Chapter 2Key issues
2.1The Migration Amendment (Removal and Other Measures) Bill 2024 (the Bill) elicited strong views from submitters and witnesses. This chapter focuses on the following key proposals in the Bill:
the creation of:
a duty to cooperate in relation to removal and removal concern countries;
a ministerial power to give a removal pathway direction;
a ministerial discretionary power to designate a country as a removal concern country; and
the extension of the minister’s ability to revisit protection findings for non‑citizens on a removal pathway.
Duty to cooperate in relation to removal and removal concern countries
2.2Proposed subsection 199A(1) would set out a legislative expectation that a removal pathway non-citizen is to voluntarily leave Australia and, if they do not do so, they are expected to cooperate with steps taken under the Migration Act 1958 (the Migration Act) for the purposes of arranging their lawful removal from Australia.
2.3The Law Council of Australia (Law Council) submitted that the proposed provision is unrealistic and unacceptable. Itargued that, in combination with other provisions:
…proposed [sub]section 199A(1) will have the effect of requiring [refugees and asylum seekers] to comply with Ministerial directions facilitating their removal from Australia, even where they have a genuine fear of suffering persecution or significant harm if removed to a particular country, or a person may be someone to whom Australia has non‑refoulement obligations (among other things). It is unrealistic to expect any person in such circumstances to adhere to this duty. It is also unacceptable to expect a person to do so, especially in circumstances where noncooperation is subject to the threat of very significant criminal sections as proposed by section 199E [see ‘Criminal offence provisions’ below].
2.4In any event, Ms Sanmati Verma from the Human Rights Law Centre questioned the circumstances in which an individual’s cooperation would be central to effecting their removal from Australia: ‘removal operations from a country are interstate matters, not matters contingent upon the taking of particular actions by individual noncitizens’.
2.5The Law Council also argued that it would not be appropriate to create a legislative expectation to require a foreign country to cooperate with Australia to facilitate the removal of its nationals from Australia (proposed subsection 199A(2)): ‘the Australian Government [should] resolve issues arising with foreign countries via normal diplomatic channels’, rather than creating an unenforceable legal duty.
2.6Mr Greg McIntyre SC, President of the Law Council, added:
Australian legislation can't force any other countries to do anything…What this legislation is doing, if it has the effect which is proposed, is punishing individuals…It's punishing individuals who may not agree with anything that the country they're coming from is doing or saying or failing to do. Sothe whole concept of legislating in Australia about this is misconceived.
Ministerial power to give a removal pathway direction
2.7Submitters and witnesses expressed concerns with proposed sections 199B and 199C of the Migration Act. These concerns encompassed the scope of the provisions, and Australia’s obligations under international refugee and human rights law.
Definition of ‘removal pathway non-citizen’
2.8Many stakeholders argued that the definition of ‘removal pathway non-citizen’ (proposed subsection 199B(1)) is too broad. The International Commission of Jurists (Australian Section) submitted that, while the Bill aims to compel non‑citizens to commence the removal process, the definition would capture non-citizens with valid grounds to remain in Australia.
2.9The Law Council noted two particular groups of non-citizens who could be captured by the proposed provision: lawful non-citizens without any apparent connection to a removal pathway (proposed paragraph 199B(1)(d)); and unlawful non-citizens in immigration detention whose applications for protection visas have been determined and refused under the ‘fast-track’ process.
2.10The Law Council commented adversely on the review process for fast-track applications conducted by the Immigration Assessment Authority (IAA). Itssubmission noted that the Australian government currently has legislation before the Parliament that would abolish the IAA, however, the Bill still might capture ‘individuals who are legitimate refugees’ whose case was unfairly and unjustly determined by the soon to be abolished IAA.
2.11More broadly, the Australian Human Rights Commission (AHRC) highlighted the legacy caseload, which, it argued, includes people who have established strong ties in Australia and people who may have experienced changes in their country of origin that have impacted the nature of their claims for protection.
2.12Mr Paul Power, Chief Executive Officer of the Refugee Council of Australia (RCOA), highlighted Afghanistan, Iran, Myanmar, Sudan and Sri Lanka as illustrative countries. He explained:
At the heart of many of the concerns of the Refugee Council is the government's failure to address concerns related to this fast-track process associated with temporary protection…[T]he fact is that so much has changed since people's initial assessments were conducted. A frustration that people have is that members of the current government…have in the past expressed concerns about this process. And yet those who are rejected through the fast-track process actually haven't had the opportunity, except in small numbers of cases where the minister has intervened, to have their concerns addressed.
2.13The AHRC submitted:
For most of [the legacy caseload], the only recourse which may allow them to remain in Australia, or have their protection claims reassessed, is by requesting the Minister to exercise the discretionary powers that exist within the Migration Act, for example in sections 46A, 48B, 195A, 351 or 417.
With no obligation on the Minister to intervene, there is a risk that a direction might be issued for a non-citizen to take steps to facilitate their removal from Australia while they have an outstanding request before the Minister. The Commission considers that this discretionary power is an insufficient safeguard to protect members of the legacy caseload and other people who have sought asylum from being returned to countries where they may still have a genuine fear of harm.
2.14Ms Isobel McGarity, Supervising Senior Solicitor at the Refugee Advice and Casework Service (RACS), expressed the following view:
…good laws are not based around intervention that may or may not be compellable by one person. Good laws consider individual rights and ensure safeguards exist so that our system isn't unfair and actually is just.
Departmental response
2.15The Department of Home Affairs (Home Affairs) submitted that Australia has a long history of orderly and well-managed migration: the ‘bedrock’ of this system is the visa and citizenship programs:
The effective administration of these programs remains fundamental to maintaining high levels of social cohesion and broad public support for immigration…Australia’s immigration programs rely on the Government’s ability to remove promptly from Australia persons found not to be in need of Australia’s protection, and to appropriately resolve the status of individuals with no pathway to remain in Australia. This is done in full compliance with Australia’s non-refoulement obligations under international law.
2.16Home Affairs highlighted that Australia has a robust system of visa decision‑making, which is supported by merits review in the Administrative Appeals Tribunal and judicial review in the Federal Court of Australia:
Together, this system of decision-making and review ensures that outcomes are as fair as possible, and that Australia’s non-refoulement obligations are given real effect.
