Chapter 1Introduction
1.1On 27 March 2024, the Senate referred the Migration Amendment (Removal and Other Measures) Bill 2024 (theBill) to the Legal and Constitutional Affairs Legislation Committee (thecommittee) for inquiry and report by 7 May 2024.
1.2The Bill would amend the Migration Act 1958 (the Migration Act) to strengthen the legislative framework relating to the removal from Australia of certain non‑citizens who are on a removal pathway.
Conduct of the inquiry and acknowledgement
1.3In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to organisations and individuals, inviting them to make a submission by 12 April 2024. The committee received and published 121 submissions from organisations, which are listed at Appendix 1. As at the time of drafting, the committee also received a large volume of submissions from individuals, which the committee intends to publish.
1.4The committee held a public hearing in Canberra on 15 April 2024. A list of the witnesses who appeared at the hearing is at Appendix 2. The committee also accepted into evidence the transcript of a public hearing held on 26 March 2024 prior to the referral of the inquiry (see ‘Purpose of the Bill’ below).
1.5The committee thanks those individuals and organisations who made submissions and who gave evidence at the public hearing, especially given the short timeframe for this inquiry.
Structure and scope of the report
1.6This report comprises two chapters:
Chapter 1 identifies the key provisions of the Bill and notes its consideration by other parliamentary committees; and
Chapter 2 examines some of the key concerns raised in relation to the Bill, before setting out the committee’s findings and recommendations.
Note on references
1.7In this report, references to the Committee Hansard are to the proof (that is, uncorrected) transcript. Page numbers may vary between the proof and the official transcript.
Purpose of the Bill
1.8The Bill was drafted in consultation with relevant agencies and introduced into the Parliament on 26March 2024. In his second reading speech, the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister), the Hon Andew Giles MP, described the key provisions’ primary purpose, as follows:
There are currently noncitizens in Australia who have exhausted all visa pathways to stay in Australia, who have been found not to be owed protection, but who refuse to engage with their home country to undertake actions like applying for a passport or attending meetings with officials from that country.
Unfortunately, examples of noncooperation with the government's removals efforts have been going on for far too long, against the expectations of the Australian community and undermining the integrity of our migration laws.
The government is determined to address this issue and to ensure this key aspect of our immigration system is better, stronger and fairer.
1.9While the Bill was being passed in the Lower House, the Opposition in the Senate successfully moved a motion to direct the committee to hold a public hearing later that day, of not less than two hours, for the purpose of hearing from officials from the Department of Home Affairs (Home Affairs) regarding the details of the Bill.
1.10The following day, on 27 March 2024, the Opposition supported a motion by the Australian Greens to refer the Bill to the committee for inquiry and report. During debate on the motion, Senator the Hon Katy Gallagher described the Bill as ‘urgent’ and noted advice from the Home Affairs’ Secretary, Ms Stephanie Foster, at the 26 March 2024 public hearing:
We have been working really hard on improving the integrity of the migration system over the last 12 to 18 months. As we're identifying gaps in our system, we are moving as quickly as we can to fill those gaps. This is one which we believe is a significant issue to resolve within our migration system for its broader integrity.
1.11At the 26 March 2024 public hearing, Senator the Hon Tim Ayres reiterated that the Australian government is acting to strengthen the government’s powers to remove from Australia people who should leave Australia:
…protecting the integrity of the immigration system is urgent national interest business...The government has acted in an orderly way. It is straightforward, and it ought to be passed by the parliament urgently.
1.12Home Affairs Secretary, Ms Stephanie Foster, added that ‘we have an obligation to try and effect the removal of people who should be removed, who have exhausted all avenues and who no longer have a legal right to remain in Australia’.
Key provisions
1.13The Bill comprises two schedules: Schedule 1 sets out the ‘main’ amendments to the Migration Act; Schedule 2 sets out the ‘other’ amendments to the Migration Act. The key amendments in each schedule are outlined below.
Duty to cooperate in relation to removal and ‘removal concern countries’
1.14Item 3 in Schedule 1 of the Bill would insert new Subdivision D into Division 8 of Part 2 of the Migration Act. According to the Explanatory Memorandum (EM):
The provisions in this Subdivision collectively strengthen the existing legislative framework in the Migration Act in relation to removal, by establishing new powers to address circumstances in which certain non‑citizens who are on a removal pathway, and who have no valid reason to remain in Australia, are not cooperating with removal efforts.
Express intention of the Parliament
1.15Proposed section 199A of the Migration Act would set out a legislative expectation in relation to the behaviour of a ‘removal pathway non-citizen’ (asdefined, see ‘Definition of ‘removal pathway non-citizen’’ below), as well as an expectation in relation to foreign countries.
