|
Paper prepared for the 30th Australian Legal Convention, Melbourne,
18 September 1997
As we approach the fiftieth anniversary year of the Universal
Declaration of Human Rights it is well to remember the principle set
forth proudly in Article 2:
Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion , political or other opinion, national or social
origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the
political, jurisdictional or international status of the country or
territory to which a person belongs, whether it be independent, trust,
non-self-governing or under any other limitation of sovereignty.
It has been accepted wisdom at least since the mid 1970's that
Australia has a non- discriminatory immigration policy. The Minister
stressed this last week in comments he made to the Press while visiting
Malaysia.
Fact
Sheet number 1, dated 24 September 1996, published by the Department
of Immigration and Multicultural Affairs (D.I.M.A.) rather states:
"Australia has a non discriminatory immigration policy, which means
that anyone from any country can apply to migrate regardless of their
ethnic origin, their sex, colour or religion. If a person satisfies
Australia's selection criteria, he or she stands an equal chance of being
successful". Fact Sheet number 38 dated 31 October 1996 repeats
this claim but then notes "migration to Australia is dependent on the
applicant's ability to meet the migration criteria of the day, which are
established to meet Australia's national interest and needs."
The purpose of this paper is to provide some preliminary observations
to ascertain whether the reality of the law and practice accords with this
rhetoric.
The Legal Regime
In international law it is well settled that countries have the right
to determine their own immigration law and policy. Thus, the
Universal Declaration of Human Rights provides only for freedom of
movement and residence within the borders of each State (Article 13) as
does the International
Covenant on Civil and Political Rights, which recognises that
such rights are circumscribed (Articles 12 and 13).
In international law there is a clear exception to this general
principle in relation to persons who are found to be refugees. The
fundamental principle underlying the 1951
Convention Relating to the Status of Refugees and the 1964
Protocol provides the legal obligation on states party to the
Convention not to refoule (involuntarily return) refugees to the
country in respect of which they fear persecution for a Convention based
reason. As Australia has ratified the Convention and incorporated
its provisions into domestic law, Australia accepts this fundamental
obligation. See also the U.D.H.R. Article 14.
Migration to Australia is regulated by the Migration Act 1958 as
amended. On 19 December 1989 a new legal regime came into effect
with regard to migration to Australia which was substantially rewritten
with the Migration Reform Act which came into effect on 1 September 1994.
It is this regime which now applies. The pre-1989 law essentially
vested in the government substantial discretion in relation to the entry
into and stay in Australia of non citizens. Departmental policy
provided the flesh for the skeleton by which entry was controlled.
The new regime provided a complex web of regulatory control. In
1990, in one of the first Federal Court decisions interpolating the new
regulatory regime, Justice Wilcox noted:
As will already be apparent, understanding the regulations is no easy
matter. Apart from the initial problem of obtaining an up-to-date
text of the regulations, the reader is confronted with a lengthy and
complex document, abounding with cross-references from one provision to
another, by section and regulation numbers, symbols and code numbers.
The task of ascertaining the position in relation to a particular
application or a particular type of visa or entry permit is akