A new Direction from the Minister for Immigration, governing how decision-makers must approach visa refusal and cancellation, creates serious risks for vulnerable people. Refugees could see their visas cancelled relying on Family Violence Orders that are then found to be unsubstantiated; minor children are at risk of being separated from their parents; and survivors of family violence may be deterred from seeking assistance.
The NSWCCL calls for the immediate replacement of Direction 90.
Our full public statement
Alex Hawke, the Minister for Immigration, has promulgated a new Direction (Direction 90) which governs how all decision-makers must approach visa refusal and cancellation under s 501 of the Migration Act 1958 (Cth). Visa refusal and cancellation can lead to long-term (and indefinite) detention, permanent separation of families, and forcible and permanent removal from Australia (including in breach of Australia’s non-refoulement obligations). It has two alarming features.
First, he reminds them that under subsection 197C(1) of the Migration Act, when they are condiering cancelling a person’s visa, it is “irrelevant” (i.e. they are not to take into account) whether Australia has non-refoulement obligations. Taken together with assertions made on his behalf in the case of a young Iraqi man1 this is shocking. In that case, it was asserted by the barrister for the Minster and accepted by the court that much had changed, and that ‘the Minister was now more than prepared to proceed on the basis that Australia would breach its non-refoulement obligations and return the appellant to Iraq, even though it had been accepted that he was likely to be harmed or killed there.’
It is almost unbelievable that the Minister means what he says. To be willing to send a person to a situation where they face torture and death is profoundly morally wrong. Since 1954, when Australia signed the Convention relating to the status of refugees, all sides of politics have agreed that it should not be done.
The Minister’s declared intention is also contrary to Australia’s international obligations under the International Covenant on Civil and Political Rights, the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
There has been some back-stepping by the Department, presumably with the consent of the Minister, with reassurance that Australia will not deport anyone whose life is at risk. And Mr. Hawke has introduced a new bill into Parliament, the Clarifying International Obligations for Removal Bill, which would insert into the Act a section that would modify the effect of section 197C to ensure it does not require or authorise the removal of an unlawful non-citizen who has been found to engage protection obligations through the protection visa process. Yet the old subsection 193(1) that does permit a removal to a life-threatening situation is to remain.
It remains shocking that the Minister even contemplated sending people off to their deaths. (It is true that the Howard Government did just that, in cases where it purported to have doubts about the risks faced by deportees.)
The second matter of concern in Direction 90 concerns family violence. The Council for Civil Liberties (CCL) strongly supports efforts to improve the safety of women and children.
However, it is unclear whether any consultation was undertaken the production of the Direction.
There is a new definition of family violence in subsection 4(1) of the Direction. There is no requirement that there has been a conviction, or any formal finding that family violence has occurred for a visa to be cancelled, and the accused person detained indefinitely or sent overseas. The Direction does not even give a clear, minimum standard of evidence. It just states that the Australian community ‘expects that the Australian Government can and should refuse or cancel a visa if they raise serious character concerns through [family violence or forced marriage] conduct.’
The Direction requires that all persons who have engaged in broadly-defined family violence should be refused visas or have their visas cancelled, even where there are strong countervailing circumstances. It states, without evidence, that this is also the view of the Australian Community. (We know of no surveys that support these views. They have not been matters of public discussion.)
This creates serious risks.
People may have their visas cancelled relying on Family Violence Orders where the application was later withdrawn or found to be unsubstantiated. Such outcomes are not uncommon.
More minor children will be permanently separated from a parent. Only in some cases will that be a good thing.
Survivors of family violence may be deterred from seeking the assistance of police or other support services, given the seriousness of the consequences for perpetrators.
Policies including early intervention may be undermined, as may recourse to tools like counselling and welfare services.
During any cancellation or refusal process, since the perpetrator will be aware of the risks to them created by the Direction, survivors may be exposed to increased danger.
If perpetrators are automatically sent overseas, survivors may lose access to financial and other support.
The lack of clarity as to what is to be considered evidence is likely to led to confusion and uncertainty about what may lead to cancellation, compounding the above effects and leading
to unjust outcomes.
In CCL’s view, the Direction should be replaced by a new one, which removes the declaration about non-refoulement and takes a more considered approach to family violence. The Migration Act should be amended to repeal subsection 197C(1), which states that that for the purposes of removal of an 'unlawful non-citizen' under section 198, 'it is irrelevant
whether Australia has non-refoulement obligations in respect of that person'.
Pauline Wright
President
NSW CCL
1 MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at
paragraphs [41], [61].
