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Australian Parliamentary Joint Committee on Human Rights |
Legislative Instruments
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Purpose
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This legislative instrument prescribes a period of 120 days for the
Administrative Appeals Tribunal to make its decision in relation
to review of a
decision under subsection 197D(2) of the Migration Act 1958, and to
notify the applicant of that decision
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Portfolio
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Home Affairs
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Authorising legislation
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Last day to disallow
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15 sitting days after tabling (tabled in the Senate on 10 August 2021
and the House of Representatives on 9 August 2021). Notice of
motion to disallow
must be given by 21 October 2021 In the House of Representatives and
22 November 2021 in the
Senate[2]
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Rights
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Prohibition against expulsion of aliens without due process;
non-refoulement
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1.1 This legislative instrument amends the Migration Regulations 1994 to prescribe a time period of 120 days for the Administrative Appeals Tribunal (the AAT) to make its decision in relation to review of a decision made under subsection 197D(2) of the Migration Act 1958 (the Migration Act), and notify the applicant of that decision.[3] Subsection 197D(2) of the Migration Act allows the minister to make a decision that an unlawful non-citizen in relation to whom a protection finding is made (but who is ineligible for a grant of a visa on character or other grounds) is no longer a person in respect of whom any protection finding would be made.[4] Paragraph 197C(3)(c) of the Migration Act permits the removal powers in section 198 to operate where a decision is made under section 197D(2).[5] However, the individual to whom the section 197D(2) decision applies cannot be removed under section 198 until the merits review process (to which this instrument relates) is finalised.[6] The prescribed time period starts when the application for review is received by the AAT and ends after 120 days.[7] If this time period is insufficient, subsection 419(2) of the Migration Act enables the AAT, with the applicant’s consent, to extend this period.
1.2 The consequence of a decision made under subsection 197D(2) is deportation of a non-citizen from Australia potentially to the country in relation to which a protection finding was previously made.[8] Therefore, by prescribing a time limit in which review of a subsection 197D(2) decision must be made (after which, the individual may be removed from Australia), this instrument may engage the prohibition against expulsion of aliens without due process and have implications for Australia's non-refoulement obligations.[9] The prohibition against expulsion of aliens without due process is contained in article 13 of the International Covenant on Civil and Political Rights. Article 13 provides that an alien may be expelled only in accordance with a decision made under law and must be allowed to submit reasons against their expulsion and to have their case reviewed by a competent authority, and be represented for the purpose of that review. The UN Human Rights Committee has indicated that the guarantees in article 14 (the right to a fair hearing) do not generally apply to expulsion or deportation proceedings, but the procedural guarantees of article 13 are applicable to such proceedings.[10] The UN Human Rights Committee has stated that article 13 should be interpreted in light of article 14 and encompasses ‘the guarantee of equality of all persons before the courts and tribunals...and the principles of impartiality, fairness and equality of arms implicit in this guarantee are applicable’.[11] The UN Committee has further stated that article 13 requires that 'an alien...be given full facilities for pursuing [their] remedy against expulsion so that this right will in all circumstances of [their] case be an effective one'.[12] If the effect of this measure were to limit the procedural guarantees of article 13 such that the individual is unable to effectively submit reasons against their expulsion, article 13 may be engaged and limited.
1.3 Further, Australia has non-refoulement obligations under the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This means that Australia must not return any person to a country where there is a real risk that they would face persecution, torture or other serious forms of harm, such as the death penalty; arbitrary deprivation of life; or cruel, inhuman or degrading treatment or punishment.[13] To the extent that the effect of this measure may be to limit a person’s ability to effectively challenge a decision which may lead to their expulsion or deportation, possibly to a country where they would face persecution, torture or other serious forms of harm, there is a risk that it may not be consistent with Australia's non-refoulement obligations, which include the requirement for independent, effective and impartial review of non-refoulement decisions, and the right to an effective remedy.[14] It is noted that Australia's non-refoulement obligations are absolute and may not be subject to any limitations.[15]
1.4 While the statement of compatibility notes that the measure has implications for Australia's non-refoulement obligations, it does not address the possible limitations on the prohibition against expulsion of aliens without due process. This latter right may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.[16]
1.5 The statement of compatibility states that prescribing a period of 120 days will help to ensure the AAT makes a decision expeditiously. It notes that the prescribed period is intended to strike a balance between providing the AAT with an appropriate period of time to conduct a review, with the need to provide certainty for the applicant about the time in which a decision may be made, noting that the applicant may be in immigration detention while awaiting the outcome of review.[17] Ensuring the review process is undertaken expeditiously and providing individuals in immigration detention with some certainty as to the time period in which the review process will be completed (which may in turn reduce the risk of indefinite detention for such individuals), would appear to be legitimate objectives for the purpose of international human rights law. The measure would also appear to be rationally connected to these objectives.
