Migration Amendment (Removal and Other Measures)

The new powers in this Bill will enable the Minister to give a direction to a removal pathway non-citizen to do specified things necessary to facilitate their removal, or to do other things the Minister is satisfied are reasonably necessary to determine whether there is a real prospect of their removal becoming practicable in the reasonably foreseeable future. The Bill also includes appropriate safeguards in relation to the exercise of this power. The amendments provide for certain circumstances in which the Minister must not give a direction, including: if the non-citizen has applied for a protection visa and the application is not yet finally determined; to do a thing in relation to a country in relation to which a protection finding has been made for the non-citizen; directly to children under 18 who are removal pathway non-citizens; in relation to an Australian visa application; and regarding court or tribunal proceedings. Importantly, a non-citizen on a removal pathway cannot be directed to interact with, or be removed to, a country in respect of which the non‑citizen has been found to engage Australia’s protection obligations; however, they may otherwise be given a direction to do certain things necessary to facilitate their removal to a safe third country.

A failure to comply with a direction, without a reasonable excuse, will be a criminal offence carrying a mandatory minimum sentence of 12 months’ imprisonment, and a maximum available sentence of five years’ imprisonment or 300 penalty units, or both. The proposed offence and associated penalty are intended to ensure that non-citizens remain appropriately engaged and cooperate with arrangements to facilitate their removal from Australia. Non-cooperation with removal processes demonstrates a disregard for Australian laws. This behaviour is contrary to the Australian community’s expectations that a non-citizen should engage with the process to resolve their migration status and to effect their removal from Australia where required by law.

Exemptions for appropriate classes of persons will be available to allow for continued processing of visa applications made by close family of Australian citizens and permanent residents, and to ensure compliance with Australia’s international obligations. The designation would not invalidate a visa application made by a non-citizen who is a national of a removal concern country but is also a national of a country that is not a removal concern country, and holds a valid passport issued by that other country. While the designation will prevent new visa applications from being made, it will not affect the validity of applications made before the designation comes into force.

(1) For the purposes of section 198, it is irrelevant whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unlawful non‑citizen.

The Bill would therefore amend the Migration Act to allow a protection finding to also be revisited for a limited cohort of persons who are the holders of a BVR or of a bridging visa which, at the time that bridging visa was granted, satisfied a criterion for the grant relating to the making of, or having, acceptable arrangements to depart Australia. The affected persons are those who are on a removal pathway following the refusal or cancellation of a protection visa, usually on character or security grounds, and have, in most cases, completed merits review and judicial review of those decisions. The Bill does not provide a mechanism to reconsider the protection findings of current protection visa holders, or former protection visa holders who now hold visas such as Resolution of Status Visas or Resident Return Visas.