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Detention and Deportation: A Continuing Scandal

GLENN NICHOLLS argues for fundamental reforms in the treatment of detainees and deportation legislation.

Published: 2 Dec 2007

The Cornelia Rau and Vivian Alvarez scandals in 2005 brought intense pressure on the Immigration Department to be more careful in carrying out deportations and incarcerating potential deportees. The department is spending $550 million over five years on upgrading its computer systems and has promised a ‘change of culture’. But recent events show that far more fundamental reforms are needed. The department continues to use its formidable deportation powers to offload vulnerable individuals with little regard to their health and welfare; to expel long-term permanent residents deemed to be of bad character; and to undermine the court system. On 12 November 2007 the ABC Lateline program broke the tragic story of Tony Tran, who was illegally detained for over five years, while the Immigration Department attempted to deport his infant son without his knowledge. Later that same week the department was forced to re-examine the cases of over 400 people being held in immigration detention and to release fourteen people who had been detained improperly in the first place.

Mandatory Detention and Deportation

Australia today has one of the highest deportation rates relative to population in the Western world. Over 10,000 people are forced to leave the country each year. Most of them are overstayers who have remained in the country after the expiry of their visas. However, the enforcement system is so indiscriminate and inflexible that it catches others up. The seed of this problem was planted in 1989 when the Labor government introduced a law for the ‘mandatory deportation of illegal entrants’, a draconian measure to tackle the increasing number of visa overstayers in the country (called ‘illegal entrants’ after their visas expired). In 1992 mandatory deportation was superseded by a new section of the Migration Act for the mandatory ‘removal of unlawful non-citizens’. This new measure was accompanied by the much more controversial — and visible — policy of mandatory detention of asylum seekers arriving without a visa. Under this mandatory regime, any person in Australia without a valid visa must be detained and, if not granted a visa, deported. Immigration officials must take action against anyone they reasonably suspect of not having a valid visa. This had tragic consequences for Cornelia Rau and Vivian Alvarez, two women who were in poor health and in no position to prove their residence status. The official investigators in these cases, Mick Palmer and Neil

Comrie, were critical of the way that the detention and deportation system ticked over in a series of mandatory actions. Officials had become beholden to an ‘assumption culture’ whereby the department did not review the validity of its actions but simply assumed that it was justified in taking enforcement action. Comrie found that no actual decision had ever been made to deport Alvarez; it had happened because officers believed that the Act required it. The system worked as a ‘dehumanised mechanical process’.

The solution to this problem is not further mechanisation through a $550 million computer upgrade. Nor will a change of culture do much good given that the department’s culture of acting on suspicions and assumptions is merely a reflection of the law requiring it to act against suspected unlawful non-citizens. For over a decade immigration ministers and officials have repulsed any questions or criticisms of deportation actions by invoking the ‘requirements of the law’, a stance summed up in 2004 by a letter from a departmental spokesperson to a critical US newspaper: ‘The department does not apologise for locating, detaining and removing people who live or work in Australia unlawfully. Australian law requires that we do this’. The department’s rhetoric may now be less bullish under its new culture, but the law has not changed and the department’s action against suspected unlawful noncitizens has not diminished. Despite the revelation of their tragic story, Tony Tran and his son still have the prospect of deportation hanging over their heads. They are now living in the community on temporary visas. Minister Kevin Andrews did not comment on their case when it came to light on 12 November 2007, but he was moved to anger a few days later when a court finding led to the release of fourteen detainees and a review of all individuals in detention. Andrews vowed to toughen immigration law even further to prevent future court intervention.

The real solution to the mechanical deportation regime is more human intervention in the system. Suspected unlawful non-citizens should not be detained or deported without being brought in front of a magistrate or independent authority to check their identity and the grounds on which they are being detained or deported. This is vital in the case of deportations where the Immigration Department unilaterally makes the arrangements to remove the person (and passes the costs onto the person) — approximately one half of all enforced removals, or 5,000 cases per annum.

The independent authority should conduct a series of checks prior to deportation taking place. The checks should include the person’s health status and how it is likely to fare in the destination country (not just a certificate of fitness to travel); how family members will be affected; and what arrangements are in place for the person to be looked after on arrival. A report, Removing Seriously Ill Asylum Seekers From Australia, published in July 2007 by La Trobe University, highlights this point:

removals are the realm of officers who are fulfilling a process of law: Unlike a number of other nations, there is no formal decision to remove someone. This means there is no pre-removal assessment of the whole of an individual’s situation, including medical issues or issues regarding children and family ties, that may bring to light significant reasons to delay or reconsider removal. A pre-removal assessment, or ‘fitness to return assessment’, would strengthen the integrity of removals, and offer the removee an opportunity to have the whole of their situation recognised.

