Skilled migration - have we got it the wrong way around?
Reading this opinion piece in the Drum reminded me of an old heretical idea I have had for some time.
It is one of the articles of faith of immigration policy in Australia that what we need is more skilled migrants. That's why my idea might be considered a heresy.
To a classical economist, skilled labour is a commodity, produced at considerable expense and much sought after in the economy.
Imagine if Australian business could import steel for free. All you would have to do would be to go down to the docks and take delivery. That would be fantastic for industries like construction, automobile manufacture, etc. It would put the Australian steel industry out of business, of course, but the net economic benefit would probably be positive.
Free steel is a fantasy, but free skilled labour is not. It costs hundreds of thousands of dollars to train an engineer, accountant, IT professional, doctor, nurse, etc. But our immigration program delivers planeloads of fully trained (and fully paid for) professionals every day. The benefits to the Australian economy are obvious. Of course, like the steel industry in the earlier example, the production of skilled labour in Australia inevitably comes off the worse for the competition.
The trouble is, economists may be able to see skilled labour simply as a commodity, but the rest of us realise that, unlike steel, skills come with people attached. Not producing skilled labour in Australia translates in real terms into not training Australians. Why spend the money when you can get the product for free?
The OECD Education at a Glance report for 2011 shows that Australia spends well below the average of developed economies on education. We are simply importing it for free.
The old paradigm worked (and worked well, in my heretical view) on the basis that immigrants came in at the bottom of the socio-economic heap and pushed everyone else up. The new paradigm brings the migrants in at or near the top. What effect does that have on everyone below? It may be still too early to tell.
But the economy doesn't just need skilled workers. Engineers don't like to wash dishes, but someone has to. If bringing in the free engineers from overseas means we don't train them here, then I suppose our own kids can take the unskilled jobs. Sounds like a good way to create some social unrest, if you ask me.
Meanwhile, hundreds of millions of our close neighbours in Indonesia, the Philippines and the Pacific queue up for unskilled or semi-skilled work in other countries, some of it legal, some not. Even when it's legal, conditions are often just as bad as when it's illegal.
It's not hard to imagine that a poor woman in the Philippines with a family to support would rather work as a maid or housekeeper in Australia than in Saudi Arabia. But we couldn't allow that, could we? It would offend our egalitarian sensibilities, wouldn't it? Better to let them live in poverty at home or be sexually abused abroad. I'm sure they understand that we're doing it for their own good.
Right now, legions of foreigners work in Australia illegally. The fact that they are illegal means that they are open to exploitation. If they had visas to work as unskilled or semi-skilled labour in domestic, construction, hospitality and manufacturing jobs their rights could be protected. Their taxes could even help pay for training Aussie kids, including their own, to be the engineers of the future.
27 October 2011
25 October 2011
Press dogs attack as government whistles
There are now two groups of foreigners in this country marked as permissible prey for the hounds of the gutter press. Marked by the government, that is.
Asylum seekers, of course, those existential threats to our fair nationhood whose supreme cunning has brought the judiciary into collusion with the Government/Opposition (strike out whichever side you prefer) to force the ever-so-good people of Australia to put them up in luxury hotels and pay them double what our own suffering pensioners must live on. See the Mediawatch exposé.
As I have often pointed out, if you lock up people who are bad or dangerous or both, then asylum seekers must be bad or dangerous or both because we lock them up. Why are they locked up? As a deterrent and, as the recent ABC 4 Corners report strongly emphasises, as a punishment. Deterrence against what? Punishment for what? For coming here, simple as that. Coming here by boat is bad and the people who do it are bad. Government and Opposition blame each other for letting these bad things happen. The hounds are unleashed by both sides.
Now it is the turn of the overseas students whose crime was to buy what we were selling. Education? No, visas. For the better part of a decade the commissioned agents of a new government-backed industry went from town to town all over the Punjab signing up families who wanted a better life for their children. Sorry? What? am I suggesting they were not being offered the chance of training as hairdressers or cooks to return home to ply their trade? Has anyone told the Department of Immigration? Apparently now the good Mr Knight has revealed this dastardly plot that our innocent public servants would never have thought was going on right under their noses. Let's now set the media hounds loose on them, too. The good old Tele will oblige, of course. They will even give us the names and photos of a couple of young kids who have been charged with no crime nor committed any.
If the Tele is right (I guess it's theoretically possible) then the Department has started a "crackdown". That suggests the government is going further than just blaming the victims for its own egregious policy failings; it is intent on punishing them also. Another threat to our aforementioned fair nationhood averted, I suppose. Those Indian kids look like real crims, don't they?
Perhaps while they're in Perth for CHOGM, Manmohan Singh could quietly point out to Julia Gillard that in a couple of decades, when the Chinese have completed the task of replacing coal with renewable energy sources, Australian kids are likely to be begging for jobs in Indian restaurants -- in India. I believe the Indian press can be pretty rabid.
There are now two groups of foreigners in this country marked as permissible prey for the hounds of the gutter press. Marked by the government, that is.
Asylum seekers, of course, those existential threats to our fair nationhood whose supreme cunning has brought the judiciary into collusion with the Government/Opposition (strike out whichever side you prefer) to force the ever-so-good people of Australia to put them up in luxury hotels and pay them double what our own suffering pensioners must live on. See the Mediawatch exposé.