2.17Specifically in relation to decisions made by the IAA, Home Affairs representative Ms Clare Sharp, Group Manager for the Legal Group, pointed out:
Currently there are 3,369 decisions of the IAA that are before the Federal Circuit and Family Court seeking judicial review. That is a core part of our system, that judicial review exists, and then it can be appealed to the Federal Court as needed. This law that is being proposed [in the Bill] only applies when those judicial reviews processes are exhausted.
2.18Home Affairs advised that most non-citizens return to their home country when they have no lawful right to remain in Australia, however:
In a smaller number of cases the Department of Home Affairs engages closely with non-citizens once they have exhausted all legal avenues to remain in Australia, to monitor their departure, or to remove them to their country of nationality, voluntarily or involuntarily. In 2022-23, 2,274 unlawful non-citizens were removed from Australia in this way…[L]ike many other countries, Australia has an ongoing problem returning some non-citizens who will not cooperate with these removal efforts.
2.19Home Affairs emphasised that the Bill is directed towards:
…non-citizens who have exhausted all options to stay in Australia on a substantive visa but who do not cooperate with our efforts to remove them, and as a consequence cannot currently be removed from Australia…The changing nature of global migration trends, the legal landscape and increased concerns with cooperation in removals efforts by non-citizens has necessitated the need for changes to the Migration Act.
Extension of the definition of ‘removal pathway non-citizens’
2.20Proposed paragraph 199B(1)(d) of the Migration Act would enable additional classes of non-citizens to be defined by regulation as removal pathway non‑citizens. The Kaldor Centre of International Refugee Law, UNSW (Kaldor Centre) argued that this provision is problematic and has not been sufficiently justified:
As the Senate Standing Committee for the Scrutiny of Bills observed, this section ‘is applicable to lawful non-citizens who have been granted a visa permitting residence in Australia, who may have lived in Australia lawfully for an extended period and have no certainty or clarity as to when a visa may be subject to a removal pathway direction’. We share the view of the Committee that, given the severe penalties for failing to comply with such a direction, ‘the ability to expand the scope of people that may be subject to removal pathway directions is a significant matter that would more appropriately be dealt with by way of primary rather than delegated legislation’.
2.21Similarly, Ms Carina Ford, Chair and Member of the Migration Law Committee at the Law Council, queried what visa classes could be captured by proposed paragraph 199B(1)(d):
…it could be a medical treatment visa or something in that order, so without scrutiny we could see a really major problem…There’s just not enough scrutiny through legislative instruments, particularly in migration.
2.22Ms Verma also referred to the scope of proposed paragraph 199B(1)(d) and questioned whether in practice the minister would continue to carve individuals out from the definition of ‘removal pathway non-citizen’:
…you can visualise a future in which the minister just gets sick of people making ministerial intervention requests and specifies the bridging E visa class as being available to make removal directions.
Departmental response
2.23Home Affairs submitted that the Bill does not expand the cohort of people who are eligible for removal from Australia:
The proposed legislative amendments apply only in respect of non-citizens who have exhausted all avenues to remain or for whom the Government is lawfully entitled or indeed required under the Migration Act to seek removal. Simply put, this Bill does not expand the definition of non-citizens who are required to depart Australia.
2.24In relation to proposed paragraph 199B(1)(d), Ms Tara Cavanagh, Group Manager for Immigration Policy, stated that this provision is about ‘future proofing’ the legislation. As explained in Home Affairs’ submission:
The power at subsection 199B(1)(d) is intended provide flexibility, should another type of visa be determined the most appropriate visa for non‑citizens to maintain lawful status in the community while making arrangements to depart or be removed from Australia, in the same way the [Subclass 070 (Bridging (Removal Pending)) visa] is used for this purpose. Any regulations made to prescribe a visa for the purposes of subsection 199B(1)(d) would be subject to scrutiny and disallowance by the Parliament.
Breadth of the legislative language
2.25Some submitters and witnesses expressed concern about the breadth of language used in the Bill. Commenting on proposed subsection 199C(1) of the Migration Act, which would empower the minister to give removal pathway directions, the AHRC, for example, agreed with the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), which suggested that this provision could have been phrased in such a way as to limit the exercise of the proposed power.
2.26Similarly, the Law Council considered the power to direct a non-citizen to do or not do a thing (proposed subsection 199C(2)) to be too broad:
The extent of the discretion conferred under section 199C(2) is exceedingly broad. There are few apparent limits on the things that the Minister may direct a removal pathway non-citizen to do or not to do, provided that the Minister forms the view that it is reasonably necessary to facilitate the person’s removal from Australia, or to determine if there is a prospect of removal of the person from Australia under section 198 becoming practicable in the reasonably foreseeable future. In the context of non‑compliance punishable by 1–5 years imprisonment [see ‘Criminal offence provisions’ below], such a breadth of power is of great concern.
2.27The Law Council argued that there is a lack of procedural fairness in the making of a removal pathway direction, which should be rectified:
It is unclear if removal pathway non-citizens will be notified that the Minister is considering whether to exercise the directions powers in relation to them, or whether they will be entitled to obtain legal advice or make submissions relevant to that decision.
2.28In addition, the Law Council argued that proposed section 199C does not set out any objective considerations that the Minister must consider when contemplating exercising, or actually exercising, the direction powers.
2.29Mr Beny Bol OAM, President of the Queensland African Communities Council (QACC), suggested, for example, that there would be a need to consult with an individual’s local community, to understand how best to support a person:
Engaging with some of the other ways to safely and fairly remove some of those individuals with input from local communities through consulting widely and understanding the connections of those individuals here in Australia and overseas, where they are meant to be sent to, before any determination is actually made is absolutely important.
Departmental response
2.30Home Affairs submitted that there are a number of safeguards and constraints in relation to the exercise of the new powers proposed in the Bill. In particular, the minister cannot give a removal pathway direction to a person with respect to a particular country, if a protection finding has been made in relation to a person with respect to a particular country. The same restriction would apply where there is an ongoing protection visa application (proposed subsections 199D(1)–(2) of the Migration Act, respectively).
2.31Home Affairs pointed out:
A person may however be directed to comply with a direction that would help facilitate their removal to a safe third country, if for example their removal to a third country was a viable option and would be compliant with international human rights and non-refoulement obligations. Theavailability of the section 199C direction powers in these circumstances is clarified in proposed subsection 199B(3).
