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A paper prepared for the International Bar Association Conference held
on October 2002 in Durban, South Africa by Dr Etienne de Villiers Hugo,
(BLC, LLB, LLD) Solicitor of the High Court of Australia, Solicitor of the
Supreme Court of New South Wales, Advocate of the High Court of South
Africa; Registered Migration Agent, MARA; Solicitor, Parish Patience
Immigration Lawyers, Sydney, Australia.
A brave new world?
The events of 11 Sept 2001 remain in our thoughts. Probably no other
single day in history has impacted the international community as did the
attacks on America on that day. Probable reasons for its immense
international impact are:
- As our world increasingly becomes a global village, any major
incident has the potential to have significant international
consequences.
- Many countries lost citizens in these attacks, including Australia.
- Many countries[1] have been directly involved in the ensuing 'war on
terrorism', including Australia.
- Most countries feel more vulnerable to terrorist attacks in the
aftermath of these horrible events. This fact has been dreadfully
evidenced by the recent terrorist attacks in the Indonesian island of
Bali, where over 180 people lost their lives, many of whom were
Australian.
In an attempt to protect itself from possible terrorist attacks,
Australia has followed suit with other nations in taking drastic measures
to prevent such catastrophes from occurring locally. Successful control
over the movement of people is a key issue in combating terrorism. The
prevention of terrorists entering one's borders and containment of
terrorist operations have been identified as important concerns in
effective protection. Steps that have been taken by Australia in this
regard include:
- Stricter monitoring of people movement into Australia, with a renewed
focus on illegal entrants, character issues in immigration law and the
so-called 'boat people' phenomenon.
- The enactment of far-reaching legislation directed at improving the
nation's security and ability to respond to direct threats, as well as
taking preventative measures to prevent similar attacks. The Australian
government has in the aftermath of the Bali attacks ordered a further
review of the country's recently strengthened domestic terrorism
legislation, as well as national security and counter-terrorism
arrangements. Recently laws have been passed creating new terrorist
offences and imposing 25-year jail terms for terrorist acts.
- The increased use of 'privative clauses' in Australian legislation,
increasing the power of the executive and reciprocally restricting
judicial review of actions/ decisions by government officials.
The 'Fortress Australia' viewpoint
Australians have now been the direct target of terrorist attacks in
Indonesia. To date, there have been no such onslaughts within our borders
and the focus of the Australian government therefore seems to be to take
pro-active steps to implement hard-line preventative measures. Because of
its relative geographic isolation, Australia has historically escaped
enemy attacks within its borders to a greater extent than most other
countries. International terrorism, however, is not bound to the
restrictions of conventional warfare and does not leave any country
invulnerable. The Australian government, in an attempt to protect the
country's borders, seems intent on obtaining sweeping executive powers to
take concise and unchallengeable action in dealing with immigration law
matters.
It is interesting to note that Australia had initiated stricter border
protection measures even before the terrorist attacks in America. The
Border Protection Legislation Act 1999 was introduced to give immigration
officers greater powers in dealing with illegal non-citizens.[2] In this
legislation, the executive was authorized to pursue and board foreign
ships, to search such ships, to move and destroy hazardous ships, and to
seize and/ or dispose of things used in the commission of an immigration
offence.
It is helpful to look at a number of Australia's pressing immigration
questions to properly understand the significance of recent changes in
policy relating to the movement of people to Australia. Arguably the most
significant event resulting in these changes other than September 11 is
the so-called 'Tampa crisis' that unfolded in August 2001. This widely
reported real-life drama evidenced Australia's commitment towards guarding
its borders from uninvited guests. The Bali terrorist attacks will
doubtlessly reinforce the Government's resolve in protecting Australians
and increasing security.
Australia has a long spanning immigration history and its community
comprises of a rich mixture of cultural and ethic backgrounds. Australia
has also been a longstanding member state (being the sixth country to
accept responsibilities towards refugees) of the United Nation Convention
on Refugees (1951). Despite the fact that many Australians come from
migrant or refugee families, or are migrants themselves,[3] there is a
very strong public sentiment against the intake of the so called
'boatpeople' who are predominantly asylum seekers requesting protection
from Australia under its UN refugee obligations.
