EXPLANATORY STATEMENT

Issued by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Migration Act 1958

Migration Amendment (Clarifying International Obligations for Removal) Regulations 2021 

The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence in, 
Australia of aliens, and the departure or deportation from Australia of aliens and certain other 
persons. 

Subsection 504(1) of the Migration Act provides that the Governor-General may make 
regulations, not inconsistent with the Migration Act, prescribing matters required or permitted to 
be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the 
Migration Act. 

Subsection 419(1) of the Migration Act provides that if an application for review of a decision 
under subsection 197D(2) of the Migration Act is made to the Administrative Appeals Tribunal 
(the Tribunal), the Tribunal must make its decision on review, and notify the applicant of the 
decision, within a prescribed period.

Subsection 197D(2) of the Migration Act, inserted by the Migration Amendment (Clarifying 
International Obligations for Removal) Act 2021, sets out the Minister's decision-making power 
in relation to certain individuals who were previously determined to have engaged protection 
obligations but are subsequently found by the Minister to no longer engage those obligations. 
Paragraph 411(1)(e) of the Migration Act provides that decisions under subsection 197D(2) are 
Part 7-reviewable decisions (as defined in section 411 of the Migration Act), reviewable by the 
Tribunal.

The Migration Amendment (Clarifying International Obligation for Removal) Regulations 2021 
(the Regulations) amend the Migration Regulations 1994 (the Migration Regulations). The 
amendments are consequential to the commencement of the Migration Amendment (Clarifying 
International Obligations for Removal) Act 2021.

The Regulations amend the Migration Regulations to prescribe a period of 120 days, for the 
purposes of subsection 419(1), for the Tribunal to make its decision in relation to review of a 
decision under subsection 197D(2) of the Migration Act - and to notify the applicant of that 
decision. This period would start when the application for review is received by the Tribunal, and 
would end at the end of 120 days starting on the first working day after the day on which the 
Tribunal received the application. 

The matters dealt with in the Regulations are appropriate for implementation in regulations rather 
than by parliamentary enactment. It is appropriate for matters of detail to be set out in delegated 
legislation. The Migration Act expressly provides for these matters to be prescribed in regulations.

A Statement of Compatibility with Human Rights (the Statement) has been completed in 
accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is 
that the Regulations are compatible with human rights. A copy of the Statement is at Attachment A. 

The Office of Best Practice Regulation (the OBPR) has been consulted in relation to the proposed 
amendments. The OBPR has advised that a Regulation Impact Statement is not required. The 
OBPR consultation reference number is 44080.

In addition, the Department has consulted the Tribunal and the Attorney-General's Department in 
relation to the Regulations, and their feedback has been considered. 

The Regulations commenced on the day after registration on the Federal Register of Legislation. 

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003. 

Further details of the Regulations are set out in Attachment B. 

				



ATTACHMENT A

Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Clarifying International Obligations for Removal) Regulations 
2021
This Disallowable Legislative Instrument is compatible with the human rights and freedoms 
recognised or declared in the international instruments listed in section 3 of the Human Rights 
(Parliamentary Scrutiny) Act 2011.

