Recent Developments in Refugee and Immigration Law 2005


12 September 2005, updated 17 October 2005

Sue Harris-Rimmer Analysis and Policy
Law and Bills Digest Section

Introduction

This e-brief summarises recent developments and key issues in legal debates about refugee and immigration law in Australia. It provides links to web sites and material covering reports, case law, inquiries and legislation.

Reports

Palmer Report

M. Palmer, Inquiry into the circumstances of the Immigration detention of Cornelia Rau: Report. Commonwealth of Australia, Canberra, July 2005.

Mick Palmer, former Australian Federal Police commissioner, was asked by Senator Amanda Vanstone, Minister for Immigration and Multicultural and Indigenous Affairs on 9 February 2005 to conduct an inquiry into the mistaken detention of Cornelia Rau. Ms Rau was an Australian permanent resident who was detained under the Commonwealth Migration Act for some 10 months between the end of March 2004 and early February 2005. On 2 May, Mr Palmer was further requested to inquire into the deportation of an Australian citizen, Vivian Alvarez Solon.

The following two extracts highlight the main legal issue raised by the report:

Main Findings (p. viii)

There is no automatic process of review sufficient to provide confidence to the Government, to the Secretary of DIMIA or to the public that the power to detain a person on reasonable suspicion of being an unlawful non-citizen under s189(1) of the Commonwealth s Migration Act 1958 is being exercised lawfully, justifiably and with integrity.
The Lawfulness of Detention (pp. 24-25)
The Inquiry found that many of the DIMIA officers who were interviewed and who used the detention powers under s.189(1) of the Migration Act 1958 had little understanding of what, in legal terms, constitutes reasonable suspicion when applying it to a factual situation .
There did not appear to be even at senior management level an understanding of the distinction between the discretionary nature of the exercise of reasonable suspicion and the mandatory nature of the detention that must follow the forming of a reasonable suspicion .

Government Response

A. Vanstone (Minister for Immigration and Multicultural and Indigenous Affairs), Report of Palmer Inquiry into Cornelia Rau Matter, media release, 14 July 2005.

A. Vanstone (Minister for Immigration and Multicultural and Indigenous Affairs), Palmer Implementation and Comrie Report, media release, 6 October 2005.

Department of Immigration, Multicultural and Indigenous Affairs, Implementation of the Recommendations of the Palmer Report of the Inquiry Into the Circumstances of the Immigration Detention of Cornelia Rau, Canberra, September 2005.

Department of Immigration, Multicultural and Indigenous Affairs, Key Facts in Addressing the Recommendations of the Palmer Report, media release, October 2005.

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Commentary on the Palmer report

A. Vanstone (Minister for Immigration and Multicultural and Indigenous Affairs), Report of Palmer Inquiry into Cornelia Rau Matter, media release, 14 July 2005.

P. Prince, The Detention of Cornelia Rau: Legal Issues , Research Brief, no. 14, Parliamentary Library, Canberra, 2004 05.

P. Akerman. It s our annual migration from truth on refugees . Sunday Telegraph, 5 June 2005.

A. Bolt. Rau: the next sorry chapter , Herald Sun, 29 July 2005.

D. Marr. Passport to madness , The Age, 18 July 2005.

D. Marr. Banished to Baxter , The Age, 19 July 2005

G. Coffey and M. Clutterbuck, Palmer shows the way, but more is needed , The Age, July 18, 2005.

See also: Janet Phillips and Adrienne Millbank. The Detention and Removal of Asylum-Seekers , E-Brief, Parliamentary Library, Canberra, July 2005.

This e-brief summarises recent developments and key issues in the debate about mandatory detention in Australia. It provides links to web sites and material covering detention policy and practice in Australia, and detention and removal policies and practices in the UK and other comparable countries.

ANAO Audit

Australian National Audit Office (ANAO). Management of the Detention Centre Contracts Part B: Department of Immigration and Multicultural and Indigenous Affairs. Audit Report No.1, ANAO, Canberra, 2005 06.

The purpose of this ANAO audit was to assess DIMIA s management of detention services through the contract with Global Solutions Limited ( the Contract ), including the transition period and the implementation of lessons learned from the previous contract with Australasian Correctional Management.

