Should unauthorised arrivals in Australia have free access to advice and assistance?

Australian Journal of Human Rights

Volumn 6, Issue 1, 2000, Pages 34-58

  Taylor, Savitri ^a  

^a LA TROBE UNIVERSITY   (Australia)

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EID: 0012411541     PISSN: 1323238X     EISSN: 2573573X     Source Type: Journal    
DOI: 10.1080/1323238X.2000.11911026     Document Type: Article

References (101)

1. Crock M, immigration and Refugee Law in Australia (Federation Press 1998) p 54. The criterion for the grant of a protection visa is that the applicant is ‘a non-citizen in Australia to whom Australia has protection obligations under the Refugee Convention as amended by the Refugee Protocol’: Migration Act 1958 (Cth) s 36(2). The treaties to which the section refers are the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 and the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267. Hereinafter cited as the Refugee Convention and Refugee Protocol. The Refugee Convention entered into force for Australia and generally on 22 April 1954: DIMA Onshoie Refugee Procedures Manual para 1.2.2. The Refugee Protocol entered into force generally on 4 October 1967: DIMA, Onshore Refugee Procedures Manual para 1.2.3. However, Australia acceded to the Refugee Protocol on 13 December 1973: DIMA Onshore Refugee Procedures Manual para 1.2.4. The Minister of Immigration has the power under Migration Act 1958 (Cth) s 417 to grant protection visas to individuals who do not fit the s 36(2) criterion. However, discussion of the Minister's power of intervention is beyond the scope of this article.
2. Unauthorised arrivals, who are not granted a visa in immigration clearance, are removed from the country with great rapidity unless they are permitted to apply for a protection visa: see further, Taylor S, ‘Rethinking Australia's practice of ‘turning around’ unauthorised arrivals: the case for good faith implementation of Australia's protection obligations’ (1999) 11(1) Pacifica Review: Peace, Security and Global Change 43.
3. at 48–9.
4. Commonwealth of Australia, Refeience: UN Convention on the Rights of the Child, Official Hansard Report, Joint Standing Committee on Treaties, 9 May 1997, TR458 (testimony of Margaret Piper, Executive Director, Refugee Council of Australia).
5. See further Savitri Taylor, ‘Weaving the chains of tyranny: the misrule of law in the administrative detention of unlawful non-citizens’ (1998) 16(2) Law in Context.
6. Migration Act 1958 (Cth) ss 46(1) and 45(2).
7. Savitri Taylor, ‘Australia's ‘Safe Third Country’ Provisions: their impact on Australia's fulfilment of the non-refoulement obligations imposed by the Refugee Convention, the Convention Against Torture and the 1CCPR’ (1996) 15 University of Tasmania Law Review 196.
8. Migration Regulations (Cth) r 2.07(3).
9. Australian National Audit Office Audit Report 32 of 1997–98 Performance Audit: Management of Boat People(1998) 66; HREOC Those who've come across the seas: detention of unauthorised arrivals (HREOC, 1998) p 26.
10. Commonwealth of Australia, Consideration of Estimates, Official Committee Hansard, Senate Legal and Constitutional Legislation Committee, 13 November 1997, L&C 262 (testimony of Mr Killesteyn, DIMA).
11. Interview with Des Hogan, Refugee Co-ordinator, Amnesty International Australia, 29 October 1998.
12. Interview with Commonwealth Ombudsman Officer A (22 October 1998); interview with Leonard Karp, McDonell Solicitors, 3 November 1998.
13. HREOC, above, note 9, p 26.
14. Taylor, above, note 2 at 46–51.
15. Above, note 2, at 52–5.
16. My point is particularly well illustrated by the case of Wu v Minister for Immigration and Ethnic Affairs and Another (1996) 64 FCR 245.
17. The applicant must undergo a medical examination (Migration Regulations (Cth) cl 866.223 of Sch 2) and a chest x-ray examination (cl 866.224 of Sch 2) and satisfy public interest criteria 4001 to 4003 (cl 866.225 of Sch 2) and the Minister must be satisfied that the grant of the visa is in the national interest (cl 866.226 of Sch 2).