1.16Proposed subsection 199A(1) would set out the expectation that a removal pathway non-citizen:
(a) will voluntarily leave Australia; and
(b) if the non-citizen does not voluntarily leave Australia, will cooperate with steps taken under this Act for the purposes of arranging the non‑citizen’s lawful removal from Australia; and
(c) will not attempt to obstruct or frustrate the non-citizen’s lawful removal from Australia.
1.17Proposed subsection 199A(2) would set out a legislative expectation that ‘aforeign country will cooperate with Australia to facilitate the lawful removal from Australia of a non-citizen who is a national of that country’.
Definition of ‘removal pathway non-citizen’
1.18Proposed subsection 199B(1) would define the term ‘removal pathway non‑citizen’ to mean:
(a) an unlawful non-citizen who is required to be removed from Australia under section 198 as soon as reasonably practicable [people without a visa, such as those in detention];
(b) a lawful non-citizen who holds a Subclass 070 (Bridging (Removal Pending)) (BVR) visa;
(c) a lawful non-citizen who:
(i)holds a Subclass 050 (Bridging (General)) (BVE) visa; and
(ii)at the time the visa was granted, satisfied a criterion for the grant relating to the making of, or being subject to, acceptable arrangements to depart Australia;
(a)a lawful non-citizen who holds a visa prescribed for the purposes of this paragraph.
1.19According to Home Affairs, there are about 150–200 people in the first category, many of whom are in detention because of character concerns, and 152 people in the community on BVRs. The number of people in the third category are more difficult to quantify, as people are on BVEs for many different reasons and the precise number is fluid. However, the number of people in this category is currently 4463 of whom about 1200 might present issues for departure of the person does not voluntarily engage.
1.20The EM acknowledged that the term ‘removal pathway non-citizen’ is broader than the term ‘unlawful non-citizens’ (as defined, section 14 of the Migration Act) who are required to be removed under section 198 of the Act. It explained that, following the case of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, many non‑citizens were released from immigration detention on Subclass 070 (Bridging (Removal Pending)) visas (BVRs):
The intention [of proposed new subsection 199B(1)] is that lawful non‑citizens who hold a BVR should be required to cooperate with efforts to facilitate their removal, or to determine whether there is a real prospect of their removal becoming practicable in the reasonably foreseeable future.
1.21The EM also explained that there is a long-standing practice of granting Subclass 050 (Bridging (General)) visas (BVE (050) to certain non-citizens who are on a removal pathway. The term ‘removal pathway non-citizen’ is intended to facilitate the removal of this cohort, by capturing visa holders who, at the time the visa was granted, satisfied a criterion relating to them making acceptable arrangements to depart Australia.
Minister may give ‘removal pathway directions’
1.22Proposed section 199C would provide the Minister with discretionary direction powers: the Minister may, by written notice given to a removal pathway non‑citizen, direct the non-citizen to:
do one or more of the things specified in proposed subsection 199C(1);
do or not do a thing, if the Minister is satisfied that the non-citizen doing, or not doing, the thing is reasonably necessary to:
(a)determine whether there is a real prospect of the removal of the non‑citizen from Australia under section 198 becoming practicable in the reasonably foreseeable future; or
(b)facilitate the removal of the non-citizen from Australia under that section [proposed subsection 199C(2)].
1.23According to the EM, these ‘removal pathway directions’ (as defined in proposed subsections 199C(1)–(2)) are intended to support proposed section 199A of the Migration Act.
Circumstances in which the Minister must not give a removal pathway direction
1.24Proposed section 199D would set out the circumstances in which the Minister must not give a removal pathway direction under proposed section 199C. These circumstances include, for example:
to a removal pathway non-citizen, to do, or not do, a thing in relation to a particular country, if the person is an unlawful non-citizen who cannot be removed to that country because of a protection finding under subsection 197C(3) (proposed subsection 199D(1));
to a non-citizen who has made a valid application for a protection visa and the application is not yet finally determined (proposed subsection 199D(2));
to a non-citizen who is a child under 18 years of age, however, the direction may be given to the child’s parent or guardian if they are a removal pathway non-citizen (proposed subsection 199D(4)–(5)).
1.25The EM describes the provisions in proposed section 199D of the Migration Act as ‘appropriate safeguards in relation to the exercise of [the Minister’s powers under proposed section 199C]’.
Offence for non-compliance with removal pathway direction
1.26Proposed section 199E would create the following offence for non‑compliance with a removal pathway direction:
(1) A person commits an offence if:
(a)the person is a removal pathway non-citizen; and
(b)the person is given a removal pathway direction; and
(c)the direction has not been revoked; and
(d)the person refuses or fails to comply with the direction.
Penalty: 5 years imprisonment or 300 penalty units [$93 900], or both.
(2) If a person is convicted of an offence under subsection (1), the court must impose a sentence of imprisonment of at least 12 months.
