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Submission - Inquiry into the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill (2011)

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Inquiry into the Migration Amendment (Strengthening the Character Test and
Other Provisions) Bill 2011

Australian Human Rights Commission
Submission to the Senate Legal and Constitutional Committees

31 May 2011

Table of Contents

1 Introduction

  1. The Australian Human Rights Commission welcomes the opportunity to make this
    submission to the Senate Standing Committees on Legal and Constitutional Affairs
    in its Inquiry into the Migration Amendment (Strengthening the Character Test
    and Other Provisions) Bill 2011.

  2. The Commission is established by the Australian Human Rights Commission
    Act 1986     (Cth) and is Australia’s national human rights
    institution.

2 Background

  1. This submission draws on extensive work the Commission has undertaken on
    Australia’s immigration laws and policies over the past decade, including
    national inquiries,[1] examinations of
    proposed legislation,[2] inspections
    of immigration detention centres and reports on the conditions
    therein,[3] the investigation of
    complaints from individuals in immigration
    detention[4] and the development of
    minimum standards for the protection of human rights in immigration
    detention.[5]

  2. This submission draws, more specifically, on the Commission’s work on
    visa cancellation under section 501 of the Migration Act 1958 (Cth)
    (Migration Act), including reports of inquiries into complaints by people who
    have been detained after they failed the character test and had their visas
    cancelled by the Minister.[6]

  3. The Migration Amendment (Strengthening the Character Test and Other
    Provisions) Bill 2011 (the Bill) proposes to amend certain provisions of the
    Migration Act in response to recent disturbances in immigration detention
    centres at Christmas Island and
    Villawood.[7]

  4. In particular, the Bill proposes to amend the Migration Act to:
    • provide that the Minister for Immigration and Citizenship may cancel or
      refuse to grant a visa, including a temporary safe haven visa, on the grounds
      that an applicant has been convicted of

      • an offence committed whilst in immigration detention or
      • the offence of escaping from immigration detention
    • provide that convictions for these offences should be disregarded if a
      conviction has been quashed or nullified or if the convicted person has been
      pardoned.

3 Summary

  1. The Commission submits that the Bill should not be passed as the amendments
    it proposes to the Migration Act are unnecessary and may result in breaches of
    Australia’s international human rights obligations.

  2. The proposed amendments providing additional grounds on which the Minister
    may cancel or refuse to grant a visa are unnecessary. If the Minister wished to
    cancel or refuse to a grant a visa in response to a disturbance at a detention
    centre, he could do so on a number of grounds currently contained in the
    Migration Act.

  3. Furthermore, the proposed additional grounds would result, in effect, in
    some individuals involved in immigration detention centre disturbances receiving
    an additional tier of punishment over and above that imposed by the courts. This
    could potentially lead to breaches of Australia’s obligations under the International Convention on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC).[8]

  4. Finally, the Commission believes that the amendments proposed by the Bill
    are not the most effective way to address the problem they are intended to
    remedy. In the Commission’s view, it is not a lack of or inadequacy in
    sanctions in the Migration Act that is causing disturbance within
    Australia’s immigration detention system but rather the prolonged and
    indefinite detention of a significant number of asylum seekers. The Commission
    believes that reforming Australia’s system of mandatory and indefinite
    immigration detention would be a more effective way of preventing further unrest
    amongst asylum seekers.

4 The proposed additional
grounds on which the Minister may cancel or refuse to grant a visa are
unnecessary

  1. The proposed new grounds on which the Minister may cancel or refuse to grant
    a visa are unnecessary because the grounds currently contained in the Migration
    Act are sufficiently broad.

  2. The Convention Relating to the Status of Refugees 1951, to which
    Australia is a party, permits states to refuse to grant protection to people who
    have committed war crimes or other serious non-political crimes as well as
    people who constitute a danger to the
    community.[9]

  3. These provisions are incorporated into and expanded upon in the Migration
    Act, which states that the Minister may cancel or refuse to grant a visa
    (including a safe haven visa) if:

    1. a person has or has had an association with someone else, or with a group or
      organisation, whom the Minister reasonably suspects has been or is involved in
      criminal conduct,[10] or

    2. having regard to a person’s past and present criminal and/or general
      conduct, the person is not of good
      character,[11] or

    3. a person represents a risk to the safety of the Australian community or
      parts of it,[12] or

    4. a person has been sentenced to death, life imprisonment or a term of
      imprisonment of 12 months or
      more.[13]

  4. The Minister may also cancel or refuse to grant safe haven visas and other
    kinds of visas on a number of additional
    grounds.[14]

  5. The Migration Act, therefore, already provides several bases on which most
    persons who are involved in disturbances within immigration detention centres
    could have their applications for visas refused or their existing visas
    cancelled, as the case may be.

