 189, 201 or 501, the facts of an individual case may
international legal obligation not to return a person to a country where there
is risk of breaching the non-refoulement obligation under the CSR, CAT or
ICCPR. The issue is whether there is adequate procedural safeguard to ensure
does not act inconsistently with those requirements. Australia's
protection obligation towards refugees raises a particular set of cases where
vigilance is required to prevent refoulement.
increased use of section 501
The committee notes recent media reports about the
extent to which section 501 has been used to deport long term Australian
residents with criminal convictions. In November 2005, it was reported that
since 2000-01, some 293 people have been removed under this section, while only
18 people have been deported under the section 201, criminal deportation
provisions. Media reports indicate
that some of these people have lived in Australia
since infancy and have never turned their mind to or simply been unaware that
technically they were not citizens. It follows that their family life, work and
community ties are Australian – for all practical purposes they are Australian.
There have been a number High Court cases concerned
with the deportation of British nationals.
In Shaw the High Court held that British migrants who had
arrived in Australia
after 1949 are 'aliens'
unless they become citizens and, although the person in that case had lived in Australia
since the age of 2, he could be deported to his birthplace.
The ruling in Shaw
overturned the 'protection against deportation
conferred on long term British settlers conferred by the High Court in Taylor
(2001)'. In Taylor,
the majority held that 'such people were 'non-removable
non-citizens'. These cases raise what some
witnesses have described as the constitutionally entrenched 'alien-citizen
dichotomy', which underlies an general lack of
sense of responsibility toward the rights and humanitarian needs of
non-nationals. In a settler
country with high levels of migration the potential reach of section 501 is
considerable. There are, for example, some 355,000 British born migrants in Australia
who have not become citizens.
Recent Federal Court cases involving the use of section
501 have drawn rare judicial comment.
Most notable is the recent case of Nystrom
v Minister for Immigration and Multicultural and Indigenous Affairs, in which Moore
and Gyles JJ expressed concern about the inappropriate use of section 501:
'This is yet another disturbing application of s[ection] 501 of
the Migration Act ... [which] suggests that administration of this aspect of the
Act may have lost its way'.
The majority in Nystrom
noted the need for change:
... it is timely for there to be a review by the Minister of the
proper approach to matters such as this. That would be very likely to yield a
different result in this case. In our opinion, it is difficult to envisage the
bona fide use of s 501 to cancel the permanent absorbed person visa of a person
of over 30 years of age who has spent all of his life in Australia, has all of
his relevant family in Australia, by reason of criminal conduct in Australia so
leading to his deportation to Sweden and permanent banishment from Australia.
... Section 501 should not be used to circumvent the limitations
in s 201. Apart from anything else, to do so is to retrospectively disadvantage
permanent visa holders who happen to be non-citizens.
Further, the majority stated that:
It is one thing to say that the responsibility to determine who
should be allowed to enter or to remain in Australia
in the interests of the Australian community ultimately lies with the
discretion of the responsible minister. That has little to do with the
permanent banishment of an absorbed member of the Australia
community with no relevant ties elsewhere. [Mr
Nystrom] has indeed behaved badly, but no
worse than many of his age who have also lived as members of the Australian
community all their lives but who happen to be citizens. The difference is the
barest of technicalities ... Apart from the dire punishment of the individual
involved, it presumes that Australia
can export its problems elsewhere.
questioned DIMIA about the impact of the judgment in Nystrom, and the issue of 'absorbed persons' visas. DIMIA provided the following information:
Assessment of whether
someone holds an absorbed person visa is a complex legal and evidentiary task
and can only be determined after a comprehensive review of a range of
information relating to the individual in question. Such assessments therefore
are only done where it is necessary to determine the immigration status of the person.
Once a full analysis of
the court decision [in Nystrom] had
been completed, including its implications for other persons who could be in a
similar situation, the department commenced a case by case review of persons
whose visas had been cancelled under section 501 and who were in immigration
detention to see if they were affected by the Nystrom decision. As a result, twelve people in immigration detention and one in
prison were identified as likely holders of an absorbed person visa that was
not considered in the cancellation process. Apart from the person in prison,
all were released immediately the assessment had been completed. In a small
number of these cases, involving very serious crimes, action has commenced to
consider again whether to cancel the visa under section 501.
also advised, as a result of Nystrom,
... an assessment has
been done for persons in immigration detention as a result of visa cancellation
under section 501, persons about to be transferred from prison to immigration detention
as a result of visa cancellation under section 501, and non-citizens being
considered for visa cancellation under section 501.
