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MIA Media Release on Migration Laws: Inaccurate and Misleading

Migration Alliance considers that it is essential that we respond to a media release that was issued yesterday, 7 March 2016, by our sister organization, the Migration Institute of Australia.

That media release declares in bold type that “Migration laws must not impinge on people’s traditional rights and freedoms”.

The release quotes the National President of the MIA, Angela Julian-Armitage, as calling on the Federal Government to immediately “establish an independent review of Australia’s migration laws immediately to make sure they are not impinging on people’s traditional rights and freedoms as recognized by common law”.

It also quotes Ms Julian-Armitage as saying that: “There must be an acceptable balance between the role of Australian migration laws in properly regulating the entry and exit of people to Australia and “the legal rights of people”. Further, Ms Julian-Armitage states in the media release that: “In times of increased threats to national security, there is a danger that legislation to protect Australia is gradually moving beyond acceptable limits”.

Additionally, the MIA media release says that the MIA would like to see a re-examination of the Migration Act in respect of the following issues:

  • Limitations on freedom of association;
  • The denial of procedural fairness;
  • Inappropriate or unjustified retrospective laws;
  • Infringement of freedom of movement;
  • Restriction of access to judicial review of certain migration decisions. 

Further, the release goes on to quote Ms Julian-Armitage as saying that the “retrospective conversion of permanent visa applications to temporary visa application, which stops people from applying for permanent residency, is one example of restricting a person’s freedoms”.

On first reading, all of this seems to sound very “worthy, open-minded and humanitarian”.

However, there is one simple problem: The MIA’s media release simply does not reflect the reality of the Migration Act, either in its statutory scheme or in the way that it is administered on a daily basis in Australia.

To begin with: as we all know, migration law is simply not based on “people’s traditional rights and freedoms as recognized by common law”. Australia’s migration laws are of course based on a legislative regime that has evolved over decades, and Is not in any respect a “creature of the common law”.

Moreover, like every country on earth, Australia has a sovereign right for its lawfully elected representatives to enact laws that regulate the entry and exit of people across its borders. These laws are absolutely essential to protect the health and welfare of the Australian community and to enable Australian society to enable the Australian community and economy to operate in an orderly and sustainable manner.

Secondly, we seriously question the accuracy of the MIA’s assertion that the Migration Act in its present form “infringes” on “traditional common law” rights. We would ask the MIA to explain exactly how it is the case that the Migration Act “infringes’ on “freedom of association”.  Yes, of course the Migration Act includes a “character test” at section 501, and yes, of course that character test enables the Department to refuse a visa to a person who has been assessed by the ASIO as being a risk to Australian security.

One might ask the MIA: Is there anyone, anyone in the whole of Australia who can seriously question these provisions? That it is not just right, but absolutely essential, that Australia screen potential entrants to make sure that they have not exercised their right to “freedom of association” to associate with a terrorist organization that would threaten harm? After 9/11? After Bali? After Paris? Really?!

There's even an RMA CPD paper DN93, which has been written about Terrorism offences, Citizenship and ASIO Security Assessments, which speaks directly to this issue (available here to download for free). We strongly suggest that the MIA read the paper side-by-side their media release.

To continue, exactly how, may we ask the MIA, does the Migration Act unjustifiably restrict “freedom of movement”? Again, is it not perfectly legitimate, and indeed beyond argument, that Australia needs to protect its borders against people who would do us all harm? Don’t people who flunk the character test deserve to have their “right” to “freedom of movement” restricted in the interests of the safety and well-being of the Australian community? And isn’t Australia a signatory to the Refugees Convention and does not Australia already make provision for entry to the country on humanitarian grounds? No country, absolutely not one, allows free and unrestricted travel across its sovereign boundaries.

And how, how does the Migration Act operate to deny people “procedural fairness”? If anything, procedural fairness is an absolute hallmark of the Act as it now stands, through every phase of the visa decision process. All you have to do is take a look at the migration decisions on Austlii and you will see that the courts are absolutely vigilant to protect the rights of applicants and visa holders procedural fairness and natural justice – even in circumstances where the substance of the application might be patently meritless (just take a look at the cases of visa holders who have committed absolutely heinous criminal acts while in Australia and are challenging the cancellation of their visas, to name one of a dozen possible examples!