2.32Home Affairs noted that ministerial directions would not be subject to merits review but may be judicially reviewable. Its submission emphasised that this review would be another layer of protection:
…directions would only be given once the person had exhausted all available avenues to remain in Australia following a decision to refuse or cancel a substantive visa including merits review and judicial review which together provides layers of protection to ensure those decisions are lawful and procedurally fair, and that, where relevant to an individual’s circumstances, Australia is compliant with its non-refoulement obligations.
International refugee and human rights law
2.33Submitters and witnesses considered that the Bill would contravene the United Nations’ 1951 Refugee Convention (the 1951 Convention), as well as various other international human rights laws. The Law Council referenced the Bill’s Statement of Compatibility with Human Rights (Statement of Compatibility), which, as noted in Chapter 1, concludes that the Bill is compatible ‘in most respects’ with the instruments required to be examined by the Parliamentary Joint Committee on Human Rights:
It is of significant concern that the Statement concedes that the Bill is only compatible in ‘most respects’ with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act.This is effectively an admission that aspects of the Bill do not comply with Australia’s obligations under international law.
Non-refoulement
2.34Submitters and witnesses argued that proposed section 199C of the Migration Act would breach Australia’s international refugee law obligations, in particular the principle of non-refoulement:
The principle of non-refoulement is the cornerstone of international refugee protection and constitutes a fundamental principle from which no derogation can be permitted. It is enshrined in Article 33(1) of the 1951 Convention, which prohibits a Contracting State from 'expelling' or ‘returning’ a refugee ‘in any manner whatsoever’ to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.
2.35The Office of the United Nations High Commissioner for Refugees (UNHCR) explained how contracting States comply with this principle:
…a State exercising jurisdiction in relation to an asylum seeker or refugee must not implement measures that result in their removal, either directly or indirectly, to a place where their lives or freedom would be in danger or there are substantial grounds to believe that they would be at risk of being subject to torture or other serious violations of human rights.
2.36Mrs Parichehr (Betia) Shakiba shared her experience and her concerns with the Bill, as follows:
Twelve years ago I came to Australia with my family of four, including myself, my father, my mother and my small brother, who was six years old at the time. We arrived as a cohesive family unit seeking safety and a better future. However, the system failed to recognise my mother as the heart of our family, denying her protection under the unfair fast-track system without considering the best interests of her children. For the past decade she has been stuck in limbo waiting for her case to be heard in the Federal Court and repeatedly appealing to the Department of Home Affairs for fair treatment. The fast-track process has neglected her, and now, with the looming threat of this bill, she faces the possibility of being deported or being sent to prison for simply being with her children in Australia, potentially leading to her separation from me.
The same unjust treatment applies to my husband, who, despite the harm he faced in Iran and our activism outside of Iran, has not been recognised as a refugee by the unfair Australian system…My husband's ability to remain with me in Australia remains uncertain, and he too faces threats of being drawn away from our family through being deported or facing imprisonment.
Our family was heavily involved in public activism for women's rights in Iran in the wake of Mahsa Amini's death in 2022. It's not safe for any one of us to return to Iran...The minister's power to direct people to cooperate with their own deportation regardless of whether they have had a fair assessment of their protection claims will expose refugees and people seeking asylum, including my family, to severe harm, including death and continued incarceration, imprisonment or immigration detention. How is this fair?
2.37Ms Piumetharshika Kaneshan, a university student who is currently on a bridging visa, described her concerns if the Bill were to pass:
My mother's protection visa application was refused through the fast track when my sister and I were really young. The decision-maker accepted what my mother had gone through in Sri Lanka but said that we were safe because of my father. Now, years later, my father has passed away. Our case is in the Federal Circuit Court, but we don't know whether we will win. Our lawyer tells us there is no way of knowing if we will succeed. She tells us that, if our case fails, our bridging visa expires within 35 days. If that happened then this bill would see us put in jail if we don't go back to Sri Lanka. But this is our home. We don't have any other home. We consider ourselves Australian...As someone that has been in Australia for over 10 years, that has spent most of my life in Australia and that does not know anything about my home country of Sri Lanka, it’s really upsetting.
2.38Dr Abul Rizvi PSM stated that ‘the biggest cohort implicitly included in this bill are those boat arrivals who were subject to the former government's fast-track asylum process and were refused asylum’ (potentially more than 7500 people):
Given the legitimate criticisms of the fast-track process and the fact that those people have now been living in and contributing to Australian society for over a decade, this parliament should find a way to provide those persons a pathway to permanent residence. It would be wrong for those persons to be subject to removal without proper consideration, on the one hand, of the contribution they have made and continue to make to Australian society and, on the other hand, of the potentially enormous costs and difficulties associated with removing such a large number of people.
2.39Many stakeholders contended that the safeguards in proposed section 199D of the Migration Act are not sufficient to mitigate the risks of refoulement (seeparagraph 2.30 above). The Kaldor Centre submitted, for example:
…the bill could still result in people who do have protection needs being forced to return to countries where they would be at risk of persecution or other forms of serious harm [such as asylum seekers whose applications were assessed through the fast-track process]…For other people, their personal circumstances or the situation in their home country may have changed since their protection claim was determined.
2.40In this context, several stakeholders referenced proposed subsection 199E(4), which would set out what does not constitute a reasonable excuse for refusing or failing to comply with a removal pathway direction. The AHRC argued that these exclusions cover a wide range of situations that disregard individual circumstances.
2.41The Kaldor Centre singled out for comment proposed paragraph 199E(4)(b): where a person ‘is, or claims to be, a person in respect of whom Australia has non‑refoulement obligations’. The Law Council shared this specific concern, as well as proposed paragraphs 199E(4)(a) and (c):
Proposed section 199E(4) of the Bill appears to overlook the possibility that individuals—including parents of children—may have valid fears. Theexclusion of persons with ‘a genuine fear of suffering persecution or significant harm if the person were removed to a particular country’, or a person in respect of whom Australia has non-refoulement obligations’ or someone who ‘would suffer other adverse consequences’ from the basis of a what a reasonable excuse is, appears to punish those who will be faced with an impossible decision. A decision to return to a country where they may face persecution or death, or refuse to return and face 12 months in prison.
