Dissenting report

Labor Members
The Labor Members of the Joint Standing Committee on Migration, Maria Vamvakinou MP, Shayne Neumann MP and Steve Georganas MP would like to acknowledge the contributions of all the stakeholders eager to contribute to this important discussion. Hundreds of thoughtful submissions were received containing expert opinions, robust evidence and advocating for changes that would lead to genuinely better migrant settlement outcomes.
Making a new home in a new country is not easy. Yet, thousands of people each year do just that and work hard to make Australia their home.
This inquiry was a timely opportunity to consider whether the settlement services available in Australia are appropriately targeted and sufficient to successfully support young migrants who have journeyed to make Australia their home.
This inquiry was an exciting opportunity to find out how the Government could improve its support of new arrivals across the country – to help migrants become contributing, engaged members of society and to ensure Government migration resources are being used efficiently.
Labor Members would like to thank all of the young people who spoke with the Committee when we visited their schools. These bright young people told the Committee about their lives, the journey they had taken to make Australia their home and the types of supports that have worked to contribute to their success at school, at home and in the Australian community.
It is clear Australia is at the forefront internationally of settlement and support for new migrants; but there is always more that can be done and the evidence submitted to the Committee makes a clear case for more flexibility within the migrant settlement program.
The robust and consistent evidence received by the Committee has, for the most part, been used to reflect the views of those who participated in the inquiry with recommendations that focus on the importance of settlement services, education and language and employment.
This inquiry represents a good starting point for the Government to improve migrant settlement outcomes. Labor Members support Recommendations 114.
Labor Members dissent from Recommendations 15-18.
On recommendations 15-18 where Labor dissents, this report does not objectively reflect the evidence presented during the course of the inquiry. It ignores crucial contextual details and places an undue emphasis on others. There is minimal or no evidence to justify some recommendations made by the Committee. On recommendations 17 -18, they are clearly outside the terms of reference of the Inquiry.
The Labor members are concerned, however, that some of the conclusions and subsequent recommendations that the Committee reaches in the report are based on minimal or no evidence.
Despite minimal or no evidence the report focuses on young humanitarian entrants from Sudanese backgrounds who engage in criminal activity. The purpose of this inquiry was to investigate issues relating to migrant settlement outcomes.
It has been hi-jacked to highlight issues specifically affecting the Chair’s own electorate (such as the Apex Gang, which the Victoria Police described as a non-entity) and the State of Victoria. As such, the report does not reflect the evidence received and ignores the wider context of Australia’s migration situation.
The focus of this inquiry on Humanitarian entrants and youth crime missed the opportunity to review settlement outcomes for the vast majority of new arrivals. Humanitarian entrants make up on average, less than ten per cent of Australia’s annual migrant intake. As outlined in Chapter 2 the Migration Program for skilled and family migrants offers 190,000 visas per annum and the Humanitarian Program offers less than 19,000 visas per annum.
This report advocates for flexibility for settlement services providers but ignores the power the Commonwealth has in determining when and who enters via the Humanitarian Program. The Commonwealth should consider whether offering more certainty to State and local governments would become far more efficient and would better meet the unique needs of specific humanitarian entrants.
Labor Members are concerned the Chair has drawn conclusions and recommendations based on opinion and anecdote rather than evidence and has made recommendations outside the scope of the terms of reference to pursue his own personal agenda. Further, during this inquiry the Chair has repeatedly pre-empted the issues and alluded to findings of this committee in media reports1 in pursuit of his own personal and political agenda.
Given the lack of evidence for some recommendations, it is impossible to accept this report as a whole as a product of robust parliamentary investigation.

