Playing God with the Tamil family's fate



Last week the Federal Court granted an interim injunction to a child born in Australia preventing her removal from Australia pending a consideration of any case she may have to remain. The child is the youngest daughter of a Tamil family who until recently were living in the Queensland country town of Biloela. The case will be fully considered later but it raises complex issues regarding the statutory bars preventing asylum seekers from even making any application at all, and the exercise of the ministerial discretion to lift that bar.

The Tamil family are removed from a secure apartment section at the Mercure Hotel in Darwin on 30 August 30 2019 in Darwin. (Photo by Darrian Traynor/Getty Images)Under the Migration Portfolio legislation, there are around 47 provisions that allow the minister to exercise their discretion in the public or national interest. The minister can grant any visa the minister wants to grant, or none at all. Most of these powers are in the Migration Act and generally provide an unfettered, non-compellable and non reviewable power exercisable only by the minister. They are colloquially known as the 'God powers'. Liberty Victoria published an analysis of these powers in 2017 in a report called 'Playing God'.

Back in 2008, then Immigration Minister Chris Evans stated: 'In a general sense I have formed the view that I have too much power ... I am uncomfortable with that not just because of a concern about playing God but also because of the lack of transparency and accountability for those ministerial decisions, the lack in some cases of any appeal rights against those decisions and the fact that what I thought was to be a power that was to be used in rare cases has become very much the norm.'

While some of these powers are obscure and probably rarely used, what has become more common is a process whereby a statutory bar is created to prevent any application for a visa being lodged unless the minister literally personally intervenes to lift the statutory bar. The group most affected by such statutory bars are those who arrived by boat to Australia.

People who arrive by boat without a visa are called 'unauthorised maritime arrivals' (UMA) under the Migration Act, not 'illegals'. The term 'illegal' has no use in migration and refugee law in Australia, except in the political arena. Once someone is a UMA, they must be detained. The designation UMA creates a statutory bar (s46A), that can only be lifted by the minister personally (s46A(2)), and is commonly used to allow asylum seekers to apply for a protection visa, albeit only a temporary protection visa. Another ministerial power is available to give someone a bridging visa to release them out of detention (s195A).

Children born to a parent who is a UMA are deemed to be an unauthorised maritime arrival — even though they were born in Australia. That fiction ensures they face the same statutory bars as their parent. There is no 'anchor' to Australia for such children, or only a paper one.

The UMA group have a special process in Australian refugee law called the Fast Track process. It is designed to make refusal decisions more 'judge proof', to survive a legal challenge. This was done with the creation of the Immigration Appeals Authority (IAA) which has limited review powers and rarely would have a hearing or even an interview with an applicant. A decision is made just on the 'papers' or the file from Immigration. The best visa they will get is a temporary protection visa of three or five years known as the TPV or SHEV respectively.


"While the Tamil family would benefit from the grant of a TPV or SHEV, it is only a reprieve until they can meet other visa criteria or the law changes yet again."


Once that process is over, there are appeals to the Federal Circuit Court then the Federal Court, but the powers of the courts are limited. All the courts can decide is whether the law has been correctly applied in a decision by the IAA. The court does not decide if someone is or is not a refugee — that decision is only for the Executive. Once a person has exhausted judicial review options, all they have left is ministerial intervention.

Those on Manus Island or Nauru are caught by separate statutory bars, which apply if they are brought to Australia for medical treatment, such as those under the Medivac law the government wants to abolish.

A different process applies for those who arrive by plane or with a visa. While they might be affected by statutory bars in applying for protection if they are dual nationals, otherwise they can apply for protection without the need for ministerial intervention. Review lies to the Administrative Appeals Tribunal (AAT) which must invite an application to a hearing if they are unable to make a favourable decision on the papers. A positive decision normally leads to a permanent protection visa. An adverse AAT decision gives rise to yet another ministerial power to intervene under s417.

Over the years I have seen a number cases where the minister intervened to grant a visa after an adverse review decision. Some were granted partner visas, some permanent residence, some visitor visas or medical treatment visas. Usually the cases involved complex scenarios that did not fit easily into the migration options, yet raised some humanitarian or compelling ground. Often it involves contact with local federal MPs to get the minister's ear.

Given this background, we can see where the case of the Tamil family falls. They are part of the UMA group who the government has said will never get permanent residence. The minister has power to intervene and grant any visa he likes, including a TPV or a SHEV. He can do so without making a determination that they are refugees. People on the TPV or SHEV are not counted as part of Australia's refugee and humanitarian resettlement program, only the permanent visas are limited in the yearly intake. They cannot be accused of the furphy of 'taking the place of someone from overseas'.

The family could then return to live in Biloela among a supportive community. The minister has granted temporary visas to a small number of UMA cases who were unsuccessful in the IAA or Fast Track process.

