September 2007

Election 2007: It’s time to reform deportation policy

Glenn Nicholls, Swinburne University

The compliance section of Australia’s Department of Immigration enforces the departure of 10,000 people yearly. By international standards this is a very high number relative to population. At 5.5 per 10,000 head of population, Australia’s deportations rate is well ahead of the United Kingdom at 2.6 and Canada at 2.1.

Aggressive deportation action is part of the Coalition government’s determination to be strong on border security, crime and terrorism. It gives no quarter to asylum seekers arriving without authorisation or non-citizens who become the subject of suspicion on national security grounds or are deemed to be of bad character.

The deportation system is out
of control.

During the current term of the Coalition government we have seen the scandalous cases of Cornelia Rau, Vivian Alvarez, Robert Jovicic, and Mohammed Haneef. The Department of Immigration has promised a ‘cultural change’ and is spending $550 million over four years on fixing IT weaknesses. But the fundamental problem is that the deportation system itself is out of control. Australian officials must stop deporting people who are long term Australian residents; who are subjected to unsubstantiated suspicion; or who will be exposed to human rights abuses if deported. This requires changes to the Migration Act and its application led by the Immigration Minister.

DEPORTATION OF LONG TERM AUSTRALIAN RESIDENTS

Under amendments to the Migration Act in 1999 entitled the Strengthening of Provisions on Character and Conduct, the Coalition government added to the already expansive deportation powers of the Minister for Immigration. It soon became apparent that the government would use these powers to deport Australian permanent residents deemed to be of bad character because they had served a prison term of a year or more. Previously individuals had been safe from deportation if they had lived in Australia for more than ten years, even if they had not taken out citizenship. But the new powers gave Immigration ministers, beginning with Philip Ruddock, a way of circumventing the ten-year limit. Between 2002–03 and 2004–05, 233 permanent residents were deported from Australia under these powers, compared to 127 deportations on criminal grounds in the three years between 1995–96 and 1997–98. Many of the people affected by the increased powers had arrived in Australia as infants and were unaware that they could be deported.

Stefan Nystrom arrived in Australia as a 27-day-old infant but faced deportation as a 30-year-old after being convicted of serious crimes. He fought the minister’s decision all the way to the High Court. While Nystrom’s legal challenge was underway in 2005, the case of Robert Jovicic aroused public controversy. Jovicic was found living homeless and destitute in Belgrade, where he had been deported after more than 30 years in Australia. Following exposure of his plight on television, the government allowed him to return to Australia in early 2006. At that time the lawfulness of the minister’s decisions to deport long-term residents was in question because Stefan Nystrom had won his case in the Full Federal Court. However, in November 2006, the High Court overturned the Full Federal Court’s decision in Nystrom’s case and confirmed the breadth of the minister’s powers to deport non-citizens under the character provisions, regardless of their length of residence. Nystrom was deported on 30 December 2006. In February 2007 Jovicic was granted a special purpose visa to stay in Australia for two years, but his fate after that is unclear. There is no certainty that he will be able to stay in his country of upbringing.

Deportation powers have been used against people long settled in the country.

The Labor Opposition supported the changes to the Act in 1999 because, as its Immigration spokesman Con Sciacca stated in parliament, ‘all this is doing is giving some more power to the minister in terms of making sure that we do not bring people into this country who are undesirable and may have been convicted of offences’ (1998, p. 1233). In fact, the powers have been used against people long settled in the country and who have Australian families. These people may have criminal convictions and ‘character’ flaws but they are Australia’s responsibility and should not be deported.

Thus, future Immigration ministers should cease using the character provisions of the Migration Act against Australian permanent residents. Instead, ministers should revert to the specific deportation power in the Migration Act with its ten-year time limit. The character test in section 501 of the Migration Act should be amended so that it cannot be used to deport permanent residents who have lived more than ten years in Australia.

USING THE MIGRATION ACT TO CIRCUMVENT THE COURTS

The use of the character provisions of the Migration Act against long-term residents reflects a lack of faith by the commonwealth government in the capacity of the criminal justice system to deal with individuals convicted of crimes. Instead of the opportunity to reform they are punished doubly by being banished after serving their sentences.

In a similar vein, the Coalition government used the character provisions of the Migration Act to trump the court system in the case of Dr Mohammed Haneef. He was arrested on terrorism-related charges in July 2007. Magistrate Jacqui Payne granted Haneef bail following a court hearing, but Minister for Immigration, Kevin Andrews, circumvented this decision and condemned Haneef to immigration detention and deportation by cancelling his visa without any hearing at all. The nature of the information Andrews used to conclude that Haneef failed the character test remains unclear and unsatisfactory. He simply used the character test to enable Haneef to be detained and deported regardless of the status of the court action.

The Migration Act should not be used in this way. The fraught atmosphere created by international terrorism is no justification. In 1953, at the height of the Cold War, Harold Holt won cabinet support for the principle that immigration legislation should only be used to prosecute immigration offences and that political offences should be dealt with in the courts under the Crimes Act. The Howard Government has turned back the clock so that the Immigration Minister feels entitled to act when he or she considers that there is a reasonable suspicion of a person having a criminal association, link or relationship.

Many countries grant people at risk of harm a status akin to refugee status.

Thus, future ministers for Immigration should not use the Migration Act to deport individuals without a hearing or to circumvent court proceedings. The minister’s power under section 501 (6) to cancel a person’s visa on grounds of a distant or unproven association with criminal activities should be repealed.