The audit stated at paragraph 18 that:

the Contract does not adequately specify key responsibilities that are to be met, either by DIMIA or GSL. In particular, clear and consistent definitions are not provided for health standards that are central to detainee welfare. For example; Duty of Care , and the specific obligations for a subcontractor supplying psychological services are not consistent with the department s Immigration Detention Standards.

The following extract highlights the other main legal issue raised by the report relating to possible compensation claims:

Recommendation no.1 paragraph 4.62:

The ANAO recommends that DIMIA review the insurance, liability and indemnity regime in the Contract and, informed by a clear allocation of risks, develop clearer mechanisms for determining:

  • the amount of costs for repair or rectification of damage to Detention Facilities and Commonwealth Equipment following an Incident; and
  • the Services Provider s and Commonwealth indemnities and liabilities under the Contract for the purposes of insurance.

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Commentary

A. Vanstone (Minister for Immigration and Multicultural and Indigenous Affairs), DIMIA Welcomes ANAO Audit, media release, 7 July 2005.

AAP, More damning detention centre reports , Sydney Morning Herald, 7 July 2005.

Comrie Report

On 2 May 2005 the Acting Minister for Immigration and Multicultural and Indigenous Affairs, the Hon. Peter McGauran, referred to the Palmer Inquiry a request to examine the circumstances surrounding the removal from Australia of Ms Vivian Alvarez, an Australian citizen. The Palmer Inquiry s terms of reference were extended to incorporate this and other matters.

The Palmer report, released by Senator Vanstone in July 2005, made comments on the progress of the investigation of Vivian Alvarez s removal. Neil Comrie, former Victorian Police Commissioner continued the investigation under the auspices of the Commonwealth Ombudsman s office. The Comrie report extends the initial comments in the Palmer Report and presents a number of findings and conclusions in relation to Vivian Alvarez s unlawful removal.

In its investigation of the Alvarez matter the Inquiry uncovered much that reinforced the findings of the Palmer Inquiry. In particular, there is a focus on DIMIA s culture, policies, systems, processes and staff shortcomings in connection with the apprehension and detention of suspected unlawful non-citizens.

Commonwealth Ombudsman, Inquiry into the circumstances of the Vivian Alvarez matter Report by the Commonwealth Ombudsman of an inquiry undertaken by Mr Neil Comrie, AO, APM (Report no. 3 of 2005), Canberra, October 2005.

Commonwealth Ombudsman, Ombudsman releases report of Inquiry into the Circumstances of the Vivian Alvarez Matter, media release, Canberra, 6 October 2005.

Metcalfe, Andrew, (Secretary of the Department of Immigration, Multicultural and Indigenous Affairs), DIMIA Apologises to Ms Alvarez, Commits to Reform: Secretary, media release, Canberra, 6 October 2005.

Department of Immigration, Multicultural and Indigenous Affairs, Response to the Recommendations of the Report of the Commonwealth Ombudsman of the Inquiry Into the Circumstances of the Vivian Alvarez Matter, Canberra, October 2005.

 Commentary on the Comrie Report

 ABC Radio, Minister discusses responsibility for deportation of Vivian Alvarez Solon to the Philippines . PM, 6 October 2005.

ABC Radio, Minister responds to criticism in the Neil Comrie report on the Vivian Alvarez case , Radio National Breakfast, 7 October 2005.

L. Dodson, Immigration is off to school , Sydney Morning Herald, 7 October 2005.

J. Kerr, The ABC of an uncaring system , Sydney Morning Herald, 7 August 2005.

Editorial, The Alvarez case won't go away , Sydney Morning Herald, 8 October 2005.

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Deportation of Scott Parkin

American political activist Scott Parkin visa was cancelled under section 116 of the Migration Act 1958 as prescribed by Migration Regulation 2.43 after the Australian Security Intelligence 0rgansiation made an adverse security assessment against him. Mr Parkin was arrested by the Australian Federal Police on 10 September 2005, held in solitary confinement for 5 days in the Melbourne Prisoner Assessment Centre and deported back to the US on 15 September 2005.

J. Topsfield, Peace activist's deportation probed , The Age, 21 September 2005.

Editorial: The expulsion of Scott Parkin . Sydney Morning Herald, 19 September 2005.

Editorial: Balancing liberty and security , Canberra Times, 13 September 2005.

