Document ID: chunk:federal_register_of_legislation:F2006B11685:body:0:p9
Version: federal_register_of_legislation:F2006B11685
Segment Type: other
Provision Reference: 
Character Range: 21383–24312

family

23.      The best interests of any relevant children are a primary consideration and are not considered under this heading.

24.      It is the Government's view that factors to be considered here include:

         (a)      the effect deportation would have on any marital or de facto partner, including whether he or she would leave Australia with the deportee and whether this would impose undue hardship on the non-deportee partner;

         (b)      the effect deportation would have on other family members, social ties and business associates and whether deportation would impose hardship on them;

         (c)      social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and

         (d)      the views (if any) of the victim or victims of the crimes committed by the potential deportee.

Decision makers should have due regard to the Government's view in this respect.

INTERNATIONAL OBLIGATIONS

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