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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to amend the Migration Act 1958 to clarify that the
Act 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 a visa 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 on 25 March 2021
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Bill status
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Received Royal Assent on 24 May 2021
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2.40 In Scrutiny Digest 6 of 2021 the committee requested the minister's advice as to the effectiveness of safeguards and other measures contemplated by the bill to ensure that the immigration detention of persons affected by the bill will not trespass unduly on fundamental personal rights and liberties.
2.41 The committee also requested the minister’s detailed advice as to any other legislative or non-legislative options considered to address the government’s concerns arising from the Federal Court’s decisions in DMH16 v Minister for Immigration and Border Protection[23] and AJL20 v Commonwealth,[24] including any consideration by the minister of the extent to which an alternate option would impact personal rights and liberties.
2.42 To assist the committee in considering the minister's response to the above questions, the committee also requested the minister's advice as to how often current and former ministers have exercised their personal discretionary powers under sections 195A (discretion to grant a detainee a visa) and 197AB (residence determination), and in particular, how many times these discretionary powers have been exercised in relation to persons in immigration detention to whom protection obligations are owed but are ineligible for a grant of a visa on character or other grounds.[25]
Minister's response[26]
2.43 The minister advised:
In addition to the enclosed response, I wish to advise the Committee that on 12 May 2021, I moved amendments to the Bill, which seek to provide further assurance and safeguards for the effective implementation and operation of proposed provisions. These amendments will:
• amend the Migration Act to provide access to merits review for certain individuals who were previously determined to have engaged protection obligations but are subsequently found by the Minister to no longer engage those obligations;
• amend the Migration Act to ensure that an unlawful non-citizen will not be removed in accordance with section 198 of the Migration Act where the Minister has decided that the unlawful non-citizen no longer engages protection obligations before:
• the period within which an application for merits review of that decision under Part 7 of the Migration Act could be made has ended without a valid application for review having been made; or
• a valid application for merits review of that decision under Part 7 was made within the period but has been withdrawn; or
• the Minister's decision is affirmed or taken to have been affirmed upon merits review;
• amend the Intelligence Services Act 2001 to require the Parliamentary Joint Committee on Intelligence and Security to commence a review of the operation, effectiveness and implications of the provisions amended or inserted by Schedule 1 to the Bill, by the second anniversary of the commencement of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021.
The committee requests the minister's detailed advice as to the effectiveness of safeguards and other measures contemplated by the bill to ensure that the immigration detention of persons affected by the bill will not trespass unduly on fundamental personal rights and liberties.
Detention remains a last resort
As the committee notes, detention in an immigration detention centre is a last resort for the management of unlawful non-citizens. This includes individuals whose removal may not be practicable in the reasonably foreseeable future. The Government's preference is to manage non-citizens in the community wherever possible, subject to meeting relevant requirements, including not presenting an unacceptable risk to the safety and good order of the Australian community.
Amendments to section 197C of the Migration Act 1958 (the Migration Act) made by this Bill would operate to protect unlawful non-citizens from removal in breach of non-refoulement obligations. Removal in such cases may become possible if, for example, the circumstances in the relevant country improve, such that the person no longer engages non-refoulement obligations, or if a safe third country is willing to accept the person. An unlawful non-citizen may also request in writing to be removed from Australia.
The Bill makes no change to the existing provisions of the Migration Act governing the detention of unlawful non-citizens. Under those provisions, Ministers have a personal discretionary power to intervene in an individual case and grant a visa, including a bridging visa, to a person in immigration detention, where it is in the public interest to do so. What is and what is not in the public interest is for the relevant Minister to decide.
As the Committee notes, Ministers also have a personal discretionary power to allow a detainee to reside outside of an immigration detention facility, at a specified address in the community (residence determination). While a residence determination permits an individual to be placed in the community subject to certain conditions, it continues to be an immigration detention placement.
