Migration (United Nations Security Council Resolutions) Instrument 2026

EXPLANATORY STATEMENT

Issued by authority of the Minister for Home Affairs

Migration (United Nations Security Council Resolutions) Instrument 2026

The instrument Migration (United Nations Security Council Resolutions) Instrument 2026 (LIN 26/008) is made under regulation 4 of the Migration (United Nations Security Council Resolutions) Regulations 2007 (the UNSC Regulations). It is made for the purposes of the definition of ‘resolution’ in regulation 4 of the UNSC Regulations, which informs the meaning of ‘UNSC-designated person’ under regulation 5 of the Regulations.

Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make a legislative instrument, the power should be construed as including a power exercisable in the same manner and subject to the same conditions (if any) as the power to repeal, rescind, revoke, amend or vary such instrument.

The UNSC Regulations provide a ground that enables the Minister to refuse to grant, or to cancel, a visa under paragraph 116(1)(g) of the Migration Act 1958 if a person is a ‘UNSC-designated person’.

Regulation 5 of the UNSC Regulations provides that a person is a ‘UNSC‑ designated person’ if under a resolution Australia is required to prevent that person from entering or transiting through Australia. Regulation 4 of the UNSC Regulations provides that ‘resolution’ means a United Nations Security Council (UNSC) Resolution that is specified by the Minister in a legislative instrument.

The UNSC Regulations also provide for circumstances allowing for the grant of a visa to a UNSC-designated person and provides for an exception to the cancellation of a visa already held by a UNSC designated person:

• where a committee established under a UNSC Resolution has determined that the applicant’s travel to or transit through Australia is justified or where such a committee has authorised the applicant’s travel or transit through Australia; or
• where the Minister is satisfied that compelling circumstances exist.

The UNSC Regulations provide that compelling circumstances may include the fulfilling of an international obligation owed by Australia.

The purpose of the instrument is to specify UNSC Resolutions under which Australia is a signatory and is required to prevent a person from entering or transiting through Australian territory. The instrument does not insert any new grounds or expand the current ground for the cancellation of a visa that is provided for under the UNSC Regulations.

This instrument also operates to repeal and replace Migration (United Nations Security Council Resolutions) Regulations 2007 - Specification under regulation 4 definition of 'resolution' - Specification of United Nations Security Council Resolutions - IMMI 14/034 (IMMI 14/034) and specifies a revised list of UNSC Resolutions in relation to the following countries:

• Central African Republic
• Democratic People’s Republic of Korea
• Democratic Republic of the Congo
• Guinea-Bissau
• Haiti
• Iran
• Lebanon
• Libya
• Somalia
• South Sudan
• Sudan
• Yemen

The instrument also specifies a list of UNSC Resolutions in relation to the following regimes: Al-Shabaab, Al-Qaida, ISIL (Da’esh) and the Taliban. The revised list includes Resolutions that were specified in IMMI 14/034, where still relevant and includes Resolutions that have been passed since 2014 to reflect the current listings. The instrument has been updated to include UNSC Resolutions relating to ISIL (Da’esh) and Al‑Qaida, South Sudan and Haiti and no longer specifies any resolutions relating to Côte d’Ivoire, Liberia, and Eritrea, as the UNSC decided to terminate the travel sanctions relating to individuals from those countries.

The instrument enables effective enforcement of travel bans against UNSC designated persons and supports Australia’s compliance with UNSC sanctions frameworks, and safeguards its reputation as a responsible UN member committed to global peace and security.

The full text of the specified resolutions, including the listing criteria, exceptions and exemptions are available on the UN website: https://main.un.org/securitycouncil/en/content/resolutions-0

Attachment A contains a Statement of Compatibility with Human Rights for the purposes of the Human Rights (Parliamentary Scrutiny) Act 2011. The assessment is that the instrument is compatible with human rights as, to the extent it may limit some human rights, those limitations are reasonable, necessary and proportionate to the objective of implementing the UNSC’s travel sanctions against individuals who threaten peace, security and stability.