Exception
(3) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
1.27Proposed subsection 199E(4) would set out three matters that cannot be relied on by a person as a ‘reasonable excuse’ defence. It would not be a reasonable excuse that the person:
(a) has a genuine fear of suffering persecution or significant harm if the person were removed to a particular country; or
(b) is, or claims to be, a person in respect of whom Australia has non‑refoulement obligations; or
(c) believes that, if the person were to comply with the removal pathway direction, the person would suffer other adverse consequences.
1.28The EM notes that proposed section 199D would ‘constrain’ the Minister’s power to make a removal pathway direction, where a non-citizen is subject to a protection finding or has applied for a protection visa (proposed subsections 199D(1)–(2)). However:
…where no such limitation is engaged, subsection 199E(4) makes it clear that certain subjectively-held fears do not amount to a ‘reasonable excuse’ for the purposes of subsection 199E(3).
1.29In his second reading speech, the Minister reiterated:
…these amendments are targeted at noncitizens who have come to the end of any visa application processes and who are on a removal pathway. These individuals may be unlawful noncitizens who have exhausted their visa processing options and who are being held in immigration detention. Orthey may be in the community on a bridging visa that is issued for removal purposes. It is imperative that individuals who are on a removal pathway cannot be allowed to frustrate the government and the Australian people by refusing to cooperate with their removal from Australia.
Designation of removal concern country
1.30Proposed subsection 199F(1) would provide the Minister with a non-delegable discretionary power to designate a country as a ‘removal concern country’ (asdefined), if the Minister thinks it is in the national interest to designate the country to be a removal concern country.
1.31The Minister stated that this ‘significant measures’ is regrettable but necessary:
…some countries will not allow their nationals to return to their home country. This is unless the person being removed is voluntarily cooperating with removal efforts. The main objective of this designation is to gain the cooperation of that country in accepting and facilitating the removal from Australia of their citizens. The power to designate a country of removal concern is an appropriate and proportionate measure to safeguard the integrity of Australia's migration system.
1.32The EM explains that, if a country is designated as a removal concern country:
…the designation would have the effect, by operation of law, that a non‑citizen who is a national of a removal concern country and who is outside Australia cannot, subject to certain exceptions, make a valid application for a visa while the designation is in force.
1.33Proposed subsection 199F(2) would create two pre-conditions on the exercise of the power: the Minister must first consult with the Prime Minister and the Minister for Foreign Affairs.
1.34The EM states that the proposed provision ensures:
…the Minister’s consideration of the national interest and thinking in relation to making the designation is appropriately informed by Australia’s national interest and the national and international implications of the exercise of the power and its effect, including under new section 199G.
1.35Proposed new subsection 199F(5) would provide that the rules of natural justice do not apply to the exercise of the power under proposed subsection 199F(1).
1.36According to the EM:
This is consistent with the characterisation of the power as a legislative rather than administrative power, and is consistent with other powers enabling the Minister to make a legislative instrument. The tabling requirements in new subsections 199F(6) to (8) also provide for appropriate accountability to the Parliament following the exercise of this legislative power.
1.37Proposed new subsection 199F(6) would require the Minister to lay before each House of the Parliament a copy of the designation and a statement of reasons for thinking it is in the national interest to designate the country to be a removal concern country.
Visa applications by certain nationals of a removal concern country
1.38Proposed subsection 199G(1) would provide:
(1) An application for a visa by a non-citizen is not a valid application if, at the time the application is made:
(a)the non-citizen is a national of one or more removal concern countries; and
(b) the non-citizen is outside Australia.
1.39Proposed subsection 199G(2) would set out exceptions to the bar on visa applications, including an application for a visa by a non-citizen if:
(e) the non-citizen is included in a class of persons determined in an instrument made under subsection (3) of this section; or
(f) the application is for the grant of a visa of a class determined in an instrument made under subsection (3) of this section.
1.40Proposed subsection 199G(3) would provide the Minister with discretionary power to determine a class of persons for the purposes of proposed paragraph 199G(2)(e) or a class of visa for the purposes of proposed paragraph 199G(2)(f).
1.41According to the EM,
In the event that a country is designated under subsection 199F(1) as a removal concern country, it is envisaged that a legislative instrument made under subsection 199G(3) for the purposes of paragraphs 199G(2)(d) [sic] and/or (e) could specify a range of additional classes of persons or classes of visas to ensure that the exercise of the designation power does not conflict with Australia’s international obligations, or for any other purpose.
1.42The EM also states:
Designating a country as a removal concern country, and imposing a bar on new visa applications from non-citizens outside Australia who are nationals of a country that does not accept removals reflects the Government’s expectation that a foreign country will cooperate with Australia to facilitate the lawful removal of a non-citizen who is a national of that country. It is an appropriate and proportionate measure to safeguard the integrity of Australia’s migration system, available if necessary to act in the national interest to slow down that entry pipeline into Australia and reduce growth in the cohort of potentially intractable removals over time. The designation would also ensure the removal concern country is aware of Australia’s concerns in relation to the removal of the country’s nationals from Australia where they have no valid reason to remain, and Australia’s expectations of cooperation by that country in relation to the prompt and lawful removal of its nationals.
