Submission to the Senate Legal and Constitutional Affairs Legislation Committee Inquiry
12 April 2024
Acknowledgement of country
National Legal Aid acknowledges Aboriginal and Torres Strait Islander people as the traditional custodians of the land and waters. We acknowledge and pay respects to their Elders, past and present. In our work, we are committed to advocating for the rights of Aboriginal and Torres Strait Islander people and communities.
About National Legal Aid
National Legal Aid (NLA) represents the Chief Executive Officers of the eight State and Territory Legal Aid Commissions (LACs). Five of the eight Legal Aid Commissions provide legal assistance in migration law. This submission draws from this expertise.
Executive Summary
National Legal Aid represents the eight Chief Executive Officers of the state and territory Legal Aid Commissions (LACs). Five of the LACs provide legal assistance to migrants, refugees and asylum seekers at the Administrative Appeals Tribunal and Federal Court and a number have recently received additional temporary funding to increase legal assistance and representation for the protection visa application process and review. NLA has drawn on the expertise in particular of Legal Aid NSW, Victoria Legal Aid and the Legal Services Commission of South Australia and is well placed to comment on the Migration Amendment (Removal and Other Measures) Bill 2024 (the Bill) as the LACs have a high level of expertise in this area of law.
NLA has significant concerns about the introduction of the Bill, which has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry. If enacted, the Minister would be empowered to compel asylum seekers and refugees to return to countries where they fear or are at risk of serious harm or otherwise face lengthy and disproportionate mandatory imprisonment in Australia. It would also allow for the breach of Australia’s international obligations such as under Article 14 of the Universal Declaration of Human Rights. It would grant extremely broad discretionary
powers to the Minister to be exercised in the national interest, without opportunity for review or accountability.
This Bill fails to recognise the difficulties faced by many non-citizens and the barriers to voluntary removal. For example, policies and laws have barred people from applying for protection visas on arrival, suspended processing for years on end, delayed processing, and placed asylum seekers in prolonged detention.
NLA has had limited capacity to appropriately review the Bill and to properly consult with stakeholders regarding its impact, including clients, due to the timeframes imposed. However, in reviewing the Bill NLA has identified sections that are unclear and potentially contradictory which presents risks in interpretation and implementation and may detrimentally impact migrants, refugees and asylum seekers and place their safety at risk.
Consequently, NLA recommends that the Bill should be extensively reviewed and not be passed in its current form.
Overall recommendation
1. NLA has significant concerns with the content of the Migration Amendment (Removals and Other Measures) Bill 2024 and has identified sections that are unclear and potentially contradictory. Notwithstanding the additional recommendations below, NLA recommends that the Bill should be extensively reviewed and not be passed in its current form.
Summary of additional recommendations
2. That clear and transparent language should be used where the legislation confers broad powers on the Executive, particularly in sections 197C, 199A, 199B, 199C and 199F.
3. That additional safeguards be put in place to prevent the conferral of powers which would potentially allow breaches of our international obligations, particularly in sections 199E.
4. That ‘relative’ (within the meaning of the Regulations) replace ‘spouse, de facto partner or dependent child’ in s 199G(2).
5. That all current and former Australian permanent residents, and former Australian citizens, be inserted as an exemption in s 199G(2).
6. That the mandatory/minimum sentence penalty is removed.
7. That section 199B(1)(d) is restricted so that it does not allow the Minister to expand the category by Regulations; limiting it to the visas specified in the Act.
8. That if the Bill is passed, that it be independently reviewed within 12 months of implementation to assess the safety and other impacts on migrants, refugees and asylum seekers.
A detailed outline of the rationale for these recommendations is provided below.
Annexure – Further details
Our key recommendation is that the Bill should not be passed in its current form. In reviewing the Bill NLA has identified sections that are unclear and potentially contradictory which presents risks in interpretation and implementation and may detrimentally impact migrants, refugees and asylum seekers and place the safety at risk. The recommendations outlined in the annexure are to minimise the harm and risk of unlawfulness and human rights breaches presented by the current Bill.
Schedule 1 - Main Amendments
Section 199A Reason for Subdivision
1. The use of words such as “expectations” and “cooperation” in s199A(1) does not reflect the coercive and punitive approach of the Bill. It is disingenuous to use these words in the context of someone who has failed to be granted a protection visa but nevertheless has a genuine fear or risk of harm if returned.
