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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This bill seeks to amend the Migration Act 1958 to:
• modify the effect of section 197C to ensure it does not require or
authorise the removal of an unlawful
non-citizen who has been found to engage protection obligations through the
protection visa process unless:
- the decision finding that the non-citizen engages protection obligations
has been set aside;
- the minister is satisfied that the non-citizen no longer engages
protection obligations; or
- the non-citizen requests voluntary removal; and
• ensure that, in assessing a protection visa application, protection
obligations are always assessed, including in circumstances where the
applicant is ineligible for visa grant due to criminal conduct or risks to
security
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Portfolio
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Immigration, Citizenship, Migrant Services and Multicultural Affairs
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Introduced
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House of Representatives, 25 March 2021
Received Royal Assent on 25 May 2021
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Rights
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Non-refoulement; liberty; prohibition against torture and
ill-treatment; rights of the child
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2.56 The committee requested a response from the minister in relation to the bill in Report 5 of 2021.[2]
2.57 Section 198 of the Migration Act 1958 (the Migration Act) sets out the circumstances in which mandatory removal of an 'unlawful non-citizen' is authorised.[3] An 'unlawful non-citizen' is a person who is a non-citizen in the migration zone and does not hold a lawful visa.[4] Subsection 197C(1) provides that for the purposes of removal of an 'unlawful non-citizen' under section 198, 'it is irrelevant whether Australia has non-refoulement obligations in respect of that person'.[5]
Non-refoulement obligations are international law obligations that require Australia not to return any person to a country where there is a real risk that they would face persecution, torture or other serious forms of harm. Subsection 197C(2) specifies that an 'officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the
non-citizen'.[6]
2.58 This bill proposes to add subsection 197C(3), which would provide that 'despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if': that person's valid application for a protection visa has been finally determined; a protection finding has been made in relation to that person; that protection finding has not been quashed, set aside or found by the minister to be no longer applicable; and the person has not asked the minister to be removed from the country.[7] Proposed subsections 197C(4)–(7) would clarify the meaning of a protection finding for the purposes of proposed subsection 197C(3).[8] In addition, the bill proposes that a reference in 197C of the Migration Act to a protection finding within the meaning of proposed subsections 197C(5) or (6) would include a reference to a protection finding made before the Schedule commences.[9]
2.59 Proposed section 36A of this bill would also require the minister, in considering an application for a protection visa, to consider and make a record of whether they are satisfied that the applicant meets certain specified criteria for a protection visa under section 36 of the Migration Act.[10] The minister would be required to consider and make a record of their finding before deciding whether to grant or refuse to grant a visa or considering whether the person satisfies other criteria for the grant of a visa.[11] Read in conjunction with the proposed amendments to 197C, proposed section 36A would have the effect of ensuring that a protection finding is made within the meaning of proposed subsections 197(4) or (5) before the minister considers whether the person meets other criteria for the grant of a protection visa.[12]
2.60 The bill engages, and may support Australia to uphold, its non-refoulement obligations insofar as it seeks to amend section 197C of the Migration Act to clarify that the removal power under section 198 does not require or authorise the removal of a person who is deemed an unlawful non-citizen and for whom a protection finding has been made through the protection visa process. 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.[13] 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.[14] Non-refoulement obligations are absolute and may not be subject to any limitations.[15]
2.61 However, to the extent that the measure may also result in prolonged or indefinite immigration detention of persons who cannot be removed under section 198 because Australia's non-refoulement obligations are enlivened, the measure may also engage and limit the right to liberty. The right to liberty prohibits the arbitrary and unlawful deprivation of liberty.[16] The notion of 'arbitrariness' includes elements of inappropriateness, injustice, lack of predictability and due process of law.[17] Accordingly, any detention must not only be lawful, but also reasonable, necessary and proportionate in all of the circumstances as well as subject to periodic judicial review.[18] In the context of mandatory immigration detention, detention may become arbitrary where individual circumstances are not taken into account; other, less intrusive measures could have achieved the same objective; a person may be subject to a significant length of detention; and a person is deprived of legal safeguards allowing them to challenge their indefinite detention.[19]
2.62 Furthermore, where the measure applies to children, it may also engage and limit the rights of the child.[20] Children have special rights under international human rights law taking into account their particular vulnerabilities.[21] In the context of immigration detention, the UN Human Rights Committee has stated that:
children should not be deprived of liberty, except as a measure of last resort and for the shortest appropriate period of time, taking into account their best interests as a primary consideration with regard to the duration and conditions of detention, and also taking into account the extreme vulnerability and need for care of unaccompanied minors.[22]
2.63 The right to liberty and the rights of the child 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.
2.64 In order to fully assess the compatibility of this measure with human rights, further information is required, in particular:
(a) with respect to people to whom protection obligations are owed but who were ineligible for a grant of a visa on character or other grounds, in the last five years:
(i) how many people were, or are currently, detained in immigration detention, and for how long were they, or have they been, detained; and
(ii) of this number, how many were:
• granted a visa by the minister in the exercise of the minister's personal discretionary powers under section 195A (discretion to grant a detainee a visa) or were released into community detention under section 197AB (residence determination); and
• returned to the country in relation to which there had been a protection finding because conditions in that country had improved such that protection obligations were no longer owing or sent to a safe third country;
(b) what effective safeguards exist to ensure that the limits on the right to liberty and the rights of the child are proportionate;
(c) what effective safeguards exist to ensure that persons affected by this measure in immigration detention will not be indefinitely detained and consequently at risk of being subjected to ill-treatment, and how the measure is compatible with the prohibition against torture or other cruel, inhuman or degrading treatment or punishment; and
(d) whether this measure will have any impact on persons involved in current litigation or who have been unlawfully detained based on the caselaw established by the Federal Court decision in AJL20.
