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
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.
The Commission is established by the Australian Human Rights Commission
Act 1986 (Cth) and is Australia’s national human rights
This submission draws on extensive work the Commission has undertaken on
Australia’s immigration laws and policies over the past decade, including
national inquiries, examinations of
proposed legislation, inspections
of immigration detention centres and reports on the conditions
therein, the investigation of
complaints from individuals in immigration
detention and the development of
minimum standards for the protection of human rights in immigration
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.
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
- 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
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.
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
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).
- 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
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.
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
- 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:
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, or
having regard to a person’s past and present criminal and/or general
conduct, the person is not of good
a person represents a risk to the safety of the Australian community or
parts of it, or
- a person has been sentenced to death, life imprisonment or a term of
imprisonment of 12 months or
The Minister may also cancel or refuse to grant safe haven visas and other
kinds of visas on a number of additional
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.
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.
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. However, the courts
are yet to conclusively decide this
issue. 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
- 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.
amendments could result in the imposition of additional punishment on some
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.
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
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.
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.
- 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
6 The amendments could
result in breaches of Australia’s international obligations
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
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. Australia also has
non-refoulment obligations under the and the Convention Against Torture,
as well as the ICCPR and
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.
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. Detention includes
immigration detention. 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. This finding
has been echoed by Australian
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.
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
- 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
7 The proposed
amendments are not the most effective way to address the problem they are
intended to remedy
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
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
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
Detainees in some immigration detentions centres experienced persistent
boredom, frustration and stress. Other centres were characterised by significant anger, high levels of distress,
feelings of powerlessness and a pervasive sense of helplessness amongst
detainees. In at least one
immigration detention complex, the conditions for suicidality were very
high. Levels of actual and
attempted self-harm were a concern at all the immigration detention centres
visited by the Commission.
In short, Australia’s immigration detention centres are currently
extremely tense and volatile environments.
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.
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
- 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
 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).
Commission’s submissions on immigration issues are available at http://humanrights.gov.au/legal/submissions/indexsubject.html#refugees (viewed 26 May 2011).
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).
are available at http://humanrights.gov.au/legal/HREOCA_reports/index.html (viewed 27 July 2009).
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).
 See, eg, Mr El-Marsi v Commonwealth (Department of Immigration and Citizenship)  AusHRC 41, at http://www.humanrights.gov.au/legal/humanrightsreports/AusHRC41.html and Mr NK v Commonwealth (Department of Immigration and Citizenship)  AusHRC 43, at http://www.humanrights.gov.au/legal/humanrightsreports/AusHRC43.html (both viewed 31 May 2011).
 Explanatory Memorandum, Migration Amendment (Strengthening the Character Test
and Other Provisions) Bill 2011 (Cth), 1.
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).
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).
Migration Act 1958 (Cth), ss 501(6)(b),
1958 (Cth), ss 500A(1)(b)(i) and (ii), 501(6)(c)(i) and (ii).
Migration Act 1958 (Cth), ss 501(6)(d)(i)-(v), 500A(1)(c)(i)-(v).
Migration Act 1958 (Cth), ss 501(7)(a)-(c),
Migration Act 1958 (Cth), ss 501(7)(d) and (e), 501(8), 500A(1)(d) and (e), 500A(5).
 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
 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
 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
Convention, art 33.
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).
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
 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, . 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
 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,
 See, eg, MIMIA v
Al Masri (2003) 126 FCR 54,
 See Migration Act
1958 (Cth), s 36.
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).
 See Immigration Detention at Christmas Island, above, pt 19.2(b).
 See Immigration
Detention at Darwin, note 22, pts 9.2 and 9.3; Immigration Detention at
Leonora, note 22, pt
 See Immigration
Detention at Christmas Island, note 22, pt 19.2(b); Immigration Detention
at Villawood, note 22, pt
Detention at Villawood, above, pt 11.3