09 August 2011

When is a queue not a queue? Englishmen, asylum seekers and students

A Frenchman once told me that when an Englishman is waiting alone at a bus stop he forms an orderly queue of one. In Australia, we probably line up less neatly than the English, but we have our own obsessions about queues and queueing.

Scarcely a day goes by without asylum seekers and refugees being on the front page, so it was interesting to hear someone talking on the ABC this morning about that other putative queue, the one that is populated by thousands of former overseas students in Australia waiting for the permanent visas that they have already qualified for. Peter Mares is one of the few Australian journalists who knows, or cares, about these people. He reminded us about them on Fran Kelly's breakfast program this morning.

In the opening scenes of the movie Casablanca the narrator tells us of the refugees from the Second World War who wait... and wait... and wait. Besides the students Peter Mares tells us of, there are of course the refugees from today's wars and injustices who are waiting all over the world. The government's plan is to send the latest arrivals to Malaysia so they can wait there, indefinitely it seems, and take in some others who have been waiting in that country, again for unknown periods of time. While waiting to be put on a plane from Christmas Island, the potential removees (is that a word?) have had their wait here extended, for which they are no doubt grateful, by their lawyers who have questioned yet another of the byzantine intricacies of our immigration laws in the High Court.

This particular intricacy is found in s 198A of the Migration Act, which was brought in by the Howard government to allow asylum seekers to be hauled off by the navy to Nauru, that obliging little deposit of bird dung in the Pacific that got its independence from Australia in 1968 and has probably regretted it ever since. In order to justify shrugging off our international obligations under the Refugees Convention, the Act allows the Minister to "declare" a place outside Australia to be an OK place to send asylum seekers to. Under the Malaysian deal, Minister Bowen has used the same section to declare Malaysia to be such a place. The argument before the Court is whether the Minister has to take into account any actual facts about the country in question before making that declaration and (here's the byzantine part), whether those facts are "jurisdictional", ie whether the Court can have a second look at them.

An injunction has been granted until 22 August when the Court will decide whether it can or not.

Oh yes, and then there is the question of the unaccompanied minors in the group. Another piece of legislation makes the Minister for Immigration their "guardian". The Court is being asked whether the Minister is being a good parent by sending them off to Malaysia on their own (presumably their real parents are either back home in Afghanistan/Iraq/Iran or in Indonesia).

All we can do now is wait...

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