As I have often pointed out, if you lock up people who are bad or dangerous or both, then asylum seekers must be bad or dangerous or both because we lock them up. Why are they locked up? As a deterrent and, as the recent ABC 4 Corners report strongly emphasises, as a punishment. Deterrence against what? Punishment for what? For coming here, simple as that. Coming here by boat is bad and the people who do it are bad. Government and Opposition blame each other for letting these bad things happen. The hounds are unleashed by both sides.
Now it is the turn of the overseas students whose crime was to buy what we were selling. Education? No, visas. For the better part of a decade the commissioned agents of a new government-backed industry went from town to town all over the Punjab signing up families who wanted a better life for their children. Sorry? What? am I suggesting they were not being offered the chance of training as hairdressers or cooks to return home to ply their trade? Has anyone told the Department of Immigration? Apparently now the good Mr Knight has revealed this dastardly plot that our innocent public servants would never have thought was going on right under their noses. Let's now set the media hounds loose on them, too. The good old Tele will oblige, of course. They will even give us the names and photos of a couple of young kids who have been charged with no crime nor committed any.
If the Tele is right (I guess it's theoretically possible) then the Department has started a "crackdown". That suggests the government is going further than just blaming the victims for its own egregious policy failings; it is intent on punishing them also. Another threat to our aforementioned fair nationhood averted, I suppose. Those Indian kids look like real crims, don't they?
Perhaps while they're in Perth for CHOGM, Manmohan Singh could quietly point out to Julia Gillard that in a couple of decades, when the Chinese have completed the task of replacing coal with renewable energy sources, Australian kids are likely to be begging for jobs in Indian restaurants -- in India. I believe the Indian press can be pretty rabid.
19 October 2011
Another bureaucrat blames students for program failures
Kruno Kukoc is First Assistant Secretary, Migration and Policy Division, Department of Immigration and Citizenship. Last Friday he gave a speech to the Australian International Education Conference in Adelaide.
No doubt Mr Kukoc is a first-rate public servant, but as such he is not speaking his own mind anyway. What he says is the official view. And the official view is simply this: none of this was our fault, it was all down to those sneaky students who had no interest in getting an education for its own sake. They just wanted permanent residence.
Sadly, I suppose, very few people in the real world want an education for its own sake. For most it is a means to an end. It is also not a rare thing for people to choose what to study on the basis of their future prospects. Choosing a course of study on the basis of the long-term advantages it might bring you is neither illegal, fraudulent nor even unreasonable.
For most of this century, Australia has actively sold education to overseas students as a path to permanent residence. Mr Kukoc observes that there was an explosion in the VET sector of colleges offering courses for occupations on the Migration Occupations in Demand List (MODL). Were those colleges acting outside the law? Absolutely not, in fact they had to go through a government approval procedure under the Education Services for Overseas Students Act. Was there something illegitimate about the MODL? No, it was set up and controlled by Mr Kukoc's own Department. How did these students go about getting permanent residence after their studies? They applied for visa classes created, by Mr Kukoc's own Department, exclusively for the purpose of allowing overseas students to apply for permanent residence.
The resulting mess had to be cleaned up, I agree. Too many of the VET colleges were visa factories with no real educational foundation whatsoever. The immigration program was being swamped by applicants with inadequate qualifications in areas not really wanted by the economy. So far, I agree with Mr Kukoc.
But where is the blame? Mr Kukoc criticises the MODL, but seems to imply the government he represents had nothing to do with it. He seems surprised that all those thousands of students really wanted to get permanent residence, but doesn't seem to remember that visa subclass 885 was designed, by his Department, exclusively for overseas students to apply for permanent residence within six months of finishing their studies in Australia.
Mr Kukoc probably doesn't get to see them. They come to my office every day. They are mostly around my daughter's age. They, or rather their parents, bought something the Australian government was selling, or at least knowingly allowing to be sold, and now they are being accused of not being "genuine temporary entrants". They never thought they were, they were never required to be, that wasn't the product that was advertised when they bought it. Their lives are in a mess now as they wait to see whether the product their parents really paid for will ever be delivered. Mr Kukoc has a nice job in Canberra.
Who's to blame, really?
Kruno Kukoc is First Assistant Secretary, Migration and Policy Division, Department of Immigration and Citizenship. Last Friday he gave a speech to the Australian International Education Conference in Adelaide.
No doubt Mr Kukoc is a first-rate public servant, but as such he is not speaking his own mind anyway. What he says is the official view. And the official view is simply this: none of this was our fault, it was all down to those sneaky students who had no interest in getting an education for its own sake. They just wanted permanent residence.
Sadly, I suppose, very few people in the real world want an education for its own sake. For most it is a means to an end. It is also not a rare thing for people to choose what to study on the basis of their future prospects. Choosing a course of study on the basis of the long-term advantages it might bring you is neither illegal, fraudulent nor even unreasonable.
For most of this century, Australia has actively sold education to overseas students as a path to permanent residence. Mr Kukoc observes that there was an explosion in the VET sector of colleges offering courses for occupations on the Migration Occupations in Demand List (MODL). Were those colleges acting outside the law? Absolutely not, in fact they had to go through a government approval procedure under the Education Services for Overseas Students Act. Was there something illegitimate about the MODL? No, it was set up and controlled by Mr Kukoc's own Department. How did these students go about getting permanent residence after their studies? They applied for visa classes created, by Mr Kukoc's own Department, exclusively for the purpose of allowing overseas students to apply for permanent residence.
