Amy Ridge
The detention of asylum seekers has become a defining feature of Australia’s immigration policy. Branded as ‘unlawful non-citizens’, people who arrive in Australia without a valid visa are subjected to mandatory immigration detention without ever having been convicted of a crime. Now, proposed amendments to the Migration Act 1958 (Cth) (‘Migration Act’), threaten to criminalise these people who are unwilling, or unable to leave Australian shores.
In March 2024, the Albanese Government introduced the Migration Amendment (Removal and Other Measures) Bill 2024 (‘the Bill’), containing provisions that are in direct opposition to Australia’s obligations under international refugee and human rights law. ‘Unlawful non-citizens’ may be faced with a choice between imprisonment or returning to a country where they fear persecution. The proposed amendments further entrench Australia’s hard-line position on asylum seekers, one that has permeated policy on both sides of parliament for over three decades.
The rights of refugees and asylum seekers
Under international law, every individual has the right to seek and enjoy asylum from persecution. Australia is a signatory to the United Nations Convention relating to the Status of Refugees 1951 (‘Refugee Convention’) which holds that states must not discriminate against or penalise anyone who arrives in Australia with a well-founded fear of persecution in their country of origin.
Australia also has obligations under international human rights law to not arbitrarily detain individuals for a prolonged period ‘without the possibility of administrative or judicial review or remedy’. Mandatory detention of asylum seekers to conduct administrative processes, including to verify their identity and conduct health and security checks, may be permitted. However, ongoing detention that is not reasonable, necessary or proportionate is at risk of being arbitrary.
The Refugee Convention, alongside international human rights law, codifies the peremptory norm of non-refoulement, prohibiting countries from forcibly returning refugees or asylum seekers, regardless of their migration status, to a country where ‘there are substantial grounds for believing that the person would be at risk of irreparable harm upon return’. This obligation is non-derogable, so Australia cannot opt out.
Arbitrary detention – the position of the High Court
In 2004, Al-Kateb v Godwin (2004) 219 CLR 562 established that under the Migration Act, ‘unlawful non-citizens’ could be held in immigration detention indefinitely, even where there was no prospect of a visa grant or removal in the reasonably foreseeable future. This effectively gave the government the power to detain individuals without criminal charges, for the rest of their lives. International treaty bodies have consistently noted that this constitutes arbitrary detention.
In 2023, NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, overturned this 19-year-old precedent, ruling that indefinite immigration detention is not permitted under the Constitution where removal is not ‘practicable in the reasonably foreseeable future’.
ASF17 v Commonwealth [2024] HCA 19 (‘ASF17’) subsequently clarified that this does not apply to individuals who refuse to cooperate with their removal when it is otherwise practicable. The court concluded that practicability hinges on capacity to cooperate with removal, not willingness.
‘Removal pathway non-citizens’
The Bill will give the Minister for Immigration broad powers to direct any ‘unlawful non-citizen’, that does not have a protection visa application pending, to take actions, such as signing a travel document or attending an interview, that will facilitate their removal from Australia. These people will be classed as ‘removal pathway non-citizens’, and will be bound by the Minister’s directions, even with a genuine fear of suffering persecution or significant harm, which the Bill precludes from being a ‘reasonable excuse’. This will eliminate any consideration of whether a person is willing or able, providing a ‘statutory expectation that “removal pathway non-citizens” will cooperate in relation to their removal’.
From prison to detention
Under the Bill, if ‘removal pathway non-citizens’ do not cooperate with their removal, they will be facing a custodial sentence for a minimum of 12 months, and up to five years. Law Council of Australia President Greg McIntyre SC expressed grave concern that the threat of imprisonment is a ‘vastly disproportionate response to a failure to comply with directions – which may involve minor conduct which is not harmful or dangerous’. Following their sentence, they may subsequently be returned to immigration detention indefinitely, in breach of Australia’s obligations to uphold the right to liberty and freedom from arbitrary detention under international human rights law.
Ministerial discretion
The Bill will also bestow ‘non-delegable, non-compellable and non-reviewable’ discretion on the Minister to overturn previous protection findings and subsequently issue removal pathway directions. This put Australia at risk of infringing on non-refoulement obligations under both international refugee and human rights law.
A flawed system
The Bill operates on the assumption that people designated as ‘removal pathway non-citizens’ are not owed protection. However, in their submission to the Senate Inquiry into the Bill, the Refugee Advice and Casework Service (RACS) raised their concern that the Bill relies on a system that is inherently flawed, where many people that have a legitimate protection claim fall through the cracks.
Prospective ‘removal pathway non-citizens’ may have had their protection claims processed under the Fast Track Assessment and Removal process, as was the case in ASF17, which RACS has criticised for undermining due process and providing very limited scope for review.
People whose claims have not yet been assessed, those who are awaiting judicial review following a failed protection claim, and those who might be facing removal to a country where circumstances have changed and it is no longer safe, may also fall within the Bill’s purview.
The proposed amendments exacerbate the vulnerability of asylum seekers that have not had their claims adequately assessed, and who may genuinely fear harm or persecution. Additionally, while the Bill’s accordance with international human rights law is yet to be formally challenged, there is a serious risk that passing the amendments would result in Australia undermining its obligations. If these asylum seekers are removed, Australia could be in breach of the principle of non-refoulement. If they do not cooperate with their removal, Australia will hand down disproportionate criminal sanctions that may amount to arbitrary detention.
A precarious position
Writing in the Australian Journal of Human Rights in 2023, Behrouz Boochani and Claire Loughnan emphasise the ‘parochial’ nature of human rights, ‘conditional upon the willingness of the state to grant them’. The proposed amendments will further manifest human rights as the ‘right of certain citizens’ in Australia. These asylum seekers will be in an incredibly precarious position, between fear of persecution at the hands of one State and arbitrary detention at the hands of another.
Amy Ridge was an intern with the Australian Journal of Human Rights in Term 2, 2024.