2.42The RACS argued that the provision unfairly targets refugees and people seeking asylum and added:
We agree with the description used by the Human Rights Law Centre with respect to the ‘roundabout’ effect of the Bill: as people cannot comply with directions, they face criminal punishment, and go from prison to immigration detention and back again in a miserable, indefinite cycle.
2.43The Law Council summarised its view, as follows:
The coercive nature of the direction raises the problem that Australia would be in breach of its international treaty obligations and customary international law, both of which prevent refoulement. The directions would create a veneer of ‘voluntariness’ from the person the subject of the directions, but in practice would be forcing the person to be removed against that person’s will to a country where they may face serious harm, including death. This would at least amount to constructive refoulement, which is prohibited under international treaty and customary law.
International human rights law
2.44Other submitters and witnesses argued that, in addition to international refugee law, the Bill is incompatible with international human rights law. Information provided to the inquiry variously referenced, for example, articles 3 and 31–33 of the Convention Against Torture, articles 6–7 of the International Covenant on Civil and Political Rights, and articles 3(1) and 12 of the Convention on the Right of the Child (the CROC).
2.45Multiple stakeholders particularly commented on the CROC. The Kaldor Centre, for example, remarked that the Bill would contravene two of the four general principles for interpreting and implementing all the rights of the child under the convention:
Two of the most fundamental principles underpinning the protection of children’s rights under international law are that: i) the best interests of the child must be taken into account as a primary consideration in all actions concerning children (the ‘best interests’ principle), and ii) States must assure to children who are capable of forming their own views the right to express those views freely in all matters affecting them, and to have those views be given due weight in accordance with their age and maturity (the ‘right to be heard’ principle).
2.46The Kaldor Centre argued that the ‘best interests principle’ should be a primary consideration in decisions concerning the deportation of a child. Further, ‘it is not sufficient that consideration of a child’s best interests be a matter of ministerial discretion or implied into other administrative processes’.
2.47The AHRC agreed that the Bill does not include sufficient detail as to what factors must first be considered by the minister. It preferred the removal of proposed subsection 199D(5) from the Bill, which empowers the minister to give a removal pathway direction to a child’s parent or guardian. Otherwise, the AHRC argued that additional safeguards should be included in the Bill to ensure compliance with the CROC:
The Commission considers that, prior to issuing a direction with respect to a child, an assessment should be made of what the child’s best interests are…The best interests of the child should be a primary consideration given to the decision by the Minister to issue a removal pathway direction with respect to a child. Drafters of the amendment may like to consider outlining specific factors to be considered.
2.48The International Commission of Jurists (Australian Section) contended that, asdrafted, proposed subsections 199D(4)–(5) might actually impose obligations on a parent or guardian to act in ways that are incompatible with the best interest of their child(ren). The Law Council similarly commented:
…extraordinarily, parents are coerced—under the threat of criminal sanction and at the risk of mandatory imprisonment—to themselves undertake the steps for removal for their children, regardless of their fears for their wellbeing. If a parent refuses to comply because he or she genuinely fears for the persecution of a child if removed, the mandatory imprisonment provision in subsection 199E(2) will result in forcible separation of the family.
2.49Some submitters and witnesses commented also on article 9(1) (separation from parents) and the issue of child statelessness, which they argued are matters not addressed in the Bill. Ms Verma from the Human Rights Law Centre pointed out, for example, the situation where parents—but not their children who were born in Australia—are given a removal pathway direction:
…we now have families who are going to be affected by this bill who have been failed through the fast track and who have children who were born in Australia who are citizens, so when removal directions are made in respect of their parents, that will involve those children being placed into state care. These are extraordinarily serious circumstances…There is simply no way, within the current mechanism that is proposed by the bill, that those interests would be sufficiently taken into account.
2.50In relation to statelessness, the AHRC submitted:
The Commission is concerned that the Bill also does not address the risk of child statelessness or the feasibility of a parent or guardian being able to comply with a removal pathway direction issued with respect to that child. Gender discrimination in nationality laws remains a real issue in many countries around the world. For example, a woman from Somalia, Lebanon or Iraq who has a child in Australia will be unable to confer nationality on her child under the laws of those countries. This issue should be required to be considered prior to the issuing of a direction, rather than allowing it to be a ‘reasonable excuse’ to be determined by a criminal court and where the onus is on the person relying on the excuse to establish it.
Departmental response
2.51Ms Stephanie Foster, Secretary of Home Affairs, advised:
In making any decision to cancel or refuse a visa, that decision-maker must consider the best interests of the child. Our obligations under article 3 of the Convention on the Rights of the Child [the best interests principle] are given effect through a series of operational policies and practices which have been the bedrock of our immigration system for many decades. I'd like to emphasise that this bill provides a series of measures of last resort to be used in situations where people have come to the end of a lengthy set of processes to determine their right to remain in Australia.
Criminal offence provisions
2.52Most submitters and witnesses did not support the proposed mandatory minimum sentence (12 months) and potential five-year penal term for refusing or failing to comply with a removal pathway direction (proposed subsections 199E(1)–(2) of the Migration Act).
2.53Dr Rizvi argued that there must be some penalty for non-cooperation to avoid the heightened risk of non-cooperation following the decision in NZYQ:
For any visa system to operate efficiently and effectively, there must be mechanisms that ensure noncitizens who have exhausted all legal options to remain in Australia can be removed. For some noncitizens, particularly noncitizens subject to criminal deportation, a lengthy period in immigration detention is sometimes necessary to make all the necessary removal arrangements and for the noncitizen to be available for removal. Ifimmigration detainees can readily avoid removal simply by not cooperating with the Department of Home Affairs, there is a very real risk of creating an incentive for a growing number of noncitizens who are subject to removal to also not cooperate. That would undermine the objectives of an efficient and effective visa system.
The High Court decision in the second half of 2023 has created the incentive for noncitizens to not cooperate in their removal. They now know that the Department of Home Affairs must release them from immigration detention if they can delay removal through noncooperation. This is particularly the case for nationals of countries that do not accept back their citizens unless those citizens are returning voluntarily.
2.54Dr Rizvi stated, however:
The question is whether the penalties for noncooperation as proposed in this bill are proportionate to ensuring cooperation in the vast majority of circumstances and whether penalties are the only or best option in all cases.