The resulting mess had to be cleaned up, I agree. Too many of the VET colleges were visa factories with no real educational foundation whatsoever. The immigration program was being swamped by applicants with inadequate qualifications in areas not really wanted by the economy. So far, I agree with Mr Kukoc.
But where is the blame? Mr Kukoc criticises the MODL, but seems to imply the government he represents had nothing to do with it. He seems surprised that all those thousands of students really wanted to get permanent residence, but doesn't seem to remember that visa subclass 885 was designed, by his Department, exclusively for overseas students to apply for permanent residence within six months of finishing their studies in Australia.
Mr Kukoc probably doesn't get to see them. They come to my office every day. They are mostly around my daughter's age. They, or rather their parents, bought something the Australian government was selling, or at least knowingly allowing to be sold, and now they are being accused of not being "genuine temporary entrants". They never thought they were, they were never required to be, that wasn't the product that was advertised when they bought it. Their lives are in a mess now as they wait to see whether the product their parents really paid for will ever be delivered. Mr Kukoc has a nice job in Canberra.
Who's to blame, really?
16 October 2011
Distraction of boats allows racism to thrive
Tweet
While our "leaders" in Canberra accuse each other of backing the people smugglers' business model or encouraging the loading of children onto dangerous boats, in Sydney's western suburbs, and presumably elsewhere in the country, it is all about "the enemy".
The article in the Sydney Morning Herald was headlined "fear and distrust". People interviewed in the Federal electorate of Lindsay, whose local Member actively campaigns against asylum seekers arriving by boat, were not apparently concerned about queue jumpers or dangerous sea voyages. Their comments were the stuff of pure xenophobia. The barber saw no difference between persecuted Hazaras from Afghanistan and the Japanese, North Koreans and Viet Cong whom we fought in wars last century. The service station manager, who thought there had been about 100,000 arrivals this year, was worried about the danger to her grandchildren. It did not seem to matter how they got here, just that they were here.
Xenophobia, racism, intolerance, whatever you want to call it, is endemic in human society. After all, that's what the Hazaras are fleeing back home. Meningococcal bacteria and genital warts are also endemic, but are rarely encouraged by politicians. When Vietnamese boat people started arriving in the 1970s there were virulent racist campaigns, but both sides of politics explicitly rejected them. Both the Liberals under Fraser and Labor under Hawke resisted the temptation to ride the wave of racism. They either condemned or ignored it, and went about the business of welcoming the new arrivals into the multicultural mix of Australia.
For the last two decades, rather than welcoming it has been official government policy to lock up asylum seekers arriving by boat. As I have said before, we usually lock up people who are bad or dangerous, or both. No wonder the service station manager in Penrith is worried for her grandchildren, then.
If government policy is to deter them if you can, and lock them up if you can't, then in the minds of many these people must be a threat. Permission is given for the fear and distrust of strangers to manifest itself as hatred and demonisation. That's how a Hazara becomes a samurai.
Tweet
While our "leaders" in Canberra accuse each other of backing the people smugglers' business model or encouraging the loading of children onto dangerous boats, in Sydney's western suburbs, and presumably elsewhere in the country, it is all about "the enemy".
The article in the Sydney Morning Herald was headlined "fear and distrust". People interviewed in the Federal electorate of Lindsay, whose local Member actively campaigns against asylum seekers arriving by boat, were not apparently concerned about queue jumpers or dangerous sea voyages. Their comments were the stuff of pure xenophobia. The barber saw no difference between persecuted Hazaras from Afghanistan and the Japanese, North Koreans and Viet Cong whom we fought in wars last century. The service station manager, who thought there had been about 100,000 arrivals this year, was worried about the danger to her grandchildren. It did not seem to matter how they got here, just that they were here.
Xenophobia, racism, intolerance, whatever you want to call it, is endemic in human society. After all, that's what the Hazaras are fleeing back home. Meningococcal bacteria and genital warts are also endemic, but are rarely encouraged by politicians. When Vietnamese boat people started arriving in the 1970s there were virulent racist campaigns, but both sides of politics explicitly rejected them. Both the Liberals under Fraser and Labor under Hawke resisted the temptation to ride the wave of racism. They either condemned or ignored it, and went about the business of welcoming the new arrivals into the multicultural mix of Australia.
For the last two decades, rather than welcoming it has been official government policy to lock up asylum seekers arriving by boat. As I have said before, we usually lock up people who are bad or dangerous, or both. No wonder the service station manager in Penrith is worried for her grandchildren, then.
If government policy is to deter them if you can, and lock them up if you can't, then in the minds of many these people must be a threat. Permission is given for the fear and distrust of strangers to manifest itself as hatred and demonisation. That's how a Hazara becomes a samurai.
04 October 2011
Another SNAFU with the paper work
We all make mistakes. Far be it from me to cast the first stone. But when it comes to paper work, a volley of rocks has already been hurled at the Department of Immigration over the years. Just a couple of examples: incorrectly advising people whose visas had been cancelled of how long they had to appeal (the Srey case); automatic cancellation of student visas for breach of a "prescribed condition", but forgetting to prescribe a condition (the Hossain case).