2.65 The committee considered that the measure would support Australia's ability to uphold its non-refoulement obligations. However, the committee noted that the statement of compatibility states that these amendments are in response to two Federal Court cases that found that the current provisions oblige the minister to send an unlawful non-citizen back to a country despite any protection obligations owed, and if the minister will not do so as soon as reasonably practicable the person must be released from immigration detention. As such, to the extent that the measure may result in prolonged or indefinite detention of persons who are deemed to be unlawful non-citizens and cannot be removed because a protection finding has been made in relation to them, the measure also engages and limits the right to liberty and the rights of the child.
2.66 In addition, the committee noted that to the extent that the measure results in indefinite detention, it may also have implications for Australia's obligation not to subject any person to torture or to cruel, inhuman or degrading treatment or punishment.
2.67 The committee considered further information was required to assess the human rights implications of this bill, and sought the minister's advice as to the matters set out at paragraph [2.64].
2.68 The full initial analysis is set out in Report 5 of 2021.
Minister's response[23]
2.69 The minister advised:
With respect to people to whom protection obligations are owed but who were ineligible for a grant of a visa on character or other grounds, in the last five years:
• the number of people who were or are in detention, and the length of their detention; and
• how many of this number have been either:
- granted a visa under section 195A of the Migration Act;
- placed in the community under a residence determination under section 197AB of the Migration Act; or
- returned to the country in relation to which there had been a protection finding because conditions in that country had improved such that protection obligations were no longer owing; or
- sent to a safe third country.
As at 31 March 2021, there were 1,482 people in an immigration detention facility, and 537 under a residence determination. This represents total numbers, rather than the cohort of persons who have been found to engage protection obligations. Further, it is important to note that there are over 390,000 people in the community on Bridging visas. This includes 31,557 people on Subclass (050 & 051) Bridging visa Es (including 8,894 on Departure Grounds). Many of these visas are granted by delegates and do not require my personal intervention.
Statistics relating to the detention of the cohort who have been found to engage protection obligations but who were ineligible for a visa on character or other grounds are below:
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Length of time in detention^ of the 63 non-citizens* who were detained
between 1/7/15 and 3/5/21
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Period Detained
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Total
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% of Total
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7 days or less
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0
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0.0%
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8 days – 31 days
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<5
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<5%
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32 days – 91 days
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<5
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<5%
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92 days – 182 days
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<5
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<5%
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183 days – 365 days
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0
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0.0%
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366 days – 547 days
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<5
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<5%
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548 days – 730 days
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<5
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<5%
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731 days – 1095 days
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7
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11.1%
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1096 days – 1460 days
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13
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20.6%
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1461 days – 1825 days
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6
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9.5%
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Greater than 1825 days
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28
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44.4%
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Total
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63
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100.0%
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^Period detained is based on accumulative days in detention, including
time in detention prior to 1 July 2015.
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*People who engage protection obligations but who were ineligible for a
grant of a visa on character or other grounds.
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Length of time in detention^ of the 29 non-citizens* who were detained
in Immigration Detention Facilities
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Period Detained
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Total
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% of Total
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7 days or less
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0
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0.0%
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8 days – 31 days
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0
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0.0%
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32 days – 91 days
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0
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0.0%
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92 days – 182 days
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0
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0.0%
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183 days – 365 days
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0
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0.0%
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366 days – 547 days
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0
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0.0%
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548 days – 730 days
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0
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0.0%
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731 days – 1095 days
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<5
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6.9%
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1096 days – 1460 days
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6
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20.7%
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1461 days – 1825 days
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5
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17.2%
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Greater than 1825 days
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16
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55.2%
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Total
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29
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100.0%
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^Period detained is based on accumulative days in detention, including
time in detention prior to 1 July 2015.
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*People who engage protection obligations but who were ineligible for a
grant of a visa on character or other grounds.
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There are no children who have been found to engage protection obligations but who were ineligible for a grant of a visa on character or other grounds, in the last five years, who were, or are currently, detained in immigration detention facilities.
Historical statistics relating to section 195A for this cohort group are below.
Granted a visa under s 195A of the Act – persons in immigration detention who were found to engage protection obligations but were ineligible for grant of a visa on character or other grounds
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Financial Year
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Number of persons
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2015-16
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0
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2016-17
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<5
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2017-18
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<5
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2018-19
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<5
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2019-20
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<5
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2020-21 (as at 30 April 2021)
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<5
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Information on the number of persons in detention (who have previously been found to engage protection obligations or who arrived in Australia as refugee) for whom the Minister has made a residence determination is not available in departmental systems in a reportable format.
In the last 5 years no person found to engage protection obligations has subsequently been returned to the country in relation to which they were found to engage protection obligations, or any third country.
Of the current cohort in immigration detention facilities who have not been granted a bridging visa or placed in community detention, the majority have convictions for crimes involving non-consensual sexual conduct and/or other violent crimes. A small number (less than 5) have been assessed as raising national security concerns.
Advice on safeguards to ensure that the limits on the right to liberty and the rights of the child are proportionate
I note the Committee's concerns about the Bill engaging the right to liberty and the rights of the child. The Committee notes that the Statement of Compatibility does not identify any safeguards beyond discretionary Ministerial intervention powers.
At the outset, it is relevant to reiterate that what the Bill does is protect non-citizens in respect of whom a protection finding has been made in the protection visa process, from the application of the removal provisions in section 198 of the Migration Act. The Bill makes no change to the existing provisions of the Act relating to the detention of unlawful non-citizens. Accordingly, the fact that the unlawful non-citizens who are covered by the Bill will, instead of being liable to removal irrespective of protection obligations, be subject to the existing provisions governing the detention of unlawful non-citizens while other options are explored, will be the result of those existing provisions.
That said, to address the Committee's concerns, I draw the Committee's attention to:
• The existing internal assurance processes and external oversight by scrutiny bodies;
• The Government's position around the detention of children; and
• Recent Bridging visa amendments.
Internal assurance processes and external scrutiny
The length and conditions of immigration detention are subject to regular internal and external review. The Department and the Australian Border Force use internal assurance and external oversight processes to help care for and protect people in immigration detention and maintain the health, safety and wellbeing of all detainees.