  6. For instance, a person who engages in disruptive or violent conduct at an
    immigration detention centre may be convicted of an offence and sentenced to a
    term of imprisonment of over 12 months, on which ground the Minister may cancel
    or refuse to grant a visa.

  7. Additionally, the Minister may cancel or refuse to grant a visa on the
    ground that the past and present general conduct of a person who engages in
    disruptive behaviour demonstrates that he or she is not of good character. The
    Minister has suggested that courts have tended to interpret the term
    ‘general conduct’ to mean a series of events or a pattern of
    behaviour rather than a single isolated
    occasion.[15] However, the courts
    are yet to conclusively decide this
    issue.[16] Furthermore, in any case,
    the consequences of failing the character test are of such a serious nature that
    they should only apply in circumstances where a person has committed a
    sufficiently grave offence or when there is an established pattern of poor
    general conduct.

  8. The Commission submits that the grounds upon which the Minister may cancel
    or refuse to grant a visa are already sufficiently broad. The Commission is
    concerned that the Bill proposes to further expand the circumstances in which
    the Minister can refuse to grant protection to a refugee in Australia beyond
    those provided by the Refugee Convention.

5 The
amendments could result in the imposition of additional punishment on some
individuals

  1. The proposed amendments may result in the imposition of an additional tier
    of punishment on a person over and above that already imposed by a court.

  2. People who have been involved in disturbances in immigration detention
    centres may currently be prosecuted, convicted and sentenced under the Criminal Code Act 1995 (Cth). Courts may impose penalties such as fines
    or terms of imprisonment on people who have breached Australian law whilst
    detained.

  3. The Migration Act, if amended in the way the Bill proposes, would enable the
    Minister to cancel or refuse to grant a visa on the basis that a person has been
    convicted of any offence whilst in immigration detention. Whatever the intention
    of this power, its practical effect would be to further punish a detainee who
    has engaged in a disturbance whilst in immigration detention, over and above any
    penalty imposed by the courts.

  4. Sanctions for criminal conduct in Australia are imposed by courts of law. It
    is not appropriate for penalties for criminal conduct to be distributed through
    the administrative system of migration law and policy.

  5. In the Commission’s view, it is also not appropriate for such
    sanctions to be imposed retrospectively, as the Bill apparently proposes, for
    offences committed before its
    passing.[17]

6 The amendments could
result in breaches of Australia’s international obligations

  1. The cancellation of a person’s visa or the refusal to grant a person a
    visa on the basis that he or she has been convicted of crimes whilst in
    immigration detention may breach Australia’s international human rights
    obligations.

  2. Australia is obliged under the Convention Relating to the Status of
    Refugees     not to expel or return people to countries where they would be
    subject to torture or would face persecution because of their race, religion,
    nationality, membership of a particular social group or political
    opinion.[18] Australia also has
    non-refoulment obligations under the and the Convention Against Torture,
    as well as the ICCPR and
    CRC.[19]

  3. Under ss 189 and 196 of the Migration Act, a person who does not hold a
    valid visa must be detained until he or she is granted a visa or removed from
    Australia. People who are found to be refugees but who are refused visas or have
    their visas cancelled because they have failed the character test therefore face
    the prospect of indefinite detention if they cannot be removed from Australia,
    particularly in circumstances where people are stateless or originate from
    countries in which there is ongoing unrest.

  4. Australia is bound by art 9(1) of the ICCPR and art 37(b) of the CRC, which
    provide that all persons have the right to freedom from arbitrary
    detention.[20] Detention includes
    immigration detention.[21] The
    requirement that detention not be ‘arbitrary’ is separate and
    distinct from the requirement that a detention be lawful. The United Nations
    Human Rights Committee has said that ‘arbitrariness’ includes
    elements of inappropriateness, injustice, lack of predictability and
    proportionality.[22] This finding
    has been echoed by Australian
    courts.[23]

  5. Detention may therefore be found to be arbitrary where it is prolonged or
    indefinite in circumstances which are inappropriate, are unjust or lack
    predictability or proportionality. The prospect of indefinite detention is
    arguably a disproportionate response to the commission of a potentially minor
    offence whilst in immigration detention. Such disproportionality may render
    detention arbitrary, in breach of Australia’s obligations under art 9(1)
    of the ICCPR or art 37(b) of CRC.