Consultation was undertaken with Department of Foreign Affairs and Trade (DFAT) during the drafting of the instrument. The UNSC Resolutions that are specified in Schedule 1 to the instrument have been informed by advice from DFAT.

The instrument commences on 21 March 2026.

The UNSC Regulations specify no conditions that must be satisfied before the power to make this instrument may be exercised.

Further details of the instrument are set out in Attachment B.

ATTACHMENT A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Migration (United Nations Security Council Resolutions) Instrument 2026

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Disallowable Legislative Instrument

This disallowable instrument is made under the Migration (United Nations Security Council Resolutions) Regulations 2007 (UNSCR Regulations) and operates to specify United Nations Security Council (UNSC) Resolutions imposing travel bans as set out below. This instrument also repeals and remakes Specification of United Nations Security Council Resolutions IMMI 14/034 (IMMI 14/034) to ensure that Australia’s sanctions framework including the UNSCR Regulations remain efficient, effective and consistent with foreign policy objective and international obligations under the Charter of the United Nations (the UN Charter).

Article 41 of the UN Charter authorises the UNSC to decide on measures not involving the use of armed force, such as sanctions and travel bans, where there is a threat to peace, breach of peace and acts of aggression. Under Article 25 of the UN Charter, United Nations (UN) members, such as Australia, agree to accept and carry out decisions of the Security Council in accordance with the charter. Under Article 103 of the UN Charter, where there is a conflict between Australia’s obligations under the UN Charter and obligations arising under any other international agreement, the obligations under the UN Charter prevail. Where travel bans are decided by the UNSC, Australia meets its obligations through the UNSCR Regulations, which enable the Minister to refuse or cancel a visa of a person is subject to such a travel ban.

While each UNSC resolution imposing sanctions establishes an individual framework, generally a specialised committee will be created to designate individuals and entities subject to the ban based on criteria specified within the resolutions. Listing criteria can include involvement in acts that undermine the peace, stability and security of the relevant country and violations of international human rights law and international humanitarian law. The resolutions also specify exceptions to the travel bans, such as where the person is entering a country of which they are a national or where entry or transit is necessary for the fulfilment of a judicial process. In addition, there are mechanisms for the specialised committees set up under each sanctions regime to allow travel on a case-by-case basis, for example it is possible for listed individuals to apply for a travel ban exemption for necessary travel such as medical or humanitarian need.

The names of listed individuals and entities are sometimes included in an annex to the resolution, but more often are not part of the resolution but separately designated by the relevant committee and published on the UN website in the UNSC’s Consolidated List. The names of designated individuals are also available on Australia’s Consolidated List on the website of the Department of Foreign Affairs and Trade (DFAT): https://www.dfat.gov.au/international-relations/security/sanctions/consolidated-list

The UNSCR Regulations provide a ground which enables the Minister to refuse a visa or cancel a visa if the person is a ‘UNSC-designated person’. Under regulation 5 of the UNSCR Regulations, a person is a ‘UNSC-designated person’ if, under a ‘resolution’, Australia is required to prevent the person entering or transiting through Australian territory. Regulation 4 provides that a resolution means a UNSC resolution specified by the Minister in a legislative instrument.

The UNSC Regulations also provide circumstances that allow the grant of a visa to a ‘UNSC designated person’ and prevent cancellation of a visa already held by a UNSC designated person:

The UNSC Regulations provide that ‘compelling circumstances may include the fulfilling of an international obligations owed by Australia.

This instrument enables effective enforcement of travel bans against designated individuals and entities, strengthens Australia’s compliance with UNSC sanctions frameworks, and safeguards its reputation as a responsible UN member committed to global peace and security. This instrument does not expand the scope of visa cancellations powers under the Migration Act. It solely updated the list of UNSC resolutions specified for the purpose of those existing regulations.