The Department has a framework of regular reviews in place, and escalation and referral points to ensure that people are detained in the most appropriate placement to manage their health, welfare and resolution of their immigration status. The Department also maintains that review mechanisms regularly consider the necessity of detention and where appropriate, identify less restrictive means of detention or the grant of a visa.
Each detainee's case is reviewed monthly by a Status Resolution Officer to ensure that emerging vulnerabilities or barriers to case progression are identified and referred for action. In addition, the Status Resolution Officer also considers whether ongoing detention remains appropriate and refers relevant cases for further action. Monthly detention review committees also provide formal executive level oversight of the placement and status resolution progress of each immigration detainee.
The Department proactively continues to identify and utilise alternatives to held detention. Status Resolution Officers use the Community Protection Assessment Tool to assess the most appropriate placement for an unlawful non-citizen while status resolution processes are being undertaken. Placement includes consideration of alternatives to an immigration detention centre, such as placement in the community on a bridging visa or under residence determination arrangements. The tool also assesses the types of support or conditions that may be appropriate. Theses supports and conditions are generally reviewed every three to six months and/or when there is a significant change in an individual's circumstances.
Using the Community Protection Assessment Tool, Status Resolution Officers assess and determine whether the detainee meets the legislative requirements and criteria for a bridging visa to allow the non-citizen to temporarily reside lawfully in the community while they resolve their immigration status. Status Resolution Officers identify cases where only the Minister has the power to grant the non-citizen a visa or to make a residence determination in order to allow an unlawful non-citizen to reside in community detention. Where the case is determined to meet the Ministerial Intervention Guidelines, the case is referred to the Minister for consideration under section 195A of the Act for grant of a visa or under section 197AB of the Migration Act for placement in the community.
The Office of the Commonwealth Ombudsman (the Ombudsman) and the Australian Human Rights Commission have legislative oversight responsibilities. These bodies conduct oversight activities, publish reports and make recommendations in relation to immigration detention.
In addition to these activities, under the Migration Act, the Secretary of the Department of Home Affairs, the Ombudsman and the Minister have statutory obligations around the oversight of long-term immigration detainees. These provisions are intended to provide greater transparency in the management of long-term detainees through independent assessments by the Commonwealth Ombudsman.
The Secretary must provide reports to the Commonwealth Ombudsman on individuals who have completed a cumulative period of two years in immigration detention and then for every six months that they remain in detention. The Ombudsman must then provide an assessment of these individuals' detention to the Minister, which the Minister then tables in Parliament, including any recommendations from the Ombudsman. Once all domestic remedies are exhausted, individuals may also submit a complaint to relevant United Nation bodies such as the United Nations Committee against Torture or the UN Human Rights Committee.
Government position on the detention of children
The principle that a minor should only be placed in immigration detention as a measure of last resort is prescribed in Australian law, specifically section 4AA of the Migration Act. It remains the position that children are not held in immigration detention centres.
In the event that an unlawful non-citizen child is detained, they are accommodated in alternative places of detention, such as immigration residential housing precincts designed for families, or in the community under a residence determination.
Unaccompanied minors and family groups with minor children are routinely prioritised for consideration of a community placement. This means that vulnerable non-citizens may be able to reside in the community either under residence determination arrangements (community detention) or on a bridging visa while they resolve their immigration status.
The number of minors in held detention at any one time is generally less than five. On the whole, if a minor is detained, it is usually only briefly and as a result of immigration activities such as being turned around at an airport or in preparation for removal to their country of origin.
There are currently no minors in held immigration detention who have had a visa refused or cancelled on character or national security grounds but who have been found to engage protection obligations.
Recent Bridging visa amendments
As the Committee notes, the Statement of Compatibility with Human Rights acknowledges the Government's policy that detention in an immigration detention centre continues to be an option of last resort for managing unlawful non-citizens who cannot be removed and present a risk to the community. Whether the person is placed in an immigration detention facility, or other arrangements are made, including placement in the community under residence determination arrangements or consideration of the grant of a visa, is determined using a risk-based approach. Where appropriate, it is the Government's preference to manage individuals in the community.
To complement this Bill, the Government continues to explore ways to improve options for managing unlawful non-citizens in the community in a manner that would seek to protect the Australian community while addressing the risks associated with long-term detention.
• For example, on 16 April 2021, amendments were made to the Migration Regulations 1994 to allow additional existing visa conditions to be imposed on certain Bridging visas granted under Ministerial Intervention powers. These amendments strengthen the community placement options available for detainees who may pose a risk to public safety. They are an additional safeguard designed to complement this Bill.
These amendments will enable the Minister to have further options available to assist in minimising the risk to public safety when considering whether to release the detainee from immigration detention.
Where a visa is not granted, people in immigration detention are accommodated in facilities most appropriate to their needs, circumstances and risk, with services developed to suit each individuals needs.
Advice on safeguards to ensure that people affected by the Bill in immigration detention will not be indefinitely detained and consequently at risk of being subjected to ill-treatments and how the measure is compatible with the prohibition against torture or other cruel, inhuman or degrading treatment or punishment
The amendments will provide a safeguard which ensures that an officer is not obliged to remove an unlawful non-citizen in breach of non-refoulement obligations. Such an unlawful non-citizen will be subject to the existing provisions of the Act relating to the detention of unlawful no-citizens while other options are explored.
Under the Migration Act, immigration detention is not limited by a set timeframe. It ends when the person is either granted a visa or is removed from Australia. The timeframe associated with either of these events is dependent upon a number of factors.
Removal in such cases may become possible if, for example, the circumstances in the person's home country improves such that they no longer engage non-refoulement obligations, or if a safe third country is willing to accept the person. An unlawful non-citizen may also request in writing to be removed from Australia at any time. The Bill will provide a clear legislative basis to allow adequate time to take active steps to consider alternative management options for people in detention who engage non-refoulement obligations.
As noted above, the Statement of Compatibility with Human Rights acknowledges the Government's policy that detention in an immigration detention centre continues to be an option of last resort for managing unlawful non-citizens who cannot be removed and present a risk to the community. Whether the person is placed in an immigration detention facility, or other arrangements are made, including community detention or consideration of the grant of a visa, is determined using a risk-based approach. Where appropriate, it is the Government's preference to manage individuals in the community.
