Gorina, Montserrat --- "Migration Law, Policy and Practice: An Interview" [1996] HRightsDef 31; (1996) Human Rights Defender

Migration Law, Policy and Practice

An Interview by Montserrat Gorina

Australian immigration law, policy and practice seem guided by developments in "fortress Europe". Since the fall of the Berlin Wall and the war in the Balkans, over 4 million immigrants have fled into European Union countries and immigration from Africa has also soared. To curb the immigration flood, EU countries are calling for a total ban on immigration, are implementing harsh detention measures for illegal immigrants, and are resorting to procedures for the speedier expulsion of illegal immigrants and "economic" refugees. In Britain, the Home Secretary's crackdown on 'bogus" asylum seekers has led to the introduction of a "white list" of nations which are deemed to be safe from political persecution. Regardless of Amnesty International's reports showing that most of these nations are still unsafe for return, asylum seekers from listed nations are being overwhelmingly refused entry or stay.

In Australia, anti-immigration sentiment arises from a three-pronged appeal: the need to protect Australia's borders from an immigration flood; that immigrants take jobs from Australians and that immigration undermines Anglo-Saxon culture. While in office, the Labour government legislated twice to restrict asylum seekers' access to the judicial process. In the 1980s, judicial review had increased to demand greater accountability in the manner, form and substance of decisions made by immigration authorities. Judicial activism was met by amendments to the Migration Act 1958 (Cth), in the Migration Reform Act (1992), which became law on 1 September 1994, and a more tightly codified decision-making process away from Ministerial discretion. Mary Crock describes these amendments as a "radical overhaul of Australia's migration legislation".[1] A universal visa system was introduced for non-citizens wishing to enter or stay in Australia. Without a valid visa, illegal or unlawful non-citizens may be detained and removed from Australian territory. The jurisdiction of the Immigration Review Tribunal (IRT) was extended over decisions not to grant a visa to non-citizens already in Australia, and to overseas applicants awaiting to be sponsored by an Australian citizen or resident. The Refugee Review Tribunal (RRT) was created to deal with appeals concerning denial of refugee status. The Federal Court was given the power to review decisions by the IRT, the RRT, and the Administrative Appeals Tribunal (AAT). Part 8 of the Migration Act created a single system of judicial review, forcing people to exercise their right to administrative review first, before a right of appeal on the merits of a decision could be brought before the Federal Court and, ultimately, the High Court. Tables 2, 3 and 4 indicate that, in spite of legislative efforts to curtail the judicial review of administrative decisions, the number of applications to the Federal Court has increased since 1989.

Since June 1996, the Coalition government has intensified its attempts to curb the right of asylum seekers to exercise their right of appeal and review. Legislation has been tabled in Parliament to introduce a two-year ban on access to Social Security and Medicare benefits for newly arrived migrants. In addition, the Minister for Immigration and Ethnic Affairs, Mr. Phillip Ruddock, seeks to crack down on "sham" marriages under the preferential family reunion program, claiming these are used for immigration rather than relationship purposes. [2] Table 5 shows decrease in the number of applicants applying for residence on spouse grounds. This gradual decline is attributed, in part, to the introduction in April 1991 of a regime whereby non-citizens applying for residence in Australia on spouse/de facto grounds were required to remain in a genuine and ongoing relationship for at least two years before they became eligible for permanent residence. Migration in this category will be cut down by 25% and new migrants may be diverted away from major capital cities and required to place a $30,000 bond upon arrival. The bond would be forfeited if new migrants return to major capital cities. [3] This measure is deemed necessary because of a 34% unemployment rate among 72 150 preferential family new arrivals in the last four years. Table 6 identifies migration categories used by the DIEA authorities.

The author has interviewed Maritsa Eftimiou and Ron Kessels, solicitors from Kessels & Associates and former UNSW Faculty of Law graduates, who specialise in the areas of immigration and refugee law, among others, in NSW. The following is a summary of the interview transcript.