2. NLA is aware of a small number of countries that have refused to accept involuntary returnees. It is far from clear that these countries will view the application of the coercive powers in the Bill as satisfying their definition of a voluntary returnee.
3. NLA strongly believes that clear and transparent language should be used in legislation, particularly where the legislation confers broad powers on the Executive.
Section 199B Removal of pathway non-citizens
4. NLA contends that this section is overly broad. It does not just target the NZYQ cohort1 but also allows the Minister to add other cohorts through the Regulations, bypassing Parliamentary oversight. We are also concerned about the lack of clarity regarding the inclusion of anyone who is required to be removed under section 198, as it is unclear whether this refers to people who are "finally determined" as defined in section 5(9) and (9A), or people who have exhausted all judicial review options. Further, given the Ministerial powers are non-compellable, it is unclear whether it includes people who have submitted Ministerial requests that are sitting with the Department, or those that have been referred to the Minster for their consideration. As far as we know, the case law is not settled on this, and therefore defining a group of people by reference to section 198 and their removal from Australia being
reasonably practicable is highly problematic.
5. Including Bridging Visa E holders within the cohort of ‘removal pathway non-citizens’ lacks any clear justification and would result in a concerning extension and overreach of Executive power. We have seen BVE's granted on removal grounds for other practical reasons, where it is accepted that the person is not making arrangements to depart. BVE's are also sometimes granted on removal grounds so that applicants can access work rights that would not be available otherwise. We are concerned this would also capture people who would be classified a removal pathway non-citizen, despite their child being a citizen. The unintended consequences are quite pronounced. The sanctions foreshadowed by the Bill could act as a real deterrence to anyone seeking to apply for a Bridging Visa E to regularise their status and depart in an orderly way.
6. Sections 199B(2) and 199B(3) are poorly worded and appear to be contradictory and confusing. Read together they appear to impose the punitive measures outlined in the Bill on visa applicants who have had protection findings made in their favor.
7. Section 199B(3) would protect a non-citizen on a BVR who met sections 36(2)(a) (refugee) and 36(1C) (danger to the community) (s197C(a)), but then if at some time in the future their Protection Visa is cancelled under section 501(3A) they would still have a “protection finding” under section 197C(5)(a) but would now be a “removal pathway non-citizen” pursuant to section 199B(1)(b). They could then be given a removal pathway direction under section 199B(2)(a). If Australia and a third country then came to an agreement, they could then be directed to complete forms to travel to that third country, and if they did not comply, they may be committing an offence ((s199B(2)(b)).
8. NLA is strongly of the view that if legislation is proposing that the Executive be given wide powers over a particularly vulnerable section of society then the proposed legislation needs to clearly state both the power and those affected by the power rather than refer to multiple other sections of the Act. Noting that section 197C itself refers to multiple other sections within the Migration Act.
Section 199C Minister may give removal pathway directions
9. NLA does not support the proposal to provide the Minister with the discretionary powers contained in section 199C. The powers are too broad, they are not subject to adequate safeguards, and they are unnecessary for the purpose of effecting involuntary removal of a non-citizen.
10. Under this section the Minister will be empowered to direct ‘removal pathway non-citizens’ to, among other things, complete applications, provide and sign documents, and report to officers for any purpose: section 199C(1). This would be a significant barrier for many asylum seekers who are unable to provide identity documents, which is particularly the case for stateless people for whom they do not exist. Asylum seekers are therefore vulnerable to being charged for a criminal offence for failing to provide a document, when that is out of their control. We are also concerned this shifts the burden to the asylum seeker to prove they have a reasonable excuse or face 1 year imprisonment. Further, what is reasonable is a matter of interpretation and it will differ depending on the decision maker, and their understanding and acceptance of the circumstances of the applicant and the applicants country of origin. We have seen the consequences of similar provisions in the Migration Act where failure to provide documents without a reasonable excuse has resulted in mandatory refusal of protection visas for families who claim to be stateless: See section 91W of MA. The Minister is further empowered to direct the non-citizen to do ‘any thing’ or refrain from doing ‘any thing’ for the purpose of facilitating their removal or determining whether there is a real prospect of their removal becoming practicable: section 199C(2). If non-citizens do not comply with a direction under section 199C without a reasonable excuse they commit an offence under section 199E, which is discussed below.
