The Minister for Immigration and Citizenship has the power (under section 501 of the Migration Act 1958 (Cth)) to refuse a person’s application for a visa, or cancel a person’s visa, if that person fails to satisfy the Minister that he or she passes the ‘character test’.
Visa refusal or cancellation can have serious consequences for a person, including placement in immigration detention for lengthy periods of time, separation from family and friends, removal and effective exclusion from Australia.
For information about the process of visa refusal or cancellation under section 501 and the human rights concerned raised by the consequences of this process, see the Commission’s Background paper: Human rights issues raised by visa refusal or cancellation under section 501 of the Migration Act.
The Commission has inquired into and reported on a number of complaints of human rights breaches from persons who have had their visa application refused or visa cancelled under section 501 of the Migration Act. Recent Commission reports include:
- No 51 - Brown v Commonwealth of Australia (Department of Immigration and Citizenship) (2012)
- No 47 - Mr Heyward v Commonwealth of Australia (Department of Immigration and Citizenship) (2011)
- No. 45 - Mr Al Jenabi v Commonwealth of Australia (Department of Immigration and Citizenship) (2011)
- No. 44 - Mr Toro-Martinez v Commonwealth of Australia (Department of Immigration and Citizenship) (2011)
- No. 43 - Mr NK v Commonwealth of Australia (Department of Immigration and Citizenship) (2011)
The Commission has also met with people who are in immigration detention as a result of visa cancellation under section 501 during its visits to immigration detention facilities, and has addressed these issues in its reports. See:
- Community arrangements for asylum seekers, refugees and stateless persons: Observations from visits conducted by the Australian Human Rights Commission from December 2011 to May 2012 (2012) (see the discussion in section 6.3)
- Immigration detention at Villawood (2011) (see section 9)
- 2008 Immigration detention report - Summary of Observations following the Inspection of Mainland Immigration Detention Facilities
Background paper: Human rights issues raised by visa refusal or cancellation under section 501 of the Migration Act
If there was concern for Human Rights issues raised by visa cancellations under section 501 then since the amendment of 2014 the issues would be more concerning. We are yet to see an updated background paper since the changes occurred.
There are overwhelming accounts of excessive force including cruel and inhuman treatment that is consistently used against detainees whilst in detention. Many have made formal complaints however there seems very little that can be done to combat the breaches in policies. The practices that are adhered to in detention centres is starkly different to what is expected within policies and procedures. Reports of bashings, torture, psychological torture, deprivation of basic needs such as food, water, clothing, warmth, bedding and medical attention are just some of the complaints that have been reported on a regular basis. Where then does this leave families and detainees? The AHRC makes recommendations but they do not have the power to ensure agreements are being properly exercised by all involved.
Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015
The Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 (the Bill) would give increased power to ‘authorised officers’ to use force against people (including asylum seekers) in immigration detention facilities. It appears that the majority (if not all) of the authorised officers will be employees of Serco Australia Pty Ltd (Serco), the private company contracted by the Department of Immigration and Border Protection to run Australia’s immigration detention facilities.
If the Bill is passed in its current form, it will give these private employees greater discretion to use force than is currently given to sworn police officers under the Crimes Act 1914 (Cth).
Serco itself has recognised that there need to be strict limits on the obligations and powers of private sector detention centre operators in relation to the management and control of detention facilities, particularly regarding the use of force.1
In the Australian Human Rights Commission’s submission in relation to the Bill, the Commission acknowledges that the particular environment of immigration detention means that the use of force may occasionally be necessary.2 However, it emphasises that the private contractors who work in detention facilities are not police. They need to be subject to greater levels of control and accountability than are currently provided for in the Bill. The Commission submits that the Bill is deficient because:
- the threshold for the use of force should be based on (wholly) objective criteria of necessity and reasonableness (consistent with the arrest powers under the Crimes Act and departmental policy regarding use of force in immigration detention facilities)
- the limits on the use of force should be contained in the Act rather than in policies and procedures
- specific limits should be included when force is proposed to be used to move detainees within an immigration detention facility, and when force is proposed to be used against children
- if private contractors use excessive force, both the contractors and the Commonwealth should be legally accountable.
These principles inform the Commission’s recommendations for amendments to the Bill (included as an Appendix to this factsheet).