This instrument also operates to revoke IMMI 14/034, (F2014L00516) and specifies a revised list of UNSC resolutions in relation to each of the following countries mentioned below, as well as sanctions concerning Al Qaida, ISIL (Da’esh), Al-Shabaab (Somalia), and the Taliban. This revised list includes resolutions that were specified in the previous instrument, where still relevant, and also adds more recent resolutions to reflect current listings.

In addition, this instrument no longer includes any resolutions relating to Côte d’Ivoire, Liberia, and Eritrea, as the UNSC decided to terminate the travel bans relating to individuals from those countries. The full text of the specified bans, including the listing criteria, exceptions and exemptions are available on the UN website at https://main.un.org/securitycouncil/en/content/resolutions-0.

Resolutions

AL-QAIDA and ISIL (Da’esh)

The instrument lists a series of resolutions from Resolution 1267 (1999) to Resolution 1904 (2009) imposing travel bans on individuals and entities associated with both Al-Qaida, and the Taliban.

Resolutions 1989 (2011) moved Al-Qaida and associated groups to a separate sanctions regime to that of the Taliban. Resolutions 1989 (2011) to 2734 (2024) relate to travel bans for individuals and entities associated with Al-Qaida and ISIL (also known as Da’esh).

Resolution 1989 (2011) requires member states to:

… [p]revent the entry into or transit through their territories of these individuals, provided that nothing in this paragraph shall oblige any State to deny entry or require the departure from its territories of its own nationals and this paragraph shall not apply where entry or transit is necessary for the fulfilment of a judicial process or the Committee determines on a case-by-case basis only that entry or transit is justified.

The relevant individuals are those subject to the ISIL (Da’esh) and Al-Qaida Sanctions List established under Resolution 2253 (2015), which is overseen by the UNSC committee established under Resolutions 1267 (1999), 1989 (2011) and 2253 (2015). The list is published on the UN Website at https://main.un.org/securitycouncil/en/sanctions/1267/aq_sanctions_list.

Resolution 2368 (2017) reaffirmed the travel ban and approved the addition of a number of individuals listed in its Annex III to the ISIL (Da’esh) and Al-Qaida Sanctions List. Resolutions 2610 (2021) and 2734 (2024) reaffirm the travel ban, and Resolution 2799 (2025) delists a number of individuals from the ISIL (Da’esh) and Al-Qaida Sanctions List.

AFGHANISTAN and the TALIBAN

Resolution 1988 (2011) establishes a separate sanctions regime for the Taliban to that of Al-Qaida, where both entities had previously been subject to the regime established under Resolution 1267 (1999).

This instrument lists a serious of resolutions from 1988 (2011) to 2763 (2024) concerning the Taliban and associated individuals and entities. Resolution 2255 (2015) established the 1988 Sanctions List of individuals to which the travel ban and other sanctions apply.

CENTRAL AFRICAN REPUBLIC

The instrument lists a series of resolutions from Resolution 2134 (2014) to Resolution 2789 (2025) regarding the Central African Republic (CAR).

Resolution 2399 (2018) specifies:

… until 31 January 2019,all member states continue to take the necessary measures to prevent the entry into or transit through their territories of individuals designated by the Committee, provided that nothing in this paragraph shall oblige a State to refuse its own nationals entry into its territory, and calls upon the CAR Government to enhance cooperation and information sharing with other States in this regard.

This was further renewed until 31 July 2025 in paragraph 4 of Resolution 2745 (2024) and again until 31 July 2026 in Resolution 2789 (2025).

DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA (DPRK)

The instrument lists a series of resolutions from Resolution 1718 (2006) to Resolution 2397 (2017) that impose travel sanctions on designated individuals, who in most cases are listed in the resolutions.  Paragraph 8(e) of Resolution 1718 states that:

All Member States shall take the necessary steps to prevent the entry into or transit through their territories of the persons designated by the Committee or by the Security Council as being responsible for, including through supporting or promoting, DPRK policies in relation to the DPRK’s nuclear-related, ballistic missile-related and other weapons of mass destruction-related programmes, together with their family members, provided that nothing in this paragraph shall oblige a state to refuse its own nationals entry into its territory;

DEMOCRATIC REPUBLIC OF THE CONGO

The instrument lists a series of resolutions from Resolution 1596 (2005) to Resolution 2783 (2025) that impose and renew travel sanctions on designated individuals. Resolution 1807 (2008) paragraph 9 states that:

all States shall take the necessary measures to prevent the entry into or transit through their territories of all persons designated by the Committee…

Resolution 1533 (2004) establishes the committee mandated with designating persons to which the travel ban applies.