A significant portion of the Australian community's view on asylum
seekers is that of suspicion and intolerance. It is notable to refer to
opinion polls[4] that were taken on 2 September 2001 (at the height of the
Tampa crisis) regarding boats carrying asylum seekers: 50% of participants
felt that all boats should be turned back and 38% was of the opinion that
only some boats should be allowed to enter Australia depending on the
circumstances – a mere 9% thought that all boats carrying asylum seekers
should be permitted to enter for assessment as refugees. Not surprisingly,
public sentiment grew less tolerant after the 11th of September and the
following statistics were recorded from a poll taken in October 2001: 56%
for no asylum seeking boats, 33% depending on the circumstances and 8%
accepting the boat arrivals.
Confusing the issues?
There is a danger in confusing issues of national security with the
plight of asylum seekers/ refugees and other immigrants in the aftermath
of September 11. Public opinion is easily swayed by media attention to
selective material and anti-refugee views are exacerbated by the ever
increasing influx of illegal immigrants and people smuggling world wide.
It is true that a country cannot effectively protect its borders
without strong and effective control of the movement of people entering
and leaving. One should however distinguish between seemingly connected
but quite separate issues such as terrorism and illegal people smuggling
on the one hand and the legitimate plight of asylum seekers on the other
hand.
Possible reasons why Australians confuse these issues are:
- The fact that many of Australia's refugees have in recent years come
from Afghanistan. After the September 11 events Australian opinion has
made an apparent link between what happened in America and what could
happen in Australia if illegal immigrants from Afghanistan where to be
allowed into the country.
- Allied military action against the Taliban regime in Afghanistan.
- Afghanistan and many of its neighbors have been identified as key
countries in the so called 'axis of evil'. As a result many Australians
associate people from these countries as would-be terrorists which
should not be allowed onshore.[5]
- Heightened awareness of the Muslim religion in world politics and its
perceived threats to world peace. The fact that the recent terrorist
attack on predominantly Western citizens took place in Indonesia, the
largest Muslim country in the world, would certainly strengthen this
viewpoint.
- Increased media focus on boat people and the major international
concern of people smuggling across the globe in recent times.
The United Nations High Commissioner for Refugees expressed a number of
concerns related to the issues raised above in a press release dated 24
October 2001. It is concerned about the increasing public perception of
refugees and asylum seekers as criminals and other attempts to create
unwarranted links between refugees and terrorism. The following concerns
are mentioned: racism and xenophobia, admission and access to refugee
status determination, exclusion of asylum seekers, the worsening treatment
of asylum seekers, increased withdrawal of refugee status, increased
deportation, increased extradition and an over emphasis on resettlement to
third countries. It was further stated that care must be taken in the
implementation of the United Nations Security Council Resolution 1373,
which calls for the cooperation of countries against terrorism, not to
unfairly prejudice bona fide asylum seekers.
By taking too strict a view on these matters and giving excessive
powers to the executive for border protection and immigration regulation,
it is submitted that the essential principles of liberty, democracy and
rule of law could be jeopardized.
Policy changes
The Australian government has moved quickly since September last year
to introduce vast and far-reaching security and immigration legislation
aiming at better protecting Australia's borders. Even though many of the
newly enacted statues are helpful in making Australians safer, a number of
critics are of the opinion that the government has used high profile
events such as the Tampa crisis, the September 11 attacks and the
subsequent 'war on terrorism' as an excuse to obtain disproportionate
executive power. It is also suggested by some that the government has used
fear tactics to implement its own immigration policies, including a
hard-handed approach towards asylum seekers and mandatory detention of
illegal non-citizens that has arguably jeopardized Australia's human
rights standing in the global community.
Examples of new immigration regulations and screening actions that have
been introduced as a direct or indirect response to September 11 are:
- The introduction of form 1190 for all new applicants for permanent
residency. This form asks direct questions regarding an applicant's
military background and/ or training in weapons. This form has now been
incorporated into existing visa application forms.