The impact of the Commonwealth's
use of section 501 in individual cases is a matter of considerable concern. Some
submitters argued that permanent residents who suffer from mental illness have
been affected by the regime under section 501. SBICLS argued that '(a)
person who has become an Australian permanent resident as a juvenile and become
part of the Australian community should not be subject to cancellation under
s[ection] 501 on character grounds'; rather,
the 10-year rule in section 201 should apply.
Burnside QC also highlighted some of the specific
problems with section 501:
... some people have come
here, not as refugees, to take up permanent residency but do not bother to
apply for citizenship, and there are many illustrations of this problem. But
the general shape of it is that people come here, sometimes as infants. They
live here without becoming Australian citizens and get into trouble in their
20s or 30s. They are then deported to the streets of Croatia or goodness knows where, without any
support, any of the language of the country they are sent to and without any
real prospect of surviving, except at the lowest imaginable level. That seems
to be infinitely unjust. As one judge in a case of this sort mentioned: 'This
person’s offences may be unfortunate, but on any view they are the product of
his upbringing in Australia. To throw him out of the country into a
place where he will be a complete alien seems unjustifiable.' It is not as
though we have such a burgeoning criminal class in Australia that we have to
clear out the rubbish to make room for more. Every society will have a few
people who misbehave; you should not throw them out just because you can.
Mr Burnside continued:
I would take a
different approach, if you have someone who has committed high-level criminal
offences and has only lived in Australia for, say, the last 10 years of their adult
life. But, if they have been here from infancy or childhood, to send them back
by themselves to a country where they have no connections but for it being
their place of birth is plainly unjust. I know of one case where a guy is
living on the streets of Zagreb, I think. He speaks nothing but Australian, he has no contacts, none of
the support agencies is able to help him and he is living from hand to mouth on
the streets. We sent him back because he committed a low-level offence in Australia, after living here for 25 years. His wife
and children are still here. It is not something we can be proud of.
Burnside suggested a possible alternative approach which might help overcome
some of the current problems with section 501:
In principle - I have
not thought this through - you start with the fact that there is ministerial
discretion to cancel a person’s residency or visa where they have been
convicted of an offence that carries a sentence of 12 months or more. There
ought to be guidelines for the exercise of that discretion to introduce
considerations of fairness and humanitarian concern that would look to the
consequences, both for the family here and for the person’s future wherever
they are sent, in order to restrict the discretion.
in Mr Burnside's opinion, the ministerial discretion device should be used with
wherever they appear in the act, have certainly been useful in recent times
because the act otherwise allows such harsh outcomes, but they are not a
long-term solution. The discretions I think need to be bounded or guided by
considerations of fairness and compassion.