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Legislation

Migration and Ombudsman Bill 2005

The bill amends the Migration Act 1958 (the Migration Act) to:

  • introduce 90 day processing time limits for the determination of Protection Visa applications and for the completion of reviews by the Refugee Review Tribunal (the RRT)
  • permit disclosure of identifying information to individuals or the public to assist with identifying or locating a person who is otherwise unable to be identified or located, and
  • enable the Ombudsman to contact an immigration detainee where that person has not made a complaint to the Ombudsman.

The bill amends the Ombudsman Act 1976 to:

  • allow the Ombudsman to use the title Immigration Ombudsman when performing functions in relation to immigration and detention
  •   make it explicit that the Ombudsman can perform functions and exercise powers under other Commonwealth or ACT legislation
  • enable an agency or person to provide information to the Ombudsman notwithstanding any law that would otherwise prevent them doing so, and
  • clarify that the actions of contractors and subcontractors, in exercising powers or performing functions for or on behalf of Australian Government agencies, will be taken to be the actions of the relevant agency.

The Bills Digest notes that The question raised by this Bill is to what extent these proposed amendments address the acknowledged problems with DIMIA s administration of immigration detention identified by the Palmer report.  This Bill is not a full response.

Excision Migration Amendment Regulations 2005 (No. 6)

On 22 July 2005, the Migration Amendment Regulations 2005 (No. 6) SLI 171 came into force. They prescribe the following islands as excised offshore places: the Coral Sea Islands Territory; Queensland islands north of latitude 21 degrees south; Western Australian islands north of latitude 23 degrees south; and Northern Territory islands north of latitude 16 degrees south.

See M. Coombs, Excising Australia: Are we really shrinking? Research Brief, no. 5, Parliamentary Library, Canberra, 31 August 2005 (includes map).

Migration Litigation Reform Bill 2005

The purpose of the Bill is to amend the Migration Act 1958, the Federal Court of Australia Act 1976, the Federal Magistrates Act 1999 and the Judiciary Act 1903 to assist courts in managing their migration litigation workload. It is listed for debate in the Spring sittings of 2005.

On 16 March 2005 the Senate referred the Bill to the Senate Legal and Constitutional Legislation Committee. The Committee received 25 submissions. A public hearing was held in Canberra on 13 April 2005. The Committee s report was published on 11 May 2005.

The Bills Digest includes a chronology of Commonwealth legislation restricting judicial review of migration decisions.

The Migration Litigation Reform Act 2005 No. 137 was assented to 15 November 2005.

Parish Patience Immigration Lawyers News Alert - "The Migration Act has changed from 1 December 2005 to limit appeals to the Federal Courts. From 29 December 2005, you will only be allowed to appeal an RRT or MRT decision to the Federal Magistrates Court if it is less that 29 days old (very limited scope for any extension of 56 days). It will no longer be permitted to appeal an old decision to the Federal Magistrates Court or the Federal Court, and the High Court will be very strict about old decisions as well."

Migration Amendment (Detention Arrangements) Act 2005

The purpose of the Bill was to amend the Migration Act 1958 to allow greater flexibility in the treatment of immigration detainees. The Bill was passed on 23 June 2005 and became Act No 79. The date of Royal Assent was 29 June 2005.

The Bills Digest includes media commentary and also dealt with two private members bills prepared by Mr Petro Georgiou MP but withdrawn after the Prime Minister s announcement of the above changes. The Migration Amendment (Act of Compassion) Bill 2005 and Migration Amendment (Mandatory Detention) Bill 2005 were introduced into the Senate by Greens Senator Kerry Nettle on 16 June 2005.

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Inquiries

The Senate Foreign Affairs, Defence and Trade Committee Inquiry into asylum and protection visas for consular officials and the deportation, search and discovery of Vivian Solon

On 16 June 2005, the following matters were referred to the Foreign Affairs, Defence and Trade References Committee for inquiry and report by 18 August 2005.

  1. the response of Department of Immigration Multicultural and Indigenous Affairs, Department of Foreign Affairs and Trade, Attorney-General's Department and their respective Minsters to Mr Chen Yonglin 's approaches or requests to the Australian Government for asylum and/or a protection visa
  2. the application of the Migration Act 1958, its regulations and guidelines concerning the maintenance of confidentiality for any consular officials or staff (including Mr Chen Yonglin, and any other former consular officials or staff) who were applicants for territorial asylum and/or protection visas by Department of Immigration Multicultural and Indigenous Affairs, Department of Foreign Affairs and Trade and their respective Ministers
  3. The involvement of Department of Foreign Affairs and Trade and the Minister in the deportation, search and discovery of Vivian Solon, and
  4. any related matters.