-
The introduction of questions relating to the background of most
applicants (be it for temporary or permanent residence) with reference
to character issues. A further example of the stricter scrutiny placed
on character issues in Australian immigration law in the aftermath of
September 11 is the introduction of specific visa application forms and
the alteration of existing forms to include questions relating to
character and military training. Examples of such questions are:
- Have you, or any other person included in this application, ever:
- Been convicted of a crime or offence in any country (including any
conviction which is now removed from official records)?
- Been charged with any offence that is currently awaiting legal
action?
- Been acquitted of any criminal offence or other offence on the
grounds of mental illness, insanity or unsoundness of mind?
- Been removed or deported from any country (including Australia)?
- Left any country to avoid being removed or deported?
- Been excluded from or asked to leave any country (including
Australia)?
- Committed, or been involved in the commission of war crimes or
crimes against humanity or human rights?
- Been involved in any activities that would represent a risk to
Australian national security?
- Had any outstanding debts to the Australian Government or any
public authority in Australia?
- Been involved in any activity, or been convicted of any offence,
relating to the illegal movement of people to any country (including
Australia)?
- Served in a military force or state sponsored/private militia,
undergone any military/paramilitary training, or been trained in
weapons/explosives use (however described)?
- Have you/your spouse or any dependent family members (migration
with you or not) ever served in the armed forces?
It should be noted that the Migration Act gives the Department of
Immigration and Multicultural and Indigenous Affairs (DIMIA) the power
to cancel a visa holder's visa if an incorrect or untruthful answer has
been given to either an immigration officer or on an application form.
The provision of bogus documents to the department is another ground for
visa cancellation, where a transgressor will be cancelled as 'a person
of bad character'. Thus, even though it would be fairly simple to
provide DIMIA with an incorrect answer, the consequences of a less than
truthful provision of information are very drastic.
- Increased scrutiny with the Police clearances of applicants from
overseas jurisdictions. DIMIA, for example, now does its own clearance
checks in cooperation with the FBI on applicants migrating from the
United States. Immigration regulations that would become effective on 1
November 2002 increase border security by for example requiring airline
crew members to better identify themselves to clearance officers.
- Increased activity in immigration compliance with hard line programs
to locate, detain and deport people who are without visas in Australia
or people who are in breach of their visa conditions.
- Increased cancellation of visas because of character issues, as
discussed below.
- The exclusion of Australian islands from its 'migration zone'.[6] The
reason behind these measures is to prevent unauthorized boat arrivals on
Australian territories that are located close to neighboring countries
from making valid visa applications or seeking protection as refugees on
Australian soil. The advantage of such an application is that an
applicant is then entitled to lawfully remain in Australia until the
matter has been finalized, which could take months or even years. A visa
applicant is then entitled to a review of a decision not to grant the
visa sought, which could take an extensive period of time. The vast
majority of illegal immigrants arriving in Australia commence their
journey from Indonesian shores. Indonesia is geographically close to
Australia and has to date been unable to effectively control the influx
and exodus of asylum seekers from a variety of countries. By excluding
these islands from the Australian migration zone, would be visa
applicants are barred from lodging valid onshore visa applications, as
they are technically not in Australia for that purpose.
I specifically refer to three further policy and legislative changes to
Australia's immigration laws following September 2001.
Firstly, I would like to draw your attention to the introduction of
'privative clauses' into the Australian immigration law sphere.
Privative clauses in essence disallow an appeal of the executive's
(immigration) decision-making powers to the courts. Under current
legislation certain visa applicants are entitled to have adverse decisions
by DIMIA to be reviewed by either the Migration Review Tribunal (MRT), the
Refugee Review Tribunal (RRT) or, under specific circumstances, the
Administrative Appeals Tribunal (AAT). These tribunals have a
quasi-judicial nature, are constituted of members that do not necessarily
have legal training and who are appointed by the government. On 2
October 2001 the Australian legislature, in a bid to effectively
prevent visa applicants from seeking judicial review in the court system,
introduced sections 486A [7] and 474 [8] of the Migration Act.