• To reinforce this position, I wish to draw your attention to the widespread use of Bridging visas as an alternative to immigration detention. While I have provided statistics on the grant of visas under Ministerial Intervention powers this does not provide the full picture.
• While there are 1482 people in an immigration detention facility, and 537 under residence determination arrangements, it is important to note that there are over 390,000 people in the community on Bridging visas. This includes 31,557 people on Subclass (050&051) Bridging visa Es (including 8,894 on Departure Grounds). Many of these visas are granted by delegates and do not require my personal intervention.
• Without a Bridging visa, these people would be unlawful non-citizens and would need to be detained under the Migration Act.
As outlined further above, the viability of Bridging visas as an alternative to immigration detention has recently been improved through regulation amendments.
As also noted above, where a visa is not granted, people in immigration detention are accommodated in facilities most appropriate to their needs, circumstances and risk with services developed to suit each individual's needs.
Detainee welfare
I note the Committee's comment that the Statement of Compatibility did not address whether the measure is compatible with the prohibition against torture or ill-treatment.
The Government accepts that the prohibition on torture and ill-treatment includes protecting the physical and mental well-being of detained individuals. The Government takes the welfare of those in immigration detention very seriously. All people in detention are treated with respect dignity and fairness. I am committed to ensuring detainees in immigration detention are provided with high quality services commensurate to Australian standards and that the conditions in immigration detention are humane and respect the inherent dignity of the person. The Government works closely with its service providers to ensure immigration detainees are provided with adequate accommodation, infrastructure, medical services, security services, catering services, programs, activities, support services and communication facilities.
Some detainees may be in more vulnerable circumstances than others. This includes people who have complex health needs including mental health or where they have a history of torture, trauma or people who have been subject to people trafficking or domestic or family violence. Any detainee who discloses a history of torture and/or trauma ls offered referral to specialist torture and trauma counselling.
The Detention Health Procedural Instruction on Mental Health outlines the services made available to persons in immigration detention, in order to manage a range of mental health issues that may present.
The Australian Government's contracted detention health services provider is responsible for mental health care and support services which are delivered by general practitioners mental health nurses, psychologists, counsellors and psychiatrists, including those specialising in torture and trauma counselling services (on a visiting basis, or through the use of tele-health facilities or external appointments).
Regular mental health assessments are performed and delivered in line with the relevant Australian standards.
Where the Department identifies that a detainee has significant vulnerabilities that indicate management within an immigration detention centre is no longer appropriate, they may be considered for alternative management options. These could include grant of a Bridging visa by a departmental delegate (if possible), or referral to a Minister for consideration under the Minister's personal intervention powers including those under section 197AB of the Migration Act to allow a detainee to reside in an Alternate Place of Detention.
Detainees are able to access legal representation in accordance with the Migration Act and the Government provide detainees with the means to contact family, friends and other support. The Government respects and caters for religious and cultural diversity.
Detainees who are unsatisfied with the conditions in immigration detention can raise concerns in person with Australian Border Force officers and service provider staff, or in writing or by telephone with the Department of Home Affairs or external scrutiny bodies.
In 2018 the Office of the Commonwealth Ombudsman was nominated as the National Preventive Mechanism Coordinator and the inspecting body for Commonwealth places of detention for the purpose of Australia's obligations under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This function includes oversight of immigration detention facilities.
Advice on whether this measure will have any impact on persons involved in current litigation or who have been unlawfully detained based on the case law established by the Federal Court decision in AJL20 v Commonwealth of Australia [2020] FCA 1305.
After commencement, the new provisions in section 197C will apply to all unlawful non-citizens who are subject to removal but engage protection obligations that have been assessed and accepted during the Protection visa process. This means first and foremost that officers will no longer be authorised or required to remove a person in breach of non-refoulement obligations. If this Bill is not passed, there is a strong possibility that the Migration Act will require the removal of certain unlawful non-citizens in breach of non-refoulement obligations.
The new section 36A will apply to all new Protection visa applications. This means the Bill will provide a clear legislative basis to require the Minister or a delegate to consider and make a record of protection findings when assessing whether a non-citizen satisfies the protection visa criteria. This will ensure that unlawful non-citizens who are found to engage protection obligations are not removed in breach of non-refoulement obligations. While this is an important measure, it largely codifies existing processes outlined in Ministerial Direction 75 made under section 499 of the Migration Act.
Impact on AJL20 litigant
The Commonwealth has appealed the judgment in AJL20 in the High Court and judgment is reserved. If the Court accepts the Commonwealth's arguments, the Migration Act will have validly authorised AJL20's detention. ln that case, the Bill will not have any effect on unlawful detention claims based on AJL20.
If AJL20 is upheld, the Bill may prospectively validate a person's detention in analogous circumstances to AJL20. However, this will not have retrospective effect on any persons' unlawful detention claims.
It would not be appropriate to comment further on active litigation before the Courts.
2.70 As was previously noted, the measure pursues the legitimate objective of supporting Australia to uphold its non-refoulement obligations and appears to be rationally connected to that objective insofar as it would ensure that persons to whom protection obligations are owed are not removed to the country in relation to which there has been a protection finding.[24] The preliminary analysis raised serious concerns as to whether the measure is proportionate and sought further information from the minister in this regard. Key considerations in assessing the proportionality of this measure include: whether it is accompanied by adequate safeguards and is the least rights restrictive alternative; whether it provides access to review and the possibility of oversight; and whether it constitutes a significant interference with rights.
2.71 In assessing whether the minister's discretionary powers would likely operate as an adequate safeguard, a relevant consideration is the extent to which these powers are exercised in practice. In relation to persons in immigration detention who engage protection obligations but are ineligible for a grant of a visa on character or other grounds, the minister advised that in the 2015-16 financial year, no persons were granted a discretionary visa under section 195A and less than five people were granted these visas in each financial year between 2016 and 2021. The minister did not specify the exact number of visas granted under section 195A between 2015 and 2021 and stated that the number of persons granted a residence determination under section 197AB is not available in a reportable format.
