Why a proposed law to use secret evidence to deport migrants has sparked concern

Rights groups and migrant advocates are concerned the federal government's proposed law could have "catastrophic consequences" for migrants facing potential visa cancellations.

Rosalind Croucher is president of the Australian Human Rights Commission, which has recommended the bill not be passed.

Rosalind Croucher is president of the Australian Human Rights Commission, which has recommended the bill not be passed. Source: AAP

There are widespread fears a proposed law allowing visas to be cancelled based on secret evidence could deny migrants their right to justice.

The federal government says the legislation, which could result in a person being deported or detained without knowing the evidence behind the decision, would prevent the disclosure of confidential information provided by law enforcement or intelligence agencies for use in decisions to refuse or cancel visas on character grounds.

But rights groups and migrant advocates are worried the move amounts to a fundamental breach of procedural fairness by making it more difficult for individuals to challenge visa cancellations. 

The legislation, known as the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill, is currently before parliament’s intelligence and security committee.

An analysis by SBS News of non-government submissions made to the inquiry indicated an overwhelming rejection of the proposed legislation.

Their concerns hinge on the significant implications for migrants whose visas are cancelled then face being forcibly deported from Australia, or detained indefinitely without charge or trial if they are stateless.

So why has the proposed law prompted so much concern - including from the Australian Human Rights Commission, the office of the United Nations High Commissioner for Refugees (UNHCR) and migrant advocates? 

An overreach of power?

The federal government argues the bill is aimed at strengthening its capacity to refuse and cancel visas on the basis of character grounds under the Migration Act and Australian Citizenship Act.

The legislation proposes amendments to create what it describes as a framework for the protection and controlled authorised disclosure of information provided in confidence by law enforcement and intelligence agencies.

The government claims this type of sensitive information has underpinned many character-related visa decisions where there would otherwise be insufficient evidence - citing outlaw motorcycle gang members as an example.

But the move has prompted concern from groups worried the bill amounts to an overreach of power that threatens to prejudice the ability of people facing visa cancellations to challenge the decision. 

The Australian Human Rights Commission's inquiry submission said the proposed law runs counter to legal principles “that the state should not be permitted to rely on secret evidence in cases where a person’s liberty is at stake" and has "substantial human rights implications". 

The UNHCR has also raised concern about the “confidential nature” of the proposed framework amounts to a “further weakening” of Australian law to remain in accordance with international obligations.

“It is essential that asylum seekers, refugees and stateless persons be afforded full procedural safeguards and guarantees at all stages of the visa and citizenship determination process,” its submission said. 

The UN body further warned of the “grave consequences” of an “erroneous determination” being made.

How does the law work?

The bill was tabled in response to a 2017 High Court decision that found part of the Migration Act was unconstitutional because it denied information being provided to courts by allowing the minister to “shield” certain evidence from disclosure.

Following this ruling, the federal government has complained the current threshold for public interest immunity retained by the minister does not adequately protect the type of confidential information used in visa decisions.

Under the proposed new law, a court could apply for access to this type of sensitive information but would face this being severely restricted. 

For example, it could require the High Court, Federal Court or Federal Circuit Court to order a minister to produce or provide evidence it considers relevant to a visa decision. 

But the court would then have to hold closed hearings only be open to parties who hold the information - before deciding whether it could be disclosed further, including to the person whose visa has been cancelled.

This would require the court to determine whether disclosing the information would create a “real risk of damage to the public interest” in order to decide whether it should be shared more widely.

This includes provisions factoring in the risk that disclosures could discourage law enforcement and intelligence agencies from sharing information, and impact Australia’s relations with other countries or its national security.

Anyone who disclosed the “protected information” outside limited exceptions could be jailed for two years.

The “protected information” regarding a visa decision would also not be able to be shared as evidence to a tribunal or in parliament.

Migrant advocates worried

The Visa Cancellations Working Group - representing a coalition of private law firms, not-for-profit organisations and community legal centres - has warned the new law could install "a regime of alarming secrecy".

The group raised concerns courts would be forced to make “swift” and “complex” decisions around whether “protected information” should be disclosed.

“Detention and removal from Australia are not matters to be taken lightly or to be facilitated with secrecy,” its submission says.

“Under the proposed framework, Australians will likely never know if these extraordinary powers are being misused or even abused.”

In its submission, the Asylum Seeker Resource Centre also said the bill would cause “severe prejudice” to the ability of people facing visa cancellations to challenge decisions.

“These decisions to cancel visas or remove citizenship typically have catastrophic consequences for the people concerned, including deportation from Australia,” its submission says.

In Australia, most visa cancellations are made under sector 501 of the Migration Act.

Through these powers, the government can cancel visas of non-citizens over character concerns as well as for criminal convictions, or if they are considered part of a group suspected of wrongdoing.

In 2020/21, there were 946 visa cancellations and 785 application refusals made under the section 501 provision.

But since 2012-13 the government’s use of visa cancellation on “character grounds” has soared from 139 to a peak of 1,278 in 2016-17.

Could the bill pass this year?

SBS News understands the bill could be brought on for debate later this year, but the prospect is far from certain with only four sitting weeks remaining.

The Labor party has previously warned the legislation runs “fundamentally inconsistent with the rule of law” and said the bill should not be passed.

But the federal government argues the measure strikes a balance in preserving the right to a fair and public hearing on visa and citizenship decisions, while protecting disclosure of confidential information.

The Australian Federal Police has also expressed support for the measure, saying safeguarding protected information is “essential to combatting crime and ensuring the safety of the community”. 

The Australian Security Intelligence Organisation also said it had “no concerns” with the proposed legislation.

Published 13 October 2021 at 4:56pm, updated 13 October 2021 at 5:21pm
By Tom Stayner
Source: SBS News