Subsequent resolutions, particularly Resolution 2293 (2016), expand the scope of the individuals that may be designated to include:

(a) acting in violation of the measures taken by Member States in accordance with paragraph 1 above [arms embargo];

(b) being political and military leaders of foreign armed groups operating in the DRC who impede the disarmament and the voluntary repatriation or resettlement of combatants belonging to those groups;

(c) being political and military leaders of Congolese militias, including those receiving support from outside the DRC, who impede the participation of their combatants in disarmament, demobilization and reintegration processes;

(d) recruiting or using children in armed conflict in the DRC in violation of applicable international law;

(e) planning, directing, or committing acts in the DRC that constitute human rights violations or abuses or violations of international humanitarian law, as applicable, including those acts involving the targeting of civilians, including killing and maiming, rape and other sexual violence, abduction, forced displacement, and attacks on schools and hospitals;

(f) obstructing the access to or the distribution of humanitarian assistance in the DRC;

(g) supporting individuals or entities, including armed groups or criminal networks, involved in destabilizing activities in the DRC through the illicit exploitation or trade of natural resources, including gold or wildlife as well as wildlife products;

(h) acting on behalf of or at the direction of a designated individual or entity, or acting on behalf of or at the direction of an entity owned or controlled by a designated individual or entity;

(i) planning, directing, sponsoring or participating in attacks against MONUSCO peacekeepers or United Nations personnel;

(j) providing financial, material, or technological support for, or goods or services to, a designated individual or entity

Resolution 2783 (2025) further extends the travel ban until 1 July 2026.

GUINEA-BISSAU

Under Resolution 2048 (2012), all Member States are required to take the necessary measures to prevent the entry into or transit through their territories of individuals listed in the annex of the resolution or designated by the Committee.

HAITI

Resolution 2653 (2022) specifies that:

for an initial period of one year from the date of adoption of this resolution, all Member States shall take the necessary measures to prevent the entry into or transit through their territories of any individuals designated by the Committee established pursuant to paragraph 19 below, provided that nothing in the present paragraph shall oblige a State to refuse its own nationals entry into its territory

The travel ban was further extended under Resolutions 2700 (2023) and 2752 (2024), and Resolution 2794 (2025) extends the ban for one year from the date of the adoption of the resolution, being 17 October 2025.

IRAN

The instrument lists resolutions from Resolution 1737 (2006) to Resolution 1929 (2010).

Resolution 1929 (2010) establishes a travel ban for individuals listed in Resolution 1737 (2006), Resolution 1747 (2007), Resolution 1803 (2008), and Resolution 1929 (2010) or otherwise designated by the committee.

On 20 July 2015, the UNSC adopted Resolution 2231 (2015) endorsing the Joint Comprehensive Plan of Action (JCPOA) in respect of Iran’s nuclear program. Paragraph 7(a) of Resolution 2231 (2015) terminated the provisions of resolutions 1696 (2006), 1737 (2006), 1747 (2007), 1803 (2008), 1835 (2008), 1929 (2010) and 2224 (2015). However, paragraphs 11 and 12 of Resolution 2231 also contained a mechanism through which the suspended sanctions against Iran could be 'snapped back' into effect if Iran failed to comply with its obligations.

On 28 August 2025, France, Germany and the UK triggered the 'snapback' of the UNSC's sanctions on the basis that Iran had not complied with its obligations under the JCPOA.