2.72 While exact figures are unavailable, it appears that the minister's discretionary powers to grant a visa under sections 195A or 197AB are exercised infrequently. The preliminary analysis noted that the minister's discretionary powers have the potential to operate as a safeguard by providing the minister with flexibility to treat individual cases differently. However, given that these discretionary powers appear to be exercised infrequently in practice, as well as the fact that they are non-reviewable and non-compellable, and do not attract the requirements of procedural fairness, they do not appear to be a sufficient safeguard for the purpose of a permissible limitation under international human rights law.
2.73 In addition, the minister advised that the recent amendments to the Migration Regulations 1994, which allow additional visa conditions to be imposed on visas granted by the minister under section 195A, would serve as a further safeguard to accompany this measure.[25] The minister stated that these additional conditions strengthen community placement options and improve management of unlawful
non-citizens in the community. To the extent that these additional conditions would facilitate the granting of a visa under section 195A and result in the release of individuals from detention, they may promote the right to liberty.[26] However, these additional conditions may also limit a number of other rights. As outlined in the committee's preliminary analysis of these regulations (set out in Chapter 1 of this report), there are a number of concerns that the conditions may not: meet the quality of law test; address a pressing and substantial concern for the purposes of international human rights law; be sufficiently circumscribed; include sufficient safeguards; or include access to effective review.[27] In light of these concerns, it is unclear that the additional conditions would in fact operate as a safeguard against arbitrary detention in the context of this measure. Thus, notwithstanding the provision of these additional conditions and the stated preference to manage non-citizens in the community and use detention as a last resort, the infrequent use of the minister's discretionary powers in practice and the consequent protracted length of time
non-citizens spend in immigration detention (with the majority of non-citizens currently in immigration detention having spent over five years in detention), indicates that the discretionary powers are not an accessible alternative to detention.[28] As observed by the UN High Commissioner for Refugees, alternatives to detention must be accessible in practice (not merely available on paper) and should not be used as alternative forms of detention.[29]
2.74 Regarding the availability of review and the possibility of oversight, the minister advised that the length and conditions of immigration detention are subject to regular internal and external review and oversight processes. The minister stated that the department has a regular reviews framework in place, including a monthly review of each detainee's case by a Status Resolution Officer. The officer considers the vulnerabilities of each detainee and whether ongoing detention remains appropriate. The officers use the Community Protection Assessment Tool to assess the most appropriate placement for the detainee, including alternatives to detention such as a bridging visa or residence determination, and the types of support or conditions that may be appropriate for the detainee. The minister noted that these supports and conditions are generally reviewed every three to six months and/or where there is a significant change in an individual's circumstances. The minister advised that the officers use the Community Protection Assessment Tool to identify cases where only the minister has the power to grant the person a visa or to make a residence determination. These cases may be referred to the minister for consideration under sections 195A or 197AB for placement in the community. The minister stated that the monthly detention review committees also provide formal executive level oversight of the placement and status resolution progress of each detainee.
2.75 In addition, the minister advised that the Office of the Commonwealth Ombudsman and the Australian Human Rights Commission have legislative oversight responsibilities, including overseeing activities, publishing reports and making recommendations in relation to immigration detention. The minister also noted that the Secretary of the Department of Home Affairs and the minister have statutory oversight obligations in relation to long-term immigration detainees. The secretary must provide reports to the Ombudsman on persons detained in immigration detention for a cumulative period of two years and then provide to the minister an assessment of these individuals every six months that they remain in detention. This assessment is tabled in Parliament. Finally, the minister stated that once all domestic remedies are exhausted, individuals may submit a complaint to the relevant UN bodies.
2.76 These internal review mechanisms and the availability of oversight by the Commonwealth Ombudsman and Australian Human Rights Commission could serve as a safeguard against arbitrary and unlawful detention. In particular, the monthly reviews by a Status Resolution Officer of the necessity and appropriateness of detention may help to ensure that detention is justified on an individual basis. The UN Human Rights Committee has made clear that periodic re-evaluation and judicial review of immigration detention must be available to scrutinise whether the continued detention is lawful and non-arbitrary.[30] This includes an individual assessment of the need to subject a person to continuous and protracted detention and the State party demonstrating that 'other, less intrusive, measures could not have achieved the same end'.[31] However, questions arise as to whether these internal review mechanisms and oversight frameworks would in fact be an effective safeguard in practice. This is because they may not necessarily result in the release of an individual from detention, as release is only possible where the minister exercises their discretionary powers to grant a visa under sections 195A or 197AB—which seems to occur infrequently, noting in particular that of those detained under these powers in the last five years, three-quarters were detained for over two years, and almost half were detained for over five years. As noted in the preliminary analysis, the minister is not under a duty to consider whether to exercise these discretionary powers; the threshold for exercising the discretionary powers is a broad public interest test (as opposed to being based on the needs and vulnerabilities of individual detainees); and the powers are non-reviewable and non-compellable.
2.77 Regarding the oversight functions of the minister and the Secretary of the Department of Home Affairs, there are concerns that these may not be adequate because they are not an independent oversight mechanism. The UN Human Rights Committee has emphasised the importance of access to independent procedural safeguards and regular review by an independent body. In relation to the right to take proceedings before a court to review the lawfulness and arbitrariness of detention, the Committee has stated that ordinarily the court should be within the judiciary and in exceptional circumstances, may be before a specialised tribunal or other body. This other body must still be established by law and 'must either be independent of the executive and legislative branches or enjoy judicial independence in deciding legal matters in proceedings that are judicial in nature'.[32] As the minister and Secretary of the Department are not independent of the executive or legislature branches of government, their oversight functions would not appear to assist with the proportionality of this measure.