Overview of the Disallowable Legislative Instrument
The Disallowable Legislative Instrument prescribes the period for the Administrative Appeals 
Tribunal (the Tribunal) to decide certain applications for merits review, consequential to the 
commencement of the Migration Amendment (Clarifying International Obligations for 
Removal) Act 2021.
Relevantly, the Migration Amendment (Clarifying International Obligations for Removal) 
Act 2021 amended section 197C of the Migration Act 1958 (the Migration Act) to ensure that 
section 198 of the Migration Act does not require or authorise the removal of an unlawful 
non-citizen to a country in relation to which that unlawful non-citizen has been found to 
engage non-refoulement obligations through the protection visa process, by way of a 
'protection finding'. However, the amended section 197C of the Migration Act does permit 
the removal powers to operate where:
?	the decision in which the protection finding was made has been quashed or set 
aside;
?	the Minister makes a decision under new subsection 197D(2) that the unlawful 
non-citizen is no longer a person in respect of whom a protection finding would 
be made and merits review of that decision is complete; or 
?	the non-citizen requests, in writing, to be removed to that country. 
The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 also 
amended the Migration Act to provide for merits review of the decision under new subsection 
197D(2). Paragraph 411(1)(e) of the Migration Act provides that decisions under subsection 
197D(2) are 'Part 7-reviewable decisions' (as defined in the Migration Act), reviewable by 
the Tribunal. Subsection 419(1) of the Migration Act provides that if an application for 
review of a decision under subsection 197D(2) of the Migration Act is made to the Tribunal, 
the Tribunal must make its decision on review, and notify the applicant of the decision, 
within a prescribed period.
The purpose of this Disallowable Legislative Instrument is to amend the Migration 
Regulations 1994 (the Migration Regulations) to provide that the prescribed period for the 
Tribunal to make its decision in relation to review of a decision under subsection 197D(2) of 
the Migration Act - and notify the applicant of that decision - is 120 days. This period will 
start when the application for review is received by the Tribunal, and will end at the end of 
120 days starting on the first working day after the day on which the Tribunal received the 
application. Should this time period prove insufficient, subparagraph 419(2) of the Migration 
Act enables the Tribunal, with the applicant's consent, to extend this period to allow 
flexibility if the decision on review is particularly complex or other circumstances arise 
which may result in the Tribunal not meeting this timeframe.
Human rights implications
This Disallowable Legislative Instrument may engage rights relating to non-refoulement.
Article 3 of the Convention Against Torture and Other Cruel, Inhuman, or Degrading 
Treatment or Punishment (CAT) states:
No State Party shall expel, return ("refouler") or extradite a person to another State where 
there are substantial grounds for believing that he would be in danger of being subjected to 
torture.
Non-refoulement obligations also arise, by implication, in relation to Articles 6 and 7 of the 
International Covenant on Civil and Political Rights (ICCPR). 
Article 6 of the ICCPR states:
Every human being has the inherent right to life. This right shall be protected by law. No one 
shall be arbitrarily deprived of his life.
Article 7 of the ICCPR states:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or 
punishment. In particular, no one shall be subjected without his free consent to medical or 
scientific experimentation.
The primary purpose of the amendments made by the Migration Amendment (Clarifying 
International Obligations for Removal) Act 2021 was to clarify that the duty to remove under 
section 198 of the Migration Act is not enlivened where to do so would be in breach of 
non-refoulement obligations, as identified in a protection visa assessment process. Those 
amendments also included a merits review right for unlawful non-citizens who were 
previously determined to have engaged protection obligations (but who were not granted a 
visa, or had that visa cancelled, including because of character or security concerns) and are 
found, under new section 197D, to no longer engage those obligations. Further, the person is 
not subject to involuntary removal while merits review of that decision is ongoing. The 
merits review mechanism therefore further strengthens protections from removal where a 
person may engage non-refoulement obligations under the CAT and the ICCPR, as well as 
under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
Since this Disallowable Legislative Instrument implements aspects of this merits review 
process, it may also engage these rights.
Prescribing a period of 120 days in which the Tribunal must make its decision on review, and 
notify the applicant of that decision, helps ensure the Tribunal deals with such matters 
expeditiously and helps provide certainty for the review applicant about the period of time 
that may be taken by the Tribunal to make a decision on review. The proposed amendment 
does not preclude the Tribunal from making its decision at any stage before the end of the 
prescribed 120-day period. The prescribed period is intended to strike a balance between 
providing the Tribunal with an appropriate period to conduct a review of this nature with the 
need to provide certainty for the review applicant as soon as practicable, noting the review 
applicant may be in immigration detention while the review applicant is awaiting an outcome. 
Importantly, in the event the Tribunal is not able to make a decision, or notify the applicant of 
that decision, within the prescribed period, subparagraph 419(2) of the Migration Act 
provides that the Tribunal, with the applicant's consent, may extend this period. This 
provision provides flexibility if the decision on review is particularly complex or other 
circumstances arise which may result in the Tribunal not being able to make its decision or 
notify the applicant of its decision within the prescribed period.
Combined, these provisions ensure that a review of a decision under subsection 197D(2) of 
the Migration Act will be dealt with expeditiously, and the review applicant will have 
certainty as to the period that their review application will be finalised within, while ensuring 
that the Tribunal has sufficient time to consider complex circumstances and extend the time if 
need be. 
While the Disallowable Legislative Instrument prescribes the period for the Tribunal to make 
its decision (and notify the applicant of that decision) in relation to review of a decision under 
subsection 197D(2) of the Migration Act, a decision made after the expiry of the period, 
including where the review applicant has not consented to an extension, will still be a valid 
decision. Furthermore, involuntary removal will continue to not be authorised under the 
Migration Act while the Tribunal completes its review.
The amendments made by this Disallowable Legislative Instrument to implement aspects of 
the merits review process do not limit, and may assist in promoting, protections from 
refoulement. 
Conclusion 
This Disallowable Legislative Instrument is compatible with human rights. 