18. Migration Act 1958 (Cth) ss 411, 412 and 414. The RRT has the power to affirm or vary the primary stage decision or set it aside and substitute a new decision: Migration Act 1958 (Cth) s 415.
19. Commonwealth of Australia, Official Hansard No 7 of 1998, Senate, 25 May 1998, 2954 (Senator Vanstone, Minister representing Minister for Immigration).
20. Above, note 19.
21. Interview with Martin Clutterbuck, lawyer, Refugee and Immigration Legal Centre (22 October 1998); Heinrichs P ‘A woman prepared to take on the system’ The Age 21 November 1998, p 12.
22. See, for example, Sivarasa v Minister for immigration (unreported, Federal Court of Australia, Burchett J, 11 June 1998); Djalal v Minister for Immigration (unreported, Federal Court of Australia, O'Connor J, 10 June 1998); Kathiresan v Minister for Immigration (unreported, Federal Court of Australia, Grey J, 4 March 1998); Faustin Epeabaka v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Finkelstein J, 10 December 1997).
23. See, for example, Okeie v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Branson J, 21 September 1998); Chen Shi Hai (an infant) by his next friend Chen Ren Bing v Minister for Immigration & Multicultural Affairs [1998] 622 FCA (unreported, French J, 5 June 1998); Mohamed v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia, Hill J, 11 May 1998).
24. Migration Act 1958 (Cth) s 412(l)(b) and Migration Regulations (Cth) reg 4.31(l)-(2). Statutory rule 109 of 1997 was going to reduce the 28 day period to 14 days. However, the Government was forced to back down by a disallowance motion in the Senate, which the Opposition was prepared to support.
25. Migration Act 1958 (Cth) s 478(1).
26. Migration Act 1958 (Cth) s 478(2).
27. Typical provisions are Administrative Appeals Tribunal Act 1975 (Cth) s 29 and Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11 which give the Administrative Appeals Tribunal and the Federal Court respectively the power to extend the time allowed for the making of an application for review under those Acts.
28. Many asylum seekers are not able to read the English language. However, in Nguyen v Refugee Revino Tribunal (1997) 74 FCR 311, the Full Federal Court dismissed the argument that the requirement of ‘notification’ means that recipient must have knowledge of contents of the notice. It held that translation into a language understood by the recipient was not a prerequisite for notification of a primary decision to be effective. Mbuaby Paulo Muaby v Minister for Immigration & Multicultural Affairs [1998] 1093 FCA (unreported, Wilson J, 20 August 1998) was a case in which the applicant for judicial review was unaware of the contents of the RRT decision because he was unable to read English. See Wilson J's comments about the unsatisfactoriness of institutional arrangements that allow this state of affairs to exist.
29. Australian Constitution s 75(v).
30. Immigration Advice and Rights Centre, The Immigration Kit (5th ed, Federation Press, 1997) p 524.
31. Upon entering Australia's migration zone (see definition in Migration Act 1958 (Cth) s 5(1)), an unauthorised arrival becomes an unlawful non-citizen and remains so until he or she leaves the migration zone or is granted a visa. A person with the status of unlawful non-citizen must be detained until removed, deported or granted a visa: Migration Act 1958 (Cth) ss 189 and 196(1). A very few unauthorised arrivals are able to apply for and obtain a bridging visa to bridge the time that elapses while a protection visa application is being processed. The grant of a bridging visa gives an unauthorised arrival the status of lawful non-citizen thus securing his or her release from detention. The bridging visa also protects its holder from removal tor the period of its currency. Those unauthorised arrivals who are unable to obtain a bridging visa remain in detention but are safe from removal for so long as a protection visa application lodged by them is being considered by DIMA or the RRT (Migration Act 1958 (Cth) s 198). However, the moment that either the time for making an RRT application has passed without the making of such an application or an RRT rejection has been received their unlawful status renders them liable to immediate removal (Migration Act 1958 (Cth) s 198 and definition of ‘finally determined’ contained in s 5(9)). Even where an application of judicial review has actually been made, a stay order is necessary to prevent removal pending the making of a decision. In relation to applications for judicial review by the Federal Court, see Migration Act 1958 (Cth) s 482. In relation to judicial review by the High Court see the decisions relating to the case of Seniet Abebe. This is a case in which DIMA indicated its intention to give effect to arrangements to remove a particular detainee who had received a rejection from the RRT, even after she had invoked s 75 jurisdiction of the High Court. An urgent application for court order was granted by Kirby J preventing removal until 28 January 1998. See Ex Parte Abebe (1998) HCA 10 (unreported, Kirby J, 10 February 1998). On 28 January 1998, DIMA gave the court an undertaking that, until the determination of the matter or an earlier further order, removal would not take place without 72 hours written notice to the detainee or her solicitors. See Ex Parte Abebe [1998] HCA 16 (unreported, Gummow J, 28 January 1998).