Judicial Review:

Under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), applicants for immigration and refugee status could seek judicial review while an administrative decision was being made. Since 1 September 1994, applicants can not seek judicial review by the Federal Court of any decisions by the DIEA, the IRT, the RRT or the AAT until a final determination is reached whether to grant or refuse a visa application, even where a procedural error or a flawed reasoning becomes evident before the decision is final.[4]

In Ron Kessels's view, these legal changes to the Migration Act, initially aimed at curbing judicial review, have actually increased the number of people filing applications. "Immigration and refugee applicants receive a letter from the IRT or the RRT saying they have a right of appeal or review before the Federal Court within 28 days. Applicants regard these letters as a natural progression. Immigration applicants see in the Migration Act a four stage process because it provides for a primary application and, if that gets rejected, there is a right to internal review. If that is rejected, you go to the IRT and, if that gets rejected, the next stage is review by the Federal Court. For refugee applicants there is a three-stage process: primary application, review by the RRT and, if that gets rejected, review before the Federal Court. It is difficult to persuade applicants that the grounds for appeal and review are very narrow and that the costs are very high. Besides, the newly introduced Registration Scheme licenses Migration Agents with limited English skills, without formal legal qualifications and with a partial or incomplete understanding of the legal system, to give advice to applicants. These agents prepare the applications, or tell people how to file the applications themselves, and appear at the Federal Court as a friend of the applicant." Many of the applications for review filed before the Federal Court have little or no merit and are subsequently withdrawn after the first directions hearing. Part of the problem is "the introduction of a 28 day strict time limit to appeal, with no power for the Court to extend time for filing. Where an applicant has failed to see a solicitor earlier, many applications are filed urgently. Without an opportunity to obtain an opinion by counsel, the relevant tapes of the hearing and legal documents, the solicitor tends to err on the side of safety, by filing the proceedings in order to protect his or her client's interests, and then withdrawing them if the case, upon further examination, appears to have no merit. In the area of refugee law, this is exacerbated by the high degree of applicants' desperation".

Maritsa Eftimiou stresses the large percentage of applicants who appeal to the Federal Court with success. "You can't deny that. We're talking about people's human rights and whether they're going to be sent back to a country where there's a real chance they will suffer persecution. Even if it's only a 20% success rate - although it is much higher than that - what happens to those people if there's no judicial review?" There are strong rumours that the right of judicial review of migration and refugee applications in the Federal Court may be withdrawn altogether, or that a "special leave provision" may be required. Ron Kessels argues that any attempt to remove the jurisdiction from the Federal Court will fail because of the guarantees provided by Art. 75 (v) of the Constitution. Moreover, "any such move is likely to create a queuing system of a large number of cases before the High Court, with other applicants following suit, and creating queues lasting for many years, though very few of these cases may be actually heard by the Full Court, and with obvious repercussions for the High Court lists." For Maritsa Eftimiou, there is an enormous problem of perception in the refugee debate. In 1995, she indicates, there were some 5000 applications for asylum of which only 414 were approved by the Department of Immigration. "That's the thing that everyone loses sight of. There is this constant fear that if we are more lenient we're going to open the flood gates and there'll be hundreds of thousands of people coming. A good example is the "boat people", which are being sent back as a deterrent measure. They keep them locked up in the desert, without access to lawyers, for years, after which they put them on a plane and six months later they're back here. Why is it that these people are getting on another boat and coming back? What does that tell you? How is it a deterrent? It's not working! The argument that a ban on judicial review is going to solve anything is illusory. Instead, the government should spend more time and money monitoring the Migration Agents Registration Scheme. We hear stories about desperate people who pay $10,000 to migration agents to lodge High Court and Federal Court appeals. That would be an easier way of getting rid of unfounded applications in the Federal Court". Both Ron and Maritsa emphasise the difficulty of rejecting an applicant on the ground that the application has no merit.