Recommendation 15

Recommendation 15 proposed amending the Migration Act 1958 (the Act) requiring the mandatory cancellation of visas for offenders aged between 16 and 18 who have been convicted of a serious offence. Labor Members dissent from Recommendation 15.
This recommendation was not supported by the vast majority of evidence. In contrast, the evidence received overwhelmingly pointed to the view that the current character and cancellation provisions in the Act were an adequate method of addressing non-citizens who have been involved in criminal activities.
A significant number of participants in the inquiry – including State and local Governments, non-government organisations and individuals – strongly rejected any proposal to extend the character provisions to migrants under the age of 18 and deport children who commit crimes.2
The Federation of Ethnic Communities Councils of Australia was strongly opposed to ‘any attempts to apply provisions under section 501 to juveniles.’3
Groups such as the Victorian Commission for Children and Young People highlighted the concerns that that expanding the character test to include under 18 year olds could potentially put children and young people at serious risk of harm and could lead to child welfare concerns:
… expanding the application of the character test may result in outcomes that are not in their best interests [of the child], that are discriminatory and may result in them being separated from their parents against their will.4
The Australian Council of TESOL Associations believed that ‘the current provisions in the character test are already more than sufficient to address the anti-social behaviour.’5
The Centre for Multicultural Youth held the above view that the character test provisions were adequate to deal with any anti-social issues.6
Youthlaw rejected outright the proposal to extend the character test provisions to migrants under the age of 18 focussing on the importance of children being separated from the adult criminal justice system, adding:
This separation recognises their unique capacity to be rehabilitated and accepted science that explains how adolescent brain development makes children think and act differently to adults and necessitates a different justice response than adults. Australia’s immigration system must continue to accommodate this differentiated treatment.7
This perspective was supported by the Australian Human Rights Commission who urged care ‘when imposing penalties for criminal conduct which occurred before a person turned 18, as their level of culpability for criminal acts is lower than would be the case for an adult.’ They stated that they considered it inappropriate to cancel an under 18 year old’s visa on character grounds.8

Migrant Youth Crime

Labor members were concerned with the focus in the report on youth crime which incorrectly implied that there is a serious crime wave by migrant youth across the nation.
Anecdotal evidence of youth crime and ethnic gang activity was received from a small amount of geographically aligned submitters, based in Victoria only. The inquiry did not receive any data from other States and Territories detailing issues with migrant youth crime.
The Inquiry received no evidence from victims of crime in Victoria or elsewhere and no credible evidence was received to suggest members of the judiciary are handing down lenient sentences to migrants. In arguing this point the Chair has relied solely on anecdote and opinion based on one comment from one witness.
One submitter commented that the judiciary was imposing lighter sentences in cases where non-citizens faced possible deportation under the character test if found guilty of an offence. The PFA advised that they had received anecdotal information that the judiciary where handing down lenient sentences if aware of a person’s visa status.9
The report unfairly maligns Sudanese born youth in Victoria, with the evidence provided by the Victorian Crime Statistics Agency clearly showing that the vast majority of offenders in Victoria are Australian born. This report ignores the good work being undertaken by the Victorian Government, Victorian Police and service providers to support new migrants.
Youthlaw and Smart Justice for Young People held the opinion that Victoria did not have a youth crime wave or ethnic gang activity. They added that Victorian statistics show a decrease in youth offending rates:
The proportion of incidents committed by alleged offenders under the age of 25 has fallen from half of all incidents recorded in 2007-2008 to 40% of all incidents in 2015-2016.
the number of young people in detention on sentence is also down: sentenced in Children’s Court halved since 2008–09 with only very small number receiving sentence of detention.
Victoria has the lowest rate of children (10-17) under justice supervision on an average day in Australia.10
Evidence showed that migrant youth and newly arrived migrants are not involved in criminal activity with less than 10 per cent being overseas born offenders. The second-highest country, after Australia, of alleged offenders in Victoria is New Zealand, followed by Indian, Vietnamese and Sudanese.11
Victorian Crime Statistics Agency clearly showed that the vast majority of offenders in Victoria are Australian born and older than 25. Adults were predominantly the largest proportion of offenders, with 67 per cent over the age of 25.12 Of those Australian born offenders, a relatively small percentage was comprised of youth offenders: 10 per cent were aged 10 to 17 and 22 per cent were aged 18 to 24 years.
The Refugee Council of Australia agreed that the statistics do not support the implications made out in the term of reference:
The statistics show that young people born outside Australia commit a disproportionately low number of crimes. Data obtained from Victoria Police, for example, shows that from 2012–2016, the majority of young people aged 10-18 involved in crime were Australian-born. Likewise, a report by the Centre for Multicultural Youth used current police data to show that young people born overseas are less than half as likely to be alleged offenders compared with other young people.13
Comprehensive evidence on the possible factors that could lead to migrant youth disengaging from society and being involved in crime has not been given the appropriate consideration in the Chair’s report.
The subsequent punitive focus on cancellation of visas presents a missed opportunity for the Committee to make meaningful recommendations that would improve lives of migrant youth.
Groups such as Fairfield Local Area Command, Fairfield based service providers and Fairfield City Council all agree that social engagement of youth, early intervention and diversional programing are a more effective means of promoting integration and social cohesion than punitive measures such as visa cancellations.14