On Friday, a couple of emails lobbed into my inbox which I didn't get to look at until Sunday. They contained links to a couple of new "legislative instruments" guaranteed to make your eyes glaze with their complexity. The explanatory note that was posted with them suggested that, since 1 July 2007, the skills assessments which are the basis of all General Skilled Migration applications may have been unlawfully made because the Department of Immigration failed, forgot, or somehow didn't manage to get the approval of another Minister as required by law. No details given, all very mysterious.
Today I got an email circulated by a colleague, Christopher Levingston, which sheds some further light on the mystery. According to Chris, the assessing authority that was not properly authorised was Trades Recognition Australia (TRA), which is responsible for assessing all trade occupations.
So what does this all mean? Visas wrongly granted? -- unlikely, since the legal requirement is that the Minister is "satisfied" the criteria have been met. Visas wrongly refused? -- that's a bit more complicated, depending on whether the non-existence of an authorised assessing authority means that all applications should have been approved, or none should have. Certainly, as Chris points out, there could be implications for people charged with criminal offences in relation to giving false documents to TRA.
Maybe the lesson to be learned is this: the politicisation of immigration over the past couple of decades has led to micro-management by politicians and politically-driven bureaucrats, with resulting increased complexity in the rules and regulations that is now reaching breaking point. Murphy's law triumphs again. Time to go back to the drawing board?
We all make mistakes. Far be it from me to cast the first stone. But when it comes to paper work, a volley of rocks has already been hurled at the Department of Immigration over the years. Just a couple of examples: incorrectly advising people whose visas had been cancelled of how long they had to appeal (the Srey case); automatic cancellation of student visas for breach of a "prescribed condition", but forgetting to prescribe a condition (the Hossain case).
On Friday, a couple of emails lobbed into my inbox which I didn't get to look at until Sunday. They contained links to a couple of new "legislative instruments" guaranteed to make your eyes glaze with their complexity. The explanatory note that was posted with them suggested that, since 1 July 2007, the skills assessments which are the basis of all General Skilled Migration applications may have been unlawfully made because the Department of Immigration failed, forgot, or somehow didn't manage to get the approval of another Minister as required by law. No details given, all very mysterious.
Today I got an email circulated by a colleague, Christopher Levingston, which sheds some further light on the mystery. According to Chris, the assessing authority that was not properly authorised was Trades Recognition Australia (TRA), which is responsible for assessing all trade occupations.
So what does this all mean? Visas wrongly granted? -- unlikely, since the legal requirement is that the Minister is "satisfied" the criteria have been met. Visas wrongly refused? -- that's a bit more complicated, depending on whether the non-existence of an authorised assessing authority means that all applications should have been approved, or none should have. Certainly, as Chris points out, there could be implications for people charged with criminal offences in relation to giving false documents to TRA.
Maybe the lesson to be learned is this: the politicisation of immigration over the past couple of decades has led to micro-management by politicians and politically-driven bureaucrats, with resulting increased complexity in the rules and regulations that is now reaching breaking point. Murphy's law triumphs again. Time to go back to the drawing board?
28 September 2011
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.
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.
17 September 2011
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.
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.
12 September 2011
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?
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?
09 September 2011
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.
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.
05 September 2011
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.
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.
04 September 2011
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.
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.
01 September 2011
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.
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.
17 August 2011
There is a simple solution
Tweet
19 years have passed since Australia "led" the world with mandatory detention of asylum seekers. There are now people on the electoral roll who have known no other way of dealing with the issue.
Some indication of the massive cost of this policy can be gleaned from the evidence given to the Joint Select Committee on Australia's Immigration Detention Network, reported on the front page of today's Sydney Morning Herald. Details of the Committee can be found on the Australian Parliament House website and the DIAC website.
The cost of the policy is measured in human lives and suffering, hundreds of millions of dollars, and irreparable damage to our country's reputation. And in return for this cost, the policy has been a total failure.
Secretary of the Department of Immigration Andrew Metcalfe stated in his address to the Committee yesterday that "these issues often defy simple solutions". Mr Metcalfe is wrong. One factual observation proves this: more asylum seekers arrive in Australia every year by plane than arrive by boat. They are allowed to live and work in the community while their applications are processed through the system. Statistically they are far less likely to be found to be genuine refugees than the boat arrivals, but nobody pays any attention to them. To get the facts, read this Briefing Paper from the Parliamentary Library.
In the type of free society which we Australians, for the most part rightly, believe we live in, people are only locked up if they are bad or dangerous. For 19 years governments from both sides have put out the message that asylum seekers arriving by boat are bad and dangerous, while those who come by plane are not.
The simple solution, Mr Metcalfe, is to recognise that the policy of mandatory detention is a failure, a costly, inhumane and miserable failure. Put an end to it now, treat all asylum seekers equally, and try to recover some national dignity.
Tweet
19 years have passed since Australia "led" the world with mandatory detention of asylum seekers. There are now people on the electoral roll who have known no other way of dealing with the issue.
Some indication of the massive cost of this policy can be gleaned from the evidence given to the Joint Select Committee on Australia's Immigration Detention Network, reported on the front page of today's Sydney Morning Herald. Details of the Committee can be found on the Australian Parliament House website and the DIAC website.
The cost of the policy is measured in human lives and suffering, hundreds of millions of dollars, and irreparable damage to our country's reputation. And in return for this cost, the policy has been a total failure.