  6. The Commission understands that people who have been found to be refugees
    but who fail the character test may be granted a temporary visa such as a
    Removal Pending Bridging Visa (RPBV), rather than continuing to be detained. An
    RPBV entitles its holder to remain in the Australian community until he or she
    can be safely removed from Australia. An RPBV holder’s family members are
    not automatically entitled to protection under Australian
    law.[24]

  7. Being granted an RPBV rather than a Protection Visa can have serious
    consequences for refugees in Australia. A person’s right to family unity
    under arts 17 and 23 of the ICCPR and art 8 of the CRC, for instance, may be
    denied or compromised by their status as an RPBV holder. The grant of an RPBV
    rather than a Protection Visa, therefore, may also be a disproportionate
    response to the commission of potential minor offences whilst in immigration
    detention.

7 The proposed
amendments are not the most effective way to address the problem they are
intended to remedy

  1. The Commission submits that it is not a lack of or inadequacy in sanctions
    in the Migration Act that results in disturbances in Australia’s
    immigration centres, but rather the conditions and prolonged nature of that
    detention. Therefore, the amendments proposed by the Bill are not the most
    effective way of preventing further unrest across the immigration detention
    network. The Commission continues to call on the government, as it has for more
    than a decade, to reform Australia’s system of mandatory and indefinite
    immigration detention and bring it into line with Australia’s
    international obligations.

  2. Throughout 2010-11, the Commission visited a number of immigration detention
    centres and highlighted serious concerns about the numbers of people who
    continue to be held in such centres for prolonged and indefinite
    periods.[25]

  3. The Commission found that prolonged or indefinite detention, coupled with
    limited access to mental health care, minimal if any opportunity for excursions,
    lengthy delays in the processing of refugee claims, serious delays with security
    assessments and a lack of regular updates on progress with cases, can have
    devastating impacts on people’s mental
    health.[26]

  4. Detainees in some immigration detentions centres experienced persistent
    boredom, frustration and stress.[27] Other centres were characterised by significant anger, high levels of distress,
    feelings of powerlessness and a pervasive sense of helplessness amongst
    detainees.[28] In at least one
    immigration detention complex, the conditions for suicidality were very
    high.[29] Levels of actual and
    attempted self-harm were a concern at all the immigration detention centres
    visited by the Commission.

  5. In short, Australia’s immigration detention centres are currently
    extremely tense and volatile environments.

  6. The Commission does not condone acts of violence or property destruction in
    immigration detention facilities. However, the context of the recent
    disturbances in immigration detention must be taken into account.

  7. Further disturbances similar to those that recently occurred at Christmas
    Island and Villawood remain a distinct possibility within Australian immigration
    detention centres for as long as people are subject to prolonged and indefinite
    detention.

  8. The Commission recommends reform of Australia’s system of mandatory
    and indefinite immigration detention, in order to create a more ordered and
    stable system which meets Australia’s international human rights
    obligations.

[1] See, especially, Human Rights
and Equal Opportunity Commission, A last resort? National Inquiry into
Children in Immigration Detention (2004), at http://www.humanrights.gov.au/human_rights/children_detention_report/report/PDF/alr_complete.pdf (viewed 26 May 2011) and Human Rights and Equal Opportunity Commission, Those
who’ve come across the seas – Detention of unauthorised arrivals (1998), at http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf (viewed 26 May 2011).

[2] The
Commission’s submissions on immigration issues are available at http://humanrights.gov.au/legal/submissions/indexsubject.html#refugees (viewed 26 May 2011).

[3] The
Commission’s reports on inspections of immigration detention facilities
are available at http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9_3 (viewed 26 May 2011).

[4] Reports
are available at http://humanrights.gov.au/legal/HREOCA_reports/index.html (viewed 27 July 2009).

[5] Human
Rights and Equal Opportunity Commission, Immigration Detention Guidelines (2000). At http://humanrights.gov.au/pdf/human_rights/asylum_seekers/idc_guidelines.pdf (viewed 26 May 2011).

[6] See, eg, Mr El-Marsi v Commonwealth (Department of Immigration and Citizenship) [2009] AusHRC 41, at http://www.humanrights.gov.au/legal/humanrightsreports/AusHRC41.html and Mr NK v Commonwealth (Department of Immigration and Citizenship) [2011] AusHRC 43, at http://www.humanrights.gov.au/legal/humanrightsreports/AusHRC43.html (both viewed 31 May 2011).

