Short Shrift to International Non-Refoulement Obligations? Australia’s Approach to Criminal Deportation

Australia’s Migration Act 1958 (Cth) provides for visas that honour Australia’s international non-refoulement obligations; it also provides for visas to be refused or cancelled on criminal grounds, resulting in removal from Australia. In 2014, Australia introduced mandatory visa cancellation for certain criminal non-citizens sentenced to 12 months or more in prison. Coinciding with these changes was the codification of aspects of refugee and human rights law, the severing of references to the 1951 Convention relating to the Status of Refugees, and the introduction of section 197C in the Migration Act, which provides that non-refoulement obligations are irrelevant when considering the power to remove non-citizens. This article focuses on the interaction between these changes in the law, analysing the application of the complex legal provisions which govern the legal position of those seeking protection or owed international non-refoulement obligations. This analysis identifies a number of unintended consequences that appear to have resulted from these changes. These include risks that Australia’s international non-refoulement obligations may not be adequately considered or safeguarded, resulting in serious consequences for the individual concerned, including the possibility of indefinite detention or refoulement. They also include implications for the rule of law, and uncertainty, delay, and cost in aspects of the system for decision making and review.