CTH
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Migration Act 1958 - General Direction under section 499 - Australia's Criminal Deportation Policy - Criminal Deportation under section 200 (Direction No. 9 of 1998)
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Turn the raw legal text into a practical explanation grounded in Migration Act 1958 - General Direction under section 499 - Australia's Criminal Deportation Policy - Criminal Deportation under section 200 (Direction No. 9 of 1998).
25. Decision makers are to consider the international obligations contained in this section.
26. The International Convention on Civil and Political Rights (ICCPR) has an implicit non-refoulement obligation where as a necessary or foreseeable consequence of expulsion, the person would face a real risk of violation of his or her human rights, such as being subjected to torture or the death penalty (no matter whether lawfully imposed). For further assistance on this point contact Legal Policy Section in Central Office.
27. The Convention Against Torture (CAT) has an explicit prohibition against expulsion 'where there are substantial grounds for believing the [the person] would be in danger of being subject to torture'. The prohibition is absolute: there is no balancing of other factors if deportation would amount to refoulement within the meaning of the CAT. For further assistance on this point, contact Legal Policy Section in Central Office.
28. In cases where issues of protection pursuant to the Convention and the Protocols Relating to the Status of Refugees (the Refugees Convention) are raised, they must be given consideration by the Minister as part of the exercise of the discretion to deport.
29. The critical issue is whether the life or freedom of a person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion pursuant to Article 33(1) of the Refugees Convention. This issue must be determined at the time the deportation decision is made. It should be noted that prior recognition of refugee status, while relevant, does not determine this issue. In other words, international law allows for the possibility that the person’s refugee status may have ceased by the time deportation is considered.
30. If Article 33(1) does not apply to the person, there is no obligation on Australia to provide the person with protection under the Refugees Convention. If Article 33(1) applies, then the question is whether the person, having been convicted by a final judgment of a particularly serious crime, is a danger to the community, in which case the person cannot claim the benefit of article 33(1).
31. Notwithstanding International obligations, the deportation power must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be deported in the interests of the Australian community ultimately lies within the discretion of the responsible Minister.