In evidence, the Migration Institute of Australia
also raised concerns about section 501 and offered a possible alternative
Section 501 and the
ministerial directions, which is a policy document that says how section 501 is
to the administered, tend to leave aside that a person can have a period of
years where they have reformed whatever bad behaviour there was and that some
of the bad behaviour might have even been innocent. But it is a situation where
perhaps the term 'a spent conviction' should be used. It is a fundamental part
of the process of law that a conviction after 10 years - in this state anyway -
is considered to be a spent conviction. If that is the way our community
operates why could that not be included in section 501 so that somebody who has
reformed is a public or community benefit, and we go back to section 4. If
somebody has reformed and they have paid their debt to society, whatever that
particular debt is, they should be treated like any of the rest of us, and in
that sense it should be written into section 501 that there should be some
community benefit recognition. Perhaps the best way of doing it is simply to
write in words about the acceptability of a spent conviction. There may be
other ways of doing it but when we put submissions forward about section 501 we
refer to spent convictions as a community norm, but it is not enshrined in the
Commonwealth Ombudsman's own-motion
The committee notes that the Commonwealth Ombudsman is
currently undertaking an own-motion investigation into the issue of criminal
deportation under section 501 of the Migration Act. The Ombudsman provided the
committee with some background into the investigation:
Independent of the
Federal Court decision on Nystrom, I decided to commence an own-motion
investigation into the issue of criminal deportation. There is a draft report
which has been completed and is currently sitting on my desk which I hope will
be going to the department within the next week or two. The reason we commenced
the own-motion investigation is because we had received a number of complaints
from people who were in detention. The general picture is that these are people
who were Australian residents. Some of them came to Australia many years ago, while some came as young
people. Some were even unaware that they were not Australian citizens, because
they had simply grown up in Australia. Then a decision was made by the minister
under section 501 of the Migration Act that, after conviction of an offence, a
person failed the good character test in that section and should be removed
Commonwealth Ombudsman highlighted the complex issues arising from the
implementation of section 501:
The complaints to our
office have, again, illustrated the complexity and sensitivity of the different
issues that arise. As I have indicated, sometimes these are people who really
have grown up in Australia. Most of them are people who have completed
the term of imprisonment for the offence committed in Australia and their removal to another country raises
distinct issues. Often they are people with close family and other connections.
Sometimes the country to which their citizenship belongs is a country that no
longer exists or they may be a country that the person has never visited and in
which they are not proficient in the language or culture. Sometimes that
results in the person being in detention for quite a long period in Australia while these issues are addressed, reviewed
and so on. Indeed, some of the people within this group come within our
two-year detention review. Because of the range of issues we decided that it was
an appropriate topic for an own-motion investigation. I should add that there
is one major restriction - the Ombudsman has no jurisdiction to investigate
decisions of the minister. But, nevertheless, we have been able to investigate
the general picture. Again, I will not foreshadow what the recommendations are,
because the draft is on my desk and I may well vary it, and, under our act, it
has to go to the department for comment before we make any adverse public comment.
Ombudsman also clarified that 'the focus of the s[ection] 501 own motion investigation
is limited to the visa cancellation of long-term Australian residents who had
been in Australia since childhood'. The Ombudsman also advised that:
'(a)s at the commencement of the own motion investigation,
the office was dealing with seven complaints into the visa cancellation of
long-term Australian residents. These people had spent their formative years in
Australia and were in detention pending removal'.
was subsequently advised that the Ombudsman aims 'to complete to the bulk of
the investigations in 2005-06'. However, 'this timeframe may change due to
matters beyond the control of this office as the investigations proceed, for
example, due to the unforeseen complexity of some matters or the availability
of information from DIMIA'.
In response to suggestions that visa cancellation
amounts to 'double jeopardy', DIMIA stated its view that:
Visa cancellation and
consequent removal of a non-citizen is not an additional punishment for the
commission of a criminal offence by a non-citizen – it is an administrative
decision taken by Australia pursuant to its sovereign right to decide the
circumstances in which a non-citizen is permitted to enter and remain within
its jurisdiction, with the power to do so clearly enacted by the Parliament.
DIMIA explained that:
Although a substantial
criminal record is a trigger for considering the exercise of the power, the
test for visa cancellation considers the totality of a non-citizen's
circumstances. These include the length of the sentence and the seriousness of
the crime, in the context of the protection of the Australian community, and
also include a range of other factors such as the best interests of any
children, and the extent of their ties to the Australian community. These
matters are covered in Ministerial
Direction No. 21 – Visa Refusal and Cancellation under section 501.
A decision to cancel a
visa under s501 is not taken lightly, and all relevant information is taken
also pointed out that the Joint Standing Committee on Migration, in its 1998
report on Deportation of Non-Citizen
Criminals, accepted that
removal of non-citizens following the commission of a criminal offence is not a
second punishment. As noted above,
the committee understands that technically that is the case. The issue is
whether section 501 is being used to avoid the justifiable limitations
enshrined in section 201 – that is, long term Australian residents should not
be exposed to the risk of deportation.
to criticisms by several witnesses that section 501 is being used in this way,
DIMIA argued that, in its view, section 201 has been effectively superseded by
Section 501 achieved
its current form in 1999, when Parliament approved amendments to strengthen the
provisions relating to character and conduct. In his Second Reading Speech, the
then Minister indicated that the amendments were designed "to ensure that
persons who are found to be of character concern can be removed". Therefore,
unlike the deportation power, the exercise of the character power is not
subject to restrictions based on a non-citizen’s length of residence in Australia, and the section does not specify any
period of residence after which a noncitizen falls outside its scope.