And since when has there been “restriction of access to judicial review of “certain” migration decisions? Which decisions, precisely? Let’s be fair about this: judicial review is available to just about every substantive decision that can possibly be imagined concerning decisions to refuse or cancel visas. Of course, even decisions that are so-called “privative-clause” decisions which the Act specifically states are beyond the scope of judicial review – we all know that even with these privative clause decisions, judicial review is available in cases where there has been jurisdictional error.

Lastly, how specifically are “inappropriate or unjustified retrospective laws” made in the migration arena?

Do the migration laws change, all the time? Yep!

Does the Australian government have the right to adjust the laws based on its learned in experience in administering them? Of course it does!

Is there anything wrong with that, in principle? No!

How is it an “infringement” on someone’s “freedoms” for the government to convert a permanent visa application to a temporary visa application, even retrospectively?

On what basis is the concept of “freedom” premised on a right to obtain any particular class of visa?

Yes, Migration Alliance absolutely and unequivocally supports the just and fair treatment of all persons who are subject to the Migration Act. Migration Alliance, equally, strongly and unequivocally supports the fair and humane treatment of all people who seek shelter from persecution through applications for humanitarian visas.

Critiques of the legislation and the Australian government must always be both fair-minded and justified on the facts.

We would reply to the media release by MIA by respectfully stating: please, carefully consider and justify your position before you issue pronouncements in the press.

We would conclude our position by stating that Migration Alliance does not support the statement made in the MIA media release that "The federal government must establish an independent review of Australia’s migration laws immediately".

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Comments

  • Ian Bosley
    Ian Bosley Tuesday, 08 March 2016

    I suggest we focus on working together in this difficult immigration field. The two organisations with differing approaches and focuses can only help. Sniping between the two diminishes both.

    Reply Cancel
  • Guest
    Paul Sadler Tuesday, 08 March 2016

    Is the MIA suggesting we look to the EU as an exceptional model of 'open borders'.

    Reply Cancel
  • Migration Alliance
    Migration Alliance Tuesday, 08 March 2016

    The issue with the MIA media release is the basis on which it is written.

  • Migration Alliance
    Migration Alliance Tuesday, 08 March 2016

    Ian, Migration Alliance wholeheartedly agrees.

    Taking a different legal position on things is hardly 'sniping'.

    Perhaps you can ask Kevin Lane the COO why Liana Allan's genuine application for MIA membership was rejected last year, despite her sending over 10 emails asking for the status of her application, over many, many months.

    Perhaps the MIA can consult with their own members, and with Migration Alliance (majority of MIA members are also joint MA members) before issuing media releases like this.

    Migration Alliance is not going to sit back and allow media releases like this to slide by when we believe the content is not representative of reality. We have over 4300 RMA members that rely on honest reporting.

    Migration Alliance will issue an open letter today to Kevin Lane, COO of the MIA today titled 'Working Together'. Perhaps Mr Lane might want to accept the invite and the two organisations could start working together for the good of the whole profession.

    You can lead a horse to water but you can't make it drink.

  • Owen Harris
    Owen Harris Tuesday, 08 March 2016

    Normally I'd agree with the general thrust of your arguments but there is nothing I agree with in this response. The Migration Act stamps all over any kind of procedural fairness and does not have a human face. In fact the mere fact it is excluded from the Discrimination Act should tell you that. Then throw in privative clauses; the elimination of Wednesbury reasonableness, the limiting of review rights; the treatment of UMAs; the fast tracking of Asylum Case Loads; S91 bars; MARA being part of the department; the rather random use of IELTS as a hurdle (How many English speaking cooks are required to work in the back of a Chinese or Indian restaurant?) and so on.
    And don't get me started on the whole offshore processing and detention of women and children. IDCs are there solely as a deterrent. The artificial construct that people are only in detention for the purpose of assessing their eligibility is a nonsense the HCA needs to squash sooner rather than later.
    Sorry guys but on this one I don't support your view.
    When lawyers are disengaged from the MARA process and can start giving immigration assistance without being an RMA, our peak body (the Law Council of Australia) will come to town and then I think we will see some actual agitation on behalf of the profession whereby RMAs will benefit as a result. Until then its all wishful thinking and lots of Kumbyeah from MIA?

  • Guest
    Nicholas Houston Tuesday, 08 March 2016

    Q: And how, how does the Migration Act operate to deny people “procedural fairness”? And since when has there been “restriction of access to judicial review of “certain” migration decisions?

