Women and children in Syrian camp "will end up in Australia" | Insiders On Background

Australia’s Immigration Landscape: ISIS Families, Border Control & Migration Trends

Key Concepts: Temporary Exclusion Orders (TEOs), Procedural Fairness, Net Overseas Migration (NOM), Passport Act, Citizenship Cancellation, Skilled Migration, Backlogs (visa applications), Control Orders, Humanitarian Program, Migration Program.

Introduction

This discussion, hosted by David Spears on Insiders on Background, focuses on the complex issues surrounding Australia’s immigration policies, specifically in the context of returning ISIS families, border control measures, and current migration trends. The conversation features Ab Risby, a former Deputy Secretary of the Immigration Department, providing expert commentary on the legal and practical challenges involved. The debate is heightened following the Bondi terrorist attack and concerns about social cohesion.

1. Obligations to Returning Citizens & Legal Powers

Australia fundamentally has an obligation to accept its citizens back into the country. However, the government possesses powers to temporarily exclude them. Two key legislative tools are available: the Passports Act and legislation enabling Temporary Exclusion Orders (TEOs). The current government is prioritizing TEOs over the Passports Act due to the requirement of procedural fairness under the latter.

Procedural fairness dictates that individuals facing passport denial must be presented with the evidence against them and given an opportunity to respond. This is problematic when dealing with sensitive intelligence gathered by agencies like ASIO (Australian Security Intelligence Organisation), as ASIO is reluctant to reveal its sources and methods. Evidence based on court convictions or foreign legal findings is more readily usable under the Passports Act.

2. Temporary Exclusion Orders: Process & Limitations

TEOs allow the government to make exclusion decisions without providing procedural fairness. The process involves three steps:

1. ASIO gathers evidence and recommends a TEO to the Minister for Immigration.
2. The Minister considers the recommendation (typically accepting it).
3. The decision is scrutinized by a judge to ensure its validity.

However, the judge can overturn the TEO if the evidence is deemed unsatisfactory. Crucially, the Minister must have ASIO advice to issue a TEO; a decision made without it would likely be overturned as arbitrary or capricious. A person subject to a TEO can apply for a return permit, triggering a 12-month review process where they must demonstrate they pose no national security risk. Upon return, adults may be subject to scrutiny by law enforcement and potential criminal charges if evidence supports them.

3. The Case of the ISIS Families

Currently, only one of the 34 individuals (women and children) in the cohort seeking to return from Syria has been issued a TEO. This suggests ASIO lacks sufficient evidence to justify TEOs for the remaining 33. Risby anticipates that, ultimately, this group will likely be allowed to return to Australia, as the law “hamstrings the government” in preventing the re-entry of citizens with valid passports.

The discussion acknowledges the ethical dilemma of separating mothers from children, citing a historical reluctance to do so, even in domestic violence situations. The mother’s permission and satisfactory care arrangements in Australia would be necessary for separation.

4. Citizenship Cancellation & Legal Challenges

The possibility of cancelling citizenship has been explored, but recent High Court rulings have significantly restricted this power. Previous legislation allowing the Minister to initiate cancellation was overturned. New legislation now requires judicial review.

To cancel citizenship, the individual must:

• Be a dual citizen with an alternative place of residence.
• Have committed specific crimes, often violent ones.
• Have a recommendation from the Minister, which is then subject to a judge’s decision based on sufficient evidence.

The current cohort’s citizenship status (whether they are dual citizens or born in Australia) is unknown, impacting the viability of this option.

5. Government Assistance & Legal Obligations

The government maintains it is not actively assisting the ISIS families’ return. However, it is fulfilling its legal obligations by conducting necessary checks, such as DNA testing to confirm identities and citizenship. These actions are considered compliance with the law, not “assistance.” Testing may be conducted directly or through agencies like the UN.

6. Immigration Trends & the May Budget

Australia is experiencing a downward trend in Net Overseas Migration (NOM), with the last financial year seeing over 300,000 migrants and a forecast of 260,000 for the current year. The government is currently consulting with stakeholders to determine the Migration Program (permanent residence visas) for 2026/27.

Significant challenges include:

• Visa Backlogs: Massive backlogs exist in family reunion and employer-sponsored visa applications, creating a legal obligation to process them.
• State Government Pressure: States are urging the government to maintain visa levels to meet their skill needs.
• Student Visa Policy: The government initially increased student visa allocations for 2026 but is now reversing course due to concerns about NOM and the permanent program. Increased refusal rates are being implemented, leaving universities in a difficult position.

7. Impact on NOM & Economic Considerations

Treasury is likely to recommend an increase in the Migration Program to address backlogs, despite the desire to lower NOM. The strong labor market complicates efforts to reduce migration. The discussion touches on the debate about the economic impact of migration, noting that migrants affect both demand and supply, generally balancing each other out in terms of unemployment and inflation.

Conclusion

Australia faces a complex interplay of legal obligations, national security concerns, and economic pressures in managing its immigration policies. While the government has tools to temporarily exclude individuals, the legal framework and the need for sufficient evidence present significant challenges. The situation with the ISIS families highlights the ethical and practical difficulties of balancing security with the rights of citizens, particularly children. Current migration trends and policy adjustments are likely to be a key focus in the upcoming May budget, with ongoing debate expected regarding the optimal level of NOM and its impact on the Australian economy.