32. See generally HREOC above note 9, pp 131–7; Commonwealth of Australia, Reference: Migration Legislation Amendment Bill (No 2) 1996, Hansard Proof Copy, Senate Legal and Constitutional Legislation Committee, 26 June 1996, L&C 175 (testimony of Ross McDougall, RACS (Vic) Inc).
33. Commonwealth of Australia, Consideration of Estimates, Official Committee Hansard, Senate Legal and Constitutional legislation Committee, 3 June 1998, L&C 205 (testimony of Mr Sullivan, DIMA); Amnesty International Australia, Australia a Continuing Shame: the Mandatory Detention of Asylum Seekers (1998) 21. In order to ensure that this policy could be implemented even after the privatisation of the immigration detention centres, it was written into the General Agreement between the Commonwealth of Australia and Australasian Correctional Services Pty Ltd, 27 February 1998, cl 9.4.4 that the Contract Administrator appointed by DIMA could ‘impose restrictions or conditions on the rights of access to immigration detainees of any third parties, including, without limitation, the media and unsolicited lawyers or migration agents’. The lengths to which DIMA is willing to go in preventing third parties from providing unauthorised boat arrivals with advice and assistance emerged very clearly from the case of Human Rights and Equal Opportunity Commission & Anor v Secretary, Department of Immigration and Multicultural Affairs (1996) 67 FCR 83 and its aftermath. See Poynder N ‘The incommunicado detention of boat people: a recent development in Australia's refugee policy’ (1997) 3(2) AJHR 53 at 72–6.
34. Commonwealth of Australia, Reference: Migration Legislation Amendment Bill (No 2) 1996, Hansard Proof Copy, Senate legal and Constitutional Legislation Committee, 26 June 1996, L&C 194 (Mr Richardson, DIMA).
35. See Wu v Minister for Immigration and Ethnic Affairs and another (1996) 64 FCR 245 at 290 per Nicholson J.
36. Entry in the Australian Human Rights Register compiled by the Catholic Commission for Justice, Development and Peace, Melbourne Archdiocese, citing response by DIMA (24 April 1998) to question asked by Senator Brian Harradine at the Senate Legal and Constitutional Legislation Committee Consideration of Estimates hearing of 26 February 1998. DIMA does not keep similar statistics in relation to unauthorised air arrivals: Entry in the Australian Human Rights Register compiled by the Catholic Commission for Justice, Development and Peace, Melbourne Archdiocese, citing response by DIMA (24 April 1998) to question asked by Senator Brian Harradine at the Senate Legal and Constitutional Legislation Committee Consideration of Estimates hearing of 26 February 1998.
37. Amnesty International Australia, above, note 34, p 21; Poynder, above, note 33, at 64.
38. Poynder, above note, 33, at 64.
39. HREOC, above, note 9, pp 215–7.
40. Australian National Audit Office, above, note 9, pp 210–5.
41. Australian National Audit Office, above, note 9, p 214.
42. Interview with Martin Clutterbuck, lawyer, Refugee and Immigration Legal Centre (22 October 1998) re Maribrynong IDC. It is worth noting that the Immigration Detention Standards scheduled to the Detention Services Contract between the Commonwealth of Australia and Australasian Correctional Services Pvt Ltd, 27 February 1998, provide that all requests by detainees for access to legal advice must be referred to DIMA.