11. These powers are too broadly expressed; particularly in light of the harsh consequences for non-compliance with removal directions contained in sections 199C(5) and 199E.
12. For example, section 199C(1)(c) and (d) permit the Minister to direct a removal pathway noncitizen to provide any documents or information to an officer or other person. This power is not expressed to be limited to the purpose of facilitating removal unlike in sections 199C(1)(b) and 199C(2). While we are strongly of the view these powers should not exist, we also note that this provision would permit the Minister to direct any removal-pathway non-citizen to obtain any document it seeks for any purpose. There are no adequate safeguards to ensure that this power is exercised for purposes strictly related to removal.
13. This is not a power contemplated by the purpose of Subdivision D contained in section 199A which states that the objective of the Subdivision is that Parliament expects non-citizens to leave Australia and not frustrate attempts to leave Australia: section 199A(1). The power also appears to be incongruent with the Australian Privacy Principles (APPs). Schedule 1 of the Privacy Act 1988 (Cth), require entities only to collect sensitive information if the information is reasonably necessary for one or more of the entity’s functions (APP 3.3) and must only collect information by lawful and fair means: APP 3.5.
14. Section 199C(2) provides even greater powers to the Minister to direct a removal pathway non-citizen to do any thing, or refrain from doing any thing, for the purpose of facilitating removal or determining whether there is a real prospect of that person’s removal becoming practicable in the reasonably foreseeable future.
15. NLA considers that this provision is unnecessary as is not apparent what directive powers are contemplated by section 199C(2) which are not already provided to the Minister pursuant to section 199C(1). NLA is of the view that any discretionary powers provided to the Minister to direct non-citizens to act or omit to act, non-compliance with which renders them liable to imprisonment, should be clearly spelled out in legislation.
16. NLA is of the view that the Minister is already entitled to request travel documents on behalf of citizens from foreign governments and that the powers contained within sections 199C(1) and (2) are unnecessary and impose disproportionate punishments for non-compliance. They also criminalise asylum seekers, whose fears may be justified and reasonable even if they do not meet the criteria for a protection finding. The Minister’s Procedural Instruction titled ‘Removal from Australia – Notifying stakeholders of the removal’ dated 13 September 2018 released under the Freedom of Information Act 1982 (Cth) identifies that “lack of cooperation from the removee in obtaining a travel document does not, however, prevent the Department from applying for and obtaining a travel document on the removee’s behalf.”
17. The Minister can, and does, request travel documents from foreign governments without the consent of non-citizens who object to removal. Imposing mandatory sentences of imprisonment for individuals who do not apply for travel documents in circumstances where the Minister is largely able to seek travel documents of its own accord is a disproportionate punishment, particularly given the non-citizen’s behaviour is non-violent, minimally obstructive and may be for legitimate purposes of avoiding harm or persecution feared in their home country.
Section 199D Circumstances in which Minister must not give a removal pathway direction
18. Section 199D(5) has potential implications for the rights of the child. The Minister can direct parents to take actions in relation to their children, with no apparent consideration of the child's best interests. Parents will essentially be forced, through the threat of 1 to 5 years imprisonment, to cooperate in the removal of their child, even if they fear harm on return.
19. This Bill does not address the legitimate concerns around fast-track applicants, as their protection applications have been finalised, but the fast track system has been found to be unfair (discussed further at paragraph 25 below). The result is that many fast-track applicants with genuine protection claims may have been refused protection and exhausted all avenues of appeal. We see this also does not address refugees who arrived on humanitarian visas but have no "protection finding" as defined in subsections 197C(4),(5), (6) and (7), however these people could make an application for a protection visa, which would result in them not falling within section 199B. Further, we are unclear what would happen if someone is unwilling (e.g., due to mental health) or has no capacity to apply for a protection visa - it appears they would not be protected by section 199D and would face refoulment.
Section 199E Offence for non-compliance with removal pathway direction
20. NLA does not support the inclusion of this section due to the potential for breaches of Australia’s international obligations and the disproportionate and inflexible nature of the minimum mandatory sentence penalty.
21. Section 199E outlines that it is a criminal offence to refuse to comply with a removal direction order. The penalty is 5 years imprisonment or 300 penalty units, or both. Section 199E(2) extraordinarily imposes a mandatory minimum sentence of 12 months imprisonment. This does not apply if the person has a “reasonable excuse” for not complying.
