In introducing the Coalition’s latest piece of migration law reform, current immigration minister Alex Hawke noted the changes clarify that the removal power in the Migration Act 1958 (the Act) doesn’t require the return of refugees to their country of origin if facing potential harm or persecution.
However, in his distinctly brief explanation during his second reading speech on the bill, the minister failed to acknowledge that another implied outcome of this reform is that it empowers the federal government to hold people in indefinite immigration detention – potentially for life.
The Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (the Amendment) was rushed through both houses last week with bipartisan approval. Yet, it hadn’t been put to review and nor were concerns raised by parliamentary committees addressed.
The major changes involved adding clauses to section 197C of the Act, which state that in cases where a “protection finding” has been made in relation to a noncitizen, the government is not required to return them to their country of origin under removal of unlawful noncitizen powers.
The Amendment’s explanatory memorandum explains that two cases necessitated the changes: 2017’s DMH16 that found section 197C did oblige return to country of origin and 2020’s AJL20, which involved the release of a long-term immigration detainee as he couldn’t be sent back to Syria.
“It’s very difficult to read the government’s ulterior motive,” said National Justice Project director George Newhouse. “On the face of it, they argue that this simply enacts into law their international obligation not to refoul individuals.”
“But that explanation hides their real motives, which is to ensure that the embarrassment that they suffered in the case of AJL20 does not happen again,” he added.
“The implication of that is they will be able to hold immigration detainees that can’t be refouled indefinitely in detention.”
In his speech on the Amendment, Hawke notes that it also inserts new section 36A into the Act, which requires the minister to make a record of a noncitizen’s protection assessment. Although the minister and the explanatory memorandum fail to make any mention of a further significant change.
New section 197D of the Act stipulates that if a noncitizen has been found to be protected and, therefore, can’t be returned because of the amendments to section 197C, the minister can now reassess their protection status and if they’re satisfied it no longer stands, revoke it.
“The minister is now creating a power to reverse a decision that a person needs protection from harm, discrimination or death,” Newhouse told Sydney Criminal Lawyers. “Essentially, the minister now has the power to revoke refugee status.”
The case at hand
AJL20 was a Federal Court case involving a 29-year-old Syrian man, who’d migrated as a child in 1996. The long-term resident had spent six years in immigration detention as he’d been classed as an unlawful noncitizen, which requires automatic deportation “as soon as reasonably practicable”.
The man’s visa was cancelled in 2014 under the character grounds test contained in section 501 of the Act. The test requires the automatic cancellation of a noncitizen’s visa if they fail it. However, the man couldn’t be returned to Syria due to our nation’s non-refoulement obligations.
The 1951 Refugee Convention involves the principle of non-refoulement, which prohibits states from returning refugees to the country from which they fled, when it entails a genuine risk of irreparable harm. And as Australia has ratified the Convention, it’s obliged to follow this principle.
In AJL20, Human Rights for All principal Alison Battisson argued that under the principle of habeas corpus there needs to be a reason for detaining someone, and if her client was being held to be returned to Syria, the Act required this to be done promptly despite non-refoulement.
So, the young man had to be released back into the community as the government had not demonstrated a genuine purpose for detaining him as it wasn’t going to send him back to Syria.
In the wake of the Amendment’s passing, a few grassroots refugee rights activists have remarked that they thought the federal government already had the power to lock up refugees and noncitizens indefinitely, pointing to Nauru and Manus where some are still detained eight years on.
“This government believes it has the power to detain anyone without a visa in this country,” Newhouse said. “But that doesn’t apply to two classes of people. The first is people of Aboriginal heritage who weren’t born here and have had their citizenship stripped or never had it.”
In the 2020 High Court case Love and Thoms, it was found that constitutional powers pertaining to aliens do not apply to First Nations people born overseas and, therefore, laws that target the detaining and deportation of noncitizens within the Act don’t pertain to these people.
The second class of people Newhouse pointed to were protected noncitizens being detained long-term who, as in the case of the Syrian man in AJL20, are slated for deportation but can’t be removed due to non-refoulement.
However, the government has now legislated for these people to be detained indefinitely, and there’s also the potential for their refugee status to be revoked.
Currently, a Catholic-minority Sinhalese man from Sri Lanka has been held in immigration detention for eleven years, after arriving in Australia by boat. The man fled his home country following being kidnapped and mutilated over his involvement in an opposition political party.
The Medevac detainees
Rumours have been circulating since some Medevac refugees were released into the community last December, involving the idea that the government had set them free due to the precedent in AJL20. But, as far as Newhouse is concerned this isn’t the case.
The Medevac refugees were brought to Australia in 2019 from offshore detention on Nauru and Manus to receive medical treatment under the new revoked Medevac laws. By February this year, 100 had been released into the community. Although, right now, around 60 remain in detention.
“I’m not sure that AJL20 is having the effect that people think it is having,” said Newhouse. “But, even if it is, this particular amendment does not address the problems facing offshore detainees who are brought to Australia.
“The case of AJL20 was quite different to the problems that face people who are in legal limbo having been brought to Australia from Nauru,” the lawyer concluded.
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Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.