2.78 In addition, under international human rights law, detainees have the right to access judicial review to challenge the lawfulness of their detention.[33] To be effective, judicial review of detention should not be limited to compliance with law and must include the possibility of release.[34] It should also be 'open to the Court to review the justification of [an individual's] detention in substantive terms'.[35] As noted in the preliminary analysis, this bill seeks to remove the basis on which the applicant was released in AJL20[36] by clarifying that there is no requirement to remove an unlawful non-citizen from Australia to a country in respect of which there has been a protection finding in relation to that person.[37] Regarding the impact of this bill on the AJL20 case, the minister advised that if the decision is upheld by the High Court, the bill may prospectively validate a person's detention in analogous circumstances to AJL20 but it will not have retrospective effect on any persons' unlawful detention claims. If the Commonwealth is successful in its appeal of AJL20, the minister stated that the bill will not have any effect on unlawful detention claims based on this case. It appears, therefore, that the effect of this measure would be to make it more difficult to mount a successful legal challenge to detention for persons in similar circumstances to AJL20 (namely, those who are owed protection obligations but are ineligible for a grant of a visa). As such, it seems unlikely that judicial review in these circumstances would include the possibility of release in appropriate cases and so does not appear to assist with the proportionality of this measure. Concerns therefore remain that, in the absence of merits review, judicial review in the context of this measure may not be effective for the purposes of international human rights law. The committee has previously concluded that judicial review without merits review is unlikely to be sufficient to fulfil the international standard required of effective review. This is because judicial review is only available on a number of restricted grounds and does not allow the court to take a full review of the facts (that is, the merits), as well as the law and policy aspects of the original decision to determine whether the decision is the correct or preferable decision.[38]
2.79 A further consideration in assessing proportionality is the extent of any interference with human rights. The length of detention is relevant in this regard.[39] The minister advised that between 1 July 2015 and 3 May 2021, of the 63 people in detention who engage protection obligations but are ineligible for a grant of a visa on character or other grounds, 54 people have been in detention for more than two years and of those people, 28 have been in detention for more than five years. Of the 29 non-citizens currently in detention, all persons have been detained for over two years and 16 people have been detained for more than five years. The minister advised that no children have been in the past five years, or currently are, in immigration detention as a result of being found to engage protection obligations but being ineligible for a grant of a visa.
2.80 These figures indicate that persons who are found to engage protection obligations but are ineligible for a visa on character or other grounds are frequently detained in immigration detention for significant periods of time. The minister stated that there is no legislative limit on the length of immigration detention and that detention will end when the person is either granted a visa or is removed from Australia. However, for persons to whom this measure applies, they are ineligible for the grant of a substantive visa and they cannot be removed from Australia because they are owed protection obligations. Therefore, without any legislative maximum period of detention and an absence of effective safeguards to protect against arbitrary detention, there is a real and significant risk that detention may become indefinite. The UN Human Rights Committee has made clear that '[t]he inability of a state to carry out the expulsion of an individual because of statelessness or other obstacles does not justify indefinite detention'.[40]
2.81 The minister further noted that removal from Australia may become possible if the circumstances in the person's home country improve such that they are no longer owed protection obligations or where a person requests to be removed from Australia. This possibility of removal, however, does not mitigate the risk of protracted or indefinite detention, especially where the circumstances in the relevant country are unlikely to improve in the reasonably foreseeable future. As such, where the measure would result in the indefinite detention of certain persons, it does not appear to be proportionate to the aims of the measure.
2.82 Finally, the preliminary analysis noted that, to the extent that the measure results in prolonged or indefinite detention, it may also have implications for Australia's obligation not to subject any person to torture or to cruel, inhuman or degrading treatment or punishment.[41] This obligation is absolute and may never be limited. The length and conditions of detention are relevant in this regard.[42]
2.83 As noted above, the minister indicated that immigration detention is not limited by a set timeframe and will end when a person is granted a visa or is removed from Australia. The minister advised that where a person is not granted a visa, they are accommodated in immigration detention facilities most appropriate to their needs, circumstances and risk, with services developed to suit each individual's needs. For example, a detainee who discloses a history of torture and/or trauma is offered a referral to specialist torture and trauma counselling. The minister stated that detainees have access to health and other support services, including regular mental health assessments. The minister also noted that detainees have access to legal representation and are provided with the means to contact family, friends and other support. Finally, the minister stated that the Office of the Commonwealth Ombudsman provides oversight of immigration detention facilities as part of its functions as the National Preventative Mechanism Coordinator and inspecting body for the purpose of Australia's obligations under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
2.84 The services outlined by the minister and the Commonwealth Ombudsman's oversight functions could help to ensure that detention conditions are humane. However, it is unclear whether these services are sufficient to ameliorate concerns about the implications of the measure for the prohibition against torture and
ill-treatment. It is noted that the UN Human Rights Committee has previously characterised the conditions in Australia's detention facilities as 'difficult'. The UN Committee found that these difficult detention conditions in combination with the arbitrary character of detention, its protracted and/or indefinite duration and the absence of procedural safeguards to challenge detention, cumulatively inflicted serious psychological harm on detainees that amounted to cruel, inhuman or degrading treatment.[43] Noting the possibility of indefinite or protracted detention, the absence of effective review and other procedural safeguards as well as the uncertainty as to whether the services outlined by the minister are sufficient to ensure detention conditions are humane, there appears to remain a risk that the measure may have implications for Australia's obligation not to subject any person to torture or to cruel, inhuman or degrading treatment or punishment.
2.85 The minister advised that on 13 May 2021, the bill was passed by the Senate following amendments. The amendments included new section 197D, which allows the minister to make a decision that an unlawful non-citizen to whom a protection finding is made is no longer a person in respect of whom any protection finding would be made.[44] If such a decision is made, 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.[45] The minister advised that the effect of the amendments is to provide access to merits review for individuals who were previously determined to have engaged protection obligations but are subsequently found by the minister to no longer engage those obligations. New paragraph 197C(3)(c) permits the removal powers in section 198 to operate where a decision is made under section 197D.[46] The minister noted, however, that a person cannot be removed under section 198 until the merits review process is finalised.
