Student visa program review -- still blaming the victims

Just over 10 years ago, in July 2001, amendments to the Migration Reguations allowed overseas students to stay in Australia and apply for permanent residence at the end of their studies. A new industry was born, offering courses designed exclusively for the study to PR pathway that had been opened up. Australian Immigration and Education regulators were on the back foot almost from day one, unable to keep up with the imaginative entrepreneurial skills of the free market "education providers". Just one example: when the rules for trade qualifications were changed to require students to complete 900 hours of work experience, training institutions teamed up with hairdressing salons and restaurants (often run by the same people) to exploit the free labour of students willing to work for nothing to get the necessary paperwork.

What became our third largest export industry, worth as much as $18 billion per year, ended up distorting the skilled migration program and clogging the immigration queue (the real one, not the imaginary queue of asylum seekers). Caught up in this were tens of thousands of young people from around the world, but predominantly from India and China, whose only crime had been to buy what the Australian government was selling, or knowingly allowing to be sold in its name. The response of the immigration bureaucrats was to blame the victims, claiming with barefaced dishonesty that no one had told prospective students they were supposed to be coming here for any purpose other than temporary study. I have commented on this previously.

Now a report commissioned by the government to prove that it was all somebody else's fault has done just that. The main feature of the Knight report's recommendations, which have been accepted en masse by the government, is a requirement that overseas students demonstrate that they are "genuine temporary entrants" (GTEs), with no intention of wanting to stay in Australia permanently after their studies. Not wanting to entirely massacre the geese laying those 18 billion golden eggs, however, students completing bachelor degrees or higher qualifications will be allowed to remain in Australia with work permission for two to four years. Any who pick up an employer or State sponsorship, or form a relationship with a local resident, may then qualify for permanent residence.

The promise has been replaced by an enticement, hopefully enough to keep the lucrative student market alive. Whatever long-term problems might arise (exploitation, incentive to commit fraud, family and social stress on young students, desperation -- see earlier comments) will be just that: long-term, beyond the next election, something that can be blamed on someone else at a later date.

I have previously noted that only one Australian journalist seems to have any understanding of, or care for, the victims of this decade of failed policy. Peter Mares' comments on the Knight report and his presentation to the TAFE Directors Australia 2011 National Conference in Sydney this month should remind everyone concerned with Australian immigration policy that asylum seekers are not the only issue.

Shameful - Australia throws out Refugees Convention

Original post edited to take into account 19 September amendment

The proposed legislation for amending the Migration Act to make it possible for the Australian government to "virtually" push back asylum seeker boats is a shameful document. That shame falls on the politicians who have proposed it and the public servants who drafted it.

See the text of the Amendment bill published on 19 September.

The only criterion that the Minister need apply in deciding to send asylum seekers to a particular country is "the national interest". This has been amended from an earlier draft which referred to the "public" interest. In considering the national interest, the Minister "must have regard to" whether or not the country has given Australia certain assurances about not sending the person on to another country where their life or freedom would be threatened due to their race, religion, nationality, membership of a particular social group or political opinion, and will make or permit to be made an assessment of whether the person is a refugee under the Convention. The Minister may also take into account other factors.

That's fine, then, isn't it? Well, the Bill goes on to say that the above assurances "need not be legally binding". Sort of like a promise with your fingers crossed behind your back, in effect.

There is also that slippery legal expression "must have regard to...". That doesn't mean the Minister can't still send someone to a country that has given no such assurances, or perhaps has given them in the past but not complied with them, so long as the Minister still thinks it is in the "national interest" to do so. Like the previous term "public interest", there is no clear legal definition of what that means.

Australia's obligations to refugees are contained in the Refugees Convention Article 33. There is no mention of the public or national interest in that article. The national interest of the receiving country is not a consideration in throwing back asylum seekers at the border. Using it as a criterion is therefore a direct repudiation of the Convention. Full stop.

Nor is there anything in Article 33 that says that Australia can outsource its protection obligations. The Bill contains a section headed "Reasons for Subdivision" which is one of those peculiar pieces of modern legal drafting that is supposed to make it clear what the intention of Parliament is. People smuggling, we are told, is a "major regional problem", as are its "undesirable consequences including the resulting loss of life at sea". No argument there. Then it goes on to explain that Parliament thinks that the Minister should have the power to decide which countries should be designated for the purpose of sending "offshore entry persons" to them, even if Australia has or may have protection obligations towards those persons under the Convention. So what are these OEPs? Elsewhere the Act defines them as, in effect, people trying to get to Australia to seek protection under the Convention but who get caught before they make it to the mainland and are taken to an "excised offshore place", which is a part of Australia where the usual rules about applying for visas don't apply to.... people taken there for the purpose of not allowing them to apply for a visa.