The legislature has attempted for these two sections to practically
block all avenues to go to court in immigration law matters. A grave
concern that arises from such restriction is the unchallengeable use of
executive power. It is accepted by all democratic and free countries that
the separation of powers is fundamental to fair and accountable
government. Australia's Constitution specifically protects the Judiciary's
powers under section 71, while restricting the Government's legislative
powers and executive's powers in sections 51 and 61 respectively.
A recent challenge of the use of privative clauses in Australia's
immigration law which excludes even the jurisdiction of the High Court of
Australia to hear such matters remains sub judice. A decision from
the full court of the High Court in the matter S157 of 2002 is
expected in the next couple of months.
It was fundamentally argued by the plaintiff[9] that sections 474 and
486A of the Migration Act 1958 (Cth) are wholly invalid in respect of an
application by the plaintiff for relief under s 75(v) [10] of the
Constitution because inconsistency with the Constitution results in
invalidity.
Secondly, there is a greater focus on visa applicants' character
issues.
The traditional method of removing undesirable non-citizens from
Australia was by way of deportation, affected by the Minister for
Immigration under sections 200-201 of the Migration Act. Under these
sections a deportee must have been convicted of a criminal offence and
served sentence of at least one year. In recent times the government has
however made increasing use of its power under section 501 [12] of the
Migration Act to refuse or cancel a visa on much less stringent character
grounds.
In terms of section 501 (6), a person does not pass the character test
if the person has a substantial criminal record, or (in the discretion of
the minister and/ or his delegate) is not a person of good character
having regard to the person's past and present criminal conduct and the
person's past and present general conduct (for example providing
inaccurate information to DIMIA or breaching visa conditions).
In instances where the minister makes the decision personally the rule
of natural justice has been statutorily excluded and does not apply. The
minister also has the power to override a decision by the AAT and any
decision affording leniency, which power has been reinforced by the
so-called 'Tampa amendments'.
Australia, thirdly, gives citizens from certain countries preferential
treatment in terms of visa applications and immigration options.
The Australian government had been using a data base even before
September 11 whereby countries have been classified into 'high' to 'low
risk' countries. Various criteria have been used in compiling the relevant
reports and classifications, such as statistical tendencies for visa
breaches and likelihood of overstaying visas by citizens of certain
countries. It would be expected that even stronger reliance would be
placed on such classifications in future, so that it would become
increasingly difficult for people from certain countries to be granted
Australian visas.
It is relevant to note that the Migration (Afghanistan – United
Nations Security Council Resolution No 1390) Regulations 2002 No 212 will
commence on 1 November 2002. These regulations impose sanctions against
'persons designated' by a Committee of the Security Council to prevent the
grant of visas to such persons or to cancel the visa of such persons. So
far obvious scoundrels such as Usama bin Laden, members of Al-Qaida, the
Taliban and entities associated with them have been identified. It will be
interesting to see how future events and policies will influence this
blacklist.
An example of the recognition of 'special relationships' between
Australia and other countries is a system whereby citizens from certain
countries[13] have access to an Electronic Travel Authority or 'ETA',
which basically entitles these passport holders to hassle free access to
Australia. There are very few restrictions on these travel authorities and
it is also possible to lodge onshore visa applications from such ETA's.
Other visa classes where this classification is most relevant are
student visas and also visitors' visas. For students from certain
countries it is very hard to secure a student visa for Australia as there
are virtually impossible benchmarks set in terms of financial capacity;
whereas for applicants from other (mostly rich and developed) countries no
or much lower standards are set. There are five risk assessment levels for
various study levels. It is notable that the assessment levels for
countries such as India, Iran and Pakistan are level 4, whereas citizens
from most European countries, Canada and Japan are listed in the most
favourable assessment level. Certain of these applicants have the further
exclusive privilege of lodging more informal onshore applications via the
internet.
Obtaining a visitor visa for Australia from certain countries is a
daunting task. Citizens from 'high risk' countries would simply not be
granted a visitor's visa if there is no Australian sponsor who is willing
to lodge a substantial security bond to ensure that all visa holders would
keep their visa conditions. Strict conditions would then be imposed,
including a restriction on further onshore applications, which would
usually entitle applicants to remain in Australia until the application
has been finally determined.