On 28 September 2025, the UNSC sanctions that has been eased under resolution 2231 and the JCPOA were automatically reimposed by the UNSC.

LEBANON

Under Resolution 1636 (2005), all Member States are required to take the necessary measures to prevent the entry into or transit through their territories of individuals registered by the Committee.

LIBYA

The instrument lists resolutions from Resolution 1970 (2011) to Resolution 2769 (2025). Resolution 2769 (2025) reiterates that:

all States shall take the necessary measures to prevent entry into or transit through their territories of all persons designated by the Committee, in accordance with paragraphs 15 and 16 of 1970, as modified by paragraphs 11 of resolution 2213 (2015), 11 of resolution 2362 (2017) and 11 of resolution 2441 (2018) and calls upon the Government of Libya to enhance cooperation and information sharing with other States in this regard;

SOMALIA

The instrument lists resolutions from Resolution 1844 (2008) to Resolution 2776 (2025) relating to Al-Shabaab (Somalia).

Resolution 1844 (2008) establishes the travel ban in respect of individuals designated by the committee, and Resolutions 2002 (2011), 2093 (2013) and 2662 (2022) expand the listing criteria.

SOUTH SUDAN

The instrument lists resolutions from Resolution 2206 (2015) to Resolution 2781 (2025)

The UNSC adopted Resolution 2206 (2015), which introduces travel bans for individuals designated by the South Sudan committee. Paragraph 9 of the Resolution decides that:

…for an initial period of one year from the date of adoption of this resolution, all Member States shall take the necessary measures to prevent the entry into or transit through their territories of any individuals who may be designated by the Committee, provided that nothing in this paragraph shall oblige a State to refuse its own nationals entry into its territory;

Resolution 2781 (2025) renews until 31 May 2026 the travel and financial measures imposed by paragraphs 9 and 12 of resolution 2206 (2015).

SUDAN

The instrument lists resolutions from Resolution 1591 (2005) to Resolution 2791 (2025). Pursuant to Resolution 1591 (2005), the Security Council imposed a travel ban (paragraph 3 (d)) on individuals designated by the Committee.

Resolution 2035 (2012) paragraph 3 states:

Decides that the listing criteria set out in paragraph (3) (c) of resolution 1591 (2005) shall also apply to entities…

YEMEN

The instrument lists a series of resolutions from Resolution 2140 (2014) to Resolution 2801 (2025) that impose and renew travel sanctions on designated individuals. The effect of these resolutions is to require all Member States to take the necessary measures to prevent the entry into or transit thro ugh their territories of individuals designated by the Committee. The travel ban does not oblige a State to refuse its own nationals’ entry into its territory.

Resolution 2801 (2025) renews the travel ban until 14 November 2026.

Human rights implications

The Disallowable Legislative Instrument engages the following rights:

         the rights relating to families and children, including those in Articles 17 and 23 of the ICCPR and Articles 3 and 10 of the Convention on the Rights of the Child (CRC);

        Non-refoulement obligations arising in respect of Articles 6 and 7 of the ICCPR and in Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);

        rights in relation to the expulsion of aliens in Article 13 of the ICCPR;

        the right to liberty and freedom from arbitrary detention in Article 9(1) of the ICCPR;

        the right to a fair and public hearing under Article 14(1) of the ICCPR; and,

         the right to equality and non-discrimination under Article 2(1) and 26 of the ICCPR. 

Right to freedom of movement

Article 12 of the ICCPR states:

Article 12 protects the right to freedom of movement, which includes the right to move freely within a country for those who are lawfully within the country, the right to leave any country and the right not to be arbitrarily deprived of the right to enter one’s own country.

None of the listed individuals are known to be Australian nationals. If any of them were, the travel bans would not affect their ability to enter or remain in Australia, firstly because the travel bans imposed by the UN to do not apply to allow States to refuse entry to their own nationals, and secondly because the UNSCR Regulations relate to visa refusal and cancellation, and Australian citizens do not need, and cannot hold, Australian visas.

