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(Cth) Assess Non-Citizen Children’s Best Interests Before Deportation
- Olivia Clark, Raghad Hilles, Paloma Hawkins, Aleina Daiby, Daniel Drum
- Dec 16, 2025
- 7 min read
Author: Olivia Clark, Raghad Hilles, Paloma Hawkins, Aleina Daiby, Daniel Drum | Publish date: 16/12/2025
P: Non-citizen children can be the subject of a removal pathway direction (RPD) issued to their parent or guardian by the Minister for Immigration and Citizenship without any explicit requirement for a prior assessment of their best interests.
S: The Minister for Immigration and Citizenship should amend section 199D of the Migration Act 1958 (Cth) to require a best-interests assessment to be conducted before issuing an RPD for a child.
Problem Identification:
Section 199C of the Migration Act 1958 (Cth) grants the Minister the broad power to issue an RPD to non-citizens. Section 199D(5) of the Act stipulates that the Minister can issue an RPD to a parent or guardian on behalf of a child under the age of 18, without mentioning an assessment of the child’s best interests as a prerequisite.
According to the Australian Human Rights Commission (AHRC), the current legislative framework does not provide a consistent mechanism to ensure that a child’s interests are properly assessed when a deportation order is issued. They asserted that the current situation compromises children's well-being and Australia’s compliance with international law.
Context:
An RPD refers to a Ministerial order that compels ‘removal pathway non-citizens’ to take the necessary steps to facilitate their deportation from Australia. These ‘non-citizens’ refer to those without valid visas and lawful non-citizens holding certain bridging visas (e.g. refugees and asylum seekers).
The 2024 amendment to the Migration Act 1958 (Cth) broadened the Minister’s power to issue RPDs under section 199C and introduced criminal penalties for non-compliance.
The UN Committee on the Rights of the Child (UNCRC) requires that children’s best interests have top priority in decisions affecting them. Article 9(1) of the Convention on the Rights of the Child (the Convention) states that children should not be separated from their parents unless necessary for their best interests, following proper assessment and review.
Arguments:
The Jesuit Refugee Service (JRS) argued that the 2024 amendments to the Migration Act 1958 could cause ‘a traumatic and potentially indefinite separation of child and parent.’ The Law Council of Australia (LCA) have further argued that this could ‘result in families being permanently separated, and children being irretrievably harmed in the process.’ The JRS emphasised that many of these children ‘may have already been subject to significant trauma because of their journey to Australia.’
The Kaldor Centre for International Refugee Law at UNSW raised concerns that, without an explicit legal requirement for a best-interests assessment, Australia is not fully meeting its obligations under Article 3(1) of the Convention, which requires ‘in all actions concerning children…the best interests of the child shall be a primary consideration.’ The Office of the United Nations High Commissioner for Human Rights reiterated that Australia has an international obligation to give primary consideration to the best interests of the child.
The International Commission of Jurists (Australian Section) asserted that section 199D might ‘impose obligations on a parent or guardian to act in ways that are incompatible with the best interest of their child(ren).’ The National Legal Aid declared that the Minister's decision to ‘direct parents to take actions in relation to their children, with no apparent consideration of the child's best interests’, forces parents to choose between facing ‘the threat of 1 to 5 years imprisonment’ or ‘[cooperating] in the removal of their child, even if they fear harm on return.’ The LCA explained that disregarding the best interests of the child would be a ‘discriminatory measure’, creating an unfair choice for the parent, either deciding on ‘their child’s removal overseas despite fears of harm or persecution, or the parent being subject to a mandatory sentence’.
The Department of Home Affairs’ Secretary specified Article 3(1) is protected through ‘operational policies and practices’. Australia is therefore complying with its obligations under the Convention, as the requirement to consider the best interests of the child does not need to be codified in legislation. However, the AHRC noted these are only policy statements and ‘subject to amendment at any time’. The Kaldor Centre argued that it is ‘not sufficient’ for best-interest requirements to rely on ‘ministerial discretion or implied into other administrative processes’, and has emphasised that the 2024 amendment fails to uphold Australia’s obligations.
Advice/Solution Identification:
The AHRC and Kaldor Centre have called to assess non-citizen children’s best interests before deporting them. According to the AHRC, the explicit requirement of a best interests assessment could improve the protection of children’s human rights and ensure greater compliance with Australia’s UNCRC obligations.
Precedent:
There is domestic and international precedent supporting the assessment of children's best interests when making administrative decisions that affect them. In 2023, the direction No. 99 from the Minister required primary consideration of ‘the best interests of minor children in Australia’ who are affected by decisions for certain visa refusals and cancellations. In the EU, Member States must initiate a best interests assessment as soon as a migration claim involving a child is made.
Public Support:
News Coverage:
The Guardian - “Labor’s deportation bill could affect 375 children born in Australia, advocates warn”. The article explained that 375 children born in Australia could be ordered to leave the country after having their protection claims denied, making them subject to the ‘deportation bill’. By: Paul Karp | Thu 18 April, 2024 - Read the article here.
SBS News - “'Families are going to be ripped apart': Labor's 'brutal' migration law trio, explained”. The article outlined changes to the Migration Act 1957 (Cth), which strengthened the government’s ability to deport non-citizens. By Ewa Staszewska & Rania Yallop | 27 Nov, 2024 - Read the article here.
News.com.au - “‘Losing hope’: New law forces mum to ‘abandon daughter.’” This article offered personal testimony from a mother fearing being separated from her Australian-born daughter (who is a citizen) because the family is facing forced deportation. By: Ria Pandey | 8 Dec 2024 - Read the article here.
