The self-delusion of "good" and "bad" refugees

Are there "good refugees" who deserve our help, and "bad refugees" who don't? It's become part of the self-justifying rhetoric of the "stop the boats" crusade that some refugees are better than others. The ones who do the right thing by waiting patiently in refugee camps in Africa are supposedly more worthy of our compassion than the ones who risk their lives on boats to reach our shores without prior permission.

As usual, the purveyors of these myths aren't interested in facts that spoil their fatuous arguments. The journey from Somalia or Sudan to the refugee camps of Kenya is every bit as dangerous, and unauthorised, as the boat trip from Indonesia to Christmas Island. The death toll is impossible to calculate, but the causes are well known: bandits who kidnap, rape and kill, hunger and thirst that leaves the weakest behind on the track, wild animals. Anyone who suggests that these people wouldn't take a boat to a Western haven rather than trudge on to the squalor of places like Dadaab in Kenya is engaging in the self-delusion that is all that Labor and Liberal can offer as a solution to the boat people problem. This is the self-delusion that pretends the problem is solved when you can't see it any more.

There are no good refugees or bad refugees. The urban Jews of Germany and Austria who had assets to sell and pay for their escape were no better or worse than the impoverished Shtetl dwellers of Eastern Europe who had nothing, and were machine-gunned in pits. The people in Dadaab are not waiting because they are better people. They just have no other choice. There are no refugee queues, no genuine refugee is more deserving than any other. We have to stop kidding ourselves about this.

If some Australian government did stop the boats, what would happen to the people? With the line choked off at the end, they would be forced back to squalid camps and precarious lives in Indonesia, Malaysia, and further up the line in Pakistan and Iran. Would that make them good refugees? Or just not our problem?

Disinterest, fear or memory? Three ways of looking at asylum seekers

Former Immigration Minister Amanda Vanstone made her position crystal clear on the ABC's political talk show The Drum. Asylum seekers who take it upon themselves to come knocking on our door, as is their right under international law, should never be allowed permanent residence in Australia, nor should they ever be allowed to bring their families to join them. That way they will be discouraged from the attempt and will then, well, who cares what they do then?

Vanstone subscribes to the "out of sight, out of the headlines" school when it comes to the asylum seeker issue. Just stop them getting here, and the problem is solved. Where they might go, or stay, is no concern of ours.

Australia's delegate to a world conference on refugees in 1938 famously said that Australia had no racial problem, and "was not desirous of importing one". These words are now recorded, to our country's eternal shame, on the wall of the Holocaust Museum in Jerusalem. Yet there is little difference between the views expressed by the delegate, Thomas W. White, and Vanstone's. Just keep the problem away from us, over the sea wall, out of sight, and for us there is no problem.

Another participant in the show was Jennifer Hewett, a columnist with the Australian Financial Review. Hewett gave voice to the floodgates school of thought, worrying to the point of panic about where would it all end if we just keep letting them in? This school is yet to explain why Australia has not already been flooded by millions of better-life-seekers from nearby countries like Indonesia and the Philippines. It's hard to be rational when you are trembling in a corner.

Fortunately I stayed watching the ABC that night and got to hear Louise Adler on Q and A. Her mother was a refugee who slipped past the old guard in T. W. White's time. She took both the ALP and the Coalition to task by pointing out that the problem is an international one that should not be beyond the intellectual capacity of out leaders to address intelligently.

Three Australian women's consciences revealed: Vanstone doesn't have one, Hewett might but has let it be silenced by irrational fear, Adler remembers that who we are as a people is measured by how we treat others.

Too much demagoguery clouds the immigration debate

Once again, discussion of immigration policy descends to the lowest (or most ill-informed) common denominator. Gina Reinhart gets 1700 foreign workers while Qantas lays off 500 Aussies! Something must be wrong with that!
 
There are plenty of valid grounds for criticising Australia's skilled migration policies. I have often referred to the negative impact of importing skilled labour for free rather than producing it here. The policy tweeks designed to "ensure" that employers maintain a commitment to training local workers are woefully inadequate, in my view. The long-term effect of creating a workforce in which the higher status, higher paid positions are held by foreigners while the local population is denied training opportunities worries me a lot. Heretically, I have even gone so far as to suggest we should look at importing low skilled domestic and hospitality workers rather than tradespeople and IT professionals, whom we should be training here.