22. The reasonable excuse defense under subsection 199E(3) lacks sufficient clarity. Section 199E(4) lists three circumstances that are considered not to be a “reasonable excuse:” if they have a “genuine fear of suffering persecution or significant harm if [they] were removed to a
particular country;” if the person “is, or claims to be, a person in respect of whom Australia has non-refoulement obligations;” or if the person believes that they “would suffer other adverse consequences” by complying with the direction.
Breach of international non-refoulement obligations
23. Section 199E(4) indicates that if a person refuses to comply with a “removal pathway direction” to take steps to leave Australia, they would still be subjected to a mandatory minimum 12-month prison sentence, even if they are a person in respect of whom Australia has non-refoulement obligations. This provision is highly concerning, since it will lead to the systemic criminalisation of asylum seekers and other vulnerable non citizens.
24. Section 199B(3) indicates there is “nothing in 199C or 199D” (without mentioning 199E) that “authorises or requires the removal of a non-citizen” to a country in breach of non-refoulement obligations. Section 199D(1)(a) indicates that the Minister must not give a removal pathway direction to someone who cannot be removed to that country due to Australia’s non-refoulement obligations.
25. This confusing drafting appears to indicate that the Minister can give removal directions to people to whom we owe international non-refoulement obligations, and that if they refuse to comply, they could face serious criminal penalties. This leaves it open to the Minister to remove people from Australia to whom we owe international non-refoulement obligations, presumably to a third country rather than their country of origin.
26. This is particularly problematic for fast-track review applicants who have been denied a fair merits appeal opportunity. UNHCR has criticised Australia’s fast-track process, noting that:
…key procedural safeguards are absent from the review process. For instance, its accelerated review process denies asylum-seekers the opportunity to attend a review hearing and the review authority can only consider new information that was not before the first instance decision maker in exceptional circumstances. This has resulted in consistently high rejection rates, especially for particular nationalities, since commencement. Moreover, the fast track merits review process is not available to all those who receive a negative outcome at the primary stage. As at 31 March 2021, 71 persons had been found to be excluded from any form of merits review, many on the basis that their protection claims had been refused by a country other than Australia, despite the passage of time and any new protection claims that may have emerged in the interim.
27. This section is also problematic as it does not allow for situations where new claims may have arisen since the original protection visa refusal, for example, for Afghans since the return of the Taliban to power in 2021.
28. The principle of non-refoulement under international law obliges States not to expel or return (refouler) a person to a country where their life or freedom would be threatened, in any manner whatsoever. This obligation is binding under customary international law, as well as being set out in various international human rights law instruments. It is an absolute obligation that protects people “irrespective of their criminal record or the danger they may pose to the security of the host state.”
29. Non-refoulement is not limited to returning refugees to their countries of origin: it can also include returning refugees to “unsafe third countries,” and it can include indirect measures of return. This obligation prohibits host states from sending a person to a destination state where they ought to have known that it would result in them being further sent to another state where there is a risk of ill-treatment (indirect or “chain refoulement”).
30. As we have seen in the past with Australia’s agreements for the transfer of asylum seekers to Papua New Guinea and Nauru, the inclusion of this section has the risk of leading to breaches of Australia’s international obligations.
31. Section 199E(4) would enable Australia to indirectly breach its non-refoulement obligations, as it has the potential to pressure asylum seekers and refugees to return to their country of origin where they risk serious harm, in order avoid a lengthy prison term or transfer to an unsafe third country.
Disproportionate and draconian mandatory penalties
32. NLA strongly opposes the introduction of mandatory and/or minimum sentences. Mandatory and minimum sentences inappropriately exclude judicial discretion, disproportionately impact disadvantaged groups, and can negatively impact guilty pleas and strain criminal justice resources, while having negligible deterrent effect.
33. Mandatory and minimum imprisonment sentences may breach Australia’s international human rights obligations under the International Covenant on Civil and Political Rights (ICCPR), including Articles 9(1) and 14(5).
34. As noted by the Kaldor centre on this proposed Bill, “there is no precedent in Australian law for a failure to comply with a direction resulting in mandatory imprisonment – not even in the context of terrorism offences.”
35. As noted by the Law Council in its Mandatory Sentencing Factsheet, “Mandatory minimum sentences impose unacceptable restrictions on judicial discretion and independence, are inconsistent with rule of law principles and undermine confidence in the system of justice” and “mandatory sentencing is inconsistent with Australia’s voluntarily assumed international human rights obligations.”