These less restrictive community management options may be implemented for the person having regard to their circumstances, including non-refoulement obligations and potential risks to the Australian community.
Some unlawful non-citizens affected by the amendments made by the Bill may remain in an immigration detention centre while awaiting removal as any decision to not grant them a visa or place them under a residence determination will be made in consideration of their individual circumstances and the risk to the safety, security and good order of the Australian community. This helps to ensure that an immigration detention placement is reasonable, necessary and proportionate to individual circumstances and therefore it will not be arbitrary.
Conditions of immigration detention
The Governments takes the welfare of those in immigration detention very seriously. All people in immigration detention (detainees) are treated with respect, dignity and fairness. The Government is committed to ensuring detainees 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.
Detainees are able to access legal representation in accordance with the Migration Act and the Government provides detainees with the means to contact family, friends and other support. The Government respects and caters for religious and cultural diversity. If a detainee requires an interpreter, the Australian Government will provide one.
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.
Scrutiny and oversight
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 individuals and maintain the health, safety and wellbeing of all detainees.
The Department has a framework of regular reviews, escalation and referral points in place to ensure that people are detained in the most appropriate placement to manage their health and welfare, and to manage the resolution of their immigration status. The Department also maintains review mechanisms that regularly consider the necessity of detention and where appropriate, identify alternate 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 looking at alternatives to an immigration detention centre, such as in the community on a bridging visa or under a residence determination. The tool also assesses the types of support or conditions that may be appropriate and is 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 Migration Act for grant of a visa or under section 197AB of the Migration Act for placement in the community under residence determination arrangements.
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.
The committee also requests the minister's detailed advice as to any other legislative or non-legislative options considered to address the government's concerns arising from the Federal Court's decisions in DMH16 v Minister for Immigration and Border Protection and AJL20 v Commonwealth, including any consideration by the minister of the extent to which an alternative option would impact personal rights and liberties.
The Commonwealth has appealed the judgment of the Federal Court in AJL20 to the High Court. The High Court's judgment is reserved. The High Court's judgment may provide clarity on the interpretation of the current section 197C of the Migration Act.
The interpretation of section 197C is continuing to evolve as reflected in the recent decision of the Full Federal Court in WKMZ v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCAFC 55 which held that section 197C and the removal power in 198 do not preclude detention for a period of time so that the executive can genuinely consider an alternative possibility for an unlawful non-citizen to remain in Australia, or other options such as admission to a safe third country, to avoid a breach of Australia's non-refoulement obligations.
Alternatives to detention
As noted above, detention in an immigration detention centre is a measure of last resort. The Government's preference is to manage non-citizens in the community, where possible, on a visa or under residence determination arrangements.
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 (the Migration Regulations) by the Migration Amendment (Bridging Visa Conditions) Regulations 2021 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. An explanation of how these changes impact human rights is available in the Statement of Compatibility with Human Rights for those changes.
Refoulement
The Government has a long-standing policy position in relation to non-refoulement obligations. After commencement, the new provisions in section 197C would apply to all unlawful non citizens who are subject to involuntary removal but engage protection obligations that have been assessed and accepted during the Protection visa process. This means first and foremost that officers will not be authorised or required to remove a person in breach of non refoulement obligations.
The Bill clarifies and confirms Australia's commitment to meet its non-refoulement obligations and not remove unlawful non-citizens (UNCs) to a country where they face persecution or a real risk of torture, cruel, inhuman and degrading treatment or punishment, arbitrary deprivation of life or the death penalty.
If this Bill is not passed, the Migration Act may require or authorise the removal of certain unlawful non-citizens in breach of non-refoulement obligations, as soon as reasonably practicable.
To assist the committee in considering the minister's response to the above questions, the committee also requests the minister's advice as to how often current and former ministers have exercised their personal discretionary powers under sections 195A (discretion to grant a detainee a visa) and 197AB (residence determination), and in particular, how many times these discretionary powers have been exercised in relation to persons in immigration detention to whom protection obligations are owed but are ineligible for grant of a visa on character or other grounds.