[7] Explanatory Memorandum, Migration Amendment (Strengthening the Character Test
and Other Provisions) Bill 2011 (Cth), 1.

[8] International Covenant on
Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS
171 (entered into force 23 March 1976); Convention on the Rights of the
Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into
force 2 September 1990).

[9] Convention Relating to the Status of Refugees, opened for signature 28
July 1951, 189 UNTS 150, arts 1F and 33 (entered into force 22 April 1954). See
also Protocol Relating to the Status of Refugees, 606 UNTS 267 (entered
into force 4 October 1967).

[10] Migration Act 1958 (Cth), ss 501(6)(b),
500A(1)(a).

[11] Migration Act
1958 (Cth), ss 500A(1)(b)(i) and (ii), 501(6)(c)(i) and (ii).

[12] Migration Act 1958 (Cth), ss 501(6)(d)(i)-(v), 500A(1)(c)(i)-(v).

[13] Migration Act 1958 (Cth), ss 501(7)(a)-(c),
500A.

[14] Migration Act 1958 (Cth), ss 501(7)(d) and (e), 501(8), 500A(1)(d) and (e), 500A(5).

[15] Doorstop interview with
Chris Bowen, Minister for Immigration and Citizenship (Fairfield, 26 April
2011); James Carleton, interview with Chris Bowen (ABC Radio National, 26 April
2011).

[16] Courts and tribunals
in the past have been inclined to find that a person is not of good character on
the basis of their ‘past and present general conduct’ if there is
evidence that they have been involved in a series of episodes of misconduct.
However, there is no conclusive judicial statement to this effect and it is open
to the courts to find that a person’s conduct on one of two isolated
occasions may be sufficient to establish that a person is not of good character.
In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187,
for example, Justices Burchett, Branson and Tamberlin said in obiter,
‘some instances of general conduct, as we understand the term, displayed
but once or twice, may lay character bare very tellingly’ (at
195).

[17] Item 6 of the Bill
states that the amendments relating to the character test apply for the purposes
of decision-making from the commencement of the Bill, whether the relevant
conviction or offences occurred before, on or after that
commencement.

[18] Refugee
Convention, art 33.

[19] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, opened for signature 4 February 1985, 1465 UNTS 85 (entered into
force 26 June 1987).

[20] Article
9 of the ICCPR provides ‘Everyone has the right of liberty and security of
person. No one shall be subjected to arbitrary arrest or detention. No one shall
be deprived of his liberty except on such grounds and in accordance with such
procedures as are established by law.’ Article 37(b) of the CRC provides
‘No child shall be deprived of his or her liberty unlawfully or
arbitrarily. The arrest, detention or imprisonment of a child shall be in
conformity with the law and shall be used only as a measure of last resort and
for the shortest appropriate period of
time’.

[21] United Nations
Human Rights Committee, General Comment 8, Article 9 (Sixteenth session, 1982),
Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.6 (2003) 130, [1]. See also A v
Australia, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993; C v Australia, Communication No 900/1999 UN Doc CCPR/C/76/D/900/1999; Baban v Australia, Communication No 1014/2001 UN Doc
CCPR/C/78/D/1014/2001.

[22] See Van Alphen v The Netherlands, Communication No 305/1988, UN
Doc CCPR/C/39/D/305/1988, [5.8]; A v Australia, Communication No
560/1993, UN Doc CCPR/C/59/D/560/1993,
[9.2].

[23] See, eg, MIMIA v
Al Masri (2003) 126 FCR 54,
[152].

[24] See Migration Act
1958 (Cth), s 36.

[25] See
Australian Human Rights Commission, Immigration Detention at Christmas
Island (2010), pt 5.3; Australian Human Rights Commission, Immigration Detention at Darwin (2010), pt 5; Australian Human Rights
Commission, Immigration Detention at Leonora (2011), pt 5; Australian
Human Rights Commission, Immigration Detention at Villawood (2011), pt 6.
At http://www.humanrights.gov.au/human_rights/immigration/index.html (viewed 26 May 2011).

[26] See Immigration Detention at Christmas Island, above, pt 19.2(b).

[27] See Immigration
Detention at Darwin, note 22, pts 9.2 and 9.3; Immigration Detention at
Leonora, note 22, pt
8.2.

[28] See Immigration
Detention at Christmas Island, note 22, pt 19.2(b); Immigration Detention
at Villawood, note 22, pt
11.2.

[29] Immigration
Detention at Villawood, above, pt 11.3