2.86 These amendments may have significant human rights implications insofar as they have the effect of allowing 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 protecting finding was previously made. It is not clear on what basis the minister would make this decision, noting that section 197D provides limited guidance as to the circumstances in which the minister would be 'satisfied' that a person is no longer owed protection obligations. The revised explanatory memorandum notes that in practice, it would be rare that a person who has been found to engage protection obligations would no longer engage those obligations.[47] If this is the case, it is unclear why this amendment was necessary. It is difficult to assess the full human rights implications of these amendments, particularly in relation to Australia's
non-refoulement obligations, as they were introduced after the committee undertook its preliminary analysis and the revised statement of compatibility does not provide a detailed compatibility analysis of this specific measure.[48]
2.87 In conclusion, the measure pursues the legitimate objective of supporting Australia to uphold its non-refoulement obligations and the measure appears to be rationally connected to that objective insofar as it would ensure that persons to whom protection obligations are owed are not removed to the country in relation to which there has been a protection finding. However, the minister's response has not alleviated the serious concerns raised in the preliminary analysis regarding the proportionality of this measure. While the minister's discretionary powers may provide some flexibility to treat individual cases differently, these powers appear to be infrequently exercised in practice and are non-reviewable and non-compellable. Thus, they are unlikely to be an effective safeguard in practice or offer an accessible alternative to detention. Given the effect of the measure is to make it more difficult to mount a successful legal challenge to detention for persons who are owed protection obligations but are ineligible for a grant of a visa, it seems that access to review in these circumstances would not be effective in practice, noting that review of detention must include the possibility of release. Finally, the statistics provided by the minister regarding the length of detention of persons who are found to engage protection obligations but are ineligible for a visa on character or other grounds, indicate that such persons are frequently detained in immigration detention for significant periods of time, with over three-quarters of such persons being detained for over two years, and almost half detained for over five years. Insofar as the measure would effectively result in protracted or indefinite detention of these individuals, this represents a significant interference with their rights. For these reasons, there is a significant risk that the measure is incompatible with the right to liberty and the prohibition against torture or ill-treatment, and were children to be detained under these circumstances, with the rights of the child.
2.88 The committee notes that this bill, which has now received royal assent, proposed to amend the Migration Act to clarify that the power to remove an unlawful non-citizen does not require or authorise an officer to remove a person where there has been a protection finding in relation to that person. The bill also proposed to introduce provisions which would have the effect of ensuring that protection obligations are always assessed, including before the minister considers whether the person meets other criteria for the grant of a protection visa.
2.89 The committee considers that the measure would support Australia's ability to uphold its protection obligations. However, to the extent that the measure may result in prolonged or indefinite detention of persons who are deemed to be unlawful non-citizens and cannot be removed because a protection finding has been made in relation to them, the measure also engages and limits the right to liberty and the rights of the child. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.
2.90 In addition, the committee notes that to the extent that the measure results in indefinite detention, it may also have implications for Australia's obligation not to subject any person to torture or to cruel, inhuman or degrading treatment or punishment. This obligation is absolute and may never be limited.
2.91 The committee considers that the measure pursues the legitimate objective of supporting Australia to uphold its non-refoulement obligations and is rationally connected to that objective. However, the committee considers that the minister's response has not alleviated its serious concerns regarding the compatibility of this measure with the right to liberty, the rights of the child and the prohibition against torture or ill-treatment. The committee notes that for persons who are found to engage Australia's protection obligations but are ineligible for a visa on character or other grounds, the minister's advice indicates that such persons are frequently detained in immigration detention for significant periods of time, with over
three-quarters of such persons being detained for over two years, and almost half detained for over five years. As such the committee does not consider the minister's discretionary powers to grant a visa to such persons has operated as an effective safeguard on the possibility of indefinite detention. Therefore, insofar as the measure may effectively result in the protracted or indefinite detention of these individuals, the committee considers there is a significant risk that it may be incompatible with the right to liberty and the prohibition against torture or
ill-treatment, and were children to be detained under these circumstances, with the rights of the child.
2.92 Noting that this bill passed both Houses of Parliament on 13 May 2021, the committee makes no further comment.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021, Report 7 of 2021; [2021] AUPJCHR 67.
[2] Parliamentary Joint Committee on Human Rights, Report 5 of 2021 (29 April 2021), pp. 13–28.
[3] Migration Act 1958, section 198.
[4] Migration Act 1958, sections 13–14. Migration zone is defined in section 5.
[5] Migration Act 1958, subsection 197(1).
[6] Migration Act 1958, subsection 197(2).
[7] Schedule 1, item 3, proposed subsection 197C(3).
[8] Schedule 1, item 3, proposed subsections 197C(4)–(7).
[9] Schedule 1, subitem 4(3).
[10] Schedule 1, item 1, proposed subsection 36A(1).
[11] Schedule 1, item 1, proposed subsection 36A(2).
[12] Explanatory memorandum, pp. 5–6.
[13] Australia also has protection obligations under the Convention relating to the Status of Refugees 1951 (and the 1967 Protocol), however, this is not one of the seven listed treaties under the Human Rights (Parliamentary Scrutiny) Act 2011.
[14] UN Committee against Torture, General Comment No.4 (2017) on the implementation of article 3 in the context of article 22 (2018). See also UN Human Rights Committee, General Comment No. 20: article 7 (prohibition against torture) (1992) [9].
[15] UN Committee against Torture, General Comment No.4 (2017) on the implementation of article 3 in the context of article 22 (2018) [9].
[16] International Covenant on Civil and Political Rights, article 9.
[17] F.K.A.G v. Australia, UN Human Rights Committee Communication No. 2094/2011 (2013) [9.3].
[18] UN Human Rights Committee, Concluding observations on the sixth periodic report of Australia, CCPR/C/AUS/6 (2017) [38].
[19] See UN Human Rights Committee, General Comment No. 35: Liberty and security of person (2014) [18]; F.K.A.G v. Australia, UN Human Rights Committee Communication No. 2094/2011 (2013) [9.4]; M.M.M et al v Australia, UN Human Rights Committee Communication No. 2136/2012 (2013) [10.4].