As above, section 501
applies to all non-citizens, including those who are permanent residents of Australia. It does not specify any period of
residence after which a noncitizen falls outside its scope. Thus, a resident's
visa may be cancelled if it is found that they fail the character test.
However, a decision to cancel a visa is not made lightly and is only made
following a detailed assessment against the considerations set out in the
The Ministerial Direction does not require consideration of
the length of residency but does include consideration of the following
extent of disruption to family, business or other ties to Australia that visa cancellation
a genuine marriage (including de facto or interdependent relationship) with an
Australian citizen exists;
degree of hardship that would be caused to immediate family members lawfully
resident in Australia; and
purpose and intended duration of the non-citizen’s stay in Australia (including
any relevant compassionate circumstances).
also stated that:
Links with the probable
receiving country, including the non-citizen’s proficiency in their language
and culture, are not factors referred to in the current Ministerial Direction.
However, language and cultural barriers are factors to be considered in respect
of any children, in the context of the best interests of the child, which is a primary
visa has been cancelled under section 501, non-citizens who are in Australia have rights of appeal: to the AAT (in cases
of delegate’s decisions) or the Federal Court of Australia (for both ministerial
and delegate’s decisions). DIMIA also noted that, in some cases, appeals can
lead to extended periods of immigration detention, along with additional
factors such as difficulties establishing identity and obtaining travel
the following data on the number of permanent residents who have been detained
under section 501 in the past three years:
number of permanent residents who have been deported after their visas were
cancelled under section 501 for the past three years is:
defended its position as follows:
requires that, before returning a person to another country, officers are to
consider if the person has special needs which require support upon their
arrival. For example, if a person has special medical needs, the Department may
arrange for the person to be met by medical staff or referred to a medical
facility upon their arrival. If a person is destitute then the Department may
provide them with a small allowance that will allow the person to obtain
accommodation, purchase food and arrange travel back to their preferred
destination within the country.
Many people who are
removed from Australia arrange to be met by family or friends in
the country to which they are being returned. Where a person is to be returned to
a country where they have not resided for a long time, they will usually be
encouraged to contact any family or friends in that country. They will also
often be encouraged to discuss their return with their consulate.
DIMIA admitted that:
There have been
instances where intended support arrangements are not properly effected or
break down following the person's return.
context, DIMIA also advised the committee that it is currently developing a new
Case Management Framework to provide a nationally consistent service delivery
approach for 'holistically managing clients', particularly those who are
vulnerable or have complex circumstances. Arrangements will involve departmental
case managers who work with the community and other service providers, as well
as with DIMIA's overseas missions, to ensure that, as far as practicable, clients
with identified special needs are appropriately supported upon removal from Australia.
committee is mindful of the serious issues raised by the increased use of deportation
under section 501. The deportation of a long term Australian resident on
character grounds because of a criminal conviction engages significant
questions about the development of public policy. The committee is concerned by the apparent disregard
for the welfare of Australian residents. As noted above, there is no
evidence in the parliamentary record that amendments to section 501 were
intended to supersede the criminal deportation provisions, and the committee
rejects the proposition that section 201 repealed. To accept the proposition
would be in effect to bypass the role of the Parliament in the debate and
passage of laws which affect the fundamental rights and interests of
the committee does not accept the argument that amendments to section 501 implicity
supersede the criminal deportation provisions. The abolition of a significant
safeguard against deportation of people who are, in all practical senses,
Australian is a matter of serious public policy. Section 201 is the current
Australian law in relation to criminal deportation of permanent residents and
the abolition of the ten year rule, if it is to occur, must be repealed by the
Parliament not by administrative practice.
addition to Nystrom, the committee
notes several other high profile cases involving long-term Australian residents
who have been deported to countries to which they have little or no connection.