It is a masterpiece of circular logic. Section 36 of the Migration Act says that there must be a visa for people who are in need of protection under the Convention. Section 46A however says that offshore entry persons can't apply for a visa in Australia. So we have created this visa to comply with our obligations under the Convention, good little international citizens that we are, but the people most in need of it can't apply for it. Instead, we pack them off to some place that has, maybe, given us a non-binding "assurance" that they will take them off our hands. This is not what Article 33 requires us to do.

Article 33 is the heart of the Convention. If Australia no longer applies it, then Australia can no longer be considered a State Party to the Convention.

It's a crazy idea, but....

I have been looking over a few cases involving onshore protection visa applications. It has been apparent to everyone involved for some time (including, not the least, the judicial authorities -- see my earlier post) that there is a significant amount of abuse of the system in this area. There has been some improvement in the last couple of years, due to an increase in the rate of processing applications through the system, but it is still the case that someone who knows the ropes, or is guided by someone else who knows them, can draw out a case for a year or more at very little cost to themselves, though considerable cost to the system: arrival on visitor visa, application for protection visa close to expiry date, appeal to Refugee Review Tribunal, appeal to Federal Magistrates Court, appeal to Federal Court, application for special leave to appeal to High Court (though by this stage it is beginning to get expensive). From the expiry of the initial visitor visa to the death of the last appeal, the applicant is free to come and go and has lawful permission to work.

Some of the costs are obvious in terms of expenditure by the administration and the Courts. The reduction in processing time in recent years has been helped by the requirement that the RRT decide cases within 90 days, but this has also come at a cost: since the RRT and MRT (Migration Review Tribunal) are administered jointly, the flow of resources into the RRT to meet the 90 day deadline has resulted in a blow out in the backlog of non-refugee cases in the MRT, with many taking 18 months or more to be heard. There is also a cost, in my opinion, to genuine onshore applicants whose credibility is inevitably measured against the background of a large number of fraudulent applications.

The solution seems fairly obvious. If the attraction is permission to work in Australia (earning the onshore protection visa the nickname of the "$30 work permit"), then why not remove it?

What if we treated all asylum seekers the same, regardless of how they got here? With or without a visa, they could be accommodated in open hostels, fed and clothed but not allowed to work. Their children could go to school, there would be no razor wire, they could come and go during the day but be required to check in at night. Failure to do so would amount to a deemed withdrawal of the protection visa application and would then be held against them when they were later caught and tried to re-open their case. People with valid visas could continue to get the benefit of them, but could not renew them on expiry.

Sound scary? Only because of our visceral, irrational, bed-wetting fear of being dispossessed by people arriving in boats without permission. Wherever did we get that phobia from?

Metcalfe and the UK/French/Aussie riots -- a case of cui bono?

Did Immigration Department Head Andrew Metcalfe predict rivers of blood, or didn't he? He's not saying what he said. Whatever it was, he apparently said it twice: once on Wednesday morning to Canberra journalists, and again on Wednesday afternoon to Opposition leader Tony Abbott. With the exception of Abbott, the only people who have reported authoritatively on it seem to be people who weren't there, such as ABC journalist Jeremy Thompson or Crikey commentator Bernard Keane.

Personally I doubt very much that Mr Metcalfe would have said anything of the sort. Keane's second-hand scenario seems quite plausible: an answer to a question that was probably a bit clumsy and was misconstrued by the journos.

The point is, though, it doesn't matter now whether he said it or not. It has been taken up with as much gusto as the original "Rivers of Blood" speech by UK MP Enoch Powell in 1968. For the Daily Telegraph (a Powellesque rag if ever there was one), it became a prediction of rioting in the streets. The claim will inevitably come up again and again like the children overboard slander. And it's for that reason that the government should make a clear statement now that it does not believe that allowing asylum seekers to be processed onshore (which most of them are, anyway, since the majority come in by plane and no one notices them) will lead to rioting or UK-style looting (I thought that was caused by Senator Wong having a baby with her same-sex partner, according to the Tele?).

Otherwise, one would have to assume that the government is happy for these rumours to run wild. It doesn't want onshore processing either. That would be an example of dog-whistling surpassing even the best of the Howard era.

Stopping the boats: a piece of legislative cake

In consideration of the public interest, I have decided the offer my professional legal advice to both the government and the opposition without imposing my usual exorbitant (though entirely justified) professional fee for the following advice.