36. Mandatory minimum penalties restrict judicial discretion and independence and hamper the court’s ability to deliver individualised justice that is appropriate in all the circumstances of a case. Mandatory sentencing can result in disproportionate outcomes where the penalty does not fit the crime, undermining the rule of law. Mandatory sentencing has been widely criticised by the legal profession, including by the Law Council of Australia.
37. Justice must be individual and proportionate, and this requires the exercise of judicial discretion. In R v Whyte (2002) 55 NSWLR 252 at [147], Spigelman CJ said “[t]he maintenance of a broad sentencing discretion is essential to ensure that all of the wide variations of circumstances of the offence and the offender are taken into account. Sentences must be individualised.”
38. Sentences should be flexible and able to be tailored to the circumstances of each case and each individual’s particular risk factors for reoffending. Mandatory sentences have a demonstrated history of disproportionately impacting marginalised groups within society. Many refugees and asylum seekers who would meet the definition of “removal pathway non-citizens” experience cognitive impairments, mental ill-health and/or have torture and trauma backgrounds. NLA considers that it is particularly problematic to restrict the court’s full discretion when sentencing marginalised people, as it may result in unjust outcomes.
39. Evidence suggests that mandatory sentencing increases incarceration, is costly, and is not effective as a crime deterrent.12 We note also that mandatory minimum regimes have the potential to reduce early guilty pleas and may inadvertently thereby lead to higher numbers of contested matters.
40. We note that in its 2018 report, ‘Pathways to Justice – Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples’, the Australian Law Reform Commission considered these issues, and recommended that all Commonwealth, state and territory governments repeal sentencing provisions which impose mandatory or presumptive terms of imprisonment.
41. NLA therefore strongly recommends the removal of mandatory sentencing from this Bill.
Section 199F Designation of removal concern country and Section 199G Visa applications by certain nationals of a removal concern country
42. NLA strongly opposes the proposed sections 199F and 199G, which would give the Minister the power to institute a “travel ban” by preventing people from designated countries from applying for visas to Australia.
43. It is not yet clear which countries the Minister would designate. However, in the context of the Bill being drafted in part as a response to the current High Court litigation, it is likely that countries would be considered for designation if they do not accept involuntary deportees of their own citizens.
44. The explanatory memorandum to the Bill confirms that the evident justification for the imposition of a travel ban would be to prevent prospective tourists, some family members, workers, investors, (and refugees) from travelling to Australia in order to “ensure that other countries readmit their nationals”. NLA strongly believes that imposing punitive immigration restrictions on a country’s citizenry to apply pressure on its government is no facsimile for diplomacy.
45. Even if a person is a citizen of a banned country, the travel ban would not apply if that person:
a. Is a dual national (holds citizenship of another country in addition to the banned country),
b. Is the spouse, de facto partner or dependent child of an Australian citizen, permanent visa holder or person who is usually resident in Australia,
c. Is the parent of a child in Australia who is under 18 years, or
d. Is applying for a Refugee and Humanitarian (Class XB) visa.
46. As a means of transparency, the provisions would require the Minister to table a copy of the travel ban in Parliament, accompanied by a statement of the Minister’s reasons for thinking the designation is in the national interest. However, NLA contends that these safeguards are insufficient to avoid a whole host of risks addressed in turn below, not least because failure by the Minister to make public a designation or reasons does not invalidate the exercise of power (s 119F(8)). As currently drafted, the Minister could institute a travel ban at any time, in secret, and without community or Parliamentary consultation. The Minister is only required to “consult” with the Prime Minister and the Minister for Foreign Affairs (s199F(2)). Transparency, and therefore public scrutiny, of travel bans would be optional.
47. NLA contends that these proposed provisions perpetuate migration exceptionalism in Australian administrative law by conferring upon the Minister yet another set of discretionary powers. These extraordinary powers can be exercised without affording non-citizens natural justice or merits review. The threshold for the exercise of the proposed power to impose a travel ban is set so low that the Minister need only “think” it is in the “national interest”. The very concept of the ‘national interest’ operates as a very wide term supporting a diversity of views – so long as they are held by the Minister. However, in the Australian migration context, national interest powers have historically been used to broaden the discretion of the Minister acting personally.