43. Commonwealth of Australia, Official Hansard No 6 of 1998, Senate, 12 May 1998, 2521 (Senator Vanstone, Minister representing Minister for Immigration).
44. IAAAS has operated since late 1997: Senate legal and Constitutional References Committee, Legal Aid Report Three (25 June 1998) para 7.13 . It is a merged version of two previously existing schemes (the Application Assistance Scheme for asylum seekers in detention and the community and the Immigration Advisory Services Scheme for disadvantaged and vulnerable DIMA clients in the community): Senate Legal and Constitutional References Committee, Legal Aid Refiort Three (25 June 1998) para 7.13; DIMA Annual Report 1996–97, 13.
45. List of IAAAS Service Providers contained in DIMA, Fact Sheet 70: Immigration Advice and Application Assistance Scheme (revised 11 November 1998).
46. DIMA Annual Refiort 1996–97, 13. The contracts were put out to tender in July 1997: DIMA Fact Sheet 70: Immigration Advice and Application Assistance Scheme (revised 11 November 1998).
47. DIMA Fact Sheet 42: Assistance for asylum seekers in Australia (revised 21 October 1998).
48. DIMA's practice appears to vary from detention centre to detention centre. Recent practice in relation to Maribyrnong IDC detainees appears to be to split referrals equally between the three organisations that it has contracted to take referrals from that centre. DIMA does not consider itself obliged to comply with detainee requests for referral to a particular contractor, although it usually does comply with such requests. Information from an interview with Martin Clutterbuck, lawyer, Refugee and Immigration Legal Centre (22 October 1998).
49. DIMA Fact Sheet 70: Immigration Advice and Application Assistance Scheme (revised 11 November 1998).
50. Case cited in interview with Martin Clutterbuck, lawyer, Refugee and Immigration Legal Centre (22 October 1998); case study cited in Amnesty International Australia, above, note 33, p 23–4.
51. Above, note 50.
52. Interview with Martin Clutterbuck, lawyer, Refugee and Immigration Legal Centre (22 October 1998); Interview with Commonwealth Ombudsman officer A (22 October 1998).
53. HREOC, above, note 9, pp 219–20.
54. Senate Legal and Constitutional References Committee, Legal Aid Report Three (25 June 1998) para 7.14.
55. Commonwealth of Australia, Official Hansard No 6 of 1998, Senate, 12 May 1998, 2521 (Senator Vanstone, Minister representing Minister for Immigration).
56. This is evidenced by the fact that some individuals who have been helped to a rejection at primary stage by their DIMA-contracted adviser, but have then got RILC, or its predecessor RACS, to assist them with their review application on a pro bono basis have been granted protection visas on review: HREOC, above, note 9, p 221.
57. HREOC, above, note 9, pp 218–21. The picture is reinforced by other sources including an interview with a former immigration detainee, 22 February 1998.
58. HREOC, above, note 9, p 218.
59. See further Guidelines for the Provision of Assistance by the Commonwealth for Legal and Related Expenses under the Commonwealth Public Interest and Test Cases Scheme (August 1996).
60. See Agreement between the Commonwealth of Australia and the State of Victoria in relation to Provision of Legal Assistance, 7 November 1997, cl 4.3. The equivalent agreements with all other jurisdictions, except Queensland, contain a similar provision: Senate Legal and Constitutional References Committee, Legal Aid Report Three (25 June 1998) para 4.46.
61. Commonwealth Civil Law Guidelines, guideline 5.1 (available as appendix 2C in Victoria Legal Aid, Legal Aid Handltook (9th ed, January 1998)). The continuation of funding was reconsidered at every stage of each case.
