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From cancellation to removal: Australia's complex migration regime and its implications for Australia's non-refoulement obligations in character cases

Robb, Lillian (2018) From cancellation to removal: Australia's complex migration regime and its implications for Australia's non-refoulement obligations in character cases. Honours thesis, Murdoch University.

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Abstract

Australia owes non-refoulement obligations to non-citizens who are protected under the Refugee Convention, the Convention Against Torture, and the International Covenant on Civil and Political Rights. Australia’s adherence to non-refoulement obligations relies primarily on the operation of The Migration Act 1958 (Cth) which regulates the coming into, and presence of, non-citizens in Australia. This thesis focuses on a network of interrelated provisions within the Migration Act 1958 (Cth) which deal with non-citizens who are found to be of ‘bad character’ due to the commission of crimes in Australia. This thesis examines each of the character related provisions in the Migration Act 1958 (Cth) moving from the time at which a non-citizen’s criminal behaviour is first considered, to the possible removal of a non-citizen from Australia. To achieve this examination, this thesis explores the character cancellation and refusal provisions contained in s 501 of the Migration Act 1958 (Cth), the exclusion clauses contained in ss 36(1C) and 36(2C)(b) which exclude non-citizens from the grant of a protection visa due to commission of ‘particularly serious crimes’, and the provisions in s 197C which affect the availability of the removal powers in cases where non-citizens are owed non-refoulement obligations by Australia.

This thesis concludes that there exists a number of potential pathways by which a non-citizen may become subject to removal from Australia despite being owed non-refoulement obligations by Australia. Additionally, it is concluded that the procedural safeguards in place are not sufficient to ensure that non-citizens who are found to be of ‘bad character’ will not be removed from Australia in breach of non-refoulement obligations. It is considered that this possibility exists despite an apparent understanding, on the part of the Australian Parliament, that this legislation, and the recent 2014 amendments, would not result in the removal of non-citizens in breach of non-refoulement obligations.

Item Type: Thesis (Honours)
Murdoch Affiliation: School of Law
Supervisor(s): Goodie, Jo and Kenny, Mary
URI: http://researchrepository.murdoch.edu.au/id/eprint/44721
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