But what we are hearing now from the likes of Paul Howes and others is uninformed demagoguery. Reinhart's 1700 construction workers are not taking the Qantas employees' jobs. The mining boom, providing the government has the guts to stand up to its bullying and tax it properly, is the best hope we have of finding the money to repair the damage done to our education and vocational training programs over the past two decades of neglect. Otherwise our young people may soon be packing off to China to look for work as kitchen hands.

Temporary residents not "integrating" -- maybe because they're temporary?

The Opposition spokesperson for immigration, Scott Morrison, thinks that people holding temporary work visas are not "integrating" with Australian society.

His colleague Teresa Gambaro suspects this may have something to do with their unfamiliarity with certain cosmetic products.

Both of them seem to be missing the point: temporary residents are temporary, they aren't supposed to integrate. We only want them for their labour skills, not their ability to get outside of a cold beer, or whatever "integrating" means. If we wanted them to become part of our society, make their lives here, take part in our democracy, send their kids to school to become skilled Australians, we should give them permanent visas.

That's how it used to work, anyway. I can't think why we changed it.

But looking at this more closely, skilled professional politicians don't just let loose with statements like this without knowing exactly what they hope to gain by them. This is dogwhistling at its best. The art of the double entendre is to hide one meaning behind another. Migrants are smelly. So it's okay not to like them? Oh, no, I didn't mean that! Sorry if anyone took my comments the wrong way.

I suspect Ms Gambaro knows exactly how her comments are likely to be taken.

The Great Offshore Processing Con

(This entry was amended after reading Robert Manne's views in The Monthly)

Christmas may be the silly season for television programming, but Australia is experiencing a long silly, or rather plain stupid, season in the politics of asylum seeker processing.

Both major parties appear to support something called "offshore processing" as opposed to "onshore processing". However, neither will accept the other's plan for how to go about it, so they have snookered each other. This allows each to claim the high (pseudo-)moral ground and blame the other for everything from the spectre of rioting in the streets to the tragedy of people drowning in unseaworthy boats.

Besides the politicians, the media and practically everybody else takes one side or the other on the onshore-offshore debate, without questioning the basic assumption that there is a real alternative on offer. Onshore processing is clear enough, though whether people should be locked up for the duration is another question. But what is this offshore processing that both sides are proposing as the dyke that will protect our fair land from being flooded?

Labor's "Malaysian solution" certainly doesn't offer anything in the way of offshore processing, as opposed to offshore dumping. Sure, the idea is that we would take a tiny increase in our overall refugee intake in return, but that would not involve any more processing of claims than is already being undertaken by agencies such as the UNHCR.

The Coalition's "Nauru option" might technically involve processing asylum seekers in another country, but apart from the flag flying over the detention camps there would be no difference between Nauru and Christmas Island. The only place they can go from there is the Australian mainland. The Coalition's real plan is to return to the Howard era of towing boats back to Indonesia (which, interestingly, Labor says its plan would achieve in a "virtual" manner) and the moral dead-end of temporary protection visas (which if anything led to more people taking boats because family reunion was not allowed).

Political scientist Robert Manne suggests that an amended version of the Nauru plan would be "the least bad asylum seeker policy". He suggests an annual quota designed to result in a "two or three year wait" which, he says, "should act as a powerful deterrent".


Prof. Manne does not appear to appreciate that almost every single one of these people will be found to be genuinely fleeing life-and-death situations in their home countries. They have acted out of desperation to save themselves and their families, and have cut off all avenues of return. To make a two to three year stay in a detention camp such a powerful deterrent that they would prefer the indefinite squalor of life as an illegal immigrant in Indonesia would take some effort, though perhaps it would not be beyond the capabilities of the architects of places like the Baxter and Scherger concentration camps in Australia.


What both sides really want is to stop the boats, or perhaps from the Coalition's perspective to stop Labor stopping the boats while trying to convince the electorate that they would stop the boats if elected. The aim is not to solve the refugee problem, it's to solve our refugee problem. It's like convincing yourself that you can end poverty by locking up beggars.

Stopping the boats is not about stopping people drowning. A genuine intention to dissuade people from risking their lives on the high seas would involve real offshore processing, in the places where the asylum seekers get on the boats. After all, why send people to other countries for processing if they are already there?