In addition, none of the individuals listed in the resolutions are known to be in Australia or to have spent time in Australia such that Australia could be considered to be their ‘own country’. If there were such individuals, preventing their re-entry to Australia would not be an arbitrary deprivation of their right under Article 12(4) of the ICCPR, since such a decision would be based on a law giving effect to the UNSC’s considered response to persons who pose threats to the security, peace and stability of the relevant country. This is consistent with Article 12(3) of the ICCPR which provides an exception to restrictions to the freedom of movement that are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others and are consistent with other rights recognised in the ICCPR.

Further, the UNSCR Regulations allow for the consideration of the individual circumstances of each person. The UNSCR regulations provide that it is a criterion applicable (at the time of decision) to an application for a visa of any class that the Minister is satisfied that a committee has determined that the applicant’s travel to or transit through Australia is justified, a committee has authorised the applicant’s travel to or transit through Australia, or the grant of the visa to the applicant is justified by compelling circumstances. This allows consideration of the impact on an individual in not being able to enter Australia, if Australia was the person’s own country.

Rights relating to families and children

Article 17(1) of the ICCPR states:

 No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Article 17(2) of the ICCPR states:

Everyone has the right to the protection of the law against such interference or attacks.

Article 23(1) of the ICCPR states:

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State

Article 3(1) of the CRC states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 10(1) of the CRC states:

In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for members of their family.

This instrument may limit rights relating to family and children where sanctioned individuals have family members or children in Australia and are prevented from travelling to Australia or have their visa cancelled and are required to depart from Australia.

Limitations on the right to protection of the family under Articles 17 and 23 of the ICCPR will not violate those articles if the measures in question are prescribed by law, aimed at achieving a legitimate objective and are also reasonable, necessary and proportionate.

Further, Article 10 of the CRC obliges the State Party to deal with an application of a child or his or her parents to enter a State Party for the purpose of family reunification in a positive, humane, and expeditious manner.

While acknowledging the possibility that family members of designated individuals may be in Australia or choose to travel to Australia and would themselves not be prohibited from doing so, the above rights do not confer an absolute right on non-citizens to enter Australia for the purposes of family reunification, particularly where that entry would be inconsistent with a travel ban imposed by the UNSC.

As noted above, none of the designated individuals are known to be in Australia. However, if such a person was in Australia, that person’s visa may be cancelled with the consequence that they would be expected to depart, or be removed from, Australia, with the further possibility of being separated from their family members, if those family members chose not to depart together with the designated individual. Visa cancellation pursuant to the UNSCR Regulations is discretionary and the decision-maker would consider the individual circumstances of the case, including the impact on family members under current policy and procedural guidelines.

Further, as noted earlier, the UNSCR Regulations provide an exemption to the refusal of a visa application or cancellation of a visa held by a UNSC-designated person where, among other things, the grant of the visa is justified by ‘compelling circumstances’, the travel is authorised by a UN committee, or the decision not to cancel the visa is justified in ‘compelling circumstances’.

To the extent that a travel ban imposed by the UNSC and implemented by the UNSCR Regulations may limit the right to protection of the family in a particular case, the Australian Government considers that any interference with the right to protection of the family would be justified in the circumstances of the individual case. This is because it would be a necessary and proportionate response to the actions of the designated individual in the relevant country, which according to the UNSC, threaten that country’s peace, security, and stability.

Non-refoulement obligations

Article 3(1) of the Convention Against Torture states:

No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

Article 6(1) of the ICCPR states:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Article 7 of the ICCPR states:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Australia remains committed to its international obligations concerning non-refoulement. These obligations are considered as part of the decision whether to refuse or cancel the visa of a UNSC-designated person. In particular, the UNSCR Regulations provide an exemption to the refusal of a visa application or cancellation of a visa held by a UNSC-designated person where, among other things, the grant of the visa is justified by ‘compelling circumstances’, or the decision not to cancel the visa is justified in ‘compelling circumstances’. ‘Compelling circumstances’ may include the fulfilling of an international obligation owed by Australia (regulations 7(3) and 8(4) of the UNSCR Regulations), which includes complying with Australia’s non-refoulement obligations.