Recommendation 16

Labor Members dissent from Recommendation 16.
Provisions already exist that require all non-citizens, irrespective of age, who wish to enter and remain in Australia to satisfy a character test, or risk cancellation of their visa.15
Section 501 provisions relating to character-related visa refusals and cancellations apply equally to minors and adults. There are no legal impediments within the Act to refusing a visa to a minor or cancelling a visa held by a minor.
There may be other legal impediments that are relevant to the facts of a given case, or constraints on any possible decision imposed by policy or international law. Before a decision to cancel a visa is made under section 501, the decision-maker ‘will consider and weigh up adverse information, together with any mitigating information.’ Therefore, there is already sufficient scope to cancel visas of non-citizens.
The report’s recommendation for changes to the Character Test Provisions (section 501) of the Act is contrary to the evidence presented to the Committee. The inquiry received overwhelming evidence, as noted in the report, opposing any measures that would extend the character test provisions of the Act; especially to those under 18 years of age.
Evidence of groups such as the Law Council of Australia noted that there was no need to increase the ‘checks and balances currently contained in the Migration Act.’16
The City of Wagga Wagga believed that the ‘character test would have limited provisioning as a means to address issues arising through gang or anti-social behaviour.’17
The ACT Government did not support changes being made to the Act and stated that the ‘current migration processes, including the character test, adequately assess prospective migrants.’ They commented that access to early intervention programs would be more beneficial.
This was echoed by the Australian Migrant Resource Centre who stated that the current character test provisions were rigorous and robust18 and Mercy Community Services SEQ Ltd were of the view that the current character test provisions in the Act were adequate.19
The Southern Migrant and Refugee Centre were concerned about a ‘radical overhaul of settlement services and indeed our migration (and humanitarian) programs in a misconstrued response to a perceived ‘crime’ issue.’20
The Humanitarian Group were of the view that indefinite detention could be a consequence of cancelling a migrants visa and could put Australia in breach of international law:
It is also arbitrary and illegal under international human rights law.21
These organisations highlighted that cancelling a migrants visa could lead to other consequences:
Australia could potentially breach its non-refoulement obligations
people subject to visa refusal or cancellation under s 501 may be subject to arbitrary immigration detention, potentially for prolonged periods
Separation of families resulting from the deportation of individuals
Increasing alienation in the broader migrant community.22
Submitters commented on the disproportionate nature of cancelling a migrant’s visa and put forward the view that non-citizens face a double sentence: one from the criminal law and another through migration law.
Provisions already exist that require all non-citizens who wish to enter and remain in Australia to satisfy a character test, or risk cancellation of their visa.23 Before a decision to cancel a visa is made under section 501, the decision-maker ‘will consider and weigh up adverse information, together with any mitigating information.’ Therefore, there is already sufficient scope to cancel visas of non-citizens.
The Police Federation of Australia (PFA) provided anecdotal evidence that the judiciary were imposing lighter sentences in cases where non-citizens faced possible deportation under the character test if found guilty of an offence.
The PFA provided no additional evidence to corroborate this view.
The Humanitarian Group, in its submission, highlighted that sentencing laws in Western Australia and other States and territories prevent a judge from tailoring a sentence to avoid deportation.
The Labor members of the Committee are concerned that unsubstantiated evidence is being cited in the report to justify recommendations in the Chairs report.
Labor Members acknowledge the Chairs determination throughout the enquiry to target minors and his persistent questioning on perceived gangs.
Repeatedly the Chair sought options for deportations on character grounds and to lower the threshold for reasons a young person may fall foul of character provisions. With his one track mind, he has failed to take note of the particular issues associated with children, the need for their protection and has omitted Australia’s responsibility to support young people, to provide appropriate settlement services, but if required, use the existing provisions within the Act