The recent cases of Mr Gerard Coleman and Mr Robert Jovicic illustrate the problem.
is also likely to be significant expenditure of public funds involved in the
deportation of a long term Australian resident in these circumstances that warrants
careful investigation. The committee
understand that the Commonwealth is appealing the decision in Nystrom, as well as decisions in other
cases and the cost of this litigation alone should raise public concern.
Committee accepts that DIMIA is reviewing the section
501 deportation processes, this does not address the fundamental issue: the use
of section 501 to achieve a policy objective for which it was never intended. The report of the Commonwealth
Ombudsman's investigation will provide
important insight into the administration of section 501. The committee
recommends that it revisit the operation of section 501 in light of that report
to ensure the fullest possible examination of the issue.
the committee further review the operation of section 501 and the report of the
Commonwealth Ombudsman investigation into the administration of the
cancellation of visas on character grounds. Further, the committee recommends
that, as per the Ombudsman's recommendations, the use of Section 501 to cancel
permanent residency should not be applied to people who arrived as minors and
have stayed for more than ten years.
Failure to monitor after removal or deportation
As the committee has previously noted, Australia,
as a sovereign nation, has the right to determine who is allowed to enter and
remain in the country and, when appropriate, remove them. However, when Australia
exercises these rights there are no formal processes in place for monitoring
returnees. International conventions do not consider the issue of monitoring;
rather the basic notion is that persons at risk will not be 'refouled', and
therefore those who are returned are deemed not to be at risk.
However, concerns about the removal of persons who have
unsuccessfully claimed refugee status in Australia
have prompted the call for the monitoring of removal cases. The committee
received evidence arguing that the obligation not to 'refoule'
implicitly requires Australia
to monitor persons who are removed or deported after their return to another
The committee's earlier conclusions
In A Sanctuary
under Review, the committee expressed the view that an area where
monitoring may prove especially useful is in those cases where an individual
may not have been subject to persecution on Refugee Convention grounds prior to
departure from their country of origin, but for whom the act of leaving would
result in persecution, not necessarily in the form of torture, on their return.
The committee also noted that some form of monitoring
may be the only way in which Australia
can be assured that its refugee determination processes are correctly
identifying genuine refugees and humanitarian cases. The committee considered that the
most effective and efficient way of ensuring that Australia's international 'non-refoulement' obligations are met is
to improve current refugee determination procedures and to ensure that a
sufficiently wide humanitarian safety net, in the form of the Minister's
discretionary power under section 417 of the Migration Act, is in place for
those in genuine need of protection.
The committee was conscious of the many concerns raised
in submissions and evidence about the fate of returnees and the inadequacy of
the present refugee determination system to provide categorical assurance that
genuine asylum seekers are not returned to face persecution, death or torture.
The committee also understood the dilemma facing the Commonwealth Government,
both diplomatically and economically, in devising a system that tests whether Australia
meets its international 'non-refoulement'
In conclusion, the committee was of the view that,
while there is scope for further development of the informal representations
and monitoring currently undertaken by Australian overseas missions and local
and international human rights organisations, the operation and funding of a
formal monitoring system would be impractical and may also be
counter-productive. However, the committee also expressed the view that the Commonwealth
Government should take every opportunity to raise human rights obligations in
its dealings with foreign governments and at the UN.
The committee recommended that the Commonwealth
Government place the issue of monitoring on the agenda for discussion at the
Inter-Government/Non-Government Organisations Forum with a view to examining
the implementation of a system of informal monitoring.
In the Government Response to the committee's report,
the Commonwealth Government dismissed the committee's recommendation. It stated
DIM[I]A is in continuous contact, directly or through DFAT or
other agencies, with the UNHCR and NGOs in order to gain up-to-date information
on the human right situation and the treatment of returnees in relevant
countries ... A system which monitors individual returnees is considered to be
impractical and possibly counter-productive. Where it is assessed as part of
the protection determination process that there is no real chance of
persecution of the applicant on return, Australia
is not responsible for the future wellbeing of that person in their home land
merely because at some stage they spent time in Australia.
Concerns raised in the current
Similar concerns to those presented to the committee in
its 2000 inquiry were again raised by submissions and witnesses in the course
of the current inquiry. Some of these arguments are set out below.