Secretary of the Department of Immigration Andrew Metcalfe stated in his address to the Committee yesterday that "these issues often defy simple solutions". Mr Metcalfe is wrong. One factual observation proves this: more asylum seekers arrive in Australia every year by plane than arrive by boat. They are allowed to live and work in the community while their applications are processed through the system. Statistically they are far less likely to be found to be genuine refugees than the boat arrivals, but nobody pays any attention to them. To get the facts, read this Briefing Paper from the Parliamentary Library.
In the type of free society which we Australians, for the most part rightly, believe we live in, people are only locked up if they are bad or dangerous. For 19 years governments from both sides have put out the message that asylum seekers arriving by boat are bad and dangerous, while those who come by plane are not.
The simple solution, Mr Metcalfe, is to recognise that the policy of mandatory detention is a failure, a costly, inhumane and miserable failure. Put an end to it now, treat all asylum seekers equally, and try to recover some national dignity.
09 August 2011
When is a queue not a queue? Englishmen, asylum seekers and students
Tweet
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...
Tweet
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...
03 August 2011
Two recent publications on immigration and population issues
Tweet
In the past month I have come across two well-researched publications on immigration and population issues, each approaching the issues in very different ways. These are in addition to the report on illegal employment mentioned in an earlier post.
The first is a report from the Centre for Population and Urban Research at Monash University, entitled Immigration and the Resources Boom Mark II. The main author being Dr Bob Birrell, anyone familiar with this area will not be surprised that the report favours a reduction in immigration intake overall. While critical of the government's policy assumptions, it contains a few of its own that in my view predetermine some of its conclusions. One in particular that I disagree with is the assumption that the need to build and renew infrastructure to cope with population growth is bad or undesirable. I also think that the alleged preoccupation of Australian city dwellers with congestion and overcrowding is more of a political beat up than a reality.
The second is a report from the Productivity Commission entitled A 'Sustainable' Population? - Key Policy Issues. It contains the proceedings of a roundtable discussion on this subject held in Canberra in March 2011. As such it reflects a variety of different views on the issues. I'm glad to see the word "sustainable" put in quotes, since I think it is a largely meaningless tag that gets stuck onto just about any argument these days. I haven't yet had the time to get very far into the different papers and views collected in this volume, but I hope to have a few more observations over the next few weeks. Any comments from anyone who has read all or part of it are very welcome.
Tweet
In the past month I have come across two well-researched publications on immigration and population issues, each approaching the issues in very different ways. These are in addition to the report on illegal employment mentioned in an earlier post.
The first is a report from the Centre for Population and Urban Research at Monash University, entitled Immigration and the Resources Boom Mark II. The main author being Dr Bob Birrell, anyone familiar with this area will not be surprised that the report favours a reduction in immigration intake overall. While critical of the government's policy assumptions, it contains a few of its own that in my view predetermine some of its conclusions. One in particular that I disagree with is the assumption that the need to build and renew infrastructure to cope with population growth is bad or undesirable. I also think that the alleged preoccupation of Australian city dwellers with congestion and overcrowding is more of a political beat up than a reality.
The second is a report from the Productivity Commission entitled A 'Sustainable' Population? - Key Policy Issues. It contains the proceedings of a roundtable discussion on this subject held in Canberra in March 2011. As such it reflects a variety of different views on the issues. I'm glad to see the word "sustainable" put in quotes, since I think it is a largely meaningless tag that gets stuck onto just about any argument these days. I haven't yet had the time to get very far into the different papers and views collected in this volume, but I hope to have a few more observations over the next few weeks. Any comments from anyone who has read all or part of it are very welcome.
01 August 2011
Employer sanctions for employing illegal workers -- good idea, bad implementation
Tweet
The following figures come from the recently published Report of the 2010 Review of the Migration Amendment (Employer Sanctions) Act 2007:
The report concludes:
"The principal reason for the failure of the Employer Sanctions Act provisions is that the ‘best evidence’ of breach would almost always come from the workers themselves but their evidence is affected by their complicity or independent culpability under section 235 of the Migration Act 1958. They would normally be removed from Australia ‘as soon as reasonably practicable’ as required by section 198 of the Migration Act 1958. The cost and the administrative inconvenience of detaining them pending a trial would be prohibitive.
The provisions of the Migration Amendment (Employer Sanctions) Act 2007 are wholly ineffective as a deterrent against the small number of employers and labour suppliers who engage or refer non-citizens who do not have lawful permission to work or who work in breach of their visa conditions. The Employer Sanctions provisions are also ineffective as an educational tool for recalcitrant employers and labour suppliers. "
The report's recommendations include allocation of more resources to Immigration to deal with the problem. Maybe they could take them away from punishing asylum seekers and students and put them into what seems like a much more useful endeavour.
Tweet
The following figures come from the recently published Report of the 2010 Review of the Migration Amendment (Employer Sanctions) Act 2007:
- as many as 100,000 people working illegally in Australia;
- 100 instances of possible breach by employers of the laws relating to employing illegal workers;
- at least 10 matters thoroughly investigated, involving "the deliberate and systematic use of these workers in significant numbers at identified workplaces", some involved in what appeared to be "serious organised rackets" and revealing "apparent abuse of the workers including sexual exploitation, unsafe work practices, underpayment, taxation and welfare fraud, and associated crime";
- only one matter that "could properly be the subject of a prosecution taking into account the evidential requirements of sections 245AA to AK of the Migration Act 1958 and the Prosecution Policy of the Commonwealth";
- no actual prosecutions so far, except for one person who pleaded guilty.
