Explainer: Migration Amendment (Removal and Other Measures) Bill 2024
This summary outlines the key provisions of the Migration Amendment (Removal and Other Measures) Bill 2024 (the Bill) and provides a brief analysis of its operation. The Bill amends the Migration Act 1958 (Cth) (the Act) to create a new regime to permit the Minister to direct certain people to take steps to facilitate their removal from Australia. It also prohibits nationals from certain countries from making a valid application for any visa to come to Australia.
Who does the Bill apply to?
The Bill is directed to persons who are subject to removal from Australia as soon as reasonably practicable, including current and future holders of a Bridging “R” visa (BVR) and certain holders of a Bridging “E” visa (BVE). It includes people who have been found to engage Australia’s protection obligations, such as refugees. The Bill designates this group as “removal pathway non-citizens”.[1]
What does the Bill do?
New power for Minister to direct steps towards removal
Under the Bill, the Minister may direct a “removal pathway non-citizen” to do a thing, or not do a thing, if the Minister is satisfied it is reasonably necessary to determine whether there is a real prospect of the person’s removal becoming practicable in the reasonably foreseeable future or to facilitate the person’s removal.[2]
The Minister may also direct the person to:[3]
complete, sign and submit an application for a passport, travel-related document or foreign travel document;
complete, sign and submit any other document or form required to facilitate travel;
provide documents or information to an officer or another person;
attend an interview or appointment with an officer or another person; and
report in person to an officer or another person.
Who can a direction be issued to?
A direction can be issued to a “removal pathway non-citizen”.
However, a direction cannot be issued to a person who is subject to a substantially similar direction as a condition of their BVR, unless the Minister withdraws that condition or confirms that the person has complied with that condition.[4]
Directions are also prohibited to children under 18 years. However, the Minister may make a direction in relation to a child if the child’s parent or guardian is a “removal pathway non‑citizen”.[5]
What cannot be included in a direction?
A direction cannot be issued requiring a person to do, or not do, a thing if the person has applied for a protection visa and that application has not been finally determined.[6]
The Minister must not direct a person not to make a visa application or to withdraw an application, or in relation to the conduct of court or tribunal proceedings, including the commencement of such proceedings.[7]
Further, the Minister must not make a direction in relation to a country to which the person cannot be removed because of s 197C(3) of the Act.[8] The effect of this provision is that the Minister cannot require a person to do things to facilitate their removal to a country in relation to which they have a “protection finding” (as that term is used in s 197C(3), see also below the new power to reverse a protection finding). That includes a country in which the person has a well‑founded fear of persecution as a refugee, or where the person would suffer an arbitrary deprivation of their life, the death penalty, or be subjected to torture, cruel, inhuman or degrading treatment or punishment.
New offence for non-compliance with a direction
The Bill introduces a new criminal offence for a failure to comply with a direction. The offence has a penalty of 5 years’ imprisonment or 300 penalty units (or both). There is a mandatory minimum sentence of at least 12 months’ imprisonment.[9]
The offence does not apply if the person has a reasonable excuse. However, it is not a reasonable excuse that the person has a genuine fear of suffering persecution or significant harm if removed to a particular country; is, or claims to be, a person in respect of whom Australia has non-refoulment obligations; or believes that they would suffer other adverse consequences if required to comply with the direction.[10]
New prohibition on certain visa applications
The Bill also prohibits a valid visa application from a person who is outside Australia and who is a national of a “removal concern country”. The Minister may personally designate a country as a “removal concern country” if the Minister thinks it is in the national interest to do so. The Minister must first consult with the Prime Minister and the Minister administering the Diplomatic Privileges and Immunities Act 1967 (Cth) (ordinarily, the Minister for Foreign Affairs). A copy of the designation must be laid before the Parliament with a statement of the Minister’s reasons.
The rules of natural justice do not apply to the designation of a country.[11]
The new prohibition on visa applications does not apply if the visa applicant:[12]
is a national of a country that is not a removal concern country and holds a current passport for that other country;
is the spouse, de facto partner or dependent child of an Australian citizen, permanent visa holder or person who is usually resident in Australia with their continued presence not subject to limitation as to time imposed by law;
is the parent of a child in Australia who is under 18 years;
is applying for a Refugee and Humanitarian (Class XB) visa; or
the person is included in a class of persons, or the application is for a class of visas, determined by the Minister.
In addition, the Minister may personally determine that the prohibition on visa applications does not apply to a person if the Minister thinks it is in the public interest to do so. However, the Minister does not have a duty to consider whether to exercise this power in respect of any particular visa applicant, even if requested to do so.[13]
New power to reverse a protection finding
The Bill permits the Minister to reverse a protection finding made during the assessment of a person’s protection visa application if the Minister is satisfied that a protection finding would no longer be made in relation to the person.[14]
Analysis of the Bill
The Bill is the latest in the Labor government’s rushed legislative response to the High Court ruling in NZYQ. This section sets out top-line criticisms of the Bill, noting that further analysis is likely to follow over the coming days.
1. Criminalising Refugees
The Bill criminalises non-cooperation with removal by a ‘removal pathway non-citizen,’ punishable with up to 5 years’ imprisonment with a minimum mandatory sentence of 12 months, irrespective of whether the person genuinely fears harm or is otherwise medically unable to cooperate with their removal. Those provisions will apply to people who have serious and legitimate claims for protection. They risk serious non-compliance with Australia’s obligations under the Refugee Convention as well as other international instruments.
