Refugee refusual echoes 'Tampa election' rhetoric

Senator Chris EvansThe Minister for Immigration and Citizenship, Senator Chris Evans (pictured) has refused a protection visa to an Iraqi because of his convictions for people smuggling, even though the Iraqi in question, 'Mr A', was assessed as a refugee by Immigration.

Mr A helped with people smuggling as a way of getting his family away form Saddam Hussein. He arranged for his mother, three sisters and three brothers to come to Australia.Mr A was extradited to Australia in 2003, convicted of people smuggling.

He applied for a protection visa in July 2006. The Migration Act requires decisions in protection visa cases be madewithin 90 days when possible, however in this case they delayed because of Mr A's conviction. It took an order from the Federal Court for the Minister to comply with the requirement. Minister Evans finally refused Mr A's application on 8 February 2008. Mr A was in detention the whole time.

The Minister had the option of exercising his discretion in favour of Mr A because Mr A met the refugee criteria but he declined to do so. Instead he reverted to the language of the 'Tampa election' of 2001:

'The Rudd Government deplores people smuggling. It is a heinous crime that puts lives at risk, undermines Australia's border security and weakens our immigration system ... [Mr A's] conduct in repeatedly bringing boatloads of illegal immigrants into Australia, the expectations of the Australian community that a person who commits crimes of this nature not be rewarded with a visa, and the general deterrence factor in discouraging others from engaging in similar conduct weigh heavily against Mr A.'

The Minister's language and tone are all typical of the hostility found under the former government towards asylum seekers. The Minister did not mention that these people who were 'smuggled' in were asylum seekers, who were probably found to be refugees from Saddam or the Taliban — regimes so bad our military were sent against them. Sadly the ALP supported the 2001 Tampa amendments and are yet to repeal the harsher aspects.

So what about the fact the Department accepted that Mr A was a refugee and that his conduct, while serious, should not prevent him from getting protection? It is not as if we can send him anywhere. UNHCR recommended against returning Iraqis as recently as December 2007. The 'surge' has reduced the violence in Baghdad, but Iraq is now just a very dangerous country, as distinct from an extremely dangerous one.

The day before the Minister's decision, the International Crisis Group published a report entitled 'Iraq's Civil War, the Sadrists and the Surge'. The report notes that the reduced killings in Baghdad could represent a temporary trend. Much depends on the motivations of key players such as the Shi'a Al Sadr and their mainly Sunni opponents. Any progress in Iraq is going to be very slow. Meanwhile Mr A must wait until the Australian government is able to send him back. It is likely he will be waiting a long time.

This case presented the new Minister with the chance of showing how this government is different to the last. He could have maintained his rhetoric, yet granted a temporary protection visa given the situation in Iraq. Such cases are rare and this would not set any precedent.

Sadly we instead have a return to the 'Ruddock rhetoric', which creates future problems for both Mr A and for the government. Such a decision does not bode well for immigration reform.

Kerry MurphyKerry Murphy is a solicitor and accredited specialist in Immigration Law. He is a partner in his own practice. He was formerly coordinator of the Jesuit Refugee Service in Sydney.




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Existing comments

Sounds like Evans, like all his predecessors, has been snowed by his department. Its deserved reputation as one of the most obdurate, prejudiced instrumentalities in the federal public service is yet confirmed.
Sara Dowse | 19 February 2008

Is there anything we can do together about this? Is there a petition for Mr A? I had hoped for better things now the Ruddock regime is over.
Rosemary Breen | 19 February 2008

This may seem to be a cynical response but obviously the Minister sees no political advantage in showing any compassion to asylum seekers even if they are innocent victims of circumstance.
David Dyer | 19 February 2008

Thank you. It's only through objective & factual media information like this, that ordinary readers like myself can find out the truth, and help us to make election choices of who we want to represent our views.
liseby lapierre | 19 February 2008

Thank you Kerry for your excellent analysis of this situation. I hope Senator Evans and the PM get to read it. I fail to see that people smuggling can be rated as a "heinous crime" yet the war on the Iraqi people that caused so many people to try to escape the death and destruction is not. How was it that the Cambodian boat people and even the Vietnamese boat people who were smuggled here in the 1970s were welcomed and not put into inhumane detention?
Liz Morris | 19 February 2008

I agree with Kerry Murphy that political leaders must be careful about the public perceptions they generate when speaking about asylum seekers. However, various other considerations seem important to take into account before passing judgment on Evans' decision to refuse Mr A a protection visa.

Firstly, the Refugees Convention itself provides for certain refugees to be excluded from its protective mantle (e.g. see Articles 1F, 32 & 33).

Secondly, motive seems a relevant factor: did Mr A engage in multiple instances of people smuggling out of solicitude for his fellow asylum seekers, or for his personal pecuniary benefit?

Thirdly, while reasonable to be concerned about Mr A's future welfare in Iraq, it is also reasonable to be concerned about the effect a decision to let him stay would have on public confidence in/support for the whole onshore protection system (I suspect it would undermine it, encouraging people to think it too open to 'abuse' by asylum seekers/lawyers).
David Palmer | 20 February 2008

The problem is not Evans, it's the legislation that gives the Minister the power. Evans is at least dealing with the mess left by Andrews and has raised concerns about the powers that he has. By all means, let us agitate on behalf of 'Mr A' and other specific individuals who have been caught by the implementation of the legislation, but the best solution in the long run is to get rid of the legislation. I'd be interested in what Kerry suggests we can do about that.
Warwick | 21 February 2008

Here are some points in reply. The Minister did not refuse the case under 1F or 33(2), but under 501, the character power. 1F is really for cases of serious human rights abuse and crimes against humanity, 33(2) is serious crime which constitutes a danger to the community. People smuggling does not come within these. Again we see the use of the 501 character power personally by the Minister, as was done under the previous government, to trump all other rights. Secondly, Mr A has been tried and convicted and served his time, it is not as if he is getting something for free. The assessment of refugee protection is not about his welfare, but to protect him from further human rights abuses. I do not think that helping someone to present their refugee case, and proving the refugee case is an 'abuse' of the system, rather it is what the system is designed to assess.
Kerry Murphy | 21 February 2008

How disappointing to read that Labor's pro-refugee rhetoric never made the transition to government. I suspect that Evans was more afraid of the tabloids and talkback than he was in acting like a decent human being. How sad for our country, how sad for refugees. What a gutless performance from our new Head of the Inquisition.
Trevor | 26 February 2008

Our representations (from a Sunshine Coast refugee support group) to Mr Evans seem also to have been ignored. It is interesting that all the people that Mr A smuggled out here have been granted full visas - including his mother & siblings (his brother was murdered in Iraq) - yet he, who engineered their passage to Australia for good reason, is not allowed to remain.
penny rivlin | 13 March 2008


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