Expulsion of aliens

Article 13 of the ICCPR states:

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

As the cancelling of a visa held by, or refusing a visa subsequently applied for by a non-citizen lawfully in Australia can lead to removal, the cancellation process as a whole can amount to expulsion as contemplated in Article 13 of the ICCPR.

Decisions to cancel the visa of a UNSC-designated person are made in accordance with section 116 of the Migration Act 1958. The cancellation process affords procedural fairness and review of the decision to cancel is available – merits review by the Administrative Review Tribunal and or judicial review for decisions made by a delegate of the Minister, and judicial review of decisions made by the Minister personally. To the extent that additional people may have their visa cancelled as a result of the listing of new relevant UNSC resolutions, possibly leading to their expulsion, the processes are in accordance with the procedural requirements of Article 13 of the ICCPR.

Right to liberty and freedom from arbitrary detention

Article 9(1) of the ICCPR states:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

This instrument may engage the right to liberty and freedom from arbitrary detention as the UNSCR Regulations authorise the Minister to cancel a visa or refuse the grant of a visa where the non-citizen is a UNSC-designated person. While as noted above, none of the UNSC-designated persons are known to be currently located in Australia, if such a person were located in Australia, they may be subject to visa refusal or cancellation as a result of the grounds established under the UNSCR Regulations, to which immigration detention may be a consequence.

A possible consequence of the refusal of a visa application or the cancellation of a non-citizen’s visa, under the Migration Act, would be that the non-citizen would become an ‘unlawful non-citizen’ liable to immigration detention and removal from Australia.

Immigration detention of unlawful non-citizens as a consequence of visa refusal or cancellation is authorised by, and operates in accordance with, the Migration Act. Accordingly, it complies with the requirement in Article 9(1) that deprivation of liberty not occur except in accordance with grounds and procedures prescribed by law. Non-citizens are also able to challenge the lawfulness of their detention by seeking a writ of habeas corpus.

Whether detention is arbitrary involves consideration of whether it pursues a legitimate aim and is reasonable, necessary and proportionate in light of the circumstances. The objective of immigration detention pending an unlawful non-citizen’s removal from Australia under the Migration Act is to ensure that the person is available to be removed once that removal becomes reasonably practicable. It is intended that any person who is detained as a result of having their visa refused or cancelled will be removed from Australia as expeditiously as is reasonably practicable. Detention in these circumstances is a predictable operation of law, and is necessary, reasonable and proportionate to the objective of removing unlawful non-citizens from Australia when they no longer have a right to remain.

To the extent that detention that initially complies with Article 9 may become arbitrary if it continues beyond the period for which it can be justified, the Government has processes in place to mitigate the risk of a person’s immigration detention becoming prolonged or arbitrary through internal administrative review processes; Commonwealth Ombudsman enquiry processes, reporting and parliamentary tabling; and, ultimately the use of the personal intervention powers of the Minister administering the Migration Act to grant a visa or residence determination where it is considered in the public interest.

As a result, any period of immigration detention resulting from visa refusal or cancellation as a result of an individual being designated by a UN sanctions committee would be lawful and not arbitrary, and therefore consistent with the rights under Article 9.

Right to a fair and public hearing

Article 14(1) of the ICCPR provides:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

Article 14(1) of the ICCPR protects the right to a fair trial and a fair hearing. In the context of this instrument which does not impose criminal penalties, this right concerns procedural fairness, and applies where rights and obligations, such as personal property and other private rights, are to be determined.

This instrument may limit this right, in that designations of individuals by the UNSC or its committees for the purposes of travel bans are not subject to merits review under Australian law.

The Government’s position is that any limitation on this right is justified, as the imposition of travel bans on designated individuals has the legitimate objective of responding to international threats to peace, breaches of peace and acts of aggression. The limitation on access to merits review in this context is reasonable as it reflects the seriousness of international peace and security.