2.55The AHRC described proposed section 199E as ‘disproportionate and unjust’. Its submission referenced the United Nations’ Compact for Safe, Orderly and Regular Migration, where member States have committed to ‘facilitate and cooperate for safe and dignified return and to guarantee due process, individual assessment and effective remedy’. The AHRC submitted:
It is not in the spirit of [the] Global Compact, nor recommendations by the United Nations High Commissioner on Refugees, to penalise individuals who have arrived in Australia from State parties who are failing to uphold their obligations under international norms.
2.56Emeritus Professor Rosalind Croucher, President of the AHRC, reiterated in her evidence:
Dealing humanely with individuals is the core of a human rights framing, that everyone is to be treated with equality and dignity in human rights. The problem is this short-term reaction to a cohort where certain elements of it are deeply flawed.
2.57The Kaldor Centre commented that there is no Australian legal precedent for a failure to comply with a direction resulting in mandatory imprisonment, not even in the context of terrorism offences. Where there are comparable state‑based laws, these provide only for maximum sentences, not mandatory sentences.
2.58The Kaldor Centre and the Law Council agreed that proposed subsection 199E(2)—the mandatory minimum sentencing provision—would impede judicial discretion. The Scrutiny of Bills Committee commented similarly and observed that the provision would deprive the courts of their ability to impose sentences suitably determined on a case-by-case basis.
2.59In evidence, Mr McIntyre categorically stated:
Minimum mandatory sentences should have no place in the Australian justice system and they undermine its orthodox principles. They prevent individualised justice and fetter judges' discretion to impose penalties that are proportionate to the offending.
2.60The Kaldor Centre and the AHRC questioned whether proposed section 199E would achieve its desired outcome: cooperation from removal pathway non‑citizens. Both argued that people have their own reasons for failing or refusing to cooperate with a removal pathway direction. Similarly, the Refugee Council of Australia (RCOA) submitted:
The Refugee Council recognises that returns are part of a well-functioning asylum system. However, the approach taken in this Bill—criminalising non-compliance with administrative tasks—will not result in the outcomes the Australian Government desires. Adversarial, coercive, and a detention or prison-focused system will not facilitate voluntary removals. The more likely scenario is that people will face imprisonment and a further deterioration of their trust in the process and willingness to engage.
2.61Mr Peter Hughes PSM acknowledged that the Bill deals with two genuine and serious immigration problems but argued that ‘there seems to have been insufficient consideration of the underlying reasons why [people] won't cooperate’. Further:
I'm not confident that the threat of jail or the actuality of a jail sentence will affect the decision-making of these people…[W]e may simply end up with more people in jail but none of them actually leaving the country. Families with children present an even bigger dilemma. Are we really intending to put noncooperating parents in jail and their children into foster care?…Myview is that other measures to encourage, rather than threaten, individuals to cooperate should be considered—measures that go to the heart of their reasons for noncompliance.
2.62The AHRC also considered that detention in a criminal setting is no stronger a motivator than administrative detention or regional offshore processing, neither of which has previously been effective:
Australia has had legislation mandating immigration detention since 1992. Until November 2023 and the NZYQ decision, this included the potential for indefinite administrative detention for those whose removal was not practicable in the reasonably foreseeable future. Despite this, significant numbers of detainees elected not to be removed to their country of nationality. Similarly, large numbers of transitory persons have chosen to remain under Australia’s offshore processing regime. Being faced with the prospect of detention in a criminal setting is, in the Commission’s view, unlikely to be viewed as a more effective motivator than either of these prospects.
2.63The AHRC pointed out that mandatory minimum sentencing provisions have the potential to engage articles 7 (inhuman or degrading treatment or punishment), 9(1) (arbitrary deprivation of liberty) and 14 (right to appeal against sentence) of the ICCPR. In light of the ‘complex human rights issues inherent in the circumstance captured by the Bill’, the Law Council considered the proposed criminal sanctions to be ‘inappropriate’.
Departmental response
2.64Home Affairs submitted:
Decisions on who can enter and remain in Australia are for the Australian Government to make and the Australian community has a reasonable expectation that this should not be thwarted by the actions of non‑citizens. It is therefore appropriate that new sanctions are introduced for those who do not comply and make deliberate attempts to frustrate removal.
2.65The department argued that proposed section 199E reflects the seriousness of a non-citizen’s offending, the need for a strong deterrent and the importance of the integrity of the migration system. Its submission also argued:
While the minimum and maximum penalties constrain what a court can impose, there is still flexibility within that range to consider individual circumstances, and treat individual cases differently.
2.66Home Affairs observed that the penalty provisions proposed in the Bill are equivalent to those associated with offences in the Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023:
The offence of non-compliance with a direction intended to gain the cooperation of a removal pathway non‑citizen is regarded by the Government as similarly serious in terms of frustrating migration law, as well as damaging the integrity of Australia’s migration and temporary entry programs. Non-cooperation demonstrates a disregard for Australia’s laws and the Department’s ability to manage the arrival and departure of non‑citizens effectively. This is contrary to the community’s expectations that non‑citizens should abide by Australia’s laws, and engage with resolving their migration status and removal, where required by law.
2.67In relation to the ‘reasonable excuse’ defence, the department observed that there are also general defences available under the Criminal Code Act 1995. Its submission emphasised that proposed subsection 199D(4) is intended to ensure:
…where a person’s protection claims have already been considered as part of a protection visa process, and found not to engage Australia’s non‑refoulement obligations, including because their fears of being subjected to harm are not well-founded, the person should not be able to rely on claiming that they still fear harm to excuse their non-cooperation with removal…[A] removal pathway direction cannot be issued to compel a person to interact with a country in relation to which a protection finding has been made, or during an ongoing protection visa process.
Ministerial discretionary power to designate a country as a ‘removal concern country’
2.68Submitters and witnesses commented on proposed section 199F and proposed subsection 199G(1) of the Migration Act. The first provision would provide the minister with discretionary and personal power to designate, by way of legislative instrument and if in the national interest, a country as a removal concern country. The second provision would prevent non-citizens from lodging valid visa applications if they are nationals of the removal concern country.
