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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:
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".
My experience is that the best way to show a business or organisation up as failing is to do it better rather than attack. I stick with both MIA and MA as the approaches are different and achieve different outcomes plus different resources. One is too establishment but has excellent resources and some lobbying power, the other is very aggressive, sometimes but not always the better way. If an organisation popped up that could do both I would join but it would need entirely new management to start fresh without being tainted by current prejudices.
And of course MA has fixed all of these and more for you Owen?
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).
Why does Liana Allen want to join an organisation that she despises so much and has so little faith in? Short memories....isn't that why they started MA? Now she wants to get back into the fold, WHY? Don't give me that crap about working together for the profession.
Actually no - how could they? these things will take legislative and executive will (of which there is none) Please read the whole stream - you will see I actually objected on this occasion to what MA said. My preference is for forum participants to play the ball not the person.
Lizzie,
I presume Liana to join MIA is to exercise her right as a practicing RMA like any number of us who do not accept all that is done by MIA and yet we express our opinion to dissent. By becoming a member she could exert greater influence from within to bring bout changes Should all dissenting and critical persons resign from MIA membership.
Where did anyone get the idea that Liana Allan despised the MIA? Pretty sure she doesn't. In fact pretty sure she set up a competing organisation to their CPD and MA because she's smart. Challenging the status quo doesn't mean despising people.
Maybe Robert is right. It would be great for liana to run the MIA, or at least be on their board. We would all benefit from that.
I am on the Committee of the ACT Chapter of the MIA and keep raising the issue about needing an active and well thought out lobbying effort. It is the same point for the MA.
To be frank, the industry needs need to spend some money on a social media campaign and coordinate lobbying efforts.
Leaders in the industry (without vision) say that we don’t command a bloc of votes and this is why the politicians ignore us. Well, this is not true.
There are half a million international students in this country each highly connected to social media and each highly sensitive to the lack of fairness and transparency in the system. A well reasoned social media campaign directed at international students will create a constituency and this constituency will be listened to.
There are two things we need to address in the campaign. The first is the lack of fairness in the system and the second is our outstanding list of professional issues. Lack of transparency and the need to have a properly regulated and respected profession are two sides of the same coin. If it is not, we may as well go home and become education agents.
What we need is leadership from above to coordinate the campaign.
I call upon the leadership of the MA (Liana and Christopher) and the MIA to come together in the form of a campaign committee to raise money (a $50 lobbying levy per MA member and equivalent from the MIA) and hire professionals to run what would in fact be a very cheap social media campaign directed at international students, and to coordinate lobbying efforts directed at the government and politicians.
I also call on MA members to support this and create some pressure to allow this to happen.
Well! Law of the land is always supreme unless it is ultra vires to the Constitution of Australia. Laws are enacted or amended as per changing trends, time and as per needs of the society, thus for benefit of general public and to secure interests of the Nation. So long the Migration laws are concerned, they seem to be well drafted, enacted, implemented like a perfect legal instrument in strict legal sense. The only thing that bothers and needs attention is "UNIFORMITY" " or consistency in decision making process. The delegation of powers and power of discretion are legal privileges to the case officers, yet there are number of examples where some decisions are far away from a uniform policy. The one of the concerns that need to be addressed is to bring uniformity or consistency in decision making process. I fully support the Federal Government and relevant Commonwealth laws on strict checks and measures on migrants to avoid any future serious danger to co-Australians and this great nation.
Where the statutory provisions gives department officers the right to make discretionary decisions within a wide berth, there can never be consistency in the decisions. It it calls on RMA's to pull these erring case officers into line for consistency. Hence there is an adversarial relationship between "us and them". I do not think there exists all ending experts that can craft legislation to capture every aspect of human behavior and circumstances. The nearest achievement to this impossible feat is the British colonial masters craftiness when they constructed the Indian Penal Code where attempts were made for almost every aspect of human conduct codified, even the misbehavior of neighbors domestic animals gets into the Penal Code.
I don't understand how the MIA Australia National President's opinion can be presented as an official MIA media release and as such, by implication, represent the opinions and views of the MIA membership.
Did members overwhelmingly show support or even bring up this issue with the MIA? I doubt it.
If you have a look at the number of people who have read this blog article, it's almost 2000. That's about the same number of members as the whole of the MIA. I don't think the whole of the MIA is reading this blog. It goes to show how much reach migration alliance has over the profession. There are only 5700 agents in the profession as a whole. I can't see the MIA getting as many agents reading their news.
The Migration Act 1958 is an unduly proscriptive and oppressive piece of legislation. The derogation of the privilege against self incrimination, the constitution of the OMARA with coercive powers, the lack of meaniful oversight, the failure to incorporate into domestic law CROC and ICCPR and a heavy handed approach to criminal deportation and resort to automatic cancellation of visas is essentially undemocratic and in my view contemptuous of the rule of law. The protection of common law rights has failed in the face of an oppressive and lazy Parliament. The regulation of Australian citizens under the Migration Act 1958 is unconstitutional. There should be a wholesale shake up of the whole statutory scheme. Further, in respect of visas the whole system is Byzantine and unnecessarily complex. It needs simplification not complication.
MA is outdated, MIA has better representation... Migration Alliance is just a useless entity with no lobbying power and is a organisation for idiots. The faux aggressiveness of MA is sickening, it tries to make controversy out of stupid issues.
We should ban all RMA's and let the lawyers do all the work, RMA's get a silly little diploma which is child's play (My retard 11 year old can do the course).. its time to stamp out the idiots and get lawyers in to the game unregulated to get the industry a real professional feel.
Thanks
Tony Stan (LAWYER)
Hi Tony Stan (I assume this is an alias)
May I suggest that instead of insulting disabled people (or your own disabled child), that you provide some evidence which might make what you write a little bit believable? I have moderated your comment in, as it is my belief that you are an MIA hack, who is jealous of MA. Perhaps reveal your real identity?
In the mean time, maybe you were not around, but you may recall that one of MA's more prominent lobbying wins was having Michaelia Cash overturn the English Language Testing for RMAs. I met with her personally in Parliament House in Canberra and convinced her personally. Anyway!
A lot of what we do is behind the scenes. If you don't like MA, then why are you on this blog? MA is free to join. Agents join because they want to.
I was not insulting my retarded child, he is a retard.. that is a fact.
My real identity is Tony Stan, I am a Lawyer.
Michaelia Cash will do anything for a free shout out, initially the MIA was lobbying the Government and MA just decided to chip in at the last moment.
MA is free to join but free for idiots.
MIA has better offerings, look at our website.. we have more member benefits than MA and we even have a branded coffee mug for professionalism.
Thanks
As if you would talk about your disabled child in that kind of manner. Your resort to his dilutes your argument. In addition, if you are a lawyer then your points reek of self-interest. Basically if RMAs (who are not lawyers) are eradicated from the profession then it leaves the spoils for lawyers. Anyone can get a law degree nowadays. It is the same as a Bachelor of Arts used to be. I know kids who are getting in their late 70s in their TER at school, who are now doing their Masters of Laws. Not the brightest sparks. Not the best brains.
The best and brightest are the ones who have get up and go, resilience, aptitude, business nouse and are able to sell. Lawyers are generally limited with their incomes and are not in the top pay brackets because they charge in billable hours or six minute increments.
I am a legal secretary for a lawyer who works in the immigration space. He often calls trusted and exerienced non-lawyer migration agents for a second opinion before giving advice. I can't give my name as I will get fired.
MIA members pay fees to the MIA for, I assume, that exact type of service.
Don't forget Migration Alliance is FREE to join and none of our board are paid.
Kevin Lane is paid a salary to try really hard.