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​​​​Senate Legal and Constitutional Affairs Committee opening statement

Migration Amendment (Removal and Other Measures) Bill 2024

18 April 2024

Stephanie Foster PSM
Secretary, Department of Home Affairs​​​

I thank the Committee for the opportunity to appear before you today.

Firstly, I wish to acknowledge the concerns raised by those who have appeared before us at today’s hearing, particularly in relation to family unity.

In making any decision to cancel or refuse a visa, that decision maker must consider the best interests of the child.

Our obligations under Article 3 of the Convention on the Rights of the Child, are given effect through a series of operational policies and practices which have been the bedrock of our immigration system for many decades.

I would like to emphasise that this Bill provides a series of measures of last resort to be used in situations where people have come to the end of a lengthy set of processes to determine their right to remain in Australia.

In the majority of cases, non-citizens on a removal pathway depart Australia voluntarily or cooperate in efforts to ensure their prompt and lawful removal.

Last financial year, we had 2,184 voluntary removals and 90 involuntary removals from detention.

A further 6,000 plus people from the community on a removal pathway left Australia.

I give you these statistics to highlight the department always seeks to work with individuals to affect their removal when they no longer have a legal basis to remain.

Australia has a long and proud history of generous migration and humanitarian resettlement programs.

These rely on the Government also having the ability to remove people once they no longer have the lawful right to remain.

This Bill is an effort to deal with a gap in our legislative scheme for managing a critical aspect of the migration framework.

It is about strengthening the tools available to deal with a relatively small caseload of non-citizens who have come to the end of the line in their efforts to stay, and who are not cooperating with lawful arrangements for their departure.

Every opportunity has been given for this group of non-citizens to make their claims in relation to remaining in Australia.

In nearly all cases these non-citizens have exercised their right to merit review and judicial review of decisions to deny or cancel an Australian visa, and no longer have a lawful basis to remain in Australia.

There has been a lot in the media that implies that this Bill will be used to expand the cohort of people who are required to be removed from Australia.

To be clear, this Bill does not expand the cohort of people who are required to be removed from Australia.

I wish to be clear about the application of this Bill to non-citizens who have sought protection in Australia.

We uphold our obligation to ensure that Australia does not breach international law on non-refoulement.

Anyone with an ongoing protection visa application cannot be subject to a removal pathway direction until such time as their application has been finally determined.

I also wish to be clear that the provisions in this Bill that allow the Minister to revisit a protection finding apply only in relation to non-citizens who are on a removal pathway.

Consistent with existing provisions in the Migration Act, it is appropriate to include an ability to reassess the circumstances of a person who is already on a removal pathway, for example because they have committed a crime in Australia and are unable to meet the criteria for a visa to remain.

Designating a country as a removal concern country would be a very serious matter, taken in the national interest, and any decisions to do so would be taken only after extensive consultation within the highest levels of Government.

Our first and highest priority will always be to work cooperatively with countries to accept the return of their citizens.

This is the starting point for implementation of this legislation if passed. There is no pre-conceived list of countries that might be designated.

In a situation where we face problems with another country, we would hope that in the first instance, the fact of this legislation being in place would be sufficient to allow us to negotiate an outcome.

In the case of a designation being made, the legislation provides significant flexibility for it to be designed in a way that provides the greatest incentive for a foreign government to cooperate, as well as exemptions to ensure it does not punish communities in Australia.

We look forward to answering the Committee’s questions.


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