2.69The Law Council argued that the provisions embody ‘a blunt and punitive approach’ that would create ‘real and substantial risks of injustice’. Itssubmission explained:
[Proposed subsection 199G(1)] confers upon the Minister a power to reject visa applications from entire countries. It will prevent nationals of whole countries (as a class) from making visa applications, regardless of their individual circumstances and whether their applications would be considered valid. The combined effect of these provisions will be punitive and discriminatory and potentially in breach of international law. It will also mean the separation of families as the relevant exceptions are very limited.
Personal impacts of the bar
2.70Stakeholders provided the inquiry with information and examples of how proposed subsection 199G(1) could adversely and unfairly impact non-citizens who wished to apply for Australian visas. The Kurdish Society of Queensland, for example, submitted that the ‘blanket ban’ would deny ‘refugees the opportunity to seek safety and rebuild their lives in Australia’.
2.71Ms Haatsari Marunda, Member of the Zimbabwe Australia Community Association, spoke of the panic and anxiety within the Zimbabwean community, where people have little understanding of how the Bill will affect them:
With the way this has been done, there has not been any consultation and no-one has been spoken to about this bill. No-one knows exactly what is going on. So there is that anxiety and panic within the community as to what will happen.
2.72Dr Hassan Sonboli, President of the Kurdish Society of Queensland, said that the Kurdish community was horrified to hear that family would not be able to come visit. He indicated how important family support is to the Kurdish diaspora, including for family reunification:
The bill creates barriers to family reunification for many migrants and refugees…This could result in significant emotional distress and hardship for individuals who are unable to reunite with their loved ones in Australia. It's essential to recognise the importance of preserving family unity and ensuring that migration policies support rather than hinder family reunification.
2.73The QACC suggested that the Bill should target certain individuals and governments:
The halt in processing new visa applications for individuals from a country identified by the Minister as a removal concern unfairly penalizes genuine individuals who have neither engaged in criminal activities in Australia nor been associated with a government from the designated country that refuses to cooperate with directives from the Australian Government. We suggest that the Bill exclusively address individuals who have committed criminal offenses and governments of removal concern countries.
2.74In relation to uncooperative countries, the International Commission of Jurists (Australian Section) noted that designation as a removal concern country under proposed subsection 199F(1) is based entirely upon the actions of a non-citizen’s government, which might be an authoritarian regime.
2.75The QACC submitted that such regimes have ‘abysmal human rights records and little regard for the rights, life, health, and well-being of their citizens’. Consequently, ‘the likelihood of these governments cooperating with the Australian government regarding their nationals who have committed serious criminal offenses in Australia [and are being deported] is extremely low’.
2.76The RCOA’s Mr Power referred to evidence from Ms Foster that proposed section 199F is intended to be a ‘diplomatic tool’ (see paragraph 2.104 below). He suggested that, if there is no intention to use the proposed power, then:
…this legislation should be rejected or significantly amended to reflect that intention explicitly because what we've seen since the legislation was made public is the depth of concern this causes for people who are from communities associated with potential removal concern countries.
Departmental response
2.77Home Affairs’ Ms Cavanagh affirmed that designation as a removal concern country is not intended to punish individuals or communities:
The intent of this measure is not to punish Australian citizens or diaspora communities. It's about effecting a change in behaviour of a foreign government. …[W]e do feel that the measures in the bill can be used so that it is very targeted and focused at what we need to change in the behaviour of a foreign government.
2.78Ms Foster emphasised:
There is no preconceived list of countries that might be designated. In a situation where we face problems with another country, we would hope that, in the first instance, the fact of this legislation being in place would be sufficient to allow us to negotiate an outcome. In the case of a designation being made, the legislation provides significant flexibility for it to be designed in a way that provides the greatest incentive for a foreign government to cooperate, as well as exemptions to ensure it does not punish communities in Australia.
2.79Specifically in relation to the concerns raised by communities, Ms Foster gave evidence that ‘the bill has sufficient flexibility in the way in which it can be administered for those concerns to be accommodated’.
Exceptions to the bar
2.80Some submitters and witnesses commented on proposed subsection 199G(2) of the Migration Act, which would set out some exceptions to the bar on new visa applications from nationals of removal concern countries. In general, they argued that these exceptions would not go far enough.
2.81The QACC submitted that proposed paragraphs 199G(2)(b)–(c) are too narrow and do not encompass a wide range of family members (for example, parents of independent children, grandparents, siblings, people who are culturally considered as family), meaning that these people cannot obtain visas to visit family who reside in Australia.
2.82Mr Bol explained the impact of this narrow construction on his community:
We are a collectivist culture whose definition of family includes extended family members and every other person that has enormously contributed or positively contributed to our life and upbringing. We today have people who are struggling with their lives here because they are unable to bring out those that are important in their lives.
2.83The Zimbabwe Australia Cultural Association (ZACA) agreed that the proposed exemptions do not ease its community’s concerns:
The Zimbabwean community, like many other culturally and linguistically diverse (CALD) communities, has more expansive views of the family that do not narrow family merely to the nuclear family, which is the case in the exemptions in s 199G…[T]he narrow exemption scope within the Bill may increase the number of incidents of forced family separations of the above classes of people, who are not captured by the exemption. This would [result in the] inability to attend important family functions such as weddings, funerals and birthdays which would be devasting to our community and to individuals affected, as many of those persons may have resided in Australia for a significant length of time and have strong ties and connections within the Zimbabwean community and the wider Australian community broadly.
2.84The ZACA submitted also that proposed section 199G does not consider broader economic, commercial, and cultural implications:
Australia, well-known for its rich cultural mosaic, has been a beacon of hope for many immigrants seeking a better life, including those hailing from Zimbabwe. With approximately 40 thousand Zimbabwean-born residents, our community's contributions are woven intricately into the fabric of the wider Australian society, notably enhancing sectors like healthcare, mining, finance, and entrepreneurship…
[Further] it will alienate and demoralise Australians of Zimbabwean descent, who have readily integrated into the wider Australian community, whilst maintaining strong social and cultural connections to their homeland. Zimbabwean culture espouses the virtues of Hunhu/Ubuntu, a philosophy which recognises the role that community plays in shaping an individual’s humanity. As such, family and kin cannot be divorced from the individual without significantly affecting them. The prospect that the wider family, for example, grandparents, might not be able to visit and share in the raising of young children, or to renourish our social and cultural connections, will lead to emotional and mental distress for many Zimbabwean Australians.