    A: Our off-shore clients have no access to the AAT or the Federal Court. If they cop a poor decision from a poorly trained or vindictive case officer or a regional office off on a frolic of pattern decision making that has no foundation in the Act, there is no review rights. Then, many of the essential migration processes, such as accreditation, have been contracted out to assessing bodies from which no administrative or judicial or review lies. It is not too long ago that cap and kill occurred, decapitating some of our clients without warning, not to mention Priority Group 5 applicants living in the dead zone.

    The Act and visa system is replete with unfair processes and I think it is appropriate that our representative organisations put the criticisms forward, as we are all interested in transparent and open decision making processes, whatever the content of the substantive law.

    One thing I like about the MA is that it has a go, and is not a quisling body (putting aside its support for the Liberal Party at the last election). But what we as a profession need to do is twofold: the first is to focus on the way our profession is regulated and demand better from the Government, and the second is to defend the basic rights of our clients to fair processes.

    If we as a professional combine the two strategies in a non-partisan way, working together fearlessly, then the outcome will be good for both us and our clients. If we remain divided (and we are already sufficiently divided into lawyers, migration agents, and regrettably education agents) then we will get nothing out of anything.

    I look forward to a better relationship between organisations and a better strategy to improve our industry, or at least a better strategy to improve our industry.

    Finally, let me disclose that Kevin Lane is a personal friend of mine.

    Reply Cancel
  • Guest
    Vinit Joshi Tuesday, 08 March 2016

    Just a curious question - did the MIA offer any reasons for Liana Allan's application for MIA Membership? Thanks

  • Guest
    Anthony Tuesday, 08 March 2016

    I wish to see MA will be able to take over the role of MIA in this industry as MIA is being relatively under a poor leadership. This's merely my personal point of view and past experience for these 19 years in the industry .

  • Guest
    Maryann Young Tuesday, 08 March 2016

    very well written! I support Migration Alliance's position on this issue over the MIA.

  • Guest
    Ramena Tuesday, 08 March 2016

    Why did the MIA reject Liana Allan's application for membership? Surely if Liana Allan made an application for MIA membership in 2015 then there was an attempt at collaboration which was rejected by the MIA.

    Different legal opinions and positions add to robust debate.

    I think the MIA position was poor. Australian citizens and residents and their rights and freedoms come first and foremost over the rights and freedoms of visa applicants from other nations (non Australians). This country is not a free for all. I don't want Australia heading in the same direction as Europe has. Open borders do not work.

  • Guest
    Gordon Sheeran Tuesday, 08 March 2016

    In fairness the Department does give even off shore applicants a chance to explain their position through a Natural Justice even where they intend to impose a 4020 bar. When it was cogently argued that there was no fraud and that the applicant had in fact been working at the purported organisation in the nominated role. The department while rejecting the the visa application by saying that the work the applicant performed was not all related to the nominated position. However the department did not in this case impose the 4020 bar. To tar the department as being unfair is unfortunate.

  • Guest
    Michael Arch Tuesday, 08 March 2016

    I'd just like to chime in with some brief replies to the comments from Owen & Nicholas.

    I don't think that the response to the MIA news release was in any way intended to suggest that the existing framework under the Act and Regulations is "perfect" and that there is not room for improvement - and I suspect strongly that the Department would readily accept as much.

    Nor does it seem to me that the MA post intends to defend certain practices of the Department which might be widely criticised, such as holding children in immigration detention, holding so-called "unauthorised maritime arrivals" in offshore detention facilities with sub-standard living conditions for extended periods of time, etc.

    I do take issue with some of the comments that have been made about the provisions of the law relating to "procedural fairness" and I respectfully disagree with the proposition that the Act "stamps all over any kind of procedural fairness".

    As a matter of fact, and as mentioned in the MA post, so-called privative clause decisions are not actually immune from judicial review - it is a well established legal principle that where such decisions are infected with jurisdictional error, they are subject to judicial review.

    Likewise, it is well-established that decision-making under the Act is constrained by principles of Wednesbury "reasonableness" - one need look no farther than the High Court's judgment in the Li case to accept that this is the case.

    I also question whether the suggestion that the Migration Act is beyond the purview of Australia's anti-discrimination legislation and its international treaty obligations on those matters is really an accurate statement of the law. And I would venture to say that any decision that might be made by the Department/Minister that reflects bias on the basis of race, sex, religion, sexual orientation of the like would be extremely vulnerable to being quashed on the grounds of jurisdictional error due to "irrelevant considerations" being taken into account.

