Australian Immigration Daily News

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".