Not only do many other countries undertake the type of independent check I advocate, it was previously a part of the Australian system. It was introduced in 1958 by Alexander Downer senior in his finest moment as immigration minister. Downer remembered the plight of refugees in the Second World War and his own experience as a prisoner of war. He introduced legislative requirements that people facing detention and deportation should receive legal assistance and a court hearing and on 6 January 1959 Downer issued instructions to his department that: ‘The deportation powers are formidable and capable of abuse. Therefore, it is the duty of the Department to inform the Minister as fully as it is reasonably possible about the facts, and related circumstances, of each case’.

Under the policies of mandatory deportation, court oversight over deportations has been dispensed with and immigration ministers fail to exercise the type of careful supervision recommended by Downer. Recently, refugee advocates implored Kevin Andrews to delay and review the deportation of a Sri Lankan man, ‘RW’ (name confidential). The government had refused RW’s application for refugee status but advocates asserted that RW had injuries consistent with his claims of having been tortured and that he was he was in deep distress after two years in Maribyrnong detention centre. However the advocates’ call was not even referred to the minister. His spokesman told AAP that it did not meet ‘referral guidelines’. RW was deported under sedation on Tuesday 16 October.

Visa Cancellation

Australia’s system of mandatory deportation became even tougher in 1998 when Phillip Ruddock got amendments to the Migration Act through parliament called the ‘Strengthening of Provisions relating to Character and Conduct’. These amendments gave the Immigration Minister and Department greater powers to deport people by cancelling their visas on grounds of criminal record, criminal association or being a threat to national security — known together as the character test. Since these amendments were promulgated in 1999, immigration ministers and officials have used their new powers aggressively as part of the Coalition government’s determination to be tough on border control, crime and terrorism. They have used the character test to cancel hundreds of visas, turning the individuals concerned into unlawful non-citizens who must be detained and deported. Two categories of people have been hit particularly hard.

The first are long-term Australian permanent residents who have not taken out citizenship and who are sentenced to one year’s imprisonment or more. Before 1999 individuals could not be deported on grounds of criminal offending after more than ten years residence in Australia. But the 1999 changes effectively dispensed with the ten year limit, although Ruddock’s Second Reading Speech did not disclose this and the Labor Opposition supported the changes on the basis that, as its spokesperson Con Sciacca told parliament on 2 December 1998, ‘all this is doing is giving some more power to the Minister in terms of making sure that we do not bring people into this country who are undesirable and may have been convicted of offences’.

In fact the visa cancellation powers have been used against people who came to Australia as child migrants and grew up in the country. For example, Stefan Nystrom came to Australia as a twenty-seven day-old baby, grew up in the country and did not leave until he was deported to Sweden, his place of birth, on 29 December 2006, the day before his thirty-third birthday. Nystrom had been convicted of serious crimes and the immigration minister at the time, Amanda Vanstone, decided that he should be deported after completing his prison term because he was not of good character. Nystrom spoke no Swedish and felt no connection to that country. After arriving there he told The Age journalist Julie Medew that ‘I am an Aussie. I don’t give a stuff about Sweden. I never have and I never will’.

Nystrom’s was not an isolated case. In the previous three years, 2002–05, the Australian government deported 233 permanent residents from Australia on the grounds that they had been sentenced and had served prison terms of one year or more. Many had lived for decades in Australia. Some had mental illnesses and addiction problems, others were reformed addicts cast into stressful situations and danger of relapse by deportation. A question by Senator Andrew Bartlett to a parliamentary enquiry revealed that these people were sent to forty destination countries, including strife-torn and developing countries with rudimentary mental health and drug rehabilitation services such as Turkey, Lebanon, Vietnam, Romania and Iran.

Deporting people who are long-term residents is, in my view, an abnegation of Australia’s responsibilities. The deportees may have criminal convictions and ‘character’ flaws but they are Australia’s responsibility and should not be expelled even if they have not taken out citizenship. The ten year limit must be reactivated.

