No Illegals, No Trouble: Immigration and Australian Law - Essay Example

? NO ILLEGALS, NO TROUBLE: IMMIGRATION AND AUSTRALIAN LAW 1 I BACKGROUND Australia was in the 20th century one of the countries that received most immigrants, besides the United States (US), Canada and New Zealand.2 By 1991, 23 percent Australians were born overseas, which is a higher percentage than in North America.3 However, despite such a high ratio, Australian government has tried to restrain migration since the 1980’s. Many citizens felt that Australian identity was under threat. Parties responded accordingly.4 As a result, illegal immigration in Australia has become a highly contested issue. There have been resonant quotes such as this one uttered in public: Illegal immigration is a crime. It threatens the very lives of our children, takes jobs away from legal Australians and wastes billions of tax dollars every year. It should be returned to being a crime, punished by imprisonment and deportation.5 Illegal immigration threatens the identity of Australians, as Australians perceive themselves as a homogenous nation. Though some illegal immigrants indeed engage in criminal activities, it should not be ignored that many of them are also victims, in need of help from the Australian legal system. Thus, though the system should be made stricter, these individuals should not be treated as criminals. There are multiple laws dealing with immigrants in Australia. Important ones are: the Australian Citizenship Act 1948, Immigration (Education) Act 1971, the Migration Act 1958, Immigration (Education) Charge Act 1992, the Migration (Health Services) Charge Act 1991, and Commonwealth Criminal Code 1992.6 The 1948 Act was repealed by Act No. 21 of 2007.7 Some of them will be explained in more detail further on. There are two types of illegal immigrants in Australia. The first type is immigrants on temporary visas and false identity.8 They blend with the local populations and are as a result hard to locate. The second type is “boatpeople.”9 Mostly from China, Iraq and Afghanistan, many of them pay to professional transporters specializing in illegal immigrants to come to Australia. It was estimated that on average, 6 000 illegal immigrants come to Australia by boats and air each year.10 In the US, they are estimated to amount to 300 000, indicating that Australia is much more efficient at controlling its borders.11 Some argue that lenient Australian laws attract these illegal entrants. According to the Australian laws, illegal entrants are entitled to a legal counselor during the extraditing procedure. 12 As a result, many remain in Australia. However, these illegal immigrants are not welcome. There are concerns that even larger numbers of illegal immigrants might not be possible to assimilate into the Australian society and that they might become unwelcome.13 They occupy jobs which otherwise might have been occupied by Australian citizens and permanent residents. Employers caught providing employments to illegal immigrants are in violation of Australian laws. Under the Migration Act 1958 and the Commonwealth Criminal Code 1995 it is an offence ‘to knowingly or recklessly allow an illegal worker to work or to refer an illegal worker for work.’14 Some parties define illegal immigrants as criminals. Australia First Party argues that immigrants escape their home countries where they suffer persecution. In the first country that accepts them, they are refugees. However, they then start moving from one country to another for economic reasons, until they arrive to Australia. Once they leave the first country of destination, they become criminals.15 There is a dichotomy in the Australian system. Judges are on average lenient toward such individuals. The immigration bureaucracy, on the other hand, is strict. Since the 1980’s, the Australian government has taken a conservative stand.16 This dichotomy between the two systems reflects the historical tendency toward strict immigration laws and the public opinion supporting such policies, as opposed to the more lenient judicial system.17 II HISTORICAL DEVELOPMENTS The roots of the dichotomy lie in past laws and policies. First, until 1973, Australia had the “White Australia” policy. This policy aimed to preserve to dominance of the new, non monarchical and non religious society, free from the Old World corruptions.18 Since Asians were coming from monarchical and traditional societies, they were viewed as backward, and thus unwelcome. It is even stated in the Australian Citizenship Act 1948 that all Australian citizens share common democratic beliefs.19Unlike in the US, Australia never had movements of South and East Europeans until World War II. The poor were not welcome the way they were in the USA. When domestic labor markets were threatened, even immigrants from the UK, kin of many Australians, were denied entrance to Australia.20 Secondly, until World War II, Australian economy was based on tariffs to protect Australian production, and strict immigration laws to protect the Australian labor.21 World War II marked a shift in policies, though domestic labor remained protected. After World War II, Australian government recognized the need for an increase in immigrants for