The Refugee Advocacy Service of South Australia (RASSA),
was highly critical of the actions of DIMIA in relation to removal of detainees
A person may for instance have had their claim for refugee status
rejected, even thought they would still face danger in being returned to their
country of origin, on the basis that the danger does not occur for a [Refugee
Convention] reason. In our view section 198 of the Migration Act should at least be amended so that a person cannot be
removed to a situation of danger of death or torture to them, or where their
removal would trigger death or torture of a family member.
The Coalition for the Protection of Asylum Seekers
(CPOAS) submitted that the Commonwealth 'has deported
asylum seekers to countries of origin or third countries whose governments have
not demonstrated their willingness and ability to offer effective protection'. CPOAS also expressed concern about
the removal of asylum seekers whose claims have been rejected but who are in
need of protection for other humanitarian reasons, and the removal of asylum
seekers to a third country where there is a possibility of forced deportation
to their home country.
CPOAS recommended that the Commonwealth should monitor
the outcomes of deportation to ensure that where humanitarian concerns arise,
including the serious violation of human rights, disappearance, or death of a
person removed from Australia.
This information should inform the Commonwealth Government's
decisions relating to deportation.
The ASRC also argued that Australia
has obligations to undertake a monitoring role after removal:
should be set in place to check that returnees have reached their destination
safely, and to ensure that there is no risk of persecution. This monitoring
process may be used not only to ensure the safety of the repatriated
individual, but also as a mechanism to evaluate whether the Australian
immigration system has undertaken thorough and accurate assessments of the
protection needs of asylum seekers. HREOC has explained that 'Australia must be confident that its processes are
effective and its determination accurate. The only way to be sure of this is to
follow up those returned in order to document whether their claims to be at
risk prove unfounded as predicted'.
In her submission, Ms
Given the reliance
placed in refugee determination on this and additional information about
conditions in the country, DFAT should be given the task of monitoring the
return of all deportees and be required to report on their safety after return
for at least a year. If deportation to countries like Iran and Afghanistan is Government policy, Australia has a civilised country’s responsibility to
confirm that the former detainees who were refused refugee or humanitarian status
are safe from persecution. Ethnic communities in Australia from those source countries are closely and
anxiously watching and evaluating Government credibility in dealings with their
Amnesty International Australia maintained its view
expressed previously to the Senate Select Committee on Ministerial Discretion
in Migration Matters in 2004 that there should be:
... a requirement for select returnees to be monitored, to ensure
that the integrity decision making is properly tested (where, for example an
assessment is made that a particular group will not face persecution in a
Edmund Rice Centre's study
Many submissions and witnesses referred to the Edmund
Rice Centre's study, Deported to Danger
(the Edmund Rice Centre's study),
which reported on a significant number of persons who were placed into
dangerous situations upon their removal from Australia.
In evidence, Sister Margaret
Leavey from the Edmund Rice Centre, elaborated
on the details of the Edmund Rice Centre's study:
The original question ...
was: what has happened to Australia’s rejected asylum seekers? This original
question spanned out into five questions. The first was: has the Australian government
or its agencies sent rejected asylum seekers to places of danger? 'Places of
danger' means that the respondents have no proper identity papers, they are in
prison, they are subject to torture, they are unable to work, they have to live
in hiding, they fear persecution because of religion or ethnicity, they are in
a war zone or they are subject to threats from police. The second question was:
has Australia or its agencies increased the dangers to
rejected asylum seekers by sending incriminating evidence about them to
overseas authorities? The third question was: in managing removals, has the
Australian government or its agencies encouraged asylum seekers to obtain false
papers and become associated with corruption? The fourth question was: is the manner
of conducting asylum seeker removals consistent with Australia’s legal obligations? And the fifth question
was: is the manner of conducting asylum seeker removals consistent with Australia’s traditional values?
Leavey told the committee that the Edmund Rice Centre's study revealed that 'Australia
has deported people to danger, it has increased the dangers to asylum seekers
by sending incriminating evidence and it or its agencies have become involved
with false papers and corruption'.
answer to a question on notice, the Edmund Rice Centre advised the committee
that, for the purposes of its research, it interviewed 40 people in 11
different countries, of 13 different nationalities:
[T]hey did not know
each other, and yet their claims were remarkably similar. Of the 40 interviews
only 5 were safe.
