Section 501 And The Question Of Human Rights Abuses

INTRODUCTION

Migration law in Australia is intertwined with international law and standards. The international responsibilities that Australia adhere to come under conventions, treaties and standards. Although treaties are formal legally binding documents, Australia has breached many obligations under international law. This piece will explore s 501 of the Migration Act 1958 (Cth) and analyse the concerns that are a subsequent outcome of administrative and ministerial decision making.

WHAT IS SECTION 501?

The Migration Act was created with an objective to ‘regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’.[1] Section 501 ‘provides the regulatory framework on which the Minister for Home Affairs or a delegate of the Minister may refuse or cancel a temporary or permanent visa on character grounds’.[2]

Section 501 is as follows:

Refusal or cancellation of visa on character grounds

Decision of Minister or delegate–natural justice applies

  • visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note: Character test is defined by subsection (6).

  • The Minister may cancel a visa that has been granted to a person if:
  • the person does not satisfy the Minister that the person

passes the character test.

All ‘non-citizens are potentially subject to section 501, regardless of length of residence in Australia and level of absorption into the Australian community’.[3] Due to the broad powers of s 501 it has become the ‘principal mechanism used to remove people from Australia’.[4]

The practice of applying s 501 ‘to long-term residents has been widely criticised by the Senate Legal and Constitutional References Committee, the Commonwealth Ombudsman and the Australian Human Rights and Equal Opportunity Commission, as well as various members of the Federal Court’.[5] This criticism leads to the ultimate question – are the human rights of non-citizens being upheld?

WHAT ARE THE CHARACTER GROUNDS?

The character requirement is provided by s 36(1C) and s 36(2C)(b).[6] The applicant cannot be a person who is a danger to Australia’s security, based on reasonable grounds.

As mentioned above, the use of s 501 has become a cause for concern according to the Commission. This is due to the ‘impact on the human rights of people whose applications for visas are refused or whose visas are cancelled under s 501’.[7] Administrative decisions regarding entry to or removal from Australia can be lengthy and non-citizens often face ‘prolonged and indeterminate detention’.[8] It is well known that the mental health effects of indeterminate detention are detrimental and are a direct breach of international human rights standards.

MANDATORY DETENTION AND THE RELATIONSHIP WITH INTERNATIONAL LAW OBLIGATIONS

Australia has a commitment to uphold ratified international law obligations. This commitment is crucial to not only maintain Australia’s international interests, but to protect human rights. An example is The International Covenant on Civil and Political Rights (ICCPR). This was ratified in Australia in 1980 and led to the creation of the Australian Human Rights Commission in 1986. There is a clear inconsistency between Australia’s international law obligations and the laws that authorise mandatory and indefinite detention for visa-less non-citizens.[9]

Mandatory detention for ‘unlawful non-citizens’ is a breach of article 9(1) of the ICCPR:

Article 9

1. Everyone has the right to 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 procedure as are established by law.[10]

Section 501 of the Migration Act 1958 (Cth) is used when a non-citizen has a substantial criminal record and is further transferred into immigration detention upon completion of their prison sentence.[11] Even after someone has completed their prison sentence they can be transferred into immigration detention for months or even years.[12] In 2008 the Commonwealth Ombudsman observed that it was not uncommon for people who were detained following cancellation of their visa under section 501 to spend more time in immigration detention than they did in prison.[13]

Immigration detention is supported by the Migration Act 1958 (Cth). Section 189(1) provides that ‘an officer who reasonably suspects that a person is an unlawful non-citizen must detain the person’.[14]

This was seen in the Basikbasik case in 2014 where Basikbasik was detained in an immigration centre for seven years following his release from prison and cancellation of his protection visa.[15] This was a case where the Australian Human Rights Commission concluded that the ongoing detention was arbitrary in breach of article 9(1) of the ICCPR.[16]

CASE LAW RELATING TO S 501

In Falzon v The Minister [2018], Falzon was convicted of trafficking a large amount of cannabis.[17] Falzon was a national of Malta and moved to Australia with his family when he was three years old. Falzon maintained his visa as a lawful non-citizen. Falzon was sentenced to 11 years imprisonment with a non-parole period of eight years. His visa was cancelled by a delegate of the Minister under s 501(3A), and he was taken into immigration detention at the conclusion of his non-parole period. Although the Minister acknowledged that Falzon had strong family ties in Australia and that his removal would cause substantial emotional, psychological and practical hardship to his family (two sisters, four brothers, four adult children and 10 grandchildren)’ his risk of harm to the Australian community outweighed the interests of the plaintiff.[18]

In 2009, Andrew Moore a 43-year-old UK Citizen who had been a permanent resident in Australia since he was 11 years old, was deported to the UK. Moore was suffering from a number of serious health problems with a long history of drug and alcohol abuse. Moore was left at Heathrow airport. Two days later he was found dead.

