July 2011 fee increases exceed CPI

Fee increases for most visa and other applications take effect from 1 July. Visa application charges (VACs) have been increased by around 15%, well above the inflation rate.

A particular concern is the fee for an application for review in the Migration Review Tribunal (MRT). The fee is increased from $1,400 to $1,540 (10%). The same applies to the Refugee Review Tribunal (RRT), where the fee is only charged if the application is unsuccessful. However, while the MRT fee was previously refunded in full if the appeal was successful, under the new rules successful applicants will only get back 50%.

The previous provision to allow for waiver of the fee in cases of financial hardship has also been changed, limiting the waiver to 50%.

Fees for the MRT are already substantially higher than in the Administrative Appeals Tribunal (AAT), which charges $777 and refunds $677 on success. In cases of hardship, the fee is reduced to $100.

Most cases in the MRT take about 2 to 3 hours to be heard. Cases in the AAT, which include complex appeals concerning tax, customs, veteran's entitlements and other matters, often run for 1 to 2 weeks.

Since the MRT overturns 45% of decisions that are appealed to it, according to its annual report for 2009-10, there does not appear to be any basis for the government to seek to deter applications for being mostly frivolous or unfounded.

Is the "Malaysian solution" illegal?
The internationally recognised legal status of a refugee is not something granted to a person by any particular country or authority. It is not like a licence, or a visa, or a title. According to the legal definition, a refugee is a person who has a well-founded fear of persecution in their country of nationality or residence because of their race, religion, nationality, membership of a particular social group or political opinion. The key word here is "is".

As a signatory to the Convention and Protocol on the Status of Refugees, Australia has well-established legal obligations towards any person who, according to the above definition, is a refugee. Australia recognises in its domestic legislation that it has these obligations, referring to them in the Migration Act as "protection obligations". They include the obligation not to send the refugee to a place where they would suffer persecution. This is not to be done "in any manner whatsoever" (Article 33). Sending a refugee to a country that is not a signatory, and of which they are not a citizen and where they have no right to remain, obviously constitutes a serious risk that they will either face persecution there or be sent on from there to face persecution elsewhere.

An asylum seeker is someone who claims to be a refugee. As with anything, some claims are genuine, some are not. But the individual asylum seeker does not become a refugee only after their claims have been accepted as genuine by the Australian government. They are refugees as soon as they have that well-founded fear of persecution.

So how does the Australian government know whether it has legal protection obligations in respect of any asylum seeker before it listens to the person's claims and makes an assessment? It doesn't. If it sends the person back without making that assessment, it risks sending back a genuine refugee and therefore being in breach of international law.

Official government figures show that around 90% of asylum seekers arriving by boat turn out to be genuine refugees: http://www.aph.gov.au/library/pubs/bn/sp/AsylumFacts.pdf

That means that, of the 800 asylum seekers sent back to Malaysia, which is not a signatory to the Convention, Australia is likely to breach its obligations under international law in 9 out of 10 cases.

Get them off the boats -- put them on planes

Here are some interesting statistics. In 2009-10 some 5609 people arrived in Australia as "boat people" asylum seekers:

http://www.aph.gov.au/library/pubs/bn/sp/boatarrivals.htm

In the same financial year, 5978 people who had not arrived on boats applied for asylum (protection visas) in Australia:

http://www.immi.gov.au/media/publications/statistics/asylum/_files/asylum-stats-2010-11-section1.pdf

The figure for boat arrivals was a significant increase on the previous year's figure of 1033, while the non-boat number for 2008-09 was 5074.

Hardly anyone mentions the non-boat arrivals. They come in with visitor, student or other temporary visas and are allowed to live freely in the community, usually with permission to work, while their cases are considered. The boat arrivals are the hottest potato in Australian politics.

So here's an idea. Why not give the boat people visas and let them fly in? No more boats, no more detention centres, no more tragedies like SIEV 221 at Christmas Island (this is the real attraction, as far as I'm concerned), no more headlines, no more ranting and raving by shock jocks (ok, that might be a bit optimistic).

If the only difference between "illegal" and "legal" asylum seekers is having a visa, then why not create an Asylum Seeker visa? It would certainly achieve the government's stated objective of smashing the people smugglers' business model.

Reply from DIAC about anti-discrimination protections

I have received a reply from Immigration to the enquiry that I mentioned in my last posting:

While what information and the form in which that information will be made available to employers is yet to be finalised, it is envisaged that only generic information would be visible to employers. In addition to this, clients submitting and expression of interest will be asked if they wish to make this generic information available to potential employer sponsors. It is also anticipated that the process will be an 'opt in' one for clients whereby employers will indicate in the database which clients they are interested in contacting. Clients will then be given the opportunity to contact the employer thus an employer will only be provided with contact details of a client by a client.

This is encouraging, since it shows that DIAC is aware of the possible anti-discrimination issues with the SkillSelect model. Now we must wait and see whether the employers are willing to participate.