Recommendation 17

Labor Members dissent from Recommendation 17.
The evidence received for this inquiry is insufficient to conclude or recommend that a crisis service for family or community members who are concerned about someone vulnerable to extremist views is required.
When asked about the proposal to establish a hotline for family members concerned about someone else who may be showing extremist views, the Islamic Council of Victoria were not supportive:
It is not about reporting them to the authorities. In fact, their whole aim is to deal with it as a community and provide the troubled person, in particularly youth, with the support they need to work through the issues. It could be issues to do with drugs, disenfranchisement, delinquency or whatever the case may be.24
The inquiry received some key evidence on the benefits of early intervention strategies designed at providing support for young people. It received no evidence to suggest that there was any need to recommend the establishment of a crisis service or hotline.
Further, migrants are not the only members of the Australian community who are at risk of holding extremist views. Any proposals for a hotline or online information portal should be viewed in the prism of a whole of issue approach to ensure resources are appropriately targeted for maximum effect.

Recommendation 18

The Labor members of the Committee have several concerns relating to this recommendation, regarding to the lack of any evidence received during the inquiry. Labor Members dissent from Recommendation 18.
The terms of reference for this inquiry focussed on migrant settlement outcomes. The reference does not include an examination of intervention control orders and for that reason, the Committee did not collect evidence to warrant any recommendations on intervention control orders.
The recommendation for an intervention order regime is based on one organisation’s response at a Committee hearing in direct response to a question from the Chair.25 At no point did submitters or witnesses provide evidence on the need for establishing an intervention control order regime or any similar measure.
The Committee received limited evidence that young people could be vulnerable to being attracted to gangs or radicalisation.26 The evidence focussed on the factors such as social isolation and marginalisation which could play a part in this rather than suggesting an intervention order regime.27
The evidence from the Attorney General’s Department on government initiatives which aim to divert individuals from radicalising to violent extremism28 noted that their programs were voluntary and based on building relationships in communities and had an early intervention focus.29
The inquiry received no evidence indicating that the voluntary nature of these programs presented a risk to the community or that there was sufficient community concern to justify such a recommendation.
The risks associated with violent extremism are not limited to migrant communities and any strategies to protect the security of Australians should be viewed in the prism of a whole of issue approach to ensure resources are appropriately targeted for maximum effect.
The inquiry of intervention order regime for individuals is currently within the terms of reference of the Parliamentary Joint Committee on Intelligence and Security Inquiry to review police stop, search and seizure powers, the control order regime and the preventative detention order regime that are at risk of violent extremism. It is Labor Members’ view any credible recommendations should be made by that inquiry following a proper examination of the evidence.
Ms Maria Vamvakinou MPThe Hon Shayne Neumann MP
Deputy ChairMember
Mr Steve Georganas MP
Member