The report concludes:
"The principal reason for the failure of the Employer Sanctions Act provisions is that the ‘best evidence’ of breach would almost always come from the workers themselves but their evidence is affected by their complicity or independent culpability under section 235 of the Migration Act 1958. They would normally be removed from Australia ‘as soon as reasonably practicable’ as required by section 198 of the Migration Act 1958. The cost and the administrative inconvenience of detaining them pending a trial would be prohibitive.
The provisions of the Migration Amendment (Employer Sanctions) Act 2007 are wholly ineffective as a deterrent against the small number of employers and labour suppliers who engage or refer non-citizens who do not have lawful permission to work or who work in breach of their visa conditions. The Employer Sanctions provisions are also ineffective as an educational tool for recalcitrant employers and labour suppliers. "
The report's recommendations include allocation of more resources to Immigration to deal with the problem. Maybe they could take them away from punishing asylum seekers and students and put them into what seems like a much more useful endeavour.
30 July 2011
Should migration agents have to sit for an English test?
Tweet
Australia's system of regulating people who seek to make a living giving immigration advice is now nearly twenty years old. I have been active in the field since the start, and even for a few years before that.
In most professions, the requirement is that you undertake an intensive course of study over at least a couple of years, pass some fairly rigorous exams, then get a provisional licence to practice under the supervision of a more experienced professional for a year or two. After that, you are likely to have a pretty good idea of what you are doing.
For some reason, the time-honoured model was not adhered to for migration agents. For the first decade and a half, all that was needed was a clean criminal record and a pass in a multiple-choice exam. A fairly stringent, if somewhat quirky, Code of Conduct set the rules of behaviour for migration agents, but without a pre-registration training regime it was akin to giving you a driver's licence so long as you knew how to start a car, then cancelling it if you killed somebody.
Then it was decided to require new agents, though not the existing ones, to undertake a course at the level of a Graduate Certificate. While certainly an improvement, the duration and content remains inadequate, in my opinion, to properly train and prepare people to carry out the complex and demanding work of a professional migration agent. The continued absence of a provisional licencing system before an agent can be allowed to practice independently is also in my view a serious inadequacy.
Since January 2010 it has been a requirement that all new agents demonstrate a satisfactory level of English language ability, either by sitting a particular test or showing that they have completed studies in English at both matriculation and tertiary level. Interestingly, lawyers like myself are exempted. From January 2014 the Engish language test is to be extended to all practising agents, with the continued exemption of lawyers.
Many agents have expressed opposition to the requirement bordering on outrage. Accusations of racism have been made. These I think are nonsense, but I can certainly understand that people with long-established reputations feel threatened and upset.
I think the exemption for lawyers says quite a lot. The thinking seems to be that lawyers have gone through five years or more of full-time tertiary training so they necessarily must have good English language skills. I don't necessarily agree, but the comparison speaks for itself.
I teach and work with migration agents every day. I have the greatest respect for the professionalism and skill of many of them, and utter contempt for the incompetence and dishonesty of a few. As far as I can see, the question of English language ability is a fair way down the list of factors that distinguish the two.
Reasonable standards for accreditation as a migration agent would include English language ability alongside a far more rigorous level of training in the technical, ethical and practical aspects of the profession. Simply deciding to impose a test of this type is typical of the ad hoc and crisis-management approach that has dominated the bureaucratic approach to migration agent regulation for the past two decades.
The consumers of migration advice services deserve a more integrated and holistic management regime.
Tweet
Australia's system of regulating people who seek to make a living giving immigration advice is now nearly twenty years old. I have been active in the field since the start, and even for a few years before that.
In most professions, the requirement is that you undertake an intensive course of study over at least a couple of years, pass some fairly rigorous exams, then get a provisional licence to practice under the supervision of a more experienced professional for a year or two. After that, you are likely to have a pretty good idea of what you are doing.
For some reason, the time-honoured model was not adhered to for migration agents. For the first decade and a half, all that was needed was a clean criminal record and a pass in a multiple-choice exam. A fairly stringent, if somewhat quirky, Code of Conduct set the rules of behaviour for migration agents, but without a pre-registration training regime it was akin to giving you a driver's licence so long as you knew how to start a car, then cancelling it if you killed somebody.
Then it was decided to require new agents, though not the existing ones, to undertake a course at the level of a Graduate Certificate. While certainly an improvement, the duration and content remains inadequate, in my opinion, to properly train and prepare people to carry out the complex and demanding work of a professional migration agent. The continued absence of a provisional licencing system before an agent can be allowed to practice independently is also in my view a serious inadequacy.
Since January 2010 it has been a requirement that all new agents demonstrate a satisfactory level of English language ability, either by sitting a particular test or showing that they have completed studies in English at both matriculation and tertiary level. Interestingly, lawyers like myself are exempted. From January 2014 the Engish language test is to be extended to all practising agents, with the continued exemption of lawyers.
Many agents have expressed opposition to the requirement bordering on outrage. Accusations of racism have been made. These I think are nonsense, but I can certainly understand that people with long-established reputations feel threatened and upset.