security reasons. Refugees and individuals arriving under government – assisted programs in the 1940s and 1950s were required to sign two-year contracts under which the Australian government determined their initial employment.22 An outgrowth of this policy was a strong immigration bureaucracy, in whose interest it was to keep immigrants under control. Despite the claims that Australia had a lenient system, asylum seekers and illegal immigrants were treated harsher than in Canada and the USA.23 Unlike in the US and Canada, Australia had a separate immigration ministry and accompanying bureaucracy.24 The ministry was in charge of Australian national identity and their welfare. It was important to leave an impression that immigration was not running out of control. As a result, every time there was an economic contraction, immigration was halted.25 By 1970’s, population growth increased. Urban problems increased.26 In response to social problems, in 1978, the Fraser Government outlined nine points guiding Australian immigration policy. Only Australian citizens and constituent members were allowed to enter Australia. During the Fraser Government, around 2000 Indochinese boatpeople were to be deported. However, in order to force Malaysia and Indonesia to cooperate and not facilitate movements of these people to Australia, the Fraser Government agreed to accept some of these refugees.27 However, visa status violations occurred in order to remain in Australia. Around 20 000 Chinese students entered Australia on a student visa. In the wake of the massacre on Tiananmen Square, these students applied for a refugee status. There is a multitude of such cases in Australia, where one type of visa is used in order to enter Australia and then claim asylum.28 The right to a judicial process for illegal immigrants is an accidental outgrowth of a national movement for accountability. Until the 1980’s, the Immigration Department made independent decisions with regard to immigrations. Since then, however, administrative law was extended to immigration decisions regarding on shore change of status applications. All of the illegal immigrants are entitled to appeal their case in courts. The basis for such a claim is that the defendant must believe he or she has been wronged. The court in turn must examine all relevant facts to determine if this has really been the case, including if the claimant has been informed about the decision maker’s action against him or her.29 Calls for greater accountability and human rights have been a strong force pushing for such reforms. As a result, illegal immigrants were granted lengthy trials and access to welfare.30 In response, conditions for visa issuance became even stricter since the 1990’s. The Australian government takes into consideration the point of origin and other risk factors to determine if an individual is likely to overstay in the Australia. Clearing of passengers at airports and other entry points is done after passenger visas are confirmed.31 Requirements for visa obtainment became stricter in terms of conditions one had to fulfill such as language competency, age, employability and skills.32 While human rights activists claimed Australia to be a country of immigrants, the public denied recognizing the connection. The public in Australia defined themselves as a homogenous nation. They refused to recognize themselves as ‘cultural mosaic as the Canadians do, let alone a land welcoming the downtrodden as do so many Americans.’33 Though the US experienced the same type of populist uprisings against immigrants, they kept accepting then in the 1990’s.34 As Freeman and Birrell put it, ‘[o]nly in Australia did this lead to tighter control over legal and illegal entries, declining annual numbers, and significant retrenchment with regard to policies supporting multiculturalism.’35 In 1997, concerns over expenses of illegal immigrants were raised and an Amendment to the Australian Citizenship Act 1948 was made. This Act eliminated a chance of future Australian citizenship obtainment for illegal immigrants. Representative Hanson called for stricter measures. According to the Representative Hanson, roughly ‘60 per cent of administrative cases before the Federal Court concern immigration matters.’36 Moreover, litigation costs of the immigration department amounted in the 1995 - 96 budget to $7.4 million (Australian dollars). Costs such as ‘legal aid, court costs or the excessive costs of housing and feeding illegal immigrants during lengthy and unnecessary legal processes’ were not included.37 Legal assistance was seen as a burden, since a high number of cases went before the Federal Court, the Full Court or the High Court. In total, in March 1997, there were 600 cases before these Courts. The success rate in 1997 was 10 percent.38 The Representative believed Australian citizens deserved the resources going to them, since they too needed legal help but many could not obtain it. Courts historically relied on international agreements. According to Freeman and Birrell, ‘[i]n making their judgments, the courts proved responsive to appeals based on rights drawn in part from international agreements, including the International Covenant on Civil and Political Rights (of which Australia was a signatory).’39 As shown, historical economic policies and preferences for homogenous society have created a system in Australia that rejects immigrants; illegal and legal alike. The Australian system is generous, but Australia obtains only a fraction of illegal immigrants that the US does. Until 1990’s, Australia was dominated by client politics,40 where costs to the society were spread widely and benefits concentrated among immigrants, employers and groups assisting immigrants. Then, the system moved in another direction. III STRUGGLE FOR POWER An important factor determining demonization of illegal immigrants that needs to be considered is the tension between the Immigration Department and the Courts.41 Freeman and Birrell argue that the Immigration Department reorganized its regulatory structure in order to minimize the power of Courts and everyone else involved in the judicial processes dealing with illegal immigrants.42 The Immigration Department ‘removed as far as possible any scope for administrative discretion on the part of decisionmaking officers, or of the courts in interpreting these officers' decisions, by laying out in detail the specifics of all departmental regulations.’ 43 These decisions were passed into law by the Parliament. The government ‘narrowed the basis for making on-shore humanitarian claims to keep the courts out of the process.’ 44 The Immigration Department was authorized under the 1992 Migration Act to detain anyone who resides in Australia without adequate documents. Moreover, anyone arriving illegally and applying for asylum became detained during the duration of their case. The right to appeal was denied to a large number of individuals. Boatpeople receiving asylum only obtained it for three years. Their access to welfare and rights others obtained through legal channels prior to having landed on Australian soil became limited. In short, in the 1990’s, access to welfare benefits further decreased. 45 Claims that illegal immigrants are criminals have deep roots in history and struggle for power between the Immigration Department on one hand, and the Courts and professionals involved in the process of assisting illegal immigrants on the other. Current claims are an outgrowth of years of anti – immigrant rhetoric and laws that restrict immigrant access to Australian soil and welfare. Criminalization of illegal immigrants cannot be based on the struggle for power between two departments, or the fact that Australian population, one quarter of which is foreign born, refuses to become multicultural. IV CONCLUSION Illegal immigrants have been overwhelmingly perceived as criminals, and treated accordingly. Some misuse the system and use the funds needed by Australians and legal migrants. However, not all illegal migrants are alike. Regardless of how they arrive to Australia, many use the legal channels to obtain the right to remain there. Moreover, international agreements, to which Australia has subscribed, mandate that Australia accept refugees and asylum seekers. Thus, Australia has a legal obligation to assist these individuals. For some asylum seekers, whether they will be deported to their home country is a matter of life and death. To many bureaucrats in Australia, it is a matter of institutional power and struggle for dominance over other institutions. The two should not be confused and thus lead to victimization of innocent individuals. Courts, unlike the Immigration Department, recognize the difference, and the rights illegal immigrants have under the international agreements. The Immigration Department lacks historical practice of accountability to any system other than the one run by the dominant political party. As a result, this Department remained historically unaccountable to systems protecting illegal immigrants. V BIBLIOGRAPHY 1. Articles /Report Australia First Party Fake Refugees are Criminals! Australia First Party Victoria at 7 May 2012 Birrel, Robert, ‘Immigration Control in Australia’ (1994) 534 Annals of the American Academy of Political and Social Science 106 Department of Immigration and Citizenship, Fact Sheet 87 – Initiatives to Combat Illegal Work in Australia (2010) Department of Immigration and Citizenship at 8 May 2012 Freeman, Gary P. and Birrell, Bob, ‘Divergent Path of Immigration Politics in the United States and Australia’ (2001) 27(3) Population and Development Review 525 Hanson, Pauline, Extract from the Current House Hansard (1997) 7640 One Nation at 8 May 2012 Immigration and Refugee Board of Canada, Australia: Information on Australian laws regarding immigration, citizenship and the seeking of refugee status for Lebanese citizens. (1989) United Nations High Commissioner for Refugees at 7 May 2012 National Observer, ’Illegal Immigrants in Australia’ (2000) 43 National Observer at 7 May 2012 2. Legal Cases and Acts Amendment to the Australian Citizenship Act 1948 (1997) Australian Citizenship Act 1948 Australian Citizenship Act 1948 (2007) Commonwealth Criminal Code 1995 Immigration (Education) Act 1971 Immigration (Education) Charge Act 1992 Migration Act 1958 Migration Act 1992 Migration (Health Services) Charge Act 1991 Migration Legislation Amendment Act 1997 (No. 1) Read More