  • 1
    The Australian, ‘Migrants need lessons in law’, 4 December 2017; Herald Sun, ‘Police failing to ‘divert’ terror’, 30 November 2017; Sunday Herald Sun, ‘Time for real answers’, 19 November 2017; Sunday Herald Sun, ‘Sudanese crime surges. Young criminals may face deportation’, 19 November 2017; Herald Sun, ‘The vexed question of terror and safety’, 5 December 2017; Sunday Herald Sun, ‘A matter of course ... or lose your visa’, 1 December 2017; Herald Sun, ‘Tough call on terror’, 21 September 2017; Herald Sun, ‘Police claim Apex victory’, 13 April 2017.
  • 2
    ACT Government, Australian Migrant Resource Centre; Australian Council of TESOL Associations; the Centre for Multicultural Youth; Mercy Community Services SEQ Ltd; Federation of Ethnic Communities Councils of Australia; Youthlaw and Smart Justice for Young People; Law Council of Australia; Welcome to Australia; City of Wagga Wagga; African Australian Community Leadership Forum; Legal Aid NSW; Fairfield City Council; Harris Wake Pty Ltd; Southern Migrant and Refugee Centre; Australian Human Rights Commission; Dr Elyse Methven and Dr Anthea Vogl of the University of Technology Sydney; The Humanitarian Group; South Sudanese Community Association in Victoria; Victorian Commission for Children and Young People; Flemington and Kensington Community Legal Centre.
  • 3
    Federation of Ethnic Communities Councils of Australia, Submission 100, p. 14.
  • 4
    Victorian Commission for Children and Young People, Submission 106, pp. 4-5.
  • 5
    Australian Council of TESOL Associations, Submission 108, p. 159.
  • 6
    Centre for Multicultural Youth, Transcript, 21 February 2017, p. 31.
  • 7
    Youthlaw, Submission 81, p. 11.
  • 8
    Australian Human Rights Commission, Supplementary Submission 38.1, p. 2.
  • 9
    Police Federation of Australia, Submission 115, p. 2.
  • 10
    Youthlaw and Smart Justice for Young People, Submission 81, pp. 3-4.
  • 11
    Ms Fiona Dowsley, Chief Statistician, Crime Statistics Agency. Transcript, 12 April 2017, p. 11.
  • 12
    Ms Fiona Dowsley, Chief Statistician, Crime Statistics Agency. Transcript, 12 April 2017, p. 11.
  • 13
    Refugee Council of Australia, Submission 6, p. 6.
  • 14
    Fairfield City Council, Submission 89, p. 14.
  • 15
    Department of Immigration and Border Protection, Submission 73, p. 17.
  • 16
    Law Council of Australia, Submission 82, p. 5.
  • 17
    City of Wagga Wagga, Submission 6, p. 7.
  • 18
    Australian Migrant Resource Centre, Submission 10, p. 5.
  • 19
    Mercy Community Services SEQ Ltd, Submission 1, p. 7.
  • 20
    Southern Migrant and Refugee Centre, Submission 12, p. 3.
  • 21
    Humanitarian Group, Submission 20, p. 7.
  • 22
    Australian Human Rights Commission, Supplementary Submission 38.1, p. 2; Harris Wake Pty Ltd, Submission 23, p. 2; Dr Elyse Methven and Dr Anthea Vogl, Lecturers in Law, University of Technology Sydney, Submission 109, p. 4; The Humanitarian Group, Submission 20, p. 7; South Sudanese Community Association in Victoria Inc., Transcript, 22 February 2017, p. 43;
  • 23
    Department of Immigration and Border Protection, Submission 73, p. 17.
  • 24
    Mr Adel Salman, Vice President, Islamic Council of Victoria, Transcript, 13 September 2017, p. 4.
  • 25
    Police Federation of Australia, Transcript, 18 October 2017, p. 6.
  • 26
    Mr Jafri Katagar, Private capacity, Transcript, 21 February 2017, p. 12.
  • 27
    Youthlaw and Smart Justice for Young People, Submission 81, p. 5.
  • 28
    Attorney General’s Department website, ‘CVE intervention programmes’, viewed on 6 December 2017, <https://www.ag.gov.au>.
  • 29
    Mr Pablo Carpay, First Assistant Secretary, Countering Violent Extremism Centre, Attorney-General’s Department, Transcript, 6 September 2017, p. 1.

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