    Lastly, it's my personal opinion that the mere fact that certain types of offshore visa applications are not subject to review in the AAT or in the Federal courts necessitates a conclusion that the Act does not adequately provide for procedural fairness. While it may indeed be a matter of frustration for RMAs and their clients that decisions on some offshore applications may be arbitrary and unfounded and there is no recourse to review, at the same time you have to wonder how these cases could be handled as a practical matter.

    I think the basic point of the MA post - that Australia's current migration framework does not in some mysterious way infringe "common law rights" - is actually "spot on". Those supposed "common law" rights in reality have nothing at all to do with control of the entry and exit of non-citizens to Australia. And I think the basic point of the article - that Australia has a sovereign right to control its borders and to protect the public from the entry into the country of people who are associated with terrorist organisations - is absolutely beyond argument.

  • Guest
    Robert Chelliah Tuesday, 08 March 2016

    Liana I am appalled to read your application for membership to MIA has been persistently refused. I am sure you have all the prerequisites for MIA membership and I am seriously wondering on what ground you have been denied membership. I think there ought to be an open debate on this issue. I took on my chin when MIA under the old regime threatened to expel me and refer me to the disciplinary committee. I stood firm on my ground to articulate what I saw as mismanagement.

  • Liana - Allan
    Liana - Allan Tuesday, 08 March 2016

    It was apparently 'unanimously' refused. Hard to understand why I would not qualify to be a member (remember I used to be a member). Maybe they feel threatened because I might run for NSW / ACT and win. Then get Chairman. Then what? Just a line of thinking I have had which might be completely flawed.

  • Owen Harris
    Owen Harris Tuesday, 08 March 2016

    Some excellent points Michael. There are some good issues here worthy of a conference to nut it all out. One immediate example that sticks in my craw:
    Age discrimination (no PR for over 50s except in some cases)? - refer carve out in Section 41 Age Discrimination Act 2004.
    Where the struggle comes in from my perspective is the limitation of the grounds for review (limited to jurisdictional error and not say non-jurisdictional error). Why should we limit the Migration Act just to some forms of judicial error - why not all the standard administrative law arguments? Again a PhD thesis in its own right. Why is S51A Migration Act - exhaustive list of natural justice hearing rule - acceptable?
    Michael raises a good point about Li case but also see Katherine Hooper's paper presented just 2 days ago at the Law Council of Australia's Immigration conference.
    My personal view is that the Migration law is inherently procedurally "unfair" - whether that's good for Australia (border control) or not is a question for debate.
    And just for fun, lets throw retrospective legislation into the mix - S198AH for example. How is it that migration law (and tax law) get away with retrospectivity. It goes against everything we are taught to believe is "fair".
    Keeps us all employed and entertained I suppose?

  • Guest
    Guest Tuesday, 08 March 2016

    Are comments of dissent being moderated out?

  • Owen Harris
    Owen Harris Tuesday, 08 March 2016

    Not at all - we are all friends here holding a mature professional discussion. But like all forums there are trolls, and people who say antagonistic things without thinking. Moderation takes time.
    See my post - I posited an opposing view to generate debate (which seems to have had the desired effect).
    Have a say!

  • Liana - Allan
    Liana - Allan Tuesday, 08 March 2016

    Guest, no they are not. We have to moderate a lot of comments. Have a look at the Owen Harris response. Responses which are rude or inflammatory or would open up a defamation action will be.

    Reply Cancel
  • Anthony Mander
    Anthony Mander Tuesday, 08 March 2016

    I actually let my MIA membership lapse because I could not see value for money. I see the Migration Alliance being a lot more proactive on issues of real concern on the coal face such as unregistered agents.
    With regards to this article MIA have released, it seems untimely considering the Govt recently completed a review of Migration. And frankly having a little bit of an understanding of Common Law, I cannot see how their argument is relevant or substantive. It's hard enough for Migration agents to retain their credibility as it is, without poorly thought out thought bubbles such as this.
    MIA: please concentrate on unregistered agents, excessive registration and CPD fees and perhaps lobby for harmonisation with the NZ migration system.

  • Owen Harris
    Owen Harris Tuesday, 08 March 2016

    I left MIA for the same reason; although John Hourigan in the ACT does some great work and Kevin Lane tries really hard. The top issues that spring to mind for me are:
    1) the complete lack of transparency chasing applications (No phone numbers, org charts, email addresses unless you collect them - something MIA/MA could be doing I suppose).
    2) the blatant antagonism by the DIBP against agents
    3) unregistered agents;
    4) Dual registration fees for lawyers;
    5) no priority line to DIBP for agents (part of 1&2).

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