I think the exemption for lawyers says quite a lot. The thinking seems to be that lawyers have gone through five years or more of full-time tertiary training so they necessarily must have good English language skills. I don't necessarily agree, but the comparison speaks for itself.
I teach and work with migration agents every day. I have the greatest respect for the professionalism and skill of many of them, and utter contempt for the incompetence and dishonesty of a few. As far as I can see, the question of English language ability is a fair way down the list of factors that distinguish the two.
Reasonable standards for accreditation as a migration agent would include English language ability alongside a far more rigorous level of training in the technical, ethical and practical aspects of the profession. Simply deciding to impose a test of this type is typical of the ad hoc and crisis-management approach that has dominated the bureaucratic approach to migration agent regulation for the past two decades.
The consumers of migration advice services deserve a more integrated and holistic management regime.
16 July 2011
Thoughts about the 2012 Selection Model
Tweet
Now that I have had a chance to work through the details of the new points test, I have been thinking about how things are going to work a year from now.
It's called the Selection Model, or SkillSelect. I have previously mentioned its similarities with the notably unsuccessful Skills Matching Database of a few years back. There are also parallels with the New Zealand skilled migration system, which also requires an Expression of Interest, or EoI, followed by a possible invitation to apply for a visa.
A peculiarity of the 2012 proposal is that there is no way of knowing in advance what your chances are likely to be, with the result that potential applicants will need to try to maximise their chances when they lodge their EoI, potentially at great expense.
Each time the selection is run, DIAC will set a quota for each occupation and will choose the highest scoring candidates who nominated that occupation in their EoI.
In order to maximise their score, anyone preparing an EoI will need to pay for a skills assessment (fees from about $500 to over $1,000 depending on the occupation) and IELTS test ($330). If the applicant has a spouse with a skilled occupation, a further skills assessment and IELTS test would add an extra 5 points. Unrelated education qualifications cost $130 to be assessed by Vetassess. In some cases they might even try a NAATI test, at a cost of around $770.
Then the EOI itself will have a fee expected to be around $500 to $700.
All told, up-front expenses of $1,500 to $3,000 or more for an application that has no guarantee of success.
I wonder whether the result may not be that quality candidates, who may have several migration options (including staying put), might just not bother.
Tweet
Now that I have had a chance to work through the details of the new points test, I have been thinking about how things are going to work a year from now.
It's called the Selection Model, or SkillSelect. I have previously mentioned its similarities with the notably unsuccessful Skills Matching Database of a few years back. There are also parallels with the New Zealand skilled migration system, which also requires an Expression of Interest, or EoI, followed by a possible invitation to apply for a visa.
A peculiarity of the 2012 proposal is that there is no way of knowing in advance what your chances are likely to be, with the result that potential applicants will need to try to maximise their chances when they lodge their EoI, potentially at great expense.
Each time the selection is run, DIAC will set a quota for each occupation and will choose the highest scoring candidates who nominated that occupation in their EoI.
In order to maximise their score, anyone preparing an EoI will need to pay for a skills assessment (fees from about $500 to over $1,000 depending on the occupation) and IELTS test ($330). If the applicant has a spouse with a skilled occupation, a further skills assessment and IELTS test would add an extra 5 points. Unrelated education qualifications cost $130 to be assessed by Vetassess. In some cases they might even try a NAATI test, at a cost of around $770.
Then the EOI itself will have a fee expected to be around $500 to $700.
All told, up-front expenses of $1,500 to $3,000 or more for an application that has no guarantee of success.
I wonder whether the result may not be that quality candidates, who may have several migration options (including staying put), might just not bother.
12 July 2011
Federal Court finally loses patience with secret advisers
Tweet
The Honourable Geoffrey Flick is one of the most respected authorities and commentators on Australian administrative law, and has been a Judge of the Federal Court of Australia since 2007. Not the sort of person you would expect to lose his cool.
In a judgment handed down on 6 July this year he came about as close to that as a judicial officer of his standing ever could. The case, SZOZG v MIAC [2011] FCA 756, is reported at
http://www.austlii.edu.au/au/cases/cth/FCA/2011/756.html
The case itself was a run-of-the-mill appeal from a decision of the Federal Magistrates Court which itself was an appeal from the Refugee Review Tribunal. But it was precisely the similarity of the case with countless others coming before the Courts that incensed his Honour. An applicant who barely spoke English had filed, somewhat out of time, an appeal from the lower Court using language that the appellant himself certainly did not understand and which, while essentially meaningless from a legal point of view was virtually identical to numerous other appeals and first instance applications making their way through the judicial system.
In an interesting example of judicial activism, his Honour managed to extract the identity of the "helper" who had drawn up the paper work and, after giving her a chance to state her position, had referred her to the Department of Immigration. What action they may take is not yet known.
The Court's frustration with the inaction of the authorities up to now in taking any concerted action against these anonymous, and generally incompetent, "helpers" is strongly expressed in the judgment. The waste of Court time and resources is obvious, as is the ultimate denial of real justice to the applicants. The underlying message is plain: the lack of a formal legal aid framework for immigration cases is counter-productive in the long term.
Tweet
The Honourable Geoffrey Flick is one of the most respected authorities and commentators on Australian administrative law, and has been a Judge of the Federal Court of Australia since 2007. Not the sort of person you would expect to lose his cool.