Although both Moore and Falzon were committed of criminal offences, was the use of s 501 and the deportation seen as a form of additional punishment beyond those ‘envisaged or sanctioned by the sentencing court’?[19]

The High Court affirmed that ‘while a person who has been lawfully in Australia for more than 10 years is protected from deportation pursuant to the deportation power in ss 200 and 201, he or she always remains liable to visa cancellation and removal under s 501, regardless of length of resident or connection to the Australian community’.[20]

DEPORTATION OF LONG-TERM RESIDENTS AND INTERNATIONAL LAW

International human rights law today has a stronger influence on a state’s ability to ‘deport or expel a person in certain circumstances.’[21] The main question after considering the effects of s 501 is – what substantive obligations does Australia have when utilising this section for deportation of long-term residents? Article 12(4) of the International Covenant on Civil and Political Rights (‘ICCPR’) provides that ‘[n]o one shall be arbitrarily deprived of the right to enter his own country’.[22] The phrase ‘own country’ has been a contentious one. The precise definition of ‘own country’ has been questioned and has been deemed to include more than just nationality and citizenship. This was seen in Stewart v Canada in 1996. The question was whether the ‘right to enter one’s own country’ under Article 12(4) of the International Covenant on Civil and Political Rights was limited to nationals.[23] The committee determined that this phrase was broader than the concept of ‘country of his nationality’ and that ‘it embraces, at the very least, an individual who, because of his special ties to or claims in relation to a given country cannot there be considered to be a mere alien.’[24] Therefore, international law treaties should be interpreted in a way that compliments the overall purpose of the law. In the future, if international treaties are interpreted in a ‘dynamic and evolutionary fashion’ it will go beyond a narrow interpretation.[25]

CONCLUSION

Overall, the use of s 501 to deport long-term residents that call Australia ‘home’ urgently needs review. The purpose behind the Migration Act’s character test never intended to apply to long-term residents. Although s 501 is lawful, it undermines the ‘sound policy reasons behind s 201’ and clearly implicates international law.[26]


[1] Migration Act 1958 (Cth) s 4(1).

[2] Sophie Manera and Ken Chong, ‘Where do they go now?: Untangling the web of uncertainty faced by refugees with character concerns’ (2019) 46(1) BRIEF 12.

[3] Chantal Bostock, ‘The effect of ministerial directions on tribunal independence’ (2011) 66 AIAL Forum 33.  

[4] Ibid.

[5] Michelle Foster, ‘An “alien” by the barest of threads: the legality of the deportation of long-term residents from Australia’ (2009) 33(2) Melbourne University Law Review 483, 486.

[6] Migration Act 1958 (Cth).

[7] Australian Human Rights Commission, ‘What are the human rights issues raised by refusal or cancellation of visas under section 501?’ (Web Page) <https://www.humanrights.gov.au/our-work/4-what-are-human-rights-issues-raised-refusal-or-cancellation-visas-under-section-501&gt;.

[8] Peter Billings, ‘Whither indefinite immigration detention in Australia? Rethinking legal constraints on the detention on non-citizens’ (2015) 38(4) University of New South Wales Law Journal 1386.  

[9] Ibid 1395.

[10] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 9.

[11] Peter Billings, ‘Whither indefinite immigration detention in Australia? Rethinking legal constraints on the detention on non-citizens’ (2015) 38(4) University of New South Wales Law Journal 1386, 1417.

[12] Amy Nethery, ‘Partialism, Executive Control, and the Deportation of Permanent Residents from

Australia’ (2012) 18 Population, Space and Place 729, 737.

[13] Commonwealth and Immigration Ombudsman, Submission to the Joint Standing Committee on Migration’s Inquiry into Immigration Detention in Australia (2008), p 11 <http://www.ombudsman.gov.au/files/Joint_Standing_Committee_on_Migration_Inquiry_to_immigration_detention_in_Australia.pdf&gt;.

[14] Falzon v Minister for Immigration [2018] 262 CLR 333, 339.

[15] Peter Billings, ‘Whither indefinite immigration detention in Australia? Rethinking legal constraints on the detention on non-citizens’ (2015) 38(4) University of New South Wales Law Journal 1386, 1417.

[16] Gillian Triggs, Australian Human Rights Commission, Basikbasik v Commomwealth of Australia (DIBP): [2014] AusHRC 77 (June 2014), 7 [45].

[17] Falzon v Minister for Immigration [2018] HCA 2.

[18] Ibid.

[19] Michael Grewock, ‘Punishment, deportation and parole: The detention and removal of former prisoners under section 501 Migration Act 1958’ (2011) 44(1) Australian & New Zealand Journal of Criminology 56, 57.

[20] Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566.

[21] Michelle Foster, ‘An “alien” by the barest of threads: the legality of the deportation of long-term residents from Australia’ (2009) 33(2) Melbourne University Law Review 483, 515.

[22] Ibid 515.

[23] Stewart v Canada UN Doc CCPR/C/58/D/538/1993 (Official Case No).

[24] Michelle Foster, ‘An “alien” by the barest of threads: the legality of the deportation of long-term residents from Australia’ (2009) 33(2) Melbourne University Law Review 483, 517; Stewart v Canada UN Doc CCPR/C/58/D/538/1993 (Official Case No).

[25] Michelle Foster, ‘An “alien” by the barest of threads: the legality of the deportation of long-term residents from Australia’ (2009) 33(2) Melbourne University Law Review 483, 518.

[26] Ibid 540.  

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