DEPORTATION OF ASYLUM SEEKERS TO DANGEROUS SITUATIONS

Asylum seekers in Australia must meet the United Nations definition of refugee status to be granted a protection visa. This definition does not cover dangers like civil war or lawlessness in their homeland. Many countries grant people at risk from these dangers a status akin to refugee status, called complementary protection. In the Australian system the only option for refused asylum seekers is to seek the personal intervention of the Minister for Immigration, who maintains a discretionary power to allow a person to stay even though that person does not meet the usual criteria for a visa. No court can compel the minister to intervene or review the minister’s decision. This is far from an adequate safety net in cases involving matters of an individual’s safety and basic human rights.

If an applicant fails to qualify for refugee status or to attract the intervention of the minister, he or she must be deported from Australia. The Edmund Rice Centre’s Deported to Danger (2004) and David Corlett’s Following Them Home (2006) have shown that people refused asylum in Australia have been sent back to situations of great peril.

Under no circumstances should individuals be deported to dangerous places or to face the risk of human rights abuses. It is time for Australia to introduce a reliable system of complementary protection. People who are refused refugee status and who face deportation should first have the opportunity to prove their claims for protection under other human rights instruments, such as the Convention against Torture, rather than having to rely on the grace of a visa conferred by the minister’s personal intervention.

Thus, the criteria for protection visas should be broadened to encompass dangers from civil war, lawlessness, torture, and other degrading treatment. No-one should be deported to face these dangers.

THE DEPORTATION MACHINE

In recent years the policy of mandatory detention of asylum seekers arriving in Australia without a visa has generated significant public debate. It is rarely recognised that underlying the detention power is a policy of mandatory deportation equally lacking in flexibility and humanitarianism. In 1989 the Labor government introduced an ill-conceived law for the ‘mandatory deportation of illegal entrants’ (most of whom were in fact legal entrants but visa overstayers). In 1992 this was superseded by a new power in section 189 of the Migration Act—the mandatory ‘removal of unlawful non-citizens’.

It is time to replace vehement political spin with fairness
and facts.

Since that time, any person in Australia without a valid visa must be detained and deported. Immigration officials are obliged to take anyone they reasonably suspect to be an unlawful non-citizen into immigration detention. If not granted a visa, that person must be removed from Australia as soon as ‘practicable’. Most of those removed from our shores are overstayers who have remained in Australia after their visa has expired. However, the system is so indiscriminate and inflexible that it catches others up. It works like a remorseless machine, which starts when a person cannot satisfy an immigration official that he or she is an Australian citizen or has a valid visa. As the cases of Cornelia Rau and Vivian Alvarez showed, this has tragic consequences for vulnerable individuals without residence documentation. The official investigators in these cases Mick Palmer (2005, p. 195) and Neil Comrie (2005, pp. 31–33, 68–69) were critical of the way that the detention and deportation system ticked over without distinct decision-making and review points. Alvarez was deported despite the fact that she was an Australian citizen. Comrie described the deportation process as a ‘dehumanised mechanical process’ (p. 31).

The solution to this problem is not further mechanisation through a $550 million IT up-grade or even a change of culture. It is more human involvement and interaction brought about by legislative and regulatory change. Suspected unlawful non-citizens should not be detained or deported without being brought in front of a magistrate or independent authority to verify their identity and immigration status. If deportation is to proceed, the magistrate should first check the person’s fitness to travel and the existence of permissions from the person’s country of citizenship as well as transit countries. New Zealand has a Removal Review Authority. It does not do all of the checks I recommend, but does at least provide an avenue of independent judicial review for people facing removal from that country.

A check by a magistrate or independent authority would have stopped Cornelia Rau from being detained for ten months and Vivian Alvarez from being wrongfully deported. It would also have saved Australian tax payers a great deal of money in detention, deportation and compensation costs.

None of the steps above are financially expensive. Unfortunately, however, any prospective government proposing them would be exposed to significant political costs. This is because the Coalition government has staked such a vehement claim to be Australia’s protector against asylum seekers and alleged conspirators and criminals in the country. Anyone who questions the Coalition’s claim risks being seen as weak on border security, crime and terrorism.

It is time to replace vehement political spin with fairness and facts. The steps above would bring flexibility and humanity to deportation policy. This is a necessity in a country that benefited from immigration and that claims to give everyone a ‘fair go’. Everyone who is here should be treated fairly.

References

Comrie, N. 2005, Inquiry into the Circumstances of the Vivian Alvarez Matter, Commonwealth Ombudsman, Canberra.

Corlett, D. 2005, Following Them Home: The Fate of the Returned Asylum Seekers, Black Inc., Melbourne.

Edmund Rice Centre 2004, Deported to Danger: A Study of Australia’s Treatment of 40 Rejected Asylum Seekers, Edmund Rice Centre, Sydney.

Palmer, M. 2005, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau: Report, Commonwealth of Australia, Canberra.

Sciacca, C. 1998, Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998, Second Reading, Hansard, House of Representatives, Parliament of Australia, 2 December 1998, p. 1233 [Online], Available: http://www.aph.gov.au/hansard/reps/dailys/dr021298.pdf [2007, Sep 14]

Glenn Nicholls is the author of Deported: A History of Forced Departures from Australia forthcoming from UNSW Press in October 2007. He works at the Institute for Social Research, Swinburne University of Technology.

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