A recent study from the Centre for Policy Development points out that the Scandinavian countries, with roughly the same total population as Australia, process six times as many asylum seekers as we do, and they are nowhere near any third-world transit countries.

Instead of real offshore processing, what we have is a confidence trick being played by both sides to cover up their cowardice and ineptitude in the face of the threat of losing votes by confronting the old visceral fear of white Australia: that other people will come on boats and take our land away, just as we did.

Privacy, sword or shield?

A couple of unrelated incidents this week got me thinking, again, about privacy and our relations with the State. Over many years I have often suspected that the idea of privacy, when raised by anyone in authority, is more of a repressive idea than a civil right.

First, a refugee family in detention in Sydney -- and I say refugee rather than asylum seeker because apparently they have been found to have a well-founded fear of persecution but are still awaiting security clearance before being released. According to the Sydney Morning Herald, the four-year old child of the family was attending a function at his pre-school under the watchful gaze of security officers protecting the community from the dangers posed by the toddler. When it came time for the photos, the officers stepped in and refused any snaps to be taken. Why? according to the SMH, they claimed they were protecting the family's privacy. Hang on a second, I thought, if a person is willing and happy to have their photo taken (or in the case of a small child, if the parents are), then surely they have waived their right to privacy. Or can privacy be thrust upon you? Apparently so, in this case at least.

In the second case, a woman attending an Occupy Movement protest in Melbourne probably wished her privacy had been so diligently defended by the organs of the State. As a protest against the confiscation of tents and sleeping bags, she had fashioned a dress into the shape of a tent. A group of male and female police officers surrounded her and forcibly removed the garment, at one point emplying a knife to do so, while the woman protested loudly and made it perfectly clear that she did not consent to what was happening. As the cops marched off with their booty, she was left huddled on the ground in her underwear.

It seems that privacy is something that can be thrust upon you, or torn and cut away from you, depending on the whim of the authorities. I'm not sure that is what it was supposed to be about.

The Majestic Equality of the Law for asylum seekers

"The majestic equality of the law," observed the 19th Century novellist Anatole France, "makes it an offence for rich and poor alike to sleep under bridges, beg in the street, or steal bread."

The Senate Legal and Constitutional Affairs Legislation Committee has shown that the same majestic equality applies to foreigners attempting to enter Australia without a visa, and consequently to anyone who helps them.

The report is available here.

It is not actually a criminal offence to come to Australia without a visa to ask for asylum, any more than it is a criminal offence for someone to knock on your door asking for help of any kind. According to the Government and the Coalition combined, however, people who don't have visas have "no lawful right" to knock on our national door. This is nothing more than a simple statement of the fact, confirmed by High Court opinion, that international law is about relations between States, not about the rights of individuals.

Not having a right to do something, however, doesn't make it wrong. It just means you have to ask. That's why they are called asylum seekers.

Millions of people ask to be let into Australia every year. The overwhelming majority do so by applying for a visa: because they can. They don't get on leaky boats and risk drowning to try to get here: because they don't have to.

That's where Anatole France comes in. Rich people don't have to sleep under bridges, and people who can get visas usually aren't fleeing for their lives.

With bipartisan support (minus the Greens, or course), the Bill will get through. As I have previously commented, if it is only meant to confirm what everyone thought the law was for years, then calling it a Deterring People Smuggling Bill is a grossly optimistic.

Do deaths at sea justify the Malaysia solution, or retrospective legislation?

Having previously attempted to replace its obligations under the Refugees Convention with a type of politician's carte blanche called the "national interest", Australia's minority Labor (yes, Labor) government has now thumbed its nose at the International Covenant on Civil and Political Rights (ICCPR) to which, like almost all other civilised countries, we are a signatory. Article 15 of the ICCPR has two parts:

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
    
2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

On the evening of 1 November 2011 the House of Representatives passed a piece of legislation called the Deterring People Smuggling Bill 2011. (It has become fashionable to give legislation names that look like they were thought up by an advertising agency, but let that go). What this legislation does flies in the face of Article 15.