48. Similarly, the bar on visa applications imposed by the travel ban may be lifted only when the Minister “thinks that it is in the public interest” (s199G(4)) The explanatory memorandum to the Bill states that an example of a situation where the Minister could consider using this power would be for a person wishing to travel to Australia for the funeral of a close family member. Even so, there is no duty for the Minister to consider a request. Requests for a bar lift could go ignored since the Minister is under no obligation to consider them. NLA contends that in this case, the proposed provisions would confer upon the Minister impermissibly unfettered discretion to impose travel bans.
49. NLA contends that these proposed provisions will in practice prevent refugees from being able to enter Australia. This is because while a travel ban would not apply to people applying for a Class XB Refugee and Humanitarian visa, it would still apply to refugees or their family members arriving on other types of visas such as work or student visas. Indeed, even refugees who are already in Australia would be prevented from sponsoring a parent, sibling, cousin, and some other family members from a banned country. An amendment to the language in the proposed section199G(2) to exempt any ‘relative’ (within the meaning of the Regulations) from a travel ban may mitigate the risk of family separation posed by the provisions as currently drafted.
50. NLA contends that these proposed provisions would permit the breach of our international obligations. The proposed provisions would allow the Minister in a legislative instrument to later limit future travel bans by fixing certain classes of persons or visa applications as exempt from the travel ban. The explanatory memorandum to the Bill states that these powers “will permit exceptions to be made where they are necessary to meet a range of Australia’s international obligations and commitments, including those relating to international trade, diplomatic officers and other persons accorded privileges and immunities, the re-entry of certain long-term residents, and persons who hold a valid Refugee Convention Travel Document issued by Australia, as well as other cohorts whose entry to Australia may still need to be facilitated.”
51. With respect to “the re-entry of certain long-term residents”, the explanatory memorandum goes on to state that the government has already contemplated exempting Resident Return Visas from a travel ban allowing former Australian permanent residents and citizens. NLA strongly believes that it essential that all current and former Australian permanent residents, and former citizens, be exempted from a travel ban – and that it is insufficient to relegate our international obligations to an afterthought, to be carved out of legislation which otherwise severely curtails human rights and is disproportionate to its stated objectives.
52. NLA contends that these proposed provisions are by their very nature discriminatory and would stoke anti-migrant sentiment in our communities. The explanatory memorandum to the Bill admits that “it will operate to prevent applications being made by nationals of a designated country who are outside Australia, which may also mean that persons of particular national origins are disproportionately affected”. In their review of the enduring effects of Donald Trump’s ‘Muslim travel ban’, the American Civil Liberties Union (ACLU) drew upon FBI statistics documenting the rise of xenophobic hate crimes to conclude that “discriminatory government policies and rhetoric play a role in the escalation of bigotry, harassment and attacks on community members. Notably, hate crimes continue to rise, particularly those motivated by racial or ethnic animus as well as those motivated by religious animus”.16 NLA does not support discriminatory legislation and is very concerned with the absence of strict scrutiny and accountability measures surrounding this Bill particularly as wide powers are proposed to be given to the executive.
53. Ultimately, the travel ban provisions in the proposed sections 199F and 199G would risk being used as a political tool to incentivise countries to accept their citizens who refuse to return. They are examples of untrammelled executive power, pre-emptive in nature, and lacking judicial oversight.
Schedule 2 – other amendments
54. According to the explanatory memorandum, Schedule 2 amendments would have the effect that a protection finding could be “revisited in relation to a lawful non-citizen who holds a visa as a removal pathway non-citizen.”
55. This means that refugees could be at risk of removal to their countries of origin if the Minister decides that their personal situation or the situation in their country of origin has changed since the time that their refugee status was determined.
56. Currently, this can only be done for unlawful non-citizens under section 197D.
57. These amendments appear to expand the powers of the Minister to reverse a protection finding for those on Removal Bridging Visas (section 199B(1)(b)), General Bridging Visas (on departure grounds) (section 199B(1)(c)), and anyone else that the Minister decides to classify as a removal pathway non-citizen (section 199B(1)(d)).
58. The broad nature of section 199B(1)(d) could potentially allow the Minister to reverse protection findings for anyone, which is unnecessary and excessive for the purposes of the proposed Bill, and arguably a disproportionate use of executive power.
59. NLA therefore recommends restricting section 199B(1)(d) so that it does not allow the Minister to expand the category by Regulations; limiting it to the visas specified in the Act.