Can Australia deport refugees and cancel visas on ‘character grounds’?

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  Factsheet: Can Australia deport refugees and cancel visas on ‘character grounds’?

This factsheet explains whether refugees can be deported or removed from Australia. The factsheet sets out the provisions for deportation and cancellation of visas on ‘character grounds’. It explains whether this is consistent with international law, and examines what other countries, such as New Zealand, the United Kingdom and the United States do. The factsheet also includes a list of further reading.

When can a refugee be deported from Australia?

In summary, a refugee who commits a crime in Australia may be deported or removed under certain circumstances.1 These circumstances are set out in the Migration Act 1958 (Cth) and they apply to all non-citizens in Australia, including refugees.2 








Author: Khanh Hoang

Endnotes

  • 1. Australian migration law distinguishes between ‘removal’ and ‘criminal deportation’ powers. Removal powers are used to remove non-citizens from Australia who do not hold valid visas and are unlawful non-citizens. Removal powers have legislative basis under s 198 of the Act. Criminal deportation refers to those who are the subject of a deportation order under s 200 for having committed certain crimes.
  • 2. It should be noted that refugees who have committed serious crimes prior to seeking protection in Australia may be excluded under article 1F of the Refugee Convention. This provision excludes from refugee status persons ‘with respect to whom there are serious reasons for considering that’ they have ‘committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes’; ‘a serious non-political crime outside the country of refuge prior to [their] admission to that country as a refugee’; or ‘been guilty of acts contrary to the purposes and principles of the United Nations’.
  • 3. Senate Legal and Constitutional Affairs Committee, Inquiry into the Administration and Operation of the Migration Act 1958 (2 March 2006), [9.30] <http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and....
  • 4. Note that where the Minister makes a decision to cancel using his personal powers, he or she must be satisfied that cancellation is in the ‘national interest’ (Migration Act, s501(3)).
  • 5. See Migration Regulations 1994 (Cth) sch 5, criterion 5001. The effect of this criterion is that, where it is a prescribed ground for the grant of a visa, a person who has had a previous visa cancelled under s 501 is permanently excluded from being granted the visa.
  • 6. The High Court of Australia has held that the Migration Act allows for the indefinite detention of an unlawful non-citizen in circumstances where the person cannot be removed. See Al-Kateb v Godwin & Ors (2004) 219 CLR 562.
  • 7. Department of Immigration and Border Protection, Ministerial Direction No 65: Visa Refusal and Cancellation under s 501 and revocation of a mandatory cancellation of visa under s 501CA (22 December 2014), [10.1], [12.1] and [14.1].
  • 8. Department of Immigration and Border Protection, Procedures Advice Manual 3: The character test, visa refusal and cancellation, s 23 – Australia’s non-refoulement obligations (2016).
  • 9. See Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954), art 33(2).
  • 10. See, eg, Savitri Taylor, ‘Exclusion from Protection of Persons of “Bad Character”: Is Australia Fulfilling its Treaty-Based Non-Refoulement Obligations?’ (2002) 8 Australian Journal of Human Rights 83; Jane McAdam and Robert Woods, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011, 31 May 2011, 1–2 <http://www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/Charact... Australian Human Rights Commission, Background Paper: Human Rights Issues Raised by Visa Refusal or Cancellation under Section 501 of the Migration Act (June 2013) <https://www.humanrights.gov.au/sites/default/files/document/publication/....
  • 11. The Human Rights Committee has held that there is an obligation of non-refoulement implied from the ICCPR, requiring States not to return individuals to countries where they face harm contrary to ICCPR Arts 6 and 7: Human Rights Committee, General Comment No 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant (ICCPR), UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004), [12]. On the non-derogable nature of ICCPR Arts 6 and 7, see Human Rights Committee, General Comment No 6: The Right to Life, 16th sess, UN Doc HRI/GEN/1/Rev.1 (30 April 1982), 1, and Human Rights Committee, General Comment No 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment, 44th sess, UN Doc HRI/GEN/1/Rev.1 (10 March 1992), [3]. On the non-derogable nature of CAT Art 3, see Committee against Torture, Decision: Communication No 39/1996, UN Doc CAT/C/18/D/39/1996 (28 April 1997), [14.5] (‘Paez v Sweden’).
  • 12. Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (Oxford: Oxford University Press, 3rd ed, 2007) 243–4.
  • 13. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 9(1). See the views of the Human Rights Committee in the following cases: Communication No 2094/2011, 108th sess, UN Doc CCPR/C/108/D/2094/2011 (20 August 2013) (‘FKAG v Australia’); Communication No 2136/2012, 108th sess, UN Doc CCPR/C/108/D/2136/2012 (20 August 2013) (‘MMM v Australia’); Communication No 1255, 1256, 1259, 1260, 1266, 1268, 1270, 1288/2004, 90th sess, UN Doc CCPR/C/90/D/1255,1256,1259,1260,1266,1268,1270&1288/2004 (11 September 2007) (‘Shams et al v Australia’); Communication No 1324/2004, 88th sess, UN Doc CCPR/C/88/D/1324/2004 (13 November 2006) (‘Shafiq v Australia’); Communication No 1050/2002, 87th sess, UN Doc CCPR/C/87/D/1050/2002 (9 August 2006) (‘D and E v Australia’); Communication No 1069/2002, 79th sess, UN Doc CCPR/C/79/D/1069/2002 (6 November 2003) (‘Bakhtiyari v Australia’); Communication No 1014/2001, 78th sess, UN Doc CCPR/C/78/D/1014/2001 (18 September 2003) (‘Baban v Australia’); Communication No 900/1999, 76th sess, UN Doc CCPR/C/76/D/900/1999 (28 October 2002) (‘C v Australia’); Communication No 560/1993, 59th sess, UN Doc CCPR/C/59/D/560/1993 (30 April 1997) (‘A v Australia’). See also UN Working Group on Arbitrary Detention, Report: Visit to Australia, UN Doc E/CN.4/2003/8/Add.2 (24 October 2002).
  • 14. Immigration Act 2009 (NZ) s 161.
  • 15. A ‘protected person’ is a person who has been recognised under the Immigration Act 2009 (NZ) as engaging NZ’s non-refoulement obligations under the ICCPR or CAT.
  • 16. Refugee Convention Art 32.1 allows States to expel refugees on grounds of national security or public order.
  • 17. Immigration Act 2009 (NZ) s 164.
  • 18. ‘Moral turpitude refers generally to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’: In re Fualaau, 21 I&N Dec. 475, 477 (BIA 1996). ‘[N]either the seriousness of the offense nor the severity of the sentence imposed is determinative of whether a crime involves moral turpitude. It is rather a question of the offender's evil intent or corruption of the mind.’: Matter of Serna, 20 I&N Dec. 579, 581 (BIA 1992).
  • 19. Immigration and Nationality Act of 1952, 8 USC § 1231(3); US Department of Justice, Fact Sheet – Asylum and Withholding of Removal Relief (15 January 2009), 6 <http://www.justice.gov/eoir/press/09/AsylumWithholdingCATProtections.pdf>.
  • 20. US Department of Justice, above n 29, 6.
  • 21. Immigration and Nationality Act of 1952, 8 USC § 1231(3).
  • 22. Ibid; 8 CFR §§ 208.16, 208.17.
  • 23. 8 CFR §§ 208.18.
  • 24. US Department of Justice, above n29, 6.