1.6 The key question is whether the limitation is proportionate to the objectives being sought. A relevant consideration in this regard is whether the measure is accompanied by sufficient safeguards. The primary safeguard identified in the statement of compatibility is the AAT's ability to extend the prescribed time period. The statement of compatibility states that this safeguard provides the AAT with flexibility in circumstances where the decision on review is particularly complex or other circumstances arise which may result in the AAT not meeting the prescribed time period of 120 days.[18] Further, the statement of compatibility notes that a decision made after the expiry of the prescribed time period, including where the applicant has not consented to an extension, is still valid, and involuntary removal from Australia will continue not to be authorised under the Migration Act until the AAT completes its review.[19] This safeguard would appear to assist with the proportionality of the measure by providing flexibility to treat different cases differently and ensuring that involuntary removal from Australia continues to be unauthorised while review is ongoing.
1.7 However, the ability to extend the time period is a discretionary power exercised by the AAT and it is unclear whether the applicant can have the time period extended on their own motion – for example, where the applicant requires more time to gather evidence, prepare submissions and organise representation (noting that there is also a limit on the time period within which an application for review can be made).[20] The strength of such a safeguard will depend on how it is exercised in practice. In this regard, Part 7 of the Migration Act sets out the AAT's powers in relation to Part 7-reviewable decisions and provides an exhaustive statement of the requirements of the natural justice hearing rule.[21] In particular, in conducting reviews, the AAT is required to act 'according to substantial justice and the merits of the case' as well as in a way that is 'fair and just'.[22] While these natural justice requirements are important general safeguards, it will likely depend on the circumstances of each case as to whether they are sufficient in practice. If, for example, the AAT were to refuse an applicant's request to extend the time period, the effect may be that the applicant is unable to effectively submit reasons against their expulsion. In such circumstances, there is a risk that the safeguards accompanying the measure may not be sufficient in all circumstances to ensure that any limitation on rights is proportionate.
1.8 The committee notes this legislative instrument prescribes a time period of 120 days for the AAT to make a decision in relation to review of a ministerial decision that a person is not owed protection. The committee notes that the consequence of such a decision is deportation of a non-citizen from Australia potentially to the country in relation to which a protection finding was previously made. As such, by prescribing a time limit in which review of such a decision must be made (after which, the individual may be removed from Australia), this instrument may engage and limit the prohibition against expulsion of aliens without due process and have implications for Australia's non-refoulement obligations. The prohibition against expulsion without due process may be subject to permissible limitations if it is shown to be reasonable, necessary and proportionate.
1.9 The committee considers that the measure pursues the legitimate objectives of ensuring the review process is undertaken expeditiously and providing individuals in immigration detention with some certainty as to the time period in which the review process would be completed. Importantly, this may reduce the risk of indefinite detention for such individuals. As regards proportionality, the committee considers that the measure is accompanied by some important safeguards, including the AAT’s ability to extend the time period if it proves to be insufficient. However, the committee notes that some questions remain as to how this safeguard will operate in practice, in particular, whether the applicant can have the time period extended on their own motion. Having regard to the serious human rights implications of a decision denying a person protection obligations, the committee emphasises the importance of having adequate safeguards accompanying the measure.
1.10 The committee draws these human rights concerns to the attention of the minister and the Parliament.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Migration Amendment (Clarifying International Obligations for Removal) Regulations 2021 [F2021L01078], Report 11 of 2021; [2021] AUPJCHR 113.
[2] In the event of any change to the Senate or House's sitting days, the last day for the notice would change accordingly.
[3] Schedule 1, Item 1, section 4.34A. The amendments made by this legislative instrument are consequential to the amendments made by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021, which the Parliamentary Joint Committee on Human Rights commented on in Report 5 of 2021 (29 April 2021) pp. 13–28 and Report 7 of 2021 (16 June 2021) pp. 100–124.
[4] If the minister makes a decision under subsection 197D(2), the minister must notify the non-citizen of the decision and the reasons for the decision as well as their review rights in relation to the decision. See Migration Act 1958, subsection 197D(4).
[5] Section 198 of the Migration Act 1958 sets out the circumstances in which mandatory removal of an 'unlawful non-citizen' is authorised. An 'unlawful non-citizen' is a person who is a non-citizen in the migration zone and does not hold a lawful visa. See Migration Act 1958, sections 13–14. Migration zone is defined in section 5.
