The Immigration Policy of the Australia - Essay Example

C Running Head: C: VISA COMPLIANCE, CANCELLATION AND REVIEW C: Visa Compliance, Cancellation And Review Subject C 2 The historical development of Australia was founded on immigration and the country’s history shows that it has always kept immigration laws under tight government watch. In 1788, the British toyed with the idea of making the vast continent into an extensive penal colony and the British army brought with them about 89, 0000 convicts into the New South Wales. The attractions of a vast expanse of land with rich natural resources were perhaps undeniable because eventually, British immigrants who had nothing to do with penal concerns freely came into New South Wales in numbers even bigger than those of the convicts for the purpose of settlement. Because of the growing number of British settlers, assisted passage especially for young women for domestic services were undertaken (McAllister 2003 pp. 555-556). Immigration also played a significant role in 1901 when it united a group of equivocating colonies to finally federate into one Commonwealth. It was no big surprise either that the first law that the Commonwealth passed was an immigration law - Commonwealth Immigration Restriction Act of 1901 (Money 1999 158). Today, immigration continues to be largely a discretionary power of the government through the Minister of Immigration upon whom the law has granted extensive authority to decide just about everything in the name of “public interest.” The present Australian law on immigration – The Migration Act of 1958 – is assailed as an erroneous statutory creation whose powers are concentrated in the hands of its immigration head, the Minister of Immigration. In the past, Ministers were accused of using these vast powers to their advantage and to favor personal friends (O’Donoghue & McDonald 2001). However, not all Australian Immigration Ministers feel comfortable possessing such immense powers in his hands. In an interview dated February 19, 2008, Immigration Minister Chris Evans ironically bewailed the grant of too much power to his position which he referred to as “playing God” and Subject C 3 asked a review of a Minister’s role. He lamented that the previous administration seemed to have increased the power of an Immigration Minister to render the kind of decisions which he feels are characterized by “lack of transparency and accountability” (ABC News 2008). Indeed, the Migration Act of 1958 and its amendatory laws, has made the position of Immigration Minister a one-man show. S 478, for example, of the Migration Act of 1958 provides for the privative clause (s 474 of the Migration Act 1958), which according to authors Groves and Lee, is “a statutory device by which Parliament purports expressly to restrict the manner and extent of judicial review in respect of an identified class or classes of administrative decision” (2007 p. 350). Its primary purpose is obviously to diminish the likelihood of a judicial review of Immigration decisions since it gives these decisions political character precluding the courts from reviewing them. On top of this privative clause are certain provisions that allow the Immigration Minister to substitute his own decisions to that of the following: Refugees Revision Tribunal (s 417 [1], Migration Act 1958), the Migration Review Tribunal (s 351, Migration Act 1958), the Administrative Appeals Tribunals (s 391, 454, 501, Migration Act 1958). Likewise, he may grant detainee visa with or without application under s 195A (2) of the Act in the name of “public interest.” For the exercise of these powers to override the tribunals decisions for his own, the minister has only to provide a justification that is so broad that it can almost be anything: “public interest.” To justify an action on the sole rationale of such a broad and vague notion as “public interest” in a democratic nation such as Australia proves such a stark contrast to everything in the landscape. The recent case of Dr. Mohammed Haneef, for example, which happened in the Subject C 4 middle of last year, shows the extent of such power. Dr. Haneef, a former Indian national who had an Australian visa was charged with aiding a terrorist activity when his SIM card was found in a vehicle that was used in a foiled attempt to bomb the Glasgow airport. There were however misgivings, as to how and when exactly the SIM card was found. Dr. Haneef, it seemed left the said card to a relative a year ago before he left for Australia. With only the SIM that connected him to the incident, which in criminal law one would call an uncorroborated circumstantial evidence, and even before Haneef could be found guilty, the then Immigration Commissioner Kevin Andrews invalidated