ABC News - “'A dark day in our history': Refugee advocates warn Labor laws put thousands at risk.” This article explained that refugee advocates are firmly against these proposed ‘Labor laws’ and have warned this puts people at risk of family separation. By: Tom Crowley | Wed 27 Nov, 2024 - Read the article here.
Where to go to learn more:
Australian Human Rights Commission submission to the Senate Inquiry into the Migration Amendment (Removal and Other Measures) Bill 2024 - AHRC expressed concern that the Migration Amendment Bill 2024 (the Bill) allowed removal pathway directions to be given to the parent or guardian of a child without adequate safeguards or clear criteria to protect the child’s best interests, particularly in section 199D(5). Read the submission here.
Law Council of Australia submission to the Senate Inquiry into the Migration Amendment (Removal and Other Measures) Bill 2024 - The Law Council recommended that the Bill should not be passed, but if enacted, they have called for clearer limitations on ministerial powers and stronger safeguards to ensure the protection of affected individuals from punitive removal, family separation and excessive criminal punishments. Read the submission here.
Kaldor Centre submission to the Senate Inquiry into the Migration Amendment (Removal and Other Measures) Bill 2024 - The Kaldor Centre stated that the Bill allowed the Minister to compel parents to undertake removal actions affecting their children, without requiring any assessment of the child’s best interests or providing children an opportunity to express their views, consequently breaching international child rights standards. Read the submission here.
Safeguarding Children: Using a child rights impact assessment to improve our laws and policies - This AHRC resource provided guidance on preparing best interests assessments for children and highlighted the importance of developing child rights impact assessments. Read the report here.
United Nations Convention on the Rights of the Child - An international human rights treaty, ratified by Australia in 1990, that set out the rights of children and the obligations of governments to protect those rights. Read the treaty here.
Migration Act 1958 (Cth) - Read the complete Act here.
Human Perspective:
Trigger Warning: Forced family separation and deportation
Mariam, a mother who fled ethnic violence years ago and has spent more than a decade in Australia on temporary visas, now fears new laws could force her family to be split apart. With these new changes, she and her eldest, Meena, still on temporary visas, could be forced to leave the country, while her younger child, Leila, born in Australia and a citizen, could stay and be placed into the foster system. Meena, who is now 14, has grown up in Australia and knows no other home. Mariam cannot understand how she is expected to take Meena back to a place she knows is unsafe while leaving Leila behind, especially when no one is required to assess what is in Meena’s best interest. Meena would be uprooted from her school, her friends, her community and the only life she has ever known. The thought of her daughters being separated, each pulled into different futures neither of them chose, has left her feeling desperate and afraid for what comes next.
To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.
Conflict of interest/acknowledgment statement:
N/A
Support
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Reference list:
Andrew & Renata Kaldor Centre for International Refugee Law. (2021). Research Brief: Australia’s Obligations to Asylum Seeker Children Sent to Nauru. https://www.unsw.edu.au/content/dam/pdfs/unsw-adobe-websites/kaldor-centre/2023-09-research-briefs/2023-09-Research-Brief_children_Nauru_2021.pdf#3
Australian Human Rights Commission. (2020). Safeguarding Children: Using a child rights impact assessment to improve our laws and policies.
Australian Human Rights Commission. (2024, April). Migration Amendment (Removals and Other Measures) Bill 2024.
Department of Home Affairs. (2023). Ministerial Direction No. 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. Australian Government – Department of Home Affairs. Accessed [21/11/2025]. https://immi.homeaffairs.gov.au/support-subsite/files/ministerial-direction-99.pdf
European Union Agency For Asylum. (2022). The principle of the best interests of the child.
https://www.euaa.europa.eu/guidance-reception-unaccompanied-children/principle-best-interests-child
Jesuit Refugee Service. (2024, April). Migration Amendment (Removal and Other Measures) Bill 2024: Submission 102. https://aus.jrs.net/wp-content/uploads/sites/20/2024/05/Sub102.pdf
Law Council of Australia. (2024, April 12). Migration Amendment (Removal and Other Measures) Bill 2024: Submission to the Senate Legal and Constitutional Affairs Committee. https://lawcouncil.au/publicassets/f874540c-d1fa-ee11-9496-005056be13b5/2024%2004%2012%20-%20S%20-%20Migration%20Amendment%20Removal.pdf
Law Council of Australia. (2024, April 15). Removal Bill must not be passed by Parliament.
https://lawcouncil.au/media/media-releases/removal-bill-must-not-be-passed-by-parliament
Migration Act 1958 (Cth). https://www.legislation.gov.au/C1958A00062/latest/text
Migration Amendment (Removal and Other Measures) Bill 2024 (Cth). https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/MigrationAmendment24/Report/
National Legal Aid. (2024, April 12). NLA submission to Inquiry into Migration Amendment (Removals and Other Measures) Bill 2024. https://nationallegalaid.org.au/policy-and-advocacy/submissions/new-submission-11?utm
Senate Legal and Constitutional Affairs Legislation Committee. (2024, April 15). Official Committee Hansard: Migration Amendment (Removal and Other Measures) Bill 2024. https://parlinfo.aph.gov.au/parlInfo/download/committees/commsen/27941/toc_pdf/Legal%20and%20Constitutional%20Affairs%20Legislation%20Committee_2024_04_15_Official.pdf
United Nations. (1989). Convention on the Rights of the Child. https://www.ohchr.org/sites/default/files/crc.pdf
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