Historical statistics relating to section 195A for this cohort group are below.
[To view table, see the Minister's full response on the Scrutiny Digest web page, alongside Scrutiny Digest 8 of 2021].
Information on the number of persons in detention (who have previously been found to be owed protection obligations or who arrived in Australia as refugee) whom the Minister has made residence determination is not available in departmental systems in a reportable format.
Committee comment
2.44 The committee thanks the minister for this response. The committee notes the minister's advice that detention in an immigration detention centre is a last resort for the management of unlawful non-citizens and that the government's preference is to manage non-citizens in the community wherever possible, subject to meeting relevant requirements, including not presenting an unacceptable risk to the safety and good order of the Australian community.
2.45 The committee also notes the minister's advice that there exist several processes by which the length and conditions of immigration detention are subject to regular internal and external review, including reviews by the department, the Commonwealth Ombudsman and the Human Rights Commission. The committee further notes the minister's advice that the government continues to explore ways to improve options for managing non-citizens in the community, including by amendments to regulations.
2.46 While noting this advice, the committee notes that the highly discretionary and non-compellable nature of the minister's powers means they cannot be relied upon to ensure that immigration detention is reasonable, necessary and proportionate in the cases contemplated by the bill. The committee notes that none of the internal or external review processes outlined in the response can require the minister to grant a visa or allow a person to reside outside of an immigration detention facility. The committee reiterates its concerns that the effective grounds of judicial review of the immigration detention of 'unlawful non-citizens' are very limited. It therefore remains unclear to the committee that there are sufficient safeguards against the serious encroachment on personal rights and liberties imposed by the indefinite detention of a person under section 189 of the Migration Act 1958 (the Migration Act).
2.47 The committee welcomes amendments to the bill that allow for increased 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.
2.48 However, the committee continues to have significant scrutiny concerns that the immigration detention of persons affected by the bill will unduly trespass on fundamental personal rights and liberties. In light of the fact that the bill has passed both Houses of the Parliament, the committee makes no further comment on this matter.
2.49 In Scrutiny Digest 6 of 2021 the committee requested the minister's detailed advice as to why it is considered necessary and appropriate to provide for additional situations in which a 'protection finding' will be made in respect of a person in regulations.[28]
Minister's response
2.50 The minister advised:
The amendments to section 197C would include a power to prescribe additional circumstances that constitute a protection finding in the Migration Regulations.
A power to prescribe additional circumstances in the Migration Regulations is appropriate and necessary to preserve the Government's ability to meet its non-refoulement obligations in limited cases that may arise, which fall outside the circumstances enumerated in the Bill.
Without such a provision, the Government may be required by law to remove unlawful noncitizens in breach of Australia's non-refoulement obligations.
If Parliament passes the Bill, the Department will monitor the operation of the new framework and, if deemed desirable or necessary, extend the scope of 'protection finding' through amendments to the Migration Regulations. As amendments to these Regulations are disallowable, they will be accompanied by a Statement of Compatibility with Human Rights and subject to parliamentary scrutiny.
Committee comment
2.51 The committee thanks the minister for this response. The committee notes the minister's advice that a power to prescribe additional situations in which a 'protection finding' will be made in respect of a person in the Migration Regulations 1994 is appropriate and necessary to preserve the government's ability to meet its non-refoulement obligations in limited cases that may arise, which fall outside the circumstances enumerated in the bill. The minister also advised that without such a provision, the government may be required by law to remove unlawful noncitizens in breach of Australia's non-refoulement obligations.
2.52 The committee also notes the minister's advice that the department will monitor the operation of the new framework and extend the scope of 'protection finding' if necessary.
2.53 While noting the minister's advice, the committee does not consider that the response has provided a sufficient justification for allowing additional situations in which a 'protection finding' is made for a person to be prescribed in delegated legislation. The committee's concerns in this instance are heightened by the potential impact on personal rights and liberties of a person to whom these provisions apply, including being subject to indefinite immigration detention.