Since 1999, sections 233A to 233D of the Migration Act have imposed sentences of up to 20 years, with a mandatory minimum of 5 years (s 236B), for people involved in "people smuggling", defined as bringing to Australia someone who has "no lawful right" to come here. In a case currently before the Victorian Supreme Court, defence lawyers have argued that a genuine refugee seeking to invoke Australia's international and domestic legal obligations of protection cannot be said to have no lawful right to come here. Ordinarily the case would be determined by the Supreme Court by judicially interpreting the legislation, and would then in all probability have gone on to the High Court to make a final interpretation. If the defence case were to be upheld, it would mean that when the accused brought the refugees here they were not breaking the law at that time. The Bill passed yesterday, in under an hour with support from Labor and the Coalition, changes the definition of "no lawful right" to mean simply that the person didn't have a visa or was not exempt from having a visa, regardless of whether Australia may have protection obligations under the Convention and the person may have been come here to seek that protection. That would mean that what was not illegal (assuming the defence case is correct) when it was done, would be made illegal by the amendment.

It would be impossible to argue, nor did the government try to do so in presenting the Bill to Parliament, that bringing refugees to Australia would be "criminal according to the general principles of law recognized by the community of nations". Article 15.1 of the ICCPR therefore expressly prohibits this retrospective criminalisation.

In its brief defence of the Bill in Parliament, the government made no mention of the ICCPR. Its justification was simply, "to clarify an existing understanding of the laws, and to ensure convictions for people smuggling offences already made as well as prosecutions underway are not invalidated." This is no justification at all. There can be no "existing understanding" of what legislation means if that understanding is ruled incorrect by a superior court. Since the US Supreme Court judgment in Marbury v Madison in 1803, a case long accepted as axiomatic in Australian jurisprudence, courts have had the final say on the meaning of the law. Any "existing understanding" to the contrary would be, quite simply, a wrong understanding.

Besides breaching Article 15, the Bill also in its specific reference to the Refugees Convention further distances Australia from that international instrument and raises the question again of whether this country should be taken to have effectively resiled from it.

Neither the government nor the opposition in supporting the Bill let go the chance of referring to the issue of deaths at sea of asylum seekers trying to reach Australia. The ultimate fall-back position of both sides is that travelling to Australia on unseaworthy boats is dangerous. Neither side, however, noticed the fatal flaw in their argument. The purpose of the law is to "deter" people smugglers by making their actions illegal. But, according to its supporters, it has been the "existing understanding" since 1999, presumably even amongst people smugglers, that these actions were illegal. Yet the 300 or so people convicted since then obviously were not deterred. It hasn't worked for over a decade, why should it work now? The fact is the law has only ever punished the impoverished and illiterate fisherman conned or coerced into crewing the boats by the real people smugglers who stay warm and dry in port.

But people do die at sea on those leaky boats. I would not accuse either side of disingenuousness in pointing this out. The fact that it is the most seemingly humanitarian argument they have to support their conflicting Malaysia / Nauru solutions doesn't mean they don't genuinely care about the tragic loss of life, and it would be fatuous to pretend that it is not a legitimate issue in the debate.

The problem is, in humanitarian terms we are offering nothing as an alternative to taking the risk of getting into one of those boats. It is as if a group of people were gathered on the balcony of a burning building, with people below warning them not to jump because it was too high. If one does jump, and survives, do we throw them back into the fire to deter the others?

Sending asylum seekers back to Malaysia or Indonesia, or forcing them to stay there, is denying them their internationally recognised legal right to seek asylum in a country that is a signatory to the Refugees Convention. We cannot deny them that right. If it is dangerous for them to avail themselves of it, then we must do all we can to reduce that danger by arranging for meaningful avenues to reaching safety legally. At the very least we must ensure they are fully aware of the danger, which the evidence seems to suggest some of them may not be. Instead, it appears our shadowy "disruption programs" do little more than force desperate people into the hands of the most unscrupulous of the smugglers, working with the most corrupt of local officials. Compelling evidence of this sort of collusion has been available since the infamous Siev-X sinking.

As a footnote, it is worth remembering that Australia is also a signatory to the Optional Protocol to the ICCPR, which allows individuals who believe their rights have been breached to take a case to the United Nations Human Rights Commission for adjudication. Australia may yet have some explaining to do.

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.

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.

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?

Distraction of boats allows racism to thrive

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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.

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?

Student visa program review -- still blaming the victims

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

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

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

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

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

Shameful - Australia throws out Refugees Convention

Original post edited to take into account 19 September amendment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stopping the boats: a piece of legislative cake

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

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

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

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

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

Julia, Tony, waiting for your call.

A simple twist of fate

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

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

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

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

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

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

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

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

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

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