"Sham Marriages Controversy":

Ron Kessels: "This is like the old argument about Social Security fraud, it makes great press. While there is no doubt that there are people who abuse the system, it is often very difficult for applicants to provide sufficient evidence of their relationship to persuade a decision-maker that they are genuine. You must ask yourself how difficult it could be to prove that a relationship you are in is 'genuine'. Not everyone has a joint bank account or a lease in joint names or know their partner's favourite food or music. It is particularly difficult when the relationship is forced to be kept secret such as for gays living in Islamic countries for example. The policy change in relation to spouses disregards people on study visas, or people who have met their partners while studying or travelling overseas. It's going to affect inter-dependencies and drive people in shorter term relationships into marriage, or to forget the application, and force Australian citizens to move overseas, to give up their jobs, for the sake of love, until the two years are up." Maritsa points out that "gays don't have the choice to get married. They can't make an application. In many cases their partners are from Asian or Muslim countries and there is no choice to move overseas. Even where the partner is English, you can't go and just live in England for two years because your lover lives there". Ron concludes: "People are desperate. People will enter into false arrangements or be forced to lie in order to fit the new criteria".

Citizenship Sponsorships Only

"The real concern for anyone interested in human rights is the move to citizen sponsors", continues Ron Kessels, "People who come to Australia under the humanitarian program and people who apply in Australia for refugee status and are approved, will now be unable to sponsor their spouses and children, at least for another two years until they are granted citizenship. In addition, the government intends to apply the restriction retrospectively ". Maritsa Eftimiou adds "you're looking at five years as an estimate of how long you'll be without your wife and children in most cases, three years to have your application approved and another two years to get citizenship".

"What upsets me", says Ron, "we have a Somali woman whose husband and kids are stuck in a refugee camp in Kenya. She just got her protection visa and must wait for another two years until she gets her citizenship before she can sponsor her husband and children out of the refugee camp. She could, however, sponsor her brother if he was an engineer and had good English because there's going to be no restriction on permanent residents sponsoring under the concessional program. What's even worse is that if sponsors go overseas and visit or stay with their immediate family for three or six months, that period is ignored for the purposes of their citizenship application".

$30,000 Migration Bonds

Both Ron and Maritsa believe these bonds will not be approved or, if approved, may only affect four or five hundred people. In their experience, $30,000 is nothing for many potential immigrants who may consider it as part of the expense of obtaining permanent residency. Maritsa finds the whole idea difficult because "it is like saying that, if you pay, you may go and live in Bourke. What happens when they get to Bourke, what about English classes?, What about jobs?" The lack of governmental measures to foster regional infrastructure and development of services is what Ron considers would prompt those wealthy enough to afford the bond to forfeit it and return to major capital cities. Besides, "it would cost the Federal government extra money to supervise whether people are still living in downtown Griffith".

Throughout the interview it has become clear that, in Australia, an excessive preoccupation with "people who abuse the system" has clouded the compassionate and humanitarian response by Labour and Coalition governments to the suffering of many migrants and refugee applicants. The current policy on citizen sponsorships only indicates a selective interest in "family values" on the part of the Liberal Party. However, it is important to bear in mind that the legal and policy changes to Australia's immigration laws are possible because they are acceptable to the majority of the population. In times of real or perceived scarcity, "the struggle for existence takes place in a world which is regarded as too poor for the satisfaction of human needs without constant restraint, renunciation and delay".[5] Coupled with the promotion of thoughtless leisure activities and the triumph of anti-intellectual ideologies, the plight of the wandering mass of displaced and persecuted people becomes a heavy and unwanted burden for the individual and the government.

Montserrat Gorina is a public international lawyer and teaches at the University of Western Sydney.

[1] Dr. Mary Crock, Immigration and the Courts: W(h)ither Judicial Review?, paper forthcoming in "Judicial Review And Part 8 Of the Migration Act: Necessary Reform or Overkill? (1996) Syd L Rev. The Author is grateful to Ms. Maritsa Eftimiou for providing a copy of Dr. Crock's paper.

[2] ABC TV, Lateline, 3 July 1996; SBS TV, Face to Face, 7 July 1996.

[3] The Sydney Morning Herald, 8 July 1996.

[4] s 475 Migration Act.

[5] Herbert Marcuse, Eros & Civilisation (1955).