Australia and Refugees: Protection in Name Only?

As a party to the 1951 Convention on the Status of Refugees and its 1967 Protocol (henceforth “the Refugee Convention”), Australia is obliged to refrain from sending “refugees” as defined therein to places where they would face the risk of persecution.  Australia is also a party to the Convention against Torture and the International Covenant on Civil and Political Rights.  Pursuant to these treaties, it is obliged to refrain from sending any person to a place where they would face the risk of torture or other irreparable harm.  The principal domestic mechanism for giving effect to these non-refoulement obligations is the protection visa.

There are three kinds of protection visa.  Authorised arrivals who have been immigration cleared are eligible for the grant of a Protection visa (subclass 866), which gives permanent resident status.  However, those who arrive without authorization, whether by air or sea, are only eligible for the grant of a three year Temporary Protection visa (subclass 785) (TPV) or five year Safe Haven Enterprise visa (subclass 790) (SHEV).  While the SHEV seems to offer possible pathways to the grant of permanent residency at a future time, these are largely illusory.  In reality, as their visa approaches its expiry date, all TPV and almost all SHEV holders will need to reapply for another TPV or SHEV and satisfy all of the same criteria that they were required to satisfy the first time around.  They will have to go through the same ordeal every three or five years for the rest of their lives.

There is a lot of evidence that being subjected to a prolonged state of uncertainty can have very negative mental health impacts.  The grant of temporary rather than permanent protection therefore places Australia at risk of breaching the right to health in some cases.  Moreover, the fact that Australia grants temporary protection visas to “refugees” who are unauthorized arrivals in order to punish and deter unauthorized arrival probably places it in violation of article 31 of the Refugee Convention.

Unfortunately, temporary status is not the only source of precarity faced by protection visa holders.  All protection visa holders, including permanent protection visa holders, also face the on-going threat of visa cancellation.  Migration Act 1958 (Vic) section 501 gives the Minister for Immigration the power to cancel a visa on the basis that the Minister reasonably suspects that the holder does not pass the “character test” and the holder cannot satisfy the Minister otherwise.  Among other things, a person does not pass the character test if they have been sentenced to one or more terms of imprisonment totaling 12 months; have been convicted of any offence committed while in immigration detention or escaping from it; have been convicted of the offence of escaping from immigration detention; are reasonably suspected by the Minister of committing certain offences such as people smuggling; or are reasonably suspected by the Minister of being associated with a group, organization or person that is or has been involved in criminal conduct.  However, the clincher is that a person does not pass the character test if, having regard to the person’s “past and present general conduct”, the person is not of good character.  The factors which may be considered as part of general conduct include “whether the person has been involved in activities indicating contempt or disregard for the law” such as “a history of serious breaches of immigration law, breach of visa conditions or visa overstay in Australia or another country”.  In most cases, visa cancellation under section 501 is discretionary.[1]  Where the discretion is exercised by a Ministerial delegate, regard must be had to the considerations set out in Ministerial Direction no. 65.  One such consideration is Australia’s non-refoulement obligations.  However, this not a “primary consideration” and is not given as much weight as primary considerations.  In the financial year 2015-16, 18 Protection visas (subclass 866) were cancelled.

Since about 2014, the government has also started using Migration Act section 109 and section 116 to cancel protection visas.  Section 109 gives the Minister for Immigration a discretionary power to cancel a visa that was obtained on the basis of incorrection information.  Section 116 gives the Minister a discretionary power to cancel a visa on any one of a long list of grounds, including the following: the decision to grant the visa was based wholly or partly on the existence of a fact or circumstance that did not exist or no longer exists; the holder has not complied with a visa condition; or the presence of the holder is or may be a risk to good order or to the health or safety of one or more members of the Australian community.  At Senate Estimates on 22 May 2017, the Secretary of the Department of Immigration gave evidence that between 1 July 2014 and 16 May 2017, 278 protection visas had been cancelled using either the power in section 109 or the power in section 116 and that the Department was considering cancellation of a further 335 protection visas.  The Secretary also gave evidence that about one third of the cancellations were on the basis of incorrect identity or incorrect information, while the other two-thirds were triggered by the visa holder travelling back to their country of origin since being granted the visa.  In the latter cases, the travel to the country of origin either breached a visa condition[2] or led to the Minister being satisfied that the circumstances giving rise to the original protection claim no longer existed.

A non-citizen whose visa is cancelled becomes an unlawful non-citizen (i.e. a person in Australia without a valid visa).  Migration Act section 189 provides that an unlawful non-citizen must be detained until granted a visa (unlikely in the case of a person who has just had a visa cancelled) or removed from Australia.  Migration Act section 198 provides that a detainee without a valid visa application on foot must be removed from Australia as soon as reasonably practicable.  Finally, Migration Act section 197C, which was inserted in December 2014, provides that “for the purposes of section 198 it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.”

Although there are circumstances where the grounds of visa cancellation will also be grounds for arguing that an international non-refoulement obligation never applied or no longer applies, this will not always be the case.  The Australian government has indicated that as a matter of policy it will not remove any person from Australia in breach of an international non-refoulement obligation but rather will pursue other management options.  In practice, this has meant keeping the person concerned in indefinite detention.  However, as the Migration Act now stands, it is questionable whether continuation of this practice is domestically lawful.  Regardless, this is a scenario in which heads or tails the loser is always the refugee.

[1] In some cases visa cancellation is mandatory but the Minister is given a discretionary power to revoke the cancellation.

[2] All three kinds of protection visas are issued subject to the condition that the holder must not enter the country by reference to which they were found to be a person to whom Australia has protection obligations unless the Minister has approved the entry in writing.