62. Commonwealth of Australia, Official Hansard No 6 of 1998, Senate, 12 May 1998, 2520 (Senator Vanstone, Minister representing Minister for Immigration).
63. Commonwealth Guidelines: Legal Assistance in Respect of Matters Arising Under Commonwealth Laws, Civil Law Guidelines (1 July 1998) guideline 4.2.
64. guideline 4.1(i).
65. Above, note 63, introduction.
66. Above, note 63.
67. Lester E, ‘Measures designed to deter, discourage, degrade, demonize, diminish and disown: where has the decency and dignity gone?’ (keynote address delivered to Refugee Council of Western Australia, Public Forum: Asylum seekers: Welcome or Not?, Perth, 8 July 1998) 14, footnote 54.
68. Mbuaby Paulo Muaby v Minister for Immigration & Multicultural Affairs [1998] 1093 FCA (unreported, Wilcox J, 20 August 1998).
69. HREOC, above, note 9.
70. Wilson Lunardi v Minister for Immigration & Multicultural Affairs [1998] 1091 FCA (unreported, Madgwick J, 27 August 1998); Lai Tommy Kumula V.Minister for Immigration & Multicultural Affairs [1998 J 613 FCA (unreported, Madgwick J, 18 May 1998).
71. Mbuaby Paulo Muaby v Minister for Immigration & Multicultural Affairs [1998] 1093 FCA (unreported, Wilcox J, 20 August 1998); Lai Tommy Kumula v. Minister for Immigration & Multicultural Affairs [1998] 613 FCA (unreported, Madgwick J, 18 May 1998).
72. Mbuaby Paulo Muaby v Minister for Immigration & Multicultural Affairs [1998] 1093 FCA (unreported, Wilcox J, 20 August 1998); Lai Tommy Kumula v Minister for Immigration & Multicultural Affairs [1998] 613 FCA (unreported, Madgwick J, 18 May 1998).
73. See, for example, Pennock J R Administration and the Rule of Law (Farrar and Rinehart Inc, 1941) p 9.
74. Feldman D, ‘Democracy, The Rule of Law and Judicial Review’ (1990) 19 Federal Law Review 1.
75. Brennan G, ‘The State Of The Judicature’ (paper presented at the opening of the 30th Australian Legal Convention, Melbourne, 19 September 1997) .
76. Walker G, The Rule of Law: Foundation of Constitutional Democracy (Melbourne University Press, 1988) p 321.
77. Martin D, ‘Due process and membership in the national community: political asylum and beyond’ (1983) 44 University of Pittsburgh Law Review 165 at 201.
78. National Association of Community Legal Centres, Submission to Senate Legal and Constitutional References Committee Legal Aid Inquiry (December 1996) p 18.
79. Ibid, p 21.
80. National Legal Aid Advisory Committee, Legal Aid for the Australian Community: Legal Aid Policy, Programs and Strategies — A Report (Australian Government Publishing Service, 1990) pp 56–7.
81. This image is taken from Martin D, above, note 77, at 201–2.
82. See also comment in Wu v Ministe: for Immigration and Ethnic Affairs and anothei (1996) 64 FCR 245 at 295 (Nicholson J).
83. See Standard Minimum Rule 93. The Standard Minimum Rules were adopted by the First UN Congress on the Prevention of Crime and the Treatment of Offenders in 1955 and endorsed by the UN Economic and Social Council in 1957: Wu v Minister for Immigration and Ethnic Affairs and another (1996) 64 FCR 245 at 265 per Carr J. Standard Minimum Rule 95 extends the application Standard Minimum Rule 93 to persons arrested or imprisoned without charge: Wu v Minister for Immigration and Ethnic Affairs and another (1996) 64 FCR 245 at 265 per Carr J.
84. See Principles 13, 15, 17 and 18. The Body of Principles was adopted by a resolution of the United Nations General Assembly on 9 December 1988: Wu v Minister for Immigration and Ethnic Affairs and another (1996) 64 FCR 245 at 265 per Carr J.
85. Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.