[6] Migration Act 1958, subparagraph 197C(3)(c)(ii) and subsection 197D(6). Statement of compatibility, p. 3.
[7] Schedule 1, Item 1, section 4.34A. Subsection (b) specifies that the time period ends at the end of 120 days starting on the first working day after the day on which the application is received by the Tribunal.
[8] Sections 189, 196 and 198 of the Migration Act 1958 require an unlawful non-citizen (individuals who do not have a valid visa) to be detained and kept in immigration detention until they are: granted a visa or removed from Australia as soon as reasonably practicable.
[9] To the extent that the effect of this instrument would be to limit a person’s ability to challenge a subsection 197D(2) decision, the consequence of that decision being the person’s detention and deportation from Australia, the measure may also engage and limit a number of other rights, including: the right to liberty (as immigration detention may be a consequence of a decision); right to protection of the family (as family members may be separated); and freedom of movement (if the person is prevented from re-entering and remaining in Australia as their own country).
[10] UN Human Rights Committee, General Comment 32: Article 14, Right to Equality before Courts and Tribunals and to Fair Trial (2007) [17].
[11] UN Human Rights Committee, General Comment No. 32: The right to equality before courts and tribunals and to a fair trial (2007) [17], [63].
[12] UN Human Rights Committee, General Comment No. 15: The position of aliens under the Covenant (1986) [10]. The UN Committee has also stated that ‘Article 13 directly regulates only the procedure and not the substantive grounds for expulsion. However, by allowing only those carried out “in pursuance of a decision reached in accordance with law”, its purpose is clearly to prevent arbitrary expulsions’.
[13] UN Committee against Torture, General Comment No.4 (2017) on the implementation of article 3 in the context of article 22 (2018) and UN Human Rights Committee, General Comment No. 20: article 7 (prohibition against torture) (1992) [9].
[14] The committee has previously noted that a decision made under subsection 197D(2) may have significant human rights implications, particularly in relation to Australia's non-refoulement obligations, because it allows the minister to overturn a protection finding, thereby exposing the person to the risk of being returned to the country in relation to which a protection finding was previously made. See Parliamentary Joint Committee on Human Rights, Report 7 of 2021 (16 June 2021) pp. 121–122. More generally, the reports of the Parliamentary Joint Committee on Human Rights have previously considered Australia's non-refoulement obligations in the context of citizenship cessation and amendments to the Migration Act, see, eg: Report 1 of 2020 (5 February 2020), pp. 124–125; Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 57–58; pp. 182-183; Thirty-fourth report of the 44th Parliament (23 February 2016) pp. 34–37; Fourth report of the 44th Parliament (18 March 2014) [3.57]–[3.66]; Second report of the 44th Parliament (11 February 2014) [1.189]–[1.197].
[15] Regarding effective remedy with respect to non-refoulement decisions see, Agiza v Sweden, UN Committee against Torture Communication No.233/2003 (2005) [13.7]; Singh v Canada, UN Committee against Torture Communication No.319/2007 (2011) [8.8]-[8.9]; Josu Arkauz Arana v France, UN Committee against Torture Communication No.63/1997 (2000); Alzery v Sweden, UN Human Rights Committee Communication No.1416/2005 (2006) [11.8]. See generally UN Committee Against Torture, General Comment No. 4 on the implementation of article 3 of the Convention in the context of article 22 (2017) [13]. For an analysis of this jurisprudence, see Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 182-183.
[16] Note that the due process guarantees in article 13 may be departed from, but only when ‘compelling reasons of national security’ so require. Thus, if there are compelling reasons of national security not to allow an alien to submit reasons against their expulsion, the right will not be limited. Where there are no such grounds (as appears to be the case in relation to this measure), the right will be limited, and then it will be necessary to engage in an assessment of the limitation using the usual criteria (of necessity and proportionality). See International Covenant on Civil and Political Rights, article 13; UN Human Rights Committee, General Comment No. 15: The position of aliens under the Covenant (1986) [10].
[17] Statement of compatibility, p. 4.
[18] Statement of compatibility, p. 5.
[19] Statement of compatibility, p. 5.
[20] Paragraph 412(1)(b) of the Migration Act 1958 requires an application for review of a Part 7-reviewable decision to be given to the AAT within the prescribed time period, ending not later than 28 days after the notification of the decision. Subsection 197D(4) requires the minister to notify the non-citizen of this time period within which an application for review can be made. However, subsection 197D(5) provides that failure to comply with these notification requirements does not affect the validity of the subsection 197D(2) decision.
[21] Migration Act 1958, Part 7.
[22] Migration Act 1958, subsection 420(b) and 422B(3).
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