Immigration Minister Andrew Giles could jail non-citizens under proposed new laws

Immigration Minister Andrew Giles will have the power to jail non-citizens who have exhausted all their legal options to remain in the country and refuse to co-operate with lawful efforts to remove them.

Immigration Minister Andrew Giles. Picture: NCA NewsWire / Martin Ollman

Immigration Minister Andrew Giles will have the power to jail non-citizens who have exhausted all their legal options to remain in the country and refuse to co-operate with lawful efforts to remove them, under new legislation targeted at deporting criminal ex-detainees.

The emergency legislation makes it a crime for foreign nationals to obstruct attempts to force them to leave Australia or refuse to assist in their removal, such as applying for a passport in their home country, under threat of a one to five-year prison sentence.

As well as allowing the minister to impose prison terms and fines on non-citizens who “obstruct or frustrate” their removal from Australia, the legislation also allows Mr Giles to ban people of certain nationalities from applying for a visa if it is in the “national interest”.

The measure targets nations deemed to be a “removal concerns country”, such as Iran and Russia, which do not accept the return of their own citizens, in a bid to “safeguard the integrity of Australia’s migration system”.

The legislation comes weeks before the High Court rules on the case of an Iranian man – known as ASF17 – who refuses to go back home, claiming he would be persecuted over his sexuality.

Labor introduced the bill on Tuesday with the intention of ramming the amendments to the Migration Act through the parliament this week, but came up against fierce criticism from the Coalition and the Greens and eventually agreed to hold a late Senate inquiry on Tuesday night.

Constitutional law expert Anne Twomey said the legislation, if passed into law, would allow the government to stop ASF17 from being released into the community and potentially deport him.

“It would mean that if – and there’s a lot of ifs – if a High Court held that people in ASF17’s circumstances had to be released into the community, this would allow the Minister to give ASF17 a direction,” she said. “And if ASF17 didn’t comply with that direction, then there would be the prospect of prosecution and sentencing and imprisonment, so yes, it facilitates that.

“It doesn’t do anything about it yet, because you’d have to actually wait and see if the person was released, and the Minister would also have to make one of these directions and that hasn’t happened yet either. But it facilitates the possibility of that.”

The Albanese government has been hit by an avalanche of immigration legal challenges following last November’s landmark NZYQ High Court decision which led to the release of 152 dangerous non-citizens.

The legislation includes exemptions for non-citizens who resist their deportation if they are under 18.