86. For example, see UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and 1967 Protocol relating to the Status of Refugees (revised ed, Office of the United Nations High Commissioner for Refugees, 1988) UNHCR Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (Office of the United Nations High Commissioner for Refugees, 1997).
87. See, for example, Commonwealth of Australia Reference: Migration Legislation Amendment Bill (No 2) 1996, Hansard Proof Copy, Senate Legal and Constitutional Legislation Committee, 26 June 1996, L&C 158 (testimony of Mr Burmester, Attorney-General's Department).
88. Letter from Attorney-General's Department to Department of Immigration dated 25 August 1993 contained in Department of Immigration and Ethnic Affairs, Submission No 97, 1 September 1993 in Joint Standing Committee on Migration, Inquiry into Detention Practices Submissions (1993) Vol 4, S 995–6.
89. As Andrew Linklater points out, ‘[the State] is universalistic in comparison with tribal social organisation. However, it remains a particularistic association in so far as citizenship replaces kinship as the basis of an exclusive form of social organisation and as the centre of an internal concept of obligation’: Linklater A Men and Citizens in the Theory of International Relations (Macmillan, 1982) p 167.
90. Ruddock P, ‘Proposed Changes to the Administrative Review Scheme’ (paper presented at The Balancing Act: Immigration Decision Making — The Department, the Tribunals and the Courts Seminar, Melbourne, 12 November 1997).
91. Australian National Audit Office, above, note 9, p 75.
92. Australian National Audit Office, above, note 9.
93. Commonwealth of Australia Official Hansard No 6 of 1998, Senate, 12 May 1998,2520 (Senator Vanstone). See also Commonwealth of Australia, Parliamentary Debates, House of Representatives, 24 September 1997, Vol 216, 8302 (the Hon Philip Ruddock, Minister for Immigration). It is worth noting that we are not talking about an attitude unique to the conservative side of politics. In a submission to the National Legal Aid Advisory Committee while Labor was in Government, the Department of Immigration argued that only Australian citizens and permanent residents should be eligible for legal aid_ Department of Immigration Local Government and Ethnic Affairs, Response to Issues Paper, 14 December 1989 quoted in National legal Aid Advisory Committee, Legal Aid for the Australian Community: Legal Aid Policy, Programs and Strategies — A Report (July 1990) p 57.
94. Taylor, above, note 2, at 52–4. Australia's draconian detention regime for unauthorised arrivals is a measure of how far Australia is prepared to go in ensuring control of community membership.
95. Martin, above, note 77, at 199–200 (making the point in relation to the US).
96. See Linklater, above, note 89.
97. If a guilty person goes free, that person not only escapes punishment for having engaged in morally repugnant conduct in the past but also remains a continuing threat to society.
98. Martin, above, note 77 at 205 (putting this as part of the case for the other side).
99. This is already happening in the area of welfare rights: Leser D ‘Welcome to Australia’, Good Weekend (Sydney), 12 September 1998, p 16.
100. There are precedents. For example, during the First World War, Australia interned approximately 700 naturalised and 70 Australian born British subjects of German ethnicity very often ‘for no good reason’: Fischer G Enemy Aliens: Internment and the Home Front Experience in Australia 1914–1920 (University of Queensland Press, 1989) 77, 86–126. During the Second World War, Australia interned 947 naturalised and 62 Australian born British subjects of Italian ethnicity because of ‘attitudes which equated race with nationality and which regarded assimilation as a necessary pre-condition to citizenship, albeit second-class citizenship’: O'Brien I M ‘The Internment of Australian Born and Naturalised British Subjects of Italian Origin’ in Bosworth R, and Ugolini R, (eds) War, Internment and Mass Migration: the Italo-Australian Experience 1940–1990 (Gruppo Editoriale Internazionale, 1992) p 89.
101. Again there are precedents. For example, in 1951, Australia came to the brink of denying substantive and procedural rights to persons labelled as communists: see Atkin and Evans (eds), Seeing Red: The Communist Party Dissolution Act and Referendum 1951: Lessons for Constitutional Reform (Evatt Foundation, 1992).