2.85Mr Nader Zoljalali, Board Member of the Australian Iranian Community Alliance, recognised the need to update Australia’s migration law, bearing in mind the implications of those changes:
We all consider ourselves Australians and we want what's best for our country. We also come with a lineage and a heritage from different parts of the world, and that's what makes our country so great and wonderful. Itwould be a shame and it would be a loss to disregard and throw away the benefits and the privileges that Australia has been endowed with as a migrant country.
2.86Similarly, Mr Joshua Strutt, Chief Executive Officer and Principal Solicitor for the Immigration Advice and Rights Centre (IARC), voiced the IARC’s concern that ‘this bill has the potential to irreparably damage the strong and vibrant multicultural fabric that makes up Australia’.
Departmental response
2.87Home Affairs submitted that proposed paragraphs 199G(2)(e)–(f), in combination with proposed subsection 199G(3), would allow for the minister to determine, by legislative instrument, exceptions for particular classes of person or visa. In addition, its submission highlighted proposed subsection 199G(4) which would give the minister a personal power to allow a visa application by an individual where it is in the public interest.
Designation safeguards and accountability mechanisms
2.88Proposed subsections 199F(6)–(8) of the Migration Act would require the minister to consult with the Prime Minister and Minister for Foreign Affairs, aswell as tabling a designation and a statement of reasons for the designation in the Parliament within a specified timeframe.
2.89Some submitters and witnesses voiced concerns about these proposed safeguards and accountability mechanisms. The Law Council, for example, emphasised the ‘exceptional’ breadth of the minister’s proposed power, which, it argued, is not constrained by any objective criteria or specified purpose: ‘atthe very least, [proposed section 199F] should be made more certain and predictable in scope’.
2.90In addition, the Law Council described the legislative safeguards in proposed subsections 199F(2) and (6)–(7) as non-meaningful and ineffective:
The requirement to consult two members of the same Executive Government does not represent a meaningful or effective safeguard, nor will the requirement to table a copy of the designation before Parliament within two days of it being made, considering that a failure to do so will not affect the validity of the designation [proposed subsection 199F(8)]...Provision should instead be made that any removal concern country designation will only take effect on the day after the designation has been tabled in compliance with proposed section 199F(6) for at least two days in each House.
2.91The Kaldor Centre agreed with the Scrutiny of Bills Committee, who considered that designation should not be by way of legislative instrument:
The committee considers that the designation of a country as a ‘removal concern country’, the effect of which is to effectively ban those citizens from applying for an Australian visa, is a significant matter which is more appropriate for primary legislation and the full parliamentary consideration afforded to Acts of parliament. A legislative instrument, made by the Executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.
2.92The Law Council’s Ms Ford stated that there should be ‘more steps in place in term of that initial consideration’ but acknowledged that a sunset clause would also be a useful safeguard.
Departmental response
2.93Home Affairs submitted that ‘appropriate safeguards and limitations are proposed in respect of the Minister’s power to designate a country as a ‘removal concern country’’ (such as the range of exceptions to the bar on visa applications in proposed section 199G of the Migration Act).
2.94In response to consultation concerns, the department submitted that proposed subsection 199F(2) ‘appropriately reflects the significance of the power and the Minister’s role as a member of the Executive Government’, with the minimum legislated consultation requirement sufficient to inform the minister prior to exercising the designation power.
2.95Home Affairs considered that proposed subsections 199F(6)–(8) provide ‘appropriate transparency and accountability to the Parliament in the event that the designation power is exercised’.
Support and cooperation from other countries
2.96Several submitters and witnesses questioned whether potential or actual designation as a removal concern country (proposed section 199F) would achieve the support and cooperation sought from other countries under the Bill. The Kaldor Centre, for example, submitted:
…pressure can work in some cases, in others, countries ‘may retaliate in ways detrimental to bilateral trade, tourism, law enforcement, or other forms of cooperation’. In our view, there are considerable risks to managing international relations through punitive unilateral measures. The issue of international cooperation concerning the return of nationals to their home country is a diplomatic one that should be negotiated in good faith between political leaders.
2.97The Kaldor Centre noted that the United States and the European Union also experience difficulties in not being able to remove certain non-citizens: ‘[Their] low rates were largely attributed to so-called ‘uncooperative’ or ‘recalcitrant’ countries of origin refusing to accept the return of their citizens’.
2.98The Kaldor Centre noted, however, that there is a need to differentiate between those States which are being deliberately uncooperative and those that are unable to cooperate due to mitigating factors:
[This] is not always a straightforward task. Countries of origin may have valid concerns about accepting non-citizens by mistake, particularly where they are being pressured to do so by returning countries, or they may invoke the challenges of identifying individuals as ‘convenient measures to avoid cooperation’. As one scholar has noted, ‘[t]he resultant opacity leaves deporting states in a conundrum. Politically motivated noncollaboration requires a different response than a simple dysfunctional bureaucracy’. Thisneed for a differentiated responses brings into question the Australian government’s assertion in the Explanatory Memorandum that blacklisting ‘is an appropriate and proportionate measure to safeguard the integrity of Australia’s migration system’.
2.99The Law Council also contested this rationale, by arguing that there has been no rigorous assessment of whether the limitation on rights is proportionate to the objective sought:
Rather, barring visa applications from nationals of entire countries may be considered a sledgehammer response which will affect vast numbers of nationals who are subject to autocratic regimes and have not contributed to government decision-making regarding returning nationals.There may be less restrictive ways to achieve the Australian Government’s objective. Inour view, there should be a more nuanced approach to encourage international cooperation concerning the removal of nationals to their country of origin.
2.100The AHRC submitted that, unlike the United States and the United Kingdom, the Bill includes no mandatory factors for the minister to consider, when the discretionary power to designate a removal concern county is exercised. If the Bill were to be passed:
…the Commission recommends that the Bill be redrafted to include within section 199F of Schedule 1, a set of factors that must be considered prior to the Minister exercising their discretion to designate a removal concern country. The Bill should also include a mandatory review period of all designations to ensure their ongoing necessity.
2.101Ms Emily Rutherford, Senior Lawyer at the AHRC, conceded that it would be necessary to consider in-depth the efficacy of those two international examples, to draw from them what factors could be usefully considered by the minister.