The Committee issued an interim report The removal, search for and discovery of Ms Vivian Solon on 15 September 2005 in order to allow the Commonwealth Ombudsman/Comrie investigation to finish. The final report is expected to be tabled on 8 December 2005.

The Senate Foreign Affairs, Defence and Trade Committee Inquiry into Mr Chen Yonglin's request for political asylum

As part of the above reference from the Senate, the Committee tabled its report on 12 September 2005.

Mr Chen Yonglin, a Chinese diplomat working at the Chinese Consulate in Sydney who approached the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) on 26 May 2005 to request political asylum for himself and his wife and daughter. Questions soon arose over whether contact with the Chinese consulate by DIMIA to confirm Mr Chen's identity on 26 May was appropriate and this is examined in chapter two. The decision of the Minister for Foreign Affairs to reject Mr Chen's request for political asylum and his role in such requests are considered in chapter three. Chapter four details the actions of and meetings with DIMIA and the Department of Foreign Affairs and Trade (DFAT) which took place from 27 May to 3 June 2005. Mr Chen's claims regarding the persecution of Falun Gong, an extensive spy network in Australia, kidnapping allegations and the monitoring and harassment of Australian citizens are discussed in chapter five.

Senate Legal and Constitutional Committee Inquiry into the administration and operation of the Migration Act 1958

On 21 June 2005, the Senate referred the following matters to the Legal and Constitutional References Committee, for inquiry and report by 8 November 2005.

  1. the administration and operation of the Migration Act 1958, its regulations and guidelines by the Minister for Immigration and Multicultural and Indigenous Affairs and the Department of Immigration and Multicultural and Indigenous Affairs, with particular reference to the processing and assessment of visa applications, migration detention and the deportation of people from Australia
  2. the activities and involvement of the Department of Foreign Affairs and Trade and any other government agencies in processes surrounding the deportation of people from Australia;
  3. the adequacy of healthcare, including mental healthcare, and other services and assistance provided to people in immigration detention
  4. the outsourcing of management and service provision at immigration detention centres, and
  5. any related matters.

The inquiry received 234 submissions and held public hearings in Adelaide, Melbourne, Sydney and Canberra. The report is now due to be tabled on 1 December 2005.

Case law

QAAH v MIMIA [2005] FCAFC 136 (27 July 2005)

The Full Federal Court (Wilcox, Madgwick and Lander JJ) held in this case that the Commonwealth Government has to prove a country of origin has become safe (apply cessation under Article 1(C) of the 1951 Refugee Convention) before it can refuse to extend a temporary protection visa. The onus of proof no longer rests with the applicant.

Per Justice Wilcox at paragraph 83:

It is important to distinguish between recognition of a person as a refugee , within the meaning of the Convention, and the grant to that person of protection. Recognition is a function of the Convention; protection is a function of the Act. Recognition is necessarily of indefinite duration; protection may be for a limited period, or until the happening of a particular event. A person may continue to have refugee status (because the person has successfully invoked Article 1A(2) and Article 1C(5) has not yet operated against him or her) notwithstanding the expiration of a temporary protection visa.

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Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132 (22 July 2005)

The issue in this case was the meaning of the regulation limiting the visa holder to a maximum twenty hours work per week outside his or her studies as a condition of the visa. In separate judgments, Justices Wilcox, Stone and Allsop each strongly criticised the conduct of immigration authorities in searching and restraining Mr Alam, removing him for interrogation to the DIMIA office in Lee St Sydney, then detaining him at Villawood.

Per Justice Allsop at paragraphs 29 30:

The respondent s visa was purportedly cancelled, wrongly as the Federal Magistrate correctly found, in the following circumstances:

  • a search of the respondent s home and belongings without apparent cause or warrant
  • the restraining (though without the application of force) of the respondent while the search proceeded
  • the arrest of the respondent without apparent lawful warrant and his removal to Lee Street
  • the holding of the respondent at Lee Street and his interrogation there, and
  • the removal of the respondent into incarceration at Villawood Detention Centre for nearly three weeks.

This behaviour led to and involved the wrongful cancelling of the visa. It has, no doubt, led to significant distress to the respondent. No explanation of it has been forthcoming after the Court expressed its concern at the appeal in relation to these facts.