The Hon. Alex Hawke MP,
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs 












ATTACHMENT B

Details of the Migration Amendment (Clarifying International Obligations for Removal) 
Regulations 2021 

Section 1 - Name
This section provides that the title of the Regulations is the Migration Amendment (Clarifying 
International Obligations for Removal) Regulations 2021.
Section 2 - Commencement 
This section provides for the commencement of each provision in the Regulations, as set out 
in the table immediately below subsection 2(1), on the day after the Regulations are 
registered. 
Subsection 2(2) provides that the information in column 3 of the table is not part of the 
Regulations. It is intended to assist readers of the Regulations. 
Section 3 - Authority 
This section provides that the Regulations are made under the Migration Act 1958 
(the Migration Act).
Section 4 - Schedules 
This section provides that each instrument that is specified in a Schedule to the Regulations is 
amended or repealed as set out in the applicable items in the Schedule concerned. Any other 
item in a Schedule to the Regulations will have effect according to its terms. 
Schedule 1 to the Regulations amends the Migration Regulations 1994 (the Migration 
Regulations). 
Schedule 1 - Amendments 
Item [1] - After regulation 4.34
This item inserts new regulation 4.34A, which prescribes, for the purposes of subsection 
419(1) of the Migration Act, the period in which the Tribunal must make its decision on 
review of a decision under subsection 197D(2), and notify the applicant of the decision.
Paragraph 4.34A(a) specifies that for the purposes of subsection 419(1) of the Migration Act, 
the prescribed period starts when the application for review is received by the Tribunal.
Paragraph 4.34A(b) specifies that for the purposes of subsection 419(1) of the Migration Act, 
the prescribed period ends at the end of 120 days, starting on the first working day after the 
day on which the application is received by the Tribunal.



The note immediately below regulation 4.34A makes clear that subsection 419(1) of the 
Migration Act provides for the Migration Regulations to limit the time in which the Tribunal 
must review a decision under subsection 197D(2) of the Migration Act that an unlawful 
non-citizen is no longer a person in respect of whom a protection finding would be made.
Prescribing a period of 120 days in which the Tribunal must make its decision on review, and 
notify the applicant of that decision, provides certainty for the review applicant about the 
period of time that may be taken by the Tribunal to make a decision on review. The 
amendment does not preclude the Tribunal from making its decision at any stage before the 
end of the prescribed 120-day period. The prescribed period is intended to strike a balance 
between providing the Tribunal with an appropriate period to conduct a review of this nature, 
with the need to provide certainty for the review applicant as soon as practicable, noting the 
review applicant may be in immigration detention while awaiting the Tribunal's decision.
In the event the Tribunal is not able to make a decision, or notify the applicant of that 
decision, within the prescribed period, subsection 419(2) of the Migration Act provides that 
the Tribunal may, with the agreement of the applicant, extend the period for the purposes of a 
particular application. This provision provides flexibility if the decision on review is 
particularly complex, or other circumstances arise which may result in the Tribunal not being 
able to notify the applicant of its decision within the prescribed period. 
Any extension to such period must be agreed by the affected unlawful non-citizen (the review 
applicant). Should the situation arise whereby the prescribed period ends before the Tribunal 
makes its decision, and the review applicant does not agree to extend the period, this does not 
result in the original decision under subsection 197D(2) being taken to be affirmed. 

 
 
 
 


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