Departmental response
2.102Home Affairs argued:
Australia makes every effort to cooperate with countries in the context of deportations and removals. Australia accepts the return of its citizens and rightly expects other countries to do the same. The proper functioning of international migration systems depends upon nation states accepting this responsibility.
2.103Home Affairs’ Secretary Ms Foster explained that proposed section 199F would provide:
…a diplomatic tool that will give us leverage in working with countries to try and make sure we have effective options to return people, whether it's to country of origin or…to negotiate a broader range of third-party resettlements…[I]t's instructive that the system has been in operation…in the UK for a couple of years without it being used…[W]e could have some reasonable hope that we would be able to get some traction without necessarily declaring or designating.
2.104Home Affairs further explained that the designation power would be exercised only after all other efforts had been exhausted:
Designation would only take place after a range of bilateral considerations were taken into account, and all reasonable and appropriate efforts and attempts had been made to engage the country to cooperate and facilitate the lawful removal of its nationals. In practice, the removal concern country designation would be considered following diplomatic and government to government engagement on the issues and challenges of returns before it is utilised.
2.105Ms Foster stated that ‘there will be a range of countries for whom this will be an effective lever’.
Ministerial ability to revisit protection findings for non-citizens on removal pathway
2.106Several submitters and witnesses noted the amendments proposed in items 4–7 in schedule 2 of the Bill, which would extend the minister’s ability to revisit a protection finding for an unlawful non-citizen (current section 197D of the Migration Act). These stakeholders argued that removal pathway non-citizens, including lawful non‑citizens on valid visas, should not be encompassed by section 197D.
2.107The Law Council submitted that it has concerns with section 197D, including:
contrary to the rule of law, there are no criteria prescribing circumstances in which the minister may exercise the power; and
the provisions do not provide for key procedural fairness guarantees, such as the right to be notified and present and challenge evidence where adverse decisions are made.
2.108The Law Council also noted that there are very few circumstances in which a person’s refugee status legitimately ceases under the 1951 Convention and the ‘power to unwind protection findings under section 197D has not, to date, been exercised’. In this context, the Law Council questioned the rationale for extending application of the provision, as proposed in the Bill:
The expansion of the power to broader groups in the current context raises concerns about the underlying motivation.Persons who cannot be removed to their country of origin because doing so would contravene a protection finding, but who have been found to fail the criterion for a protection visa in section 36(1)(c) due to previous criminal offending, cannot be indefinitely detained following the High Court’s decision in NZYQ.In this context, a culture of encouraging reconsideration and revocation of protection findings so that a person can be removed is very concerning.It is likely to result in refoulement of persons in need of protection.
2.109Law Council representative Ms Sarah Fisher commented:
Australia should respect an asylum-seeker's right to seek protection. That protection, importantly, should be durable. Persons who have been found to be owed protection shouldn't be subject to the sword of Damocles, basically, of having that finding revisited from time to time without prior notice and without the right to make submissions on whether they have continuing protection claims. It is very, very concerning.
2.110Similarly, Mr Hughes said:
…the power of the minister to change a protection visa finding is of concern. Protection findings are part of the exercise of our obligations under the 1951 refugee convention. A discretion to change them would have a profound effect on the individuals concerned. It's unclear what the purpose of a ministerial discretion to simply change those findings is, and how and when it would be used.
Departmental response
2.111Home Affairs submitted that ‘the Government now faces circumstances in which [section 197D] needs to be expanded to certain non-citizens who hold a visa – particularly BVR holders’. It explained:
The affected persons are those who have a protection finding who hold a bridging visa and are on a removal pathway following the refusal or cancellation of a visa and who have, in most cases, completed merits review and judicial review of those visa decisions. Without this amendment, the Migration Act would not provide a means to revisit a protection finding while a removal pathway non-citizen is in the community on a visa…[T]he power is intended for those non-citizens on a removal pathway – that is where they have already been refused a substantive visa or their substantive visa has been cancelled on other grounds, such as on character grounds… For non-citizens on a removal pathway, this power might be exercised if the circumstances of the person or the home country has changed such that a protection finding would no longer be made.
2.112In response to the Law Council’s concerns regarding procedural fairness (see paragraph 2.108 above), Home Affairs reiterated that the minister’s power to reconsider protection findings under section 197D of the Migration Act is subject to common law procedural fairness:
This means that the Minister or delegated decision-maker must:
give the person prior notice that a subsection 197D(2) decision may be made;
give the person the opportunity, either in writing or at interview, to comment on any new information (including country information) that is adverse to their claims and is significant and credible and relevant to the decision being made under subsection 197D(2), and
draw the person’s attention the critical factor/s on which the decision is likely to turn and provide them with an opportunity to respond.
2.113In addition, a reconsidered decision may be subject to merits and judicial review.
Committee view
2.114The Migration Amendment (Removal and Other Measures) Bill 2024 aims to strengthen the legislative framework in the Migration Act 1958 in relation to the removal from Australia of certain non-citizens who are on a removal pathway.
2.115Prior to and throughout the inquiry, the committee received information from a large number of submitters and witnesses, most of whom rejected the Bill in its entirety based primarily on human rights concerns and the perceived impacts of the Bill on individuals, families and communities.
2.116The committee acknowledges the expertise of the Parliamentary Joint Committee on Human Rights (Human Rights Committee), which has reported to the Senate its detailed concerns about the Bill’s engagement with and limitations on human rights. These concerns reflect the information presented to the inquiry. To avoid duplication, the committee refers the Human Rights Committee’s recommendations to the Senate for consideration.
2.117Reflecting on the submissions and evidence, including personal accounts from those with lived experience, the committee suggests that the minister should be mindful of the impacts that the Bill could have on communities.
2.118Thecommittee is of the view that there are ways in which adverse outcomes could be mitigated and urges the Australian government to give further and fuller consideration to how this Bill might impact those who now call, or wish to call, Australia home.
2.119The committee understands that the Australian government introduced the Bill into the Parliament in response to a recent and significant change in Australia’s migration law. In the committee’s view, it is incumbent upon the government to ensure that the migration framework is strong and robust. The Bill seeks to achieve this objective and in the committee’s view should be supported.
2.120The committee recommends that the Minister considers community impacts when designating a country as a removal concern country.
2.121The committee recommends that the Senate pass the Bill.
Senator Nita Green
Chair