Refugees with visas cancelled on character grounds to be held in indefinite detention under new law rushed through Parliament
14 May 2021
Parliament rushed through a Bill yesterday that cemented the legal basis for the indefinite arbitrary detention of refugees whose visas have been cancelled on character grounds
Where refugees have their visas cancelled on character grounds, they go through the justice system like anyone else, however, unlike others who are released back into the community, these refugees will now be subject to indefinite detention.
This will occur without any court oversight for deciding whether there is any valid need for detention. Decisions regarding their release will be left to the whim of non-compellable Ministerial discretions
Under this new amendment, refugees whose visas have been cancelled cannot be refouled to their home countries where they may face persecution, but can now be held in immigration detention, potentially for the rest of their lives, without any effective legal review process to secure their release.
The Migration Amendment (Clarification of International Obligations for Removal) Bill is extremely controversial and technically complex. It was widely expected to be referred for further inquiry to a Senate committee so that it could be more closely examined.
However in a surprise move, the Government with Labor’s support, passed the Bill in the House of Representatives, with the Senate passing it into law yesterday, gagging any debate on the Bill and further opportunity for scrutiny.
The Bill is the Government’s response to recent Federal Court cases challenging the legality of Government policies to indefinitely detain some refugees, arguing that refugees could not be indefinitely detained, but must either be released or if they continue to be held it must be for a lawful purpose, which could include for the purpose of removal from Australia.
An earlier egregious amendment to the law allowed for refugees to be sent back to situations of persecution, despite Australia’s non-refoulement obligations under several human rights treaties.
While the stated purpose of the new amendment is to bring Australia into compliance with its non-refoulement obligations, by sleight of hand the legal and practical effect is to cement the place of indefinite, unreviewable, arbitrary detention in Australian law for those refugees who cannot be removed from Australia due to these non-refoulement obligations.
This law will also allow the Government/Minister of Home Affairs to revisit earlier findings on a person’s need for protection, and to make new decisions that they are are no longer protected from refoulement, creating continuous uncertainty for refugees whose visas have been cancelled on character grounds.
Carolyn Graydon, Principal Solicitor and Manager of the Human Rights Law Program at the Asylum Seeker Resource Centre said: “We have clients who have had their refugee visas cancelled on a spurious basis in an unfair process who will now face indefinite arbitrary detention because ongoing detention cannot be readily reviewed by any court.”
“This law provides no legal safeguards against refugees who have had their visas cancelled on character grounds, being subject to arbitrary administrative detention, potentially for the rest of their lives, until they die.”
“Under this law, no court is able to ever review whether there is any genuine risk to the community posed by a refugee or whether their continuing detention is reasonable and proportionate to any risk.”
Jana Favero, ASRC Director of Advocacy and Campaigns said: “We are appalled that this Bill has been rushed through the Parliament without any proper examination of its alarming consequences. This is bad law-making in practice, especially as this draconian law will also have retrospective effect.”
“The claim that this law will strengthen Australia’s compliance with human rights, by preventing refoulement is untrue.”
“It still does not protect against refoulement and even worse, its real consequence and purpose is to obscure worsening human rights abuses through the Minister’s discriminative, arbitrary and unchecked power to indefinitely detain refugees whose visas have been cancelled, for the rest of their lives without any independent oversight or fair legal process.”
Media contact: Marcella Brassett on 0411 026 142