Circumventing the Courts

The other people hit hard by the 1999 changes are visa holders who become the subject of suspicions in regard to terrorism or national security. Scott Parkin, a US citizen, had his visitor’s visa cancelled on the eve of the fourth anniversary of the attack on the World Trade Centre on the basis of an adverse security assessment by the Australian Security Intelligence Organisation (ASIO). Parkin was imprisoned on 10 September 2005 and deported the next day. He appealed to the Australian courts but this did not stop his deportation. And he got an $11,000 bill from the Australian government for the cost of his detention and deportation. Parkin has not been charged with any offence, either in Australia or the United States. He still does not know the basis of ASIO’s assessment. It has taken him over two years to get the Federal Court of Australia to order ASIO to disclose information to his lawyers about its adverse assessment (and the Court made similar rulings in respect of ASIO assessments against two refugees denied visas on character grounds, Mohammed Faisal and Mohammed Sagar). The Court made its ruling on 2 November 2007. It reasoned that Parkin’s lawyers should have access to ASIO’s information in the interests of a fair hearing, but ASIO has indicated that it will appeal rather than comply with the Court’s order.

Meanwhile, two other deportation cases show similar undermining of the courts. On Friday 12 October 2007 the Immigration Department deported Timothy Borstrok to New Zealand. His visa had been cancelled on character grounds in 2002 by Philip Ruddock and Borstrok subsequently left Australia. But he returned in November 2005 and cleared immigration controls using a fraudulent passport. He asserts that his visa should never have been cancelled in the first place because the charges associated with the cancellation decision had in fact been dropped by the Director of Public Prosecutions. The Federal Magistrates Court dismissed his application to have the cancellation reviewed and Borstrok appealed to the Federal Court, but he was deported before this appeal was heard. Justice Margaret Stone was fiercely and rightly critical of this action. She stated that in deporting Borstrok the Immigration Department had negligently or deliberately — and she inclined to think it was deliberate — prevented him putting his case in her court. Whether or not Ruddock’s cancellation decision in 2002 was lawful will thus never be known. The department defended its action stating that Borstrok had failed to take out an injunction against being removed from the country; it was not surprising that Borstrok failed to do this since he had no legal adviser and represented himself in court. Despite her criticism of the Immigration Department, Justice Stone indicated that she would have to find in the department’s favour and dismiss Borstrok’s appeal since he was no longer available to appear. The matter was ‘all the more disgraceful,’ Stone stated, ‘because this court can do nothing about it’.

Finally, the case of Dr Mohammed Haneef has turned into a display of strength by the government at the expense of the principles of procedural fairness. On 16 July 2007 Kevin Andrews cancelled Haneef’s visa to work as an overseas doctor in Australia on the basis that he had an association with distant relatives involved in terrorist attacks on Glasgow airport and thwarted attacks on London. This was in flagrant disregard of the decision by Magistrate Jacqui Payne to grant Haneef bail after twelve days in custody. Andrews’ decision condemned Haneef to immigration detention and branded him ‘not of good character’. Under the changes made in 1999, Andrews neither gave Haneef a hearing on the cancellation decision nor any opportunity to refute the information against him. Indeed, this information was secret until Andrews released it selectively in a press conference.

On 27 July all the charges against Haneef were dropped because the information they were based on was wrong. However, Andrews refused to reinstate Haneef’s visa and Haneef has been forced to resort to the courts to try and wrest his visa back. The then Labor Opposition, which initially supported Andrews’ action, changed tack and called for a judicial inquiry in Andrews’ handling of the case.

However, what is really needed is a review of the expansion of the Immigration Minister’s and Department’s deportation powers since 1989, particularly under the character and conduct provisions promulgated in 1999. The Migration Act should not be used to circumvent the court system and the fraught atmosphere created by international terrorism is no excuse. At other times immigration ministers have taken more principled stances. For example in 1953 Harold Holt was Immigration Minister in a cabinet under Robert Menzies well known for its hatred of communism. Despite this hatred and the Cold War, Holt took a deliberate step away from using the Migration Act against communist migrants in Australia. If they were to face deportation, he said, it should be under the Crimes Act, a much higher threshold because it required a criminal conviction in court, not just a stroke of a pen by an immigration minister or official. As a result, deportation proceedings were dropped against the Greek Cypriot immigrant Demetrius Anastassiou who had been arrested in 1952, a year after attending the World Youth Festival in East Berlin, and whose case has been researched by Philip Deery from recently declassified files. Holt maintained his stance on Anastassiou’s case in the face of fury from the director-general of ASIO. After Holt’s move, no deportations took place under the Crimes Act and the deportation provisions in that Act were abolished in 1973 by the Whitlam government.

The Howard government turned back the clock and increased the powers of the Immigration Minister and Department to circumvent the court system. Ministers and officials are using these powers at the expense of the rights of vulnerable individuals. It is time to repeal these powers.

Glenn Nicholls works at the Institute for Social Research, Swinburne Institute of Technology, and is the author of Deported: A History of Forced Departures from Australia, UNSW Press, 2007.