We also contacted
another 10 people whose situation was so dire and dangerous that to include
them in our reports would increase the risks to their safety. Whilst their
inclusion would have given us a stronger report, we were not prepared to take
the risk to their lives.
Sister Mary Britt from the Edmund Rice Centre pointed to evidence indicating that the
lives of returnees can be changed irreparably after removal or deportation:
We have met people
whose lives are in ruins after deportation. But, as some of them said in interviews
about other aspects of their experience, Australia does not care. The issue of refoulement
came up during the 2000 Senate inquiry, which recommended that a system of informal
monitoring of the results of deportation be established to test whether we were
in fact meeting our obligations to people seeking our protection. The principle
of non-refoulement, which safeguards asylum seekers against being returned to
the situation from which they fled, is part of customary international law, and
it binds all states, even those who have not signed the conventions which Australia has signed and ratified. The disturbing
question of refoulement is again raised by our research. Has Australia been engaged in refoulement in breach of international
law? We believe, at least with regard to the 40 people we interviewed, that the
government has a case to answer in relation to that principle.
The Law Society of South Australia was extremely critical
of such removals:
The circumstances of
the persons included in the [Edmund Rice Centre's] study together with the fact
that some were subsequently granted protection by other developed countries
constitutes an embarrassment and a serious blight on Australia’s human rights record. The study shows that
the current system is clearly failing and Australia is not meeting its obligation of
non-refoulement in some cases. Our view is that the removal of even just one
person who is placed into a situation where they are at risk of a serious human
rights violation is unacceptable. The consequences of administrative error in this
area are potentially tragic.
Government response to the Edmund
Rice Centre's study
In a detailed explanation to the committee, DIMIA rejected
the findings in the Edmund Rice Centre's study, as well as the Edmund Rice
Centre's evidence presented to the committee in this inquiry:
The evidence provided
to the Committee by the Edmund Rice Centre (ERC) is based on its earlier
published report "Deported to Danger". This evidence makes a number
of assertions which are not substantiated. The report seeks to identify what it
considers to be returns from Australia to dangerous or unsafe situations, but does
not clearly acknowledge that the broad concepts of danger or safety it uses do
not correlate with international obligations to provide protection. Nor does it
indicate why the authors believe that general disadvantage or hardship
experienced by a person after return to their homeland, which are broadly
similar to those experienced by many people in these countries, are Australia’s responsibility.
also asserted that:
People in many
countries can face generalised dangers, hardships and uncertainty. This does
not mean that Australia has obligations to them under the specific
terms of the Refugees Convention or other international instruments.
Generalised considerations of danger, hardships and uncertainty do not equate
to the criteria for grant of a protection visa which are set out in legislation
and which must be applied by departmental and Tribunal decision-makers. The
fact that an individual may experience some hardship on return does not
automatically establish any entitlement to obtain residence in any country of
questioned the objectivity of the findings in the Edmund Rice Centre's study:
The ERC report does not
appear to test the assertions in the report. It relies heavily on the self
assessment by individuals themselves to indicate the existence of danger without
assessment of whether subjective views have any objectively legitimate basis. Importantly,
the report does not disclose the identity of the persons cited as case studies
and the ERC has not separately passed this information to the Department. This
seriously limits any prospect of exploring the claims in the report and accordingly
substantially diminishes any value the report might have as a resource to the
Department for identifying any aspects of processing which might be improved. To
the extent that there is sufficient information in the report to enable some exploration,
the Department has found nothing to substantiate assertions that such people
have been removed in breach of any international obligations owed by Australia.
emphasised the point that 'Australia
does not return anybody who is found to be a refugee and asylum seekers are
not returned if they have a real chance of facing persecution'. The committee notes that the test
referred to is that which applies to a refugee status determination under the Refugee
Convention, and not the tests which apply under the CAT or ICCPR.
also explained that returnees are not monitored since 'monitoring, by its very
nature, would be intrusive and could draw unwelcome attention to the
individuals concerned and to those with whom they associate'. Moreover, '(i)t is not general
international practice for countries returning failed asylum seekers to their country of
origin to monitor those individuals'.
also advised the committee that:
A thorough internal
investigation of two cases that the Department could identify has also not
revealed any misconduct or criminal behaviour by Departmental staff. The Department
has been looking at the ERC’s final document which was released in November
2004. DIMIA officers met with the ERC on Monday, 23 May 2005 and again on Thursday 8 September
2005 to seek
further information, which might enable the investigation of any residual
matters not covered in the first investigation.