Dr. Haneef’s visa on the ground of s 501 of the Migration Act 1958 (Deva 2007). Any way one looks at this, it will all boil down to the same conclusion – a violation of the criminal presumption of the basic doctrine of “innocent until proven guilty.” Originally, the intention why Parliament inserted the “public interest” clause into many of the Migration Act of 1958 provisions was to “provide an outlet to deal with difficult cases that did not fit statutory visa criteria.” A Senate Select Committee which undertook a report of the Ministerial Discretion in Migration Matters, discovered that the only requirement of the Minister to explain his exercise of matters relating to visa grant was to “table in the Parliament” his reasons why his granting or not granting of a particular visa was in his opinion, a matter of public interest (Ministerial Responsibility 2006). This corroborated Immigration Minister Evans’ statement that the immense power of his position is daunting because it has no mechanism in place for review. The broad powers granted by the immigrations law to immigration ministers have not always been without redeeming grace. There were times in the past when such powers came in handy at crucial moments in the country’s history especially when genuine public interest and Subject C 5 humanitarian reasons demanded their exercise. In 2004, for example, then Immigration Minister Amanda Vanstone intervened on behalf of the Australian government and granted visas to seven Afghanistan nationals. The young men aged between 17 to 20 years old, unaccompanied, on a boat to the Australian shores and for several years were detained until the day the Minister granted them visas. Likewise, safe haven visas were granted to Kosovo nationals who were displaced in the war in 1999 (Aldred 2008 p.2). Conclusion The maxim ‘absolute power corrupts absolutely’ have undeniable historical basis. World history is steeped with examples of political figures that began their reign with the best of intentions but turned out to be the worst of despots and tyrants because absolute power has a way of seducing men and transforming them into something they did not intend to be. The broad statutory powers given to immigration ministers are without a doubt, granted with the best of intentions by the legislature. Immigration Ministers have indisputably wielded such powers for the good of humanity in cases in the past but so have they used it to do the opposite. In a highly globalize world and in an era of free trade, where the specter of transnational crimes and international terrorism haunt every free and peace-loving country, keeping a tight lid on one’s immigration laws is the wisest thing to do, even for a nation which has the sixth largest area in the world and a population of barely 21 million (CIA 2008). However, it is also a matter of public interest that “public interest” be determined not by one man unfettered by any semblance of the usual system of checks and balances institutionalized in every democratic country. As the saying goes, two heads are better then one. Subject C 6 References (2006). Largest Countries in Area. Maps of World.com. Retrieved May 10, 2008 from http://www.mapsofworld.com/world-top-ten/world-top-ten-largest-countries-in-area-map.html (2006). Ministerial Responsibility. Parliament of Australia. Retrieved May 11, 2008 from http://www.aph.gov.au/Senate/committee/legcon_ctte/completed_inquiries/2004-07/migration/report/c01.htm (2008). Australia. World Factbook. CIA. Retrieved May 10, 2008 from https://www.cia.gov/library/publications/the-world-factbook/print/as.html ABCNews (2000). I Have Too Much Power: Immigration Minister. Abc.net. Retrieved May 12, 2008 from http://www.abc.net.au/news/stories/2008/02/19/2166624.htm Aldred, Mary. (2008). The Buck Stops with the Immigration Minister. Retrieved May 10, 2008 from http://www.theage.com.au/news/opinion/the-buck-stops-with-the-immigration-minister/2008/03/02/1204402269514.html Deva, Sonya. (2007). Keeping Australia Safe by an Improper Exercise of Power? OnlineOpinion. Retrieved May 11, 2008 from http://www.onlineopinion.com.au/view.asp?article=6173 Groves, Matthew & Lee, H.P. (2007). Australian Administrative Law: Fundamentals, Principles and Doctrines. Cambridge University Press, p. 350. McAllister, Ian & Dowrick, Steve & Hassan, Riaz. (2003). The Cambridge Handbook of Social Sciences in Australia. Cambridge University Press, p. 555-556 Subject C 7 Money, Jeannette. (1999). Money Fences and Neighbors: The Political Geography of Immigration Control. Cornell University Press, p. 158. Migration Act 1958, The.   ODonoghue, Anne & McDonald, Timothy. (2001). Minister moves to consolidate discretion powers. FindLawAustralia. 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