Ironically the SHEV can be used as a stepping stone towards permanent residence if the SHEV holder spends 42 months in designated rural areas. Then the statutory bar of s46A can be lifted by the minister to allow applications for a small group of 31 visas, some of which are permanent. However this path is difficult because while the refugee avenues to permanent residency are closed, you need to satisfy skilled or employer sponsored streams, which require qualifications, skills and English language assessments.

So while the Tamil family would benefit from the grant of a TPV or SHEV, it is only a reprieve until they can meet other visa criteria or the law changes yet again. Any law change is unlikely to be a positive for an applicant under this government without divine intervention of a different sort.



Kerry MurphyKerry Murphy is an immigration and refugee lawyer and part-time lecturer on immigration and refugee law at ACU.

Main image: The Tamil family are removed from a secure apartment section at the Mercure Hotel in Darwin on 30 August 30 2019 in Darwin. (Photo by Darrian Traynor/Getty Images)

Topic tags: Kerry Murphy, Manus Island, Nauru, asylum seekers, Tamil family



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Existing comments

This notion of a bar is only ever applied in Australia and is in breach of every humanitarian law in the world, most importantly Article 14 of the universal declaration of human rights which simply states ''every has the right to seek and enjoy asylum from persecution in other countries. How have we got to this lazy point of barring people simply because they come by sea when the conventions were written when everyone came by sea? Don't our media and pollies see how ludicrous their whining is.
Marilyn | 23 September 2019

This Tamil family, with the - for Australians - unpronounceably long names seems to be metaphorically betwixt Scylla and Charybdis. Will they and their supporters be able to navigate through? Australian Migration Law is a veritable minefield. I guess, regarding those claiming refugee status, it attempts to keep the bad guys out. The practical bias appears to be in that direction. I can understand this. This makes it very hard for those who haven't followed proper procedures from the start. The government seems to be strongly pressing for this particular family to return home, then reapply with the strong possibility (nudge, nudge, wink, wink) of being successful. That's how I'm reading it at the moment.
Edward Fido | 24 September 2019

Edward seems to be confused. The correct procedure for seeking asylum is to arrive at the frontier of a signatory nation and ask.
Marilyn | 24 September 2019

This primer for non lawyers is the very definition of an unjust, immoral law.The overreaching arrogance that would declare an Australian born child to be non Australian, as if childbirth was an event open to redefinition, shows the fatuous thinking of its political originators of both sides. Those of the wider public blandly accepting this sort of contrived justification for prejudice may come to regret their passive cooption. Chris Evans said it all. Humility is hardly the hallmark of this Minister or PM. They are open to neither reason nor virtue nor world opinion.
jpb | 25 September 2019

A true minotaur in its labyrinth is our government, and sadly it seems we have no Theseus to rescue us. Will the government and people of Australia ever wake up and realise that we damage our innermost souls when we treat people like animals Some of our soldiers returning from Afghanistan appear to be suffering the same fate. It is not only those who kill who must confront their demons.
Henri | 25 September 2019

Minister's discretion is best exercised quietly. I know nothing of these Tamils apart from having read that the administrative and court system has declared on multiple occasions that they are not refugees/asylum seekers. They are from a non contentious area and the husband has been back on visits. I also understand there are approx. 6,000 others in the same position. Once these cases become cause celebres they inevitably end badly. Ministers are backed into corners and have little option other than to be tough if the overall policy is to maintain integrity. I'm not sure how you don't make a fuss after 6 knockbacks and they're sending you home but I do know it's almost a certainty the minister won't help.
Stephen Lusher | 27 September 2019

Stephen Lusher, the UN Special Rapporteur on Torture has confirmed that Sri Lanka is indeed still a very dangerous place for Tamil people. His report can be found here: The International Truth and Justice project also put together a very extensive report which provides evidence of ongoing torture in Sri Lanka: Nades has not travelled back to Sri Lanka since arriving in Australia to seek asylum. What he did do, was try to leave Sri Lanka a number of times by taking work visas in Kuwait and Qatar . It is not usual for Tamils to do this. A work visa in another country means that they can escape persecution temporarily. They hope that this will provide a pathway for permanent residency. However, these countries do not provide protection visas, and so people are returned to Sri Lanka when their work visas, or their jobs, end. The former government lawyer who made this information public didn't elaborate on what happened to Nades on each return.
Linda Cusworth | 29 September 2019

A Linda Cusworth, presumably the same person as one of the respondents above, wrote a very good open letter to then immigration minister Scott Morrison in 2014, which one can find through Google. However, the problem is that the international protocols are meant to apply to episodic refugee flows, not permanent flows. A country might be able to absorb episodic asylum seeker migrations, but not torrential ones. The problem with stimulating an armada is not that it will convey economic migrants but real refugees in numbers beyond management. Just as Forward Defence was the appropriate answer to the Domino Theory, attacking through sanctions and other punitive measures the callousness of state authorities which cause refugee outflows is how to start towards a solution.
roy chen yee | 02 October 2019


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