A significant number of people currently in indefinite immigration detention have had their claims refused through the broken and defective ‘fast-track’ assessment process. This includes ASF17 – an Iranian man at the centre of a new High Court challenge, who has been detained for a decade.[15] It also includes AZC20 – another Iranian man who was detained for close to eleven years, and had sought to intervene in the High Court proceeding in ASF17.[16] Both men had their claims refused through the ‘fast track’ process but hold a genuine fear of harm if returned to Iran.
The ‘fast track’ process has been subject to extensive international criticism,[17] that have been rightly acknowledged by the Labor government as neither fair, thorough nor robust,[18] resulting in the abolition of the ‘fast track’ review system with effect from 1 July 2024. The Bill further penalises the victims of the ‘fast track’ system, whose claims for protection have never been properly or fairly addresses.
2. Compounding Indefinite Detention
The Bill will create a ‘roundabout’ regime that will compound indefinite detention of certain people. It will allow for people who genuinely fear harm, or who are medically unfit to cooperate with their removal, to be imprisoned for up to five years, and then presumably returned to detention. But as the experience of ASF17 and AZC20 shows, people who hold a genuine fear of harm in their home country or are medically unfit for removal cannot be coerced into cooperation simply by prolonging their detention. Neither the Bill, nor any other aspect of the government’s response to NZYQ, contemplates a mechanism to review ongoing and indefinite detention, or to order the release of people from detention into the community. Instead, the measures enacted by the government, including those proposed in the Bill, will compound the practice of indefinite detention and further penalise and harm those subject to it.
3. Imposing a “travel ban”
The broad prohibition on visa applications from almost all nationals of certain countries will stop refugees from entering Australia, contrary to our international obligations. The limited and narrow exceptions in the Bill will not be available to most people seeking Australia’s protection.
The Bill also circumvents existing protection findings determined under Australian law, by allowing the Minister to “reverse” those decisions, paving the way for people to be deported to countries where they face persecution or significant harm.
4. Separation of families
The Bill deliberately separates families. The Minister can require a person to comply with a direction in relation to their removal, irrespective of the impact this would have on their spouse, children or other family members. It is extraordinary that the Minister is authorised to direct a person in relation to their own child.
In addition, the broad prohibition that prevents almost all people from designated countries from applying for any visa to come to Australia will inevitably and permanently separate families, including those fleeing conflict and war.
5. Expansion of “god-like" ministerial powers
The Bill significantly expands the powers of the Minister with no adequate safeguards. Under the Bill, the Minister can unilaterally – subject only to consultation with the Prime Minister and Minister for Foreign Affairs – designate a country to be a “removal concern country”, with the effect that almost all nationals from that country are prohibited from applying for any visa to come to Australia. And it is only the Minister who can decide in individual cases to lift that prohibition, but the Minister is under no duty to even consider a request. This is a dangerous and unjustified extension of the Minister’s broad suite of “god-like” powers.
Dated: 26 March 2024
[1] ^199B of the Act. See also item 5 in the Bill. Note that ^ indicates that the provision is proposed to be inserted into the Act.
[2] ^199C(2) of the Act.
[3] ^199C(1) of the Act.
[4] ^199D(3) of the Act.
[5] ^199D(4)-(5) of the Act.
[6] ^199D(2) of the Act.
[7] ^199D(6) of the Act.
[8] ^199D(1) of the Act.
[9] ^199E(1)-(2) of the Act.
[10] ^199E(3)-(4) of the Act.
[11] ^199F of the Act.
[12] ^199G(1)-(3) of the Act.
[13] ^199G(4)-(8) of the Act.
[14] Schedule 2 to the Bill.
[15] Appellant’s Submissions in ASF17 v Commonwealth of Australia (P7/2024) https://www.hcourt.gov.au/assets/cases/07-Perth/p7-2024/ASF17-Cth-App.pdf.
[16] ‘Human Rights Law Centre to intervene in High Court Challenge to indefinite detention on behalf of client AZC20’ 26 March 2024 https://www.hrlc.org.au/news/2024/3/26/hrlc-high-court-challenge-indefinite-detention-azc20.
[17] See UNHCR Refugee Agency, Fact Sheet on the Protection of Australia’s So-Called "Legacy Caseload” Asylum Seekers, 1 February 2018. The UNHCR expressed concerns that the fast track review process lacked procedural safeguards, thereby denying asylum seekers a fair and efficient protection assessment process. The UNHCR also criticised the fast track process for denying asylum seekers the right to appear in person and address any negative credibility issues affecting their application. The process was also criticised for imposing shorter timeframes for determination and a limited form of merits review - indeed, many asylum seekers were denied a merits review altogether, a move which the Australian Parliamentary Joint Committee on Human Rights noted “is incompatible with Australia‘s obligations on non-refoulement”. Ultimately, the process lacked the appropriate safeguards and flexibility to ensure that those persons in need of international protection were fairly and accurately assessed and identified.
[18] Australian Labor Party, ALP National Platform 2021 as adopted at the 2021 Special Platform Conference, https://alp.org.au/media/2594/2021-alp-national-platform-final-endorsed-platform.pdf.