1.43The Minister highlighted the proposed visa application measure is not unique to Australia and is already in place in at least two other countries:
It's important to note that the United States has a similar system in place to suspend visa grants for what they refer to as 'recalcitrant countries'. And in 2022 the UK also legislated for a similar scheme, which allows the Home Secretary to suspend or delay visa processing from countries which do not cooperate with removal of their citizens from the UK, or deem visa applications from these countries as invalid. So what we are proposing is in line with similar countries around the world.
Privative clause
1.44Item 4 in Schedule 1 of the Bill would amend paragraph 474((7)(a) of the Migration Act, to include proposed section 199G as a privative clause decision. A privative clause is a provision that seeks to protect certain decisions from judicial review.
1.45The EM explains that, in context, ‘a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under section 199G’ would not be subject to judicial review.
Revisitation of protection findings
1.46Items 4–7 in Schedule 2 of the Bill would amend section 197D of the Migration Act. According to the EM, these amendments would enable a protection finding to be revisited for a broader range of non-citizens, than is provided for under current section 197D:
As well as unlawful non-citizens to whom section 198 applies, amended section 197D now applies to removal pathway non-citizens, including holders of Subclass 070 (Bridging (Removal Pending)) visas and Subclass 050 (Bridging (General)) visas granted on ‘final departure’ grounds. Where the circumstances of the person or the country in relation to which a protection finding has been made have changed, it may be necessary to revisit the protection finding. If under subsection 197D(2) a decision is made to set aside the protection finding, the removal of the non-citizen will, or would, no longer be prevented by subsection 197C(3).
1.47The EM emphasises:
The focus of this amendment, and this Bill, is on facilitating the lawful removal of non-citizens who are on a removal pathway, and apply only in circumstances where a protection finding has not been made in relation to the non-citizen, or where the Minister determines that a non-citizen is no longer a person in respect of whom any protection finding would be made.
1.48The Minister noted that, following a recent decision of the High Court of Australia:
…we now face circumstances in which [section 197D] needs to be expanded to certain noncitizens who hold a visa—particularly BVR holders. Without this amendment, the act would not provide a means to revisit a protection finding while a removal pathway noncitizen is in the community on a visa. If the government is to ensure that BVR holders and other noncitizens on a removal pathway are able to be removed as soon as it becomes reasonably practicable to do so, it is essential the minister has the ability to revisit protection findings.
1.49The EM describes the amendments in Schedule 2 of the Bill as ‘minor and technical’.
Examination by other parliamentary committees
1.50When examining a bill or bills, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee).
1.51The Scrutiny of Bills Committee assesses legislative proposals against a set of accountability standards that focus on the effect of proposed legislation on individual rights, liberties and obligations, the rule of law and on parliamentary scrutiny.
1.52The Scrutiny of Bills Committee examined the Bill and noted that there might be concerns in relation to four matters: undue trespass on individual rights and liberties; significant matters in delegated legislation; broad discretionary powers; and parliamentary scrutiny.
1.53As in the Chamber, the Scrutiny of Bills Committee commented on the ‘truncated’ time between the introduction of the Bill and the committee’s public hearing on 26 March 2024. In its view, this may have impacted the ability of senators, as well as the Scrutiny of Bills Committee, to meaningfully engage with the Bill and to fully scrutinise its proposed provisions:
The committee is of the view that truncated parliamentary processes by their nature limit parliamentary scrutiny and debate. This is of particular concern in relation to bills that may seriously impact on personal rights and liberties.
1.54The Scrutiny of Bills Committee concluded:
While the procedure to be followed in the passage of legislation is ultimately a matter for each house of the Parliament, the committee reiterates its consistent scrutiny view that legislation, particularly legislation that may trespass on personal rights and liberties, should be subject to a high level of parliamentary scrutiny.
1.55The Human Rights Committee examines bills and legislative instruments for compatibility with human rights and reports its findings to both Houses of Parliament. The Human Rights Committee reported that multiple rights are engaged and limited by the key proposals in the Bill, including, for example, the right to liberty and a fair trial, the right to protection of the family and rights of the child, and non‑refoulement.
1.56According to the EM, the Bill is compatible ‘in most respects’ with the human rights and freedoms that are required to be examined by the Human Rights Committee: ‘to the extent that the measures in this Bill limit human rights, they do so in order to maintain the integrity of the migration system’.
1.57Chapter 2 of this report further discusses some of the issues raised by the Scrutiny of Bills Committee and the Human Rights Committee.