Border Force Keystone Cops no laughing matter


Keystone CopsLast week's Australian Border Force show of force in Melbourne quickly ended in farce. What is most significant is that it reflects a particular attitude that has become apparent in Immigration in the two years since the Coalition came to power.

Firstly there is a major change in language. People without a visa are technically called 'unlawful' in the Act, to distinguish them from those with a visa, who are called 'lawful'. There is no criminality involved in being unlawful. At worst you can be detained and, if you have no ongoing case, you face removal (not deportation).

This terminology was changed under former Minister Morrison, who insisted — even in opposition — on referring to those without a visa as 'illegal'. This is not just a linguistic debate, but it illustrates an attitude of aggression.

The pejorative 'illegal' identified the unacceptable 'other' — the bad refugees - who became the target for all the worst treatment. Those who came on a boat had the more cumbersome term of 'unauthorised maritime arrivals', known by the three letter acronym UMA. Former Minister Morrison changed it to IMA — replacing unauthorised with illegal. It has not been changed in s5AA — it still says 'unauthorised'. However all Departmental publications refer to IMAs.

This successful labelling of the bad other justifies punishing treatment such as offering Temporary Protection Visas (TPV) only, as well as no family reunion and no clear future in Australia. It enables the Government to refer to anything that happens which is harsh and cruel as an 'on water matter' or an 'operational matter', before seeking to close down discussion.

Not only that, but there are other changes to the law which make cancellations and refusals easier, and attempt to reduce opportunities to seek review. A change in November 2014 created a mandatory cancellation for anyone in prison who fails the character test. Previously this was discretionary, and if a case officer made the decision, it was reviewable in the independent Administrative Appeals Tribunal (AAT). No longer, mandatory cancellation with a revocation is possible if the Minister believes it is in the Public Interest.

The power was used for a 69 year old Vietnam vet, who was in Villawood after his mandatory cancellation for various offences. However many others are now awaiting removal because of this unnecessarily harsh power. There is no legal aid available to represent them, even if they have Australian spouses or children, and most are unlikely to be as lucky as this man in the result.

This is the same legal process used for cancellation of Australian citizenship for dual nationals. The cancellation is automatic on certain events, and there is no review. But you can seek revocation of the cancellation. For most, there will be no judicial determination that the citizenship should be cancelled, it just happens.

Another power grants the Minister the trumping power over merits review in the AAT. Under former Minister Ruddock in 1999, the Minister was given power by the AAT to overturn any character decision he did not like in s501A. This was despite the AAT having fully reviewed the decision. This power was extended in November 2014 to the main cancellation provisions of the Migration Act, not related to the character test.

Let's assume someone's visa is cancelled because of work on a no work provision, or a student working more than the 40 hours a fortnight. They win the review on discretionary factors after careful consideration by the AAT. Now the Minister can trump that decision and put them back into detention. There is no review of the trumping power.

Then there was the introduction of the mandatory Code of Behaviour for those asylum seekers who arrived on a boat. This included a provision that merely being charged with an offence meant they had breached the condition of their visa and so could be cancelled and returned to detention, even though no court had determined their guilt. If they lose the review, they cannot get out of detention until granted a TPV, even if a court dismisses the charge. Common examples are minor traffic matters, which will not lead to prison time if found guilty, but to fines. But fining boat people is not enough, they need further punishment.

A more insidious development is the increased use of cancellations for minor matters. This is being noticed at the citizenship application stage. Already there are inordinate delays in processing citizenship applications for those who arrived by boat and were granted a permanent visa under Labor.

Minor infringements are used to refuse citizenship on a different character test for citizenship. They can appeal, through the AAT, a technical process, or wait. Others are having their visas cancelled or threatened with cancellation on matters which previously would not have given rise to cancellation.

Without citizenship, the refugees cannot get their spouse and dependent children to Australia because on 19 December 2013, former Minister Morrison issued a direction that those who arrived by boat have the lowest priority in processing (Direction 62) and therefore can never improve their processing level without citizenship. Now even that step is being kept away from them with many delays in processing of Citizenship applications and increased use of cancellation powers, or rejection on minor grounds. Yet a further punishment for these bad refugees.

There were many changes to refugee law in December 2014, which only passed the Senate because former Minister Morrison claimed it was needed before he could release children from detention. None of these changes were positive, some were neutral in effect (codifying the common law for example), but a number were introduced to make refusals easier, and in some cases mandatory. A new system for processing was set up called 'fast track' — which has limited review and seems to encourage finding refusals.

So while we can shake our heads or laugh at last week's farce in Melbourne, we should be more concerned about the many ways this government is punishing refugees in the law, using language to demonise people and then justify setting up systems to encourage refusals, and targeting the 'other' in a puritanical and heartless way. Militarisation and politicisation of Immigration and Customs was not needed, nor the black uniforms and guns. The comical farce in Melbourne distracts our attention from the serious harm being done in our name.

Kerry Murphy profile photoKerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers and member of the boards of the IARC and JRS.

Topic tags: Kerry Murphy, ABF, Scott Morrison, asylum seekers, immigration, refugees



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Existing comments

I believe the recent comical situation in Melbourne was a farce because the so-called "badly worded" press release was actually not badly worded - it just had "too many" words. Maybe a new recruit in the Patrol's media unit hadn't been indoctrinated into the "no comment on operational matters" modus operandi. Maybe the emblem of the Border Force should be the Three Wise Monkeys.
AURELIUS | 03 September 2015

Really disturbing stuff, Kerry and much of what you write known only to those who handle the intricacies of the law. Meanwhile those who come to Oz by plane are treated in a totally different way, I understand and outnumber those arriving by boat. But the most worrying thing for me is that having read many similar articles over some years now, I and people like me, do not know what we can do about it. We need to be considering what action we can take with advice from those who understand the system and what powers we have as non-complicit citizens.
Michael D. Breen | 03 September 2015

The PM of Turkey has just said that they will never close their borders to refugees, although they have 1.8million at present. Such a contrast with our heartless neo-con Tea Party Dear Leader.
Bilal | 04 September 2015

Thankyou Kerry for reminding us of the diminution in rights suffered by these folk based on mode of arrival. Increasingly people who are re-detained on some minor transgression or mistake by department are being sent to Christmas Island- a legal black hole with no lawyers able to assist. Many CLC / pro bono/ community refugee legal services are confined to acting in own state. No one helping Christmas Island Clients- they are stuck in a million dollar purpose built facility with poor to no communications- phone - computers. Numbers are building as midnight raids on sleeping men are carried out in Aust Camps. Border Force togged up in riot gear with dogs is latest modus operandi dragging men out of beds applying tight cable ties to arms and max force used for last Friday's raid& transfer out of Melbourne camp to special charter- melb- Perth -CXIs- 8 hours in handcuffs. Now in legal black hole- partners and children left behind. Few lucky ones have a lawyer most not.
Pamela | 04 September 2015

I worry that the ABF has been created to "discover" major terrorist plots/threats on which the next election will be based. Tony is in desperate need of a Tampa. I note the language strategy is also used now in Europe where refugees are called migrants so they can be "processed" differently.
Geoff | 04 September 2015

Wonderful Kerry. I sent a copy this morning to Dutton. Every Australian should read this article.
peter strain | 04 September 2015

Morrison's and Dutton's Black Shirts do not make any of us more secure or more honourable.
Richard Hallett | 04 September 2015

For years I used to wonder how the ordinary decent German citizen could stomach what was happening to the Jews and Gypsies during the Hitler regime. Now I realise just how powerless they were to effect any change in the regime's legislation and obscene cruelty.
Ian Fraser | 04 September 2015

The Border Force in black reminds me of Hitler's Gestapo . The idiotic tactics in Melbourne are reflective of 'Kristallnacht' in Germany . I am wondering that like the ordinary Germans who must have wondered what the 'black shirts' were up to and what they could do to protest, what can we do to stop this militarization of the Immigration and Customs. I worry that we, like the ordinary German citizen, will leave it too late to stop this insidious attack on our freedom!
Gavin | 04 September 2015

Why has every PM since John Howard - but especially Tony Abbott (and Scott Morrison) - wanted to build their popularity on cruelty to refugees. In the spirit of Angela Merkel - they are not boat people - they are people. All borders must open to all people - there are no borders in Christ - "There is no distinction between Jew and Gentile - the same Lord is the Lord of all" Rom 10:12. And Kerry's article touches on one of the saddest elements of refugee treatment by Australia - the extraordinary lengths that the Government has gone to dehumanise refugees in the eyes of the general popluation and not to let media show the humanity of each person. (P.S. As a christian I cannot vote for the social policies of the ALP or Greens, and I cannot vote for the refugee policies of the LNP.)
David | 04 September 2015

The hypocrisy of our thinking of sending planes in to bomb IS forces in Syria - and closing our doors to innocent people escaping the mayhem!
Jo Mercer | 04 September 2015

Howard was so quick to promote the culture of fear in this country following the Bin Laden initiated attacks on the US. He used that as a wedge to stay in power. His successors of whatever political colour have continued to play the fear and paranoia card to maintain a supine, compliant and cowered electorate. Our armed forces have been cynically politicised and now, the Customs and Immigration services have been militarised. Australians need to snap out of the social and cultural coma we/they have been in for the past 30 years or so and use the ballot to put an end to all this.
David Timbs | 04 September 2015

Thanks Kerry, So right on 'demonising'., and so much else. We are being deprived of our right/duty to care for those who need it most. See article, too, about dead young boy on Turkish beach in SMH this morning. I wish for another thirty years, to devote to 'radicalising' - good meaning - our ways to welcome those who most need our help. God forgive us, and open our hearts and minds, and shared/concerted will to act on this. Lynne G
Lynne green | 04 September 2015

I feel sick, sick, sick. And, as others have said, where do we turn to get things changed? I feel powerless, powerless, powerless.
Deborah | 04 September 2015

That's a great summary Kerry. I am tired of these things being done in my name! By pedants!! To whom I have to pay tax too!!! That hurts!
Nola | 04 September 2015

A south African woman phoned in to Jon Faine on 774 last Friday (check out the podcast) and noted that two things specifically made her nervous about the culture being forged in Australia (it reminded her of apartheid in South Africa) - one is the keeping of 'secrets' from the public; the other is the militarisation of public office. She also noted that an unemployed (and anti-union) society breeds a criminal society (people need to feed and clothe their families) ... all in all a train wreck to nowhere. God help us all.
mary tehan | 06 September 2015

The latest foray into ineptness by an ideologically misguided Abbott government may seem farcical to some. Those among us who believe that militarised immigration officials, armed with government approved powers should remind themselves of the dark days of Europe in the 20s. Given Abbott's radical behaviour, it's not too fancy to expect that we may soon expect jack-booted and armed para-military immigration personal, patrolling our streets and randomly arresting individuals who do not fit certain ethnic profile.
Alex joo | 06 September 2015

By using fear tactics, the government hopes to distract us from their underhanded and inhumane practices. As I have said before, these are not numbers but people, not statistics but families. We turn them away to conveniently drown elsewhere, we lock them up without compassion, we tie them up in both literal and figurative red tape. We take away their hope and their voice. As Everyman, we must be a voice, THEIR voice, one of reason, and we must never stop until we, and they, are heard.
Catherine Ross | 07 September 2015


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