The Australian government proposes to introduce a new concept of
profiling visitor visa applicants from 'high risk' countries. It is
suggested that applicants from high risk countries would have to produce
financial and employment records before given a tourist visa. It will be
interesting to see how immigration policies and regulations are changed in
future as the government's assessment of what countries are 'dangerous' or
'high risk' changes. Countries currently on the high risk list include
Afghanistan, China, Fiji, Nepal, Pakistan, the Philippines, Sri Lanka,
Iran, Iraq, Israel and Yugoslavia.
Conclusion
It is suggested that an open minded and balanced approach should be
used in insuring that our countries are safe from terrorists while we
remain committed towards protecting fundamental civil liberties, whilst
not forgetting the plight of many displaced and persecuted peoples.
Notes
1. Citizens from 83 countries lost their lives, making these attacks a
truly international disaster. More than 3000 people lost their lives as a
result of the September 11 attacks.
2. Australian immigration law only recognizes three classes of people,
i.e. citizens, legal non-citizens (people with visas) and illegal
non-citizens.
3. Approximately one in every four Australians is a first generation
migrant.
4. 'No change of view: turn back the boats'. Dennis Shanahan, The
Australian, 5 September 2002.
5. I refer to statistics and opinion poll on boat people above.
6. The Migration Legislation Amendment (Further Border Protection
Measures) Bill 2002 was introduced into the Senate on 24 June 2002. This
bill proposes to expand the definition of 'excised offshore places' to
include the Coral Sea Islands Territory and certain islands that form part
of Western Australia, Queensland and the Northern Territory.
7. Section 486A Time limit on applications to the High Court for
judicial review
1) An application to the High Court for a writ of mandamus, prohibition or
certiorari or an injunction or a declaration in respect of a privative
clause decision must be made to the High Court within 35 days of the
actual (as opposed to deemed) notification of the decision.
2) The High Court must not make an order allowing, or which has the effect
of allowing, an applicant to make an application mentioned in subsection
(1) outside that 35 day period.
3) The regulations may prescribe the way of notifying a person of a
decision for the purposes of this section.
8. Section 474 - Decisions under Act are final
1) A private clause decision:
a) Is final and conclusive; and
b) Must not be challenged, appealed against, reviewed, quashed or called
in question in any court; and
c) Is not subject to prohibition, mandamus, injunction, declaration or
certiorari in any court on any account.
9. The instructing solicitors acting for the plaintiff are Parish
Patience Immigration Lawyers – http://www.ppilaw.com.au/
10. Section 75(v) provides that in 'all matters …. In which a writ of
mandamus or prohibition or an injunction is sought against an officer of
the Commonwealth … the High Court shall have original jurisdiction'.
Section 75(v) has been supplemented by s.38(e) of the Judiciary Act 1903
(Cth):
'Subject to s.44 [Ch. 14 – Commonwealth], the jurisdiction of the High
Court shall be exclusive of the jurisdiction of the several Courts of the
States in the following matters:…
(e) matters in which a writ of mandamus or prohibition is sought against
an officer of the Commonwealth or a Federal Court.'
11. '501. Refusal or cancellation of visa on character grounds
Decision of Minister or delegate - natural justice applies
501. (1) The Minister may refuse to grant a visa to a person if the person
does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the
character test; and
(b) the person does not satisfy the Minister that the person passes the
character test.
Decision of Minister - natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person; if:
(c) the Minister reasonably suspects that the person does not pass the
character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the
national interest.
(4) The power under subsection (3) may only be exercised by the Minister
personally.
(5) The rules of natural justice, and the code of procedure set out in
Subdivision AB of Division 3 of Part 2, do not apply to a decision under
subsection (3).'
12. Current ETA eligible countries are: Andorra, Austria, Belgium,
Brunei, Canada, Denmark, Finland, France, Germany, Greece, Hong Kong,
Iceland, Republic of Ireland, Italy, Japan, Republic of Korea,
Liechtenstein, Luxembourg, Malaysia, Malta, Monaco, The Netherlands,
Norway, Portugal, Republic of San Marino, Singapore, Spain, Switzerland,
Sweden, Taiwan, United Kingdom, United States of America and the Vatican
City.
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