Migration Amendment (Removal and Other Measures) Bill 2024

Under proposed section 199C(2), the Minister may direct the non-citizen to do a thing, or not do a thing, if the Minister is satisfied that the non-citizen doing, or not doing, the thing is reasonably necessary: to determine whether there is a real prospect of the removal of the non-citizen from Australia under section 198 becoming practicable in the reasonably foreseeable future; or to facilitate. [...] There are few apparent limits on the things that the Minister may direct a removal pathway non-citizen to do or not to do, provided that the Minister forms the view that it is reasonably necessary to facilitate the person’s removal from Australia, or to determine if there is a prospect of removal of the person from Australia under section 198 becoming practicable in the reasonably foreseeable futu. [...] While the Minister must not give a removal pathway direction to a removal pathway non-citizen if the non- citizen is a child under 18,19 the Minister may give a direction to the parent or guardian of a child to do something on the child’s behalf.20 This power may be exercised despite Australia’s obligations under the Convention on the Rights of the Child (CRC),21 which require that, in all actions. [...] However, this overlooks that it is common in the context of a protection visa application for a decision-maker to determine that the person does not face a real chance of serious or significant harm in the country in question only because the person’s circumstances would be unlikely to come to the attention of the authorities of that country. [...] In the current context, the mandatory sentence takes away the ability of the sentencing court to take into account the circumstances of the individual case, which could include the very trauma experienced by the person and a genuine fear of prosecution if returned (even though the latter cannot be a defence due to proposed section 199E(4)).