Removal of Non-Citizens
On 29 November 2024, the federal government passed the Migration Amendment (Removal and other Measures) Bill 2024, which amends the Migration Act 1958. The Bill gives new powers to the Immigration Minister to direct non-citizens to take steps to facilitate their removal from Australia and makes it a criminal offence to fail to comply with a direction. This page deals with the new laws surrounding removal from Australia and the responses that have met the new legislation.
Who do the new laws apply to?
The legislation applies to persons who are subject to removal from Australia. This includes holders of the Bridging Visa K and some holders of Bridging Visa E. It includes some people who have been found to be refugees or to otherwise engage Australia’s protection obligations. These people are designated ‘removal pathway non-citizens’.
Powers of Minister to give directions
Under the new laws, the Immigration Minister has the power to direct persons who are subject to removal from Australia to take certain actions to establish whether their removal is practical in the near future.
The actions a person may be directed to take include:
- completing an application for a passport or other travel-related document
- completing any other document or form required to travel
- provide documents or information to an officer or person
- attending an interview or appointment
- reporting to an officer or to a person
A direction may be given to an adult who is subject to removal or to the parent of a child who is subject to removal. A direction may not be given to a child.
Offence not to co-operate
Under the legislation, a person is guilty of a criminal offence if they fail to co-operate with a direction. This offence carries a mandatory minimum sentence of imprisonment for one year, with a maximum penalty of five years imprisonment, a fine of 300 penalty units, or both.
Removal concern countries
Under the new laws, the Immigration Minister can designate any country to be a ‘removal concern country’, meaning that most citizens from that country will be prohibited from applying for any visa to come to Australia. The Minister has a discretion to lift the ban in individual cases but is not obliged to consider requests to do so.
An exception to the ban on applying for visas applies where a person:
- is a national of a country that is not a removal concern country and has a passport from that country
- is the spouse, partner or child of an Australian citizen or permanent resident who usually lives in Australia
- is the parent of a child under 18 in Australia
- is applying for a Refugee and Humanitarian Visa
- belongs to another class of persons determined by the Minister.
Rationale for the new laws
The government says the changes will make the migration system better, stronger and fairer, by ensuring that unlawful non-citizens who have exhausted all their avenues of appeal co-operate with removal from Australia and are penalised if they do not cooperate.
It says that the Bill was passed in response to deliberate and unreasonable non-cooperation with removal by non-citizens, which undermines the integrity of the migration system.
The government says that foreign countries must co-operate with the removal of their citizens and that the power to designate a country a ‘removal concern country’ is designed to gain the country’s co-operation with the removal of its citizens from Australia.
Criticisms of the new laws
The changes were forcefully opposed by the Greens and by the legal and community sectors including the Law Council of Australia, the Human Rights Legal Centre and the Asylum Seeker Resource Centre.
The Law Council of Australia criticised the amendments as punitive and disproportionate in their impact on vulnerable individuals and as calling into question Australia’s adherence to international law. It also objected to the rushed process through which the legislation was passed.
Other criticisms of the Bill include that the changes give unchecked power to the Minister without sufficient safeguards, that they deliberately separate families and that they criminalise refugees. The power to prohibit citizens from ‘removal concern countries’ from entering Australia has also been denounced as a violation of the international obligation of Refugee Convention countries to allow people fearing persecution to seek asylum. The mandatory minimum sentence attaching to offences has been flagged as incompatible with the right to liberty and a fair trial.
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