The Department is
waiting for information promised by the ERC of contact details of further
Edmund Rice Centre vigorously defended the findings in its report and was
highly critical of the Commonwealth Government's reaction to it. The Edmund
Rice Centre informed the committee that:
... DIMIA staff have
apologized to the Edmund Rice Centre on two different occasions over the
Minister’s response to the Deported
To Danger Report. They had
travelled to Sydney to deliver this apology. This was after the
Minister had claimed – incorrectly – in the Senate that the Edmund Rice Centre
had not cooperated with the Department. This was after the Centre sent the
Minister both the interim and final reports prior to any publication on our
web-site and before their presentation in Geneva. Also after the Minister wrote a critical
letter to The Australian claiming that the evidence presented in our reports
was 'rumour and innuendo masquerading as fact' the Edmund Rice Centre was
visited in Sydney by DIMIA staff to apologise for the Minister’s claims stating
that she had been 'poorly advised' and that the Department had evidence of our
meetings in Sydney, Canberra and Geneva. When I asked if we could have that
apology on the public record I was informed – in the presence of a witness – 'You
have got to be joking'.
Edmund Rice Centre emphasised that its study was put through the Ethics
Committee of the Australian Catholic University and was overseen by some of Australia's leading barristers and lawyers. Further:
The Edmund Rice Centre
unequivocally and in the strongest terms remains adamant that Australia is refouling refugees as the evidence
suggests, and as the cases coming into our office each week continue to
Edmund Rice Centre staunchly maintained the veracity of its findings:
Government does not know what happens to people removed or deported from Australia. It does not do the work that we have done.
It is therefore not in a position to assert that the findings of the Reports
are not valid. We have the evidence that suggests that serious risks are being
taken with the lives of people removed from this country. Australia must do better than this.
as Sister Mary Britt from the Edmund Rice Centre told the committee:
Last year - it may have
been earlier - Minister Ruddock publicly said, 'What happens to people after
they have left Australia is not our concern.' It is my concern and
it is the concern of thousands of Australians because it has to do with the way
we have treated these people.
The committee reiterates its views in A Sanctuary under Review in relation to
the monitoring of returnees, particularly noting that some form of monitoring
of returnees may be the only way in which Australia
can be certain that its refugee determination processes are correctly
identifying genuine refugees and humanitarian cases. The committee again
acknowledges concerns about the fate of returnees and the inadequacy of the
present migration system to implement Australia's
international obligations under Refugee Convention, CAT and ICCPR. On the other
hand, it must also be accepted that there are practical impediments to the Commonwealth
implementing a system that formally monitors returnees after they have left Australia.
The committee strongly supports the findings and recommendations
of the Senate Foreign Affairs, Defence and Trade Committee's
inquiry into the circumstances of Ms Vivian
Solon. Most importantly, this committee
agrees that in many cases Australia
has a moral obligation to protect the welfare of removed or deported persons,
even where there may not be a strict legal obligation to do so. Significantly,
the FADTC recommended that DIMIA should review its removal processes to ensure
that formal and proper procedures are in place for the reception of people
being removed from Australia
who have welfare and health needs. It also emphasised the importance of
clarifying exactly where responsibility for a removed or deported person
formally ends. This committee repeats that recommendation.
The committee recommends that, in order to comply with
obligations and to ensure the welfare of persons removed or deported from Australia,
the Commonwealth continue to enhance the scope of its informal representations
to foreign governments, encourage monitoring by Australian overseas missions,
and continue to develop strong relationships with local and overseas-based
human rights organisations.
The committee recommends that the Commonwealth
Government review and clarify its removal and deportation processes to ensure
that formal and proper procedures for welfare protection are in place for the
reception of persons being removed or deported from Australia.
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