The Creeping Cruelty of Australian Crimmigration Law

Abstract

This article examines the fraught relationship between international law and what has become known as ‘crimmigration law’ in Australia. The legal and policy framework for deportation of non-citizens on character grounds has become increasingly restrictive. It has also become confusing in its interface with obligations not to send back or refoule individuals who engage protection obligations as refugees or on humanitarian grounds. We document and critique the treatment of long-term permanent resident non-citizens with particular claims to compassion as persons with disabilities and as refugees. We consider issues of both process — where formalistic administrative processes fail to make accommodations for disability — and substance. Law and policy give conflicting commands as to whether and how non-refoulement obligations must be considered in visa cancellation processes. Increasingly, the confusion plays out in indefinite detention. Amendments to the Migration Act 1958 (Cth) reaffirming Australia’s commitment to non-refoulement have maintained a disconnect between domestic law and international law. We argue that it is critically important that non-refoulement obligations are considered in visa cancellation processes and that the human consequences of cancellation and removal are confronted.