2.54 The committee also notes that 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.
2.55 Noting the limited explanation provided in the explanatory materials and the minister's response, the committee continues to have scrutiny concerns regarding leaving the scope of 'protection finding' to be expanded by delegated legislation. However, in light of the fact that the bill has already passed both Houses of the Parliament, the committee makes no further comment on this matter.
2.56 In Scrutiny Digest 6 of 2021 the committee requested the minister's advice as to the impact of this bill on any persons involved in current litigation, or who have been unlawfully detained based on the interpretation of sections 197C and 198 of the Migration Act in AJL20 v Commonwealth [2020] FCA 1305.[30]
Minister's response
2.57 The minister advised:
Section 197C was never intended to operate to require the removal of a person who has been found to engage Australia's non-refoulement obligations. The purpose of the Bill is to clarify that the duty to remove under the Migration Act should not be enlivened where to do so would breach non-refoulement obligations, as identified in a protection visa assessment process.
Subitem 4(3) relates closely to new subsections 197C(5) and (6). As explained in paragraphs 27 and 29 of the Explanatory Memorandum:
"27. The primary purpose of subsection 197C(5) is to ensure that protection findings are defined to include findings made by the Minister (or delegates of the Minister) in relation to protection visa applications decided prior to the commencement of these amendments and which may not use the precise wording of the current protection visa criteria, or reflect the order of consideration in new section 36A. This is to ensure that persons currently in Australia, and who have a protection finding from an earlier decision in respect of an application for a protection visa, are also protected by the amended section 197C from involuntary removal in circumstances that reflect Australia's nonrefoulement obligations.
29. The purpose of new subsection 197C(6) is to ensure that a protection finding is made for a non-citizen where a protection finding has been made in respect of a country within the meaning of subsection 197C(4) or (5) as well where non-refoulement obligations are identified as in respect of another country where the Minister was satisfied that subsection 36(4), (5) or (5A) applied to the non-citizen so that subsection 36(3) did not apply in relation to that country that is to say that there is no other country in respect of which the non-citizen has taken all reasonable steps to enter or reside in because protection obligations are engaged with respect to that non-citizen in that country or because that country will return the non-citizen a country in contravention of Australia's non-refoulement obligations."
In order for new subsections 197C(5) and (6) to operate as intended, protection findings made in relation to applications decided before the commencement of the amendments must be able to be considered.
Impact on AJL20 litigant
As noted above, 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. In 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.
Committee comment
2.58 The committee thanks the minister for this response. The committee notes the minister's advice that section 197C was never intended to operate to require the removal of a person who has been found to engage Australia's non-refoulement obligations. The committee also notes the minister's advice that the purpose of the bill is to clarify that the duty to remove under the Migration Act should not be enlivened where to do so would breach non-refoulement obligations, as identified in a protection visa assessment process.
2.59 The committee further notes the minister's advice that if the judgement in AJL20 v Commonwealth is overturned in the High Court, the bill will not have any effect on unlawful detention claims based on the case. The minister also advised that if the case is upheld, while the bill may prospectively validate a person's detention, it will not have a retrospective effect on any persons' unlawful detention claims.
2.60 The committee notes that it would have been helpful if the information provided by the minister was included in the explanatory memorandum. In light of the fact that the bill has already passed both Houses of the Parliament, the committee makes no further comment on this matter.
[22] Schedule 1, item 3. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[23] [2017] FCA 448; (2017) 253 FCR 576.
[25] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2021, pp. 19–22.
[26] The minister responded to the committee's comments in a letter dated 13 May 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 8 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.
[27] Schedule 1, item 3. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).
[28] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2021, pp. 22–23.
[29] Schedule 1, item 4. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[30] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2021, pp. 23–24.
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2021/125.html