[20] Including the requirement that the best interests of the child be the primary consideration in all actions concerning children; the obligation to provide protection and humanitarian assistance to child refugees and asylum seekers; the requirement that detention is used only as a measure of last resort and for the shortest appropriate period of time; and the obligation to take measures to promote the health, self-respect and dignity of children recovering from torture and trauma: Convention on the Rights of the Child, articles 3(1), 22, 37(b) and 39.
[21] Convention on the Rights of the Child. See also, UN Human Rights Committee, General Comment No. 17: Article 24 (1989) [1].
[22] UN Human Rights Committee, General Comment No. 35: Liberty and security of person (2014) [18].
[23] The minister's response to the committee's inquiries was received on 25 May 2021. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[24] Parliamentary Joint Committee on Human Rights, Report 5 of 2021 (29 April 2021), pp. 20 and 26.
[25] See Migration Amendment (Bridging Visa Conditions) Regulations 2021 [F2021L00444].
[26] The amendments to the Migration Regulations 1994 were considered by the committee in Chapter 1 of this report. See Parliamentary Joint Committee on Human Rights, Migration Amendment (Bridging Visa Conditions) Regulations 2021 [F2021L00444], Report 7 of 2021
(23 June 2021) pp. 51-75.
[27] Parliamentary Joint Committee on Human Rights, Migration Amendment (Bridging Visa Conditions) Regulations 2021 [F2021L00444], Report 7 of 2021 (23 June 2021) pp. 51-75.
[28] The statement of compatibility notes that the minister's discretionary powers would enable the minister to take into account individual circumstances and implement the least restrictive option, thus helping to ensure that immigration detention is used as a last resort: pp. 13–14.
[29] UNHCR, Detention Guidelines: Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention (2012) [37]–[38].
[30] F.K.A.G v. Australia, UN Human Rights Committee Communication No. 2094/2011 (2013) [9.3].
[31] MGC v Australia, UN Human Rights Committee Communication No.1875/2009 (2015) [11.6].
[32] UN Human Rights Committee, General Comment No. 35: Liberty and security of person (2014) [45]. See also [14] and [21].
[33] UN Human Rights Committee, General Comment No. 35: Liberty and security of person (2014) [18].
[34] F.K.A.G v. Australia, UN Human Rights Committee Communication No. 2094/2011 (2013) [9.6]. See also MGC v Australia, UN Human Rights Committee Communication No.1875/2009 (2015) [11.6] and A v Australia, UN Human Rights Committee Communication No. 560/1993 (1997) [9.5].
[35] F.K.A.G v. Australia, UN Human Rights Committee Communication No. 2094/2011 (2013) [9.6]. See also MGC v Australia, UN Human Rights Committee Communication No.1875/2009 (2015) [11.6].
[36] AJL20 v Commonwealth of Australia [2020] FCA 1305. In this case, the court found the applicant's detention by the Commonwealth to be unlawful and ordered the applicant's release from detention. The detention was found to be unlawful because: 'the removal of the applicant from Australia has not been shown to have been undertaken or carried into effect as soon as reasonably practicable, that there was therefore a departure from the requisite removal purpose for the applicant’s detention over the course of that period and that, as a consequence, the applicant’s detention by the Commonwealth was unlawful throughout that period' (at [128] and [171]).
[37] Statement of compatibility, pp. 11–12.
[38] See Parliamentary Joint Committee on Human Rights, Report 1 of 2019 (12 February 2019) pp.14-17; Report 12 of 2018 (27 November 2018) pp. 2-22; Report 11 of 2018 (16 October 2018) pp. 84-90; Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 196-202; Report 12 of 2017 (28 November 2017) p. 92 and Report 8 of 2018 (21 August 2018) pp. 25-28; Report 3 of 2021 (17 March 2021) pp. 58–59 and 91–97. See also Singh v Canada, UN Committee against Torture Communication No.319/2007 (2011) [8.8]–[8.9].
[39] UNHCR, Detention Guidelines: Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention (2012) [44]. The UN High Commissioner for Refugees has observed: 'The length of detention can render an otherwise lawful decision to detain disproportionate and, therefore, arbitrary. Indefinite detention for immigration purposes is arbitrary as a matter of international human rights law'.
[40] UN Human Rights Committee, General Comment No. 35: Liberty and security of person (2014) [18]. See, also, C v Australia, UN Human Rights Committee Communication No.900/1999 (2002) [8.2]; Bakhtiyari et al. v. Australia, UN Human Rights Committee Communication No.1069/2002 (2003) [9.3]; D and E v. Australia, UN Human Rights Committee Communication No. 1050/2002 (2006) [7.2]; Shafiq v. Australia, UN Human Rights Committee Communication No. 1324/2004 (2006) [7.3]; Shams et al. v. Australia, UN Human Rights Committee Communication No. 1255/2004 (2007) [7.2]; F.K.A.G v. Australia, UN Human Rights Committee Communication No. 2094/2011 (2013) [9.3]; F.J. et al. v. Australia, UN Human Rights Committee Communication No. 2233/2013 (2016) [10.4].
[41] International Covenant on Civil and Political Rights, article 7; and Convention against Torture and other Cruel, Inhuman, Degrading Treatment or Punishment, articles 3–5.
[42] See F.K.A.G v. Australia, UN Human Rights Committee Communication No. 2094/2011 (2013) [9.8]; F.J. et al. v. Australia, UN Human Rights Committee Communication No. 2233/2013 (2016) [10.6].
[43] F.K.A.G v. Australia, UN Human Rights Committee Communication No. 2094/2011 (2013) [9.8]. See also F.J. et al. v. Australia, UN Human Rights Committee Communication No. 2233/2013 (2016) [10.6].
[44] Migration Act 1958, subsection 197D(2).
[45] Migration Act 1958, subsection 197D(4).
[46] Revised statement of compatibility, p. 17.
[47] Revised explanatory memorandum, p. 11.
[48] It is noted that the amendments to the bill were introduced and considered on 12 May 2021 and the bill passed both Houses of Parliament with amendments on 13 May 2021.
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