Extract from The Guardian
Australian immigration and asylum
Human rights groups warn the law gives the immigration minister a new power to overturn refugee status.
Last modified on Thu 13 May 2021 22.51 AEST
Human rights groups – and parliament’s own human rights committee – say a new law pushed through parliament gives the government the power to indefinitely detain refugees, potentially for the rest of their lives.
The Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 was tabled on the last sitting day of the March session of parliament, and voted into law on Thursday, after debate was cut short on the floor of the Senate.
The law allows for the government, where it had cancelled the visa of a refugee but could not send them back to their country of origin because they would face persecution there, to detain them indefinitely.
The government cancels visas of non-citizens for a variety of reasons: on the basis of character or security grounds, for criminal convictions, but also even for “association with a group” suspected by the minister of wrongdoing.
The new law also gives the minister a broad unchallengeable power to withdraw a person’s refugee status recognition – declaring they can be returned to the country they fled.
The government-controlled joint parliamentary committee on human rights raised serious concerns about the law, arguing it presented a “real risk that detention may become indefinite” and “may also have implications for Australia’s obligation not to subject any person to torture or to cruel, inhuman or degrading treatment or punishment”.
The legislation could currently be applied to 21 refugees already in immigration detention who have either been convicted of serious offences or received adverse security assessments from Asio. Its future application is potentially far broader.
The law was tabled in response to a federal court case AJL20, decided against the government in September last year, with the court ruling that immigration detention must be “for a purpose”, essentially either considering a visa grant or removal from the country.
AJL20 was a child refugee from Syria whose visa was cancelled on character grounds because of criminal convictions as a teenager, and he was detained by the government. He could not be returned to Syria because he faced persecution there, so he faced a potentially limitless detention.
The court ruled his detention was unlawful and ordered him released.
The new law will allow the government to indefinitely detain refugees such as AJL20.
Tabling the legislation in parliament in March, the immigration minister, Alex Hawke, said the legislation was designed to strengthen Australia’s safeguards on non-refoulement, the cornerstone principle of refugee law that forbids a country from returning a refugee to a place where they faced persecution.
“This is an important change which will further improve our ability to ensure that we uphold Australia’s non-refoulement obligations. It is essential that Australia sends a strong message that we are committed to upholding human rights, and that we remain steadfast in our commitment to these treaties and their underlying principles.”
The government’s explanatory statement says the law gives the minister oversight to protect human rights.
“The minister has a personal discretionary power under the Migration Act to intervene in an individual case and grant a visa ... to a person in immigration detention, if the minister thinks it is in the public interest to do so. What is and what is not in the public interest is for the minister to decide.”
The bill was supported by Labor members.
But rights groups argue that while the legislation notionally provides protections against returning refugees to a place where they face harm, the law, in effect, gives the minister a new power to overturn refugee status in breach of international law, and contains no mechanism to prevent the indefinite detention of refugees who cannot be returned.
David Burke, the legal director at the Human Rights Law Centre, said the legislation exposed the government’s willingness to leave growing numbers of refugees languishing in detention without any plan.
“The government should not have the power to lock people up for potentially the rest of their lives without any safeguards. This forces refugees into an unthinkable choice between spending potentially decades in immigration detention, or agreeing to go back to a country where … they will be persecuted.
“These new laws allow the Morrison government to warehouse people who have nowhere else to go.”
Burke said there was no justification for giving a government minister the power to unilaterally cancel refugee status.
“The minister should not be able to waive a pen and overturn the fundamental protection the government has given someone whose life is at risk. Refugee status should never be a day-by-day proposition.”
Alison Battisson, the director principal of Human Rights for All, and who brought AJL20 before the federal court, told the Guardian the legislation solidified the government’s position that it will indefinitely detain refugees.
“With the passage of this bill, the parliament has finally faced up to the grim reality that while Australia will not return people to harm, instead it will allow harm to happen to these people here, in Australia, through indefinite detention.”
Battisson said ministerial intervention powers to release people facing indefinite detention were rarely used.
“We now have refugees detained for longer than 11 years onshore in Australia – who have been continually rejected for ministerial intervention, including in circumstances where they have no criminal record or behavioural issues.”
And she argued granting ministerial power to overturn a protection assessment was “an assault” on the administrative process.
“Government ministers are not experts in protection assessment. Instead, they rely on experts. Apparently, however, this is no longer the case.”
The independent MP Andrew Wilkie told parliament:
“I disagree with the whole notion of disrespecting the rulings and the intent of the federal court. I think it is poor practice that whenever the federal court rules against the government, the government just keeps changing the law until it finds a workaround for the federal court.”
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