As we all know, or at least as we all are told, the only real political /social / humanitarian issue facing our great country today is, "stopping the boats". On that basis the following drafting notes are put forward for the submission to Parliament of the Border Protection (Stopping the Boats) Bill 2011.

Firstly, to head off any potential High Court challenges, we need an unsinkable (sorry) interpretation provision. Try this:

"This Act is to be interpreted as if Australia had no international obligations whatsoever in respect of Human, Civil or Political Rights, the status or protection of Refugees, the rights of Children, or anything of the sort (ejusdem generis). To the extent that any provision of this Act may conflict with any obligations of Australia, whether explicit or implied, in respect of the above, those obligations are taken to have been rescinded, revoked, repudiated and expressly set aside. To avoid doubt, it is not the intention of Parliament that any international obligation to which Australia might otherwise be subject should be used to interpret this Act in such a way as to limit or reduce the clear and unequivocal intention of the legislation to stop the boats no matter what the cost (other than electoral cost to the government of the day)."

Having made that clear, the substantial provisions of the Bill are a piece of cake: "The military forces of the Commonwealth are hereby authorised and directed to take whatever action is necessary to prevent unauthorised entry into Australian territory of any boat or ship, including any floating, or partially floating, or potentially or imminently sinking, whether leaking or otherwise, maritime vehicle conveying, or intending or potentially or reasonably or unreasonably suspected of intending to convey to Australia (including an excised offshore place) any person, not being an Australian citizen or eligible New Zealand citizen, who may, in the opinion of an officer, wish or intend, or conceivably or reasonably or unreasonably possibly wish or intend, for whasoever reason whatsoever, including a reason that reasonable or even reasonably unreasonable people might think was arguable, to remain whether permanently or temporarily or for the minimum time necessary to protect human life or dignity, in Australia, including action that may involve sinking, or hastening the sinking, or sitting back to wait for the sinking, of such boat or ship etc., regardless of any loss of life or limb or suffering of any person whatsoever (other than an Australian citizen or eligble New Zealand citizen)."

Julia, Tony, waiting for your call.

A simple twist of fate

Sitting in my office last week, across the desk from a young Indian couple, both sobbing. Good thing I've got that desk there. These kids (20-somethings, my daughter's age) made one big mistake: they bought what we were selling. It was our second biggest export industry for a while, though now we don't need them any more because the Chinese will buy anything we can dig up. But ten years ago it looked as though we really needed these guys. So we went out and sold them the dream. It's a dream families will go into debt for, children will promise their parents to live for, marriages will be made for, lives will be destroyed for. For these two, we didn't deliver.

Actually, it was just a stupid bureaucratic stuff up that Kafka could have written about. They were living in a rented apartment and the landlord kept the key to the letter box. An important letter from Immigration came, and went, because they didn't get it. Now their applications for visa extensions have been refused. Our stupid laws say there is nothing you can do about it. A 20 year old kid gives an address on a form and their life can be trashed because a letter doesn't get to them, even though they gave an email address also but Immigration chose not to use it. Joan Baez sang about a simple twist of fate. I'd hate to think my kid's future depended on a twist like that.

End of the "Malaysian deal"; end of the madness also?

It's the morning after the High Court handed down its judgment in what will probably now be known as "the Malaysian swap case". Read it here:

Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32

Heads will be sore in Melbourne (where the lawyers are) and Canberra, though for very different reasons.

The High Court made the point that Australia has undertaken certain international obligations and that our laws must be interpreted in the light of those undertakings (not a new concept by any means). When applied to asylum seekers, that means that we must either properly assess their claims before sending them back (which is something I argued before in another post), or if they are to be sent somewhere else for processing the country concerned must have similar international legal obligations. As a matter of "jurisdictional fact" (that is, something that the Court can determine for itself), Malaysia has no such obligations.

Does this put Nauru back in play? That bankrupt little republic has now signed up for the Refugees Convention. Under the "Pacific Solution" devised by the Howard government, the actual processing of asylum claims there was under Australian control, so the High Court decision last year in the "Offshore Processing Case" might apply, meaning that applicants would have to be given natural justice and access to the Australian courts.

The situation now is that the Australian government can no longer have it both ways. It can explicity renounce its obligations under the Refugees Convention, or it can embrace them and end this whole farce of offshore processing and mandatory detention that has been such a stain on our national reputation for two decades.

Oh, and the Minister also has to live up to his obligations as guardian of unaccompanied minors, meaning he has to really consider whether it is in their best interests to send them somewhere else.