Further, while the decisions of the UNSC or its committees to designate individuals subject to travel bans are not subject to merits reviews, there are clear procedures for requesting de-listing from the relevant UNSC committee. Designated individuals may also seek exemptions to the travel bans from the relevant committee, and the Minister may also grant a visa or decide not to cancel a visa where justified by compelling circumstances. As mentioned above, the different sanctions regimes also specify exemptions to the travel bans, where the person is entering the country of which they are a national or where entry or transit is necessary for the fulfilment of a judicial process.

Accordingly, any limitation on the right to fair trial and a fair hearing is reasonable, necessary and proportionate to the objective of this instrument.

Right to equality and non-discrimination

Article 2(1) of the ICCPR states:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 26 of the ICCPR states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Differential treatment (including the differential effect of a measure that is neutral on its face) will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria, serves a legitimate objective, and is a proportionate means of achieving that objective.

In implementing travel bans, the committee may make designations in relation to specified countries, which may have a disproportionate impact on persons on the basis of national origin or nationality. Any such difference in treatment on the basis of nationality or national origin would have an objective and justifiable basis and would be reasonable and proportionate in the circumstances of each case.

The objective of this instrument is to give effect to sanctions-related decisions of the UNSC in response to threats to the peace, breaches of the peace or acts of aggression, and to maintain or restore international peace and security.

The measures are highly targeted, reasonable and objective and are supported by the international community. They only relate to matters that threaten international peace and security. Sanctions measures are regularly reviewed and lifted where deemed appropriate to do so by the UNSC.

Conclusion

The Disallowable Legislative Instrument is compatible with human rights as, to the extent it may limit some human rights, those limitations are reasonable, necessary and proportionate to the objective of implementing the UNSC’s travel bans against individuals who threaten peace, security and stability.

The Hon Tony Burke MP

Minister for Home Affairs

ATTACHMENT B

Details of the Migration (United Nations Security Council Resolutions) Instrument 2026

Section 1 – Name of instrument

This section provides that the title of the instrument is the Migration (United Nations Security Council Resolutions) Instrument 2026 (LIN 26/008).

Section 2 – Commencement

This section provides the instrument will commence on 21 March 2026.

Section 3 – Authority

This section states that the instrument is made under the Migration (United Nations Security Council Resolutions) Regulations 2007 (the Regulations).

Section 4 – Definitions

This section sets out the definitions for certain expressions used in the instrument.

This section notes that some expressions used in the instrument have the meanings given by the Regulations (for example, ‘resolution’ and ‘UNSC-designated person’). This section defines ‘Regulations’ to mean the Migration (United Nations Security Council Resolutions) Regulations 2007.

Section 5—Schedules

This section provides for the operation of the Schedules. If a Schedule specifies another instrument, that instrument is amended or repealed as set out in that Schedule. Any other item included in a Schedule has effect according to its terms.

Section 6 – Resolutions

This section provides for the definition of resolution in regulation 4 to the Regulations, that each United Nations Security Council (UNSC) Resolution specified in column 1 of an item in the table in Schedule 1 to the instrument is specified.

The note under section 6 operates to direct the reader to regulation 5 of the Regulations, as the regulation provides that a person is a UNSC- designated person if, under a resolution, Australia is required to prevent the person entering or transiting through an Australian territory.

Schedule 1 – Resolutions

Schedule 1 to the instrument specifies the UNSC Resolutions for section 6.

The table lists the resolutions in table format, grouped according to whether the resolution concerns a regime or a country, and within that grouping, each regime or country is presented in alphabetical order, with each applicable resolution listed in succession in chronological order of adoption.

Schedule 2 – Repeals

Item 1– The whole of the instrument

Item 1 of Schedule 2 to the instrument operates to repeal the whole of Migration (United Nations Security Council Resolutions) Regulations 2007 - Specification under regulation 4 definition of 'resolution' - Specification of United Nations Security Council Resolutions - IMMI 14/034.