In a judgment handed down on 6 July this year he came about as close to that as a judicial officer of his standing ever could. The case, SZOZG v MIAC [2011] FCA 756, is reported at
http://www.austlii.edu.au/au/cases/cth/FCA/2011/756.html
The case itself was a run-of-the-mill appeal from a decision of the Federal Magistrates Court which itself was an appeal from the Refugee Review Tribunal. But it was precisely the similarity of the case with countless others coming before the Courts that incensed his Honour. An applicant who barely spoke English had filed, somewhat out of time, an appeal from the lower Court using language that the appellant himself certainly did not understand and which, while essentially meaningless from a legal point of view was virtually identical to numerous other appeals and first instance applications making their way through the judicial system.
In an interesting example of judicial activism, his Honour managed to extract the identity of the "helper" who had drawn up the paper work and, after giving her a chance to state her position, had referred her to the Department of Immigration. What action they may take is not yet known.
The Court's frustration with the inaction of the authorities up to now in taking any concerted action against these anonymous, and generally incompetent, "helpers" is strongly expressed in the judgment. The waste of Court time and resources is obvious, as is the ultimate denial of real justice to the applicants. The underlying message is plain: the lack of a formal legal aid framework for immigration cases is counter-productive in the long term.
03 July 2011
The new points test and "credentialled community languages"
The new financial year has started and so has the new points test for General Skilled Migration to Australia. I have looked at the details of the new test on my website.
One of the peculiarities of the new test that deserves special comment is the 5 points awarded for a "credentialled community language". Under the old test, points were available for anyone who was competent in a designated foreign language, with competency demonstrated by having completed a Bachelors degree in any subject that was taught in that language, or alternatively having a professional level translating or interpreting accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI).
The new category drops the university qualification entirely and replaces it with a paraprofessional NAATI accreditation. So what?
In the greater scheme of things, I suppose 5 points is not a large component of a test which has a pass mark of 65. For some people of course it could be make or break, and it will certainly be of greater significance from July next year when the new "SkillSelect" model will not have a fixed pass mark and applicants will need to try to maximise their points in any way they can.
As someone who has a long personal history in the translating and interpreting field over 30 years, with professional qualifications in four languages other than English, I feel the need to make a few comments all the same.
Do these people have any idea of what they are doing? Did anyone ask a professional linguist (that is, someone who has studied the science of language called linguistics, not someone who speaks several languages)?
Using a translating or interpreting test as a measure of a person's ability to communicate in a given language is a nonsense. The skill sets involved are totally different. Particularly when the level is reduced to what NAATI calls paraprofessional, formerly known as level 2, which is about the standard you can get from a good computer program, what is happening is that you are using a criterion from one discipline to measure competency in another.
But using the wrong test is only one of the problems with this new criterion. A test is a test, but not if you can't actually sit for it. NAATI conducts paraprofessional translating tests in only a few specific languages (like Swahili and Nuer), so for most people the only option is an interpreting test. No such tests are not available outside Australia, and according to my investigations with NAATI, nor do they have any intention of offering them overseas. It is not clear how long the waiting period for testing in Australia will be once the applications start hitting the desk at the NAATI head office.
The boys and girls at Belconnen (DIAC HQ) should make the trip to Deakin (NAATI HQ), via the School of Languages at the ANU, to get a bit of basic education in linguistics, and then have a second go at this one.
The new financial year has started and so has the new points test for General Skilled Migration to Australia. I have looked at the details of the new test on my website.
One of the peculiarities of the new test that deserves special comment is the 5 points awarded for a "credentialled community language". Under the old test, points were available for anyone who was competent in a designated foreign language, with competency demonstrated by having completed a Bachelors degree in any subject that was taught in that language, or alternatively having a professional level translating or interpreting accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI).
The new category drops the university qualification entirely and replaces it with a paraprofessional NAATI accreditation. So what?
In the greater scheme of things, I suppose 5 points is not a large component of a test which has a pass mark of 65. For some people of course it could be make or break, and it will certainly be of greater significance from July next year when the new "SkillSelect" model will not have a fixed pass mark and applicants will need to try to maximise their points in any way they can.
As someone who has a long personal history in the translating and interpreting field over 30 years, with professional qualifications in four languages other than English, I feel the need to make a few comments all the same.
Do these people have any idea of what they are doing? Did anyone ask a professional linguist (that is, someone who has studied the science of language called linguistics, not someone who speaks several languages)?
Using a translating or interpreting test as a measure of a person's ability to communicate in a given language is a nonsense. The skill sets involved are totally different. Particularly when the level is reduced to what NAATI calls paraprofessional, formerly known as level 2, which is about the standard you can get from a good computer program, what is happening is that you are using a criterion from one discipline to measure competency in another.
But using the wrong test is only one of the problems with this new criterion. A test is a test, but not if you can't actually sit for it. NAATI conducts paraprofessional translating tests in only a few specific languages (like Swahili and Nuer), so for most people the only option is an interpreting test. No such tests are not available outside Australia, and according to my investigations with NAATI, nor do they have any intention of offering them overseas. It is not clear how long the waiting period for testing in Australia will be once the applications start hitting the desk at the NAATI head office.
The boys and girls at Belconnen (DIAC HQ) should make the trip to Deakin (NAATI HQ), via the School of Languages at the ANU, to get a bit of basic education in linguistics, and then have a second go at this one.
Subscribe to:
Posts (Atom)
Posts