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Mohammad Ahsan Uddin v. Minister for Immigration [2004] FMCA 493 (11 August 2004)

This case found that because the form used by education providers to advise students they were not attending classes or meeting course requirements advised students to attend the nearest DIMIA office rather than any DIMIA office, this form was defective.

Because of this decision, all automatic cancellations under section 137J of the Migration Act 1958, which flowed from a section 20 notice in the same form as that sent in the above case, are not effective and the visa must be treated as not cancelled by section 137J. Accordingly, as the above decision affects all s137J cancellations between May 2001 and 16 August 2005, DIMIA has decided that all such cancellations would be reversed.

This reversal ensures that all people affected will not have further visa applications rejected on the now-incorrect basis that they were unlawful non-citizens. All visa applications lodged will be assessed on their merits in the usual way. Visas may still be liable for cancellation depending on individual circumstances.

Department of Immigration, Multicultural and Indigenous Affairs, Recent court case may affect some student visa holders, media release, 16 September 2005.

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Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Ame [2005] HCA 36 (4 August 2005)

This case considered the constitutional power to make laws with respect to naturalization and aliens. The High Court upheld the validity of Australian laws which provided that when Papua New Guinea became independent in 1975 its indigenous people who then became citizens of PNG ceased to be citizens of Australia.

Ruddock v Taylor [2005] HCA 48 (8 September 2005)

In this case, the High Court overturned an award of damages of $116,000 paid to British-born Mr Taylor after he was put into immigration detention when his visa was cancelled on character grounds. The appeal turned on section 189 of the Act which provides that if an officer knows or reasonably suspects that a person is an unlawful non-citizen the officer must detain the person. In Re Patterson; ex parte Taylor (2001) 207 CLR 391, a majority of the High Court held, contrary to Nolan [(1988) 165 CLR 178], that Mr Taylor and other long term British migrants were not aliens and therefore could not be validly subject to the detention and deportation provisions of the Migration Act, which is based on the aliens power in s 51(19) of the Constitution. The issue in Ruddock v Taylor was whether immigration officers could reasonably suspect Mr Taylor to be an unlawful alien when the High Court subsequently held that he was not.

Per Gleeson CJ, Gummow, Hayne and Heydon JJ (majority) at paragraph 28:

s 189 may apply in cases where the person detained proves, on later examination, not to have been an unlawful non-citizen. So long always as the officer had the requisite state of mind, knowledge or reasonable suspicion that the person was an unlawful non-citizen, the detention of the person concerned is required by s 189. And if the Minister brought about a state of affairs where an officer knew or reasonably suspected that a person was an unlawful non-citizen by steps which were beyond the lawful exercise of power by the Minister, it does not automatically follow that the resulting detention is unlawful. Rather, separate consideration must be given to the application of s 189 - separate, that is, from consideration of the lawfulness of the Minister's exercise of power.

At paragraph 40:

what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known or reasonably capable of being known at the relevant time Even if Patterson were to be understood as overruling Nolan what were reasonable grounds for effecting the respondent's detention did not retrospectively cease to be reasonable upon the Court making its orders in Patterson or upon the Court later publishing its reasons in that case

At paragraphs 41 and 44:

the mistake of law contention turns on distinguishing between cases in which the suspicion held by an officer that a person was an unlawful non-citizen is "reasonable", and those in which that suspicion is not. The distinction was said to be between suspicions which later were found to turn upon some mistake of fact, and those which were found to turn upon a mistake of law. This contention should be rejected. The asserted distinction should not be drawn there is no textual basis found in the Act for distinguishing between cases of mistake of law and mistake of fact

Per McHugh J (minority) at paragraph 70:

Legislatures often vest powers in administrative officers that are exercisable when the officer has a "reasonable suspicion" that specified factual circumstances prevail. Under s 189 of the Act, an officer may (and must) exercise the power to detain a person if the officer "knows or reasonably suspects" that that person is an "unlawful non-citizen". The section authorises a drastic interference with the liberty of persons. It impinges on the liberty of persons such as Mr Taylor because "[l]iberty ends where the power of arrest begins." The liberty of the individual is "the most elementary and important of all common law rights" and is protected by the common law doctrine of false imprisonment. So far as its language permits, s 189 must be interpreted strictly and in a manner that preserves the liberty of the subject. In particular, it should not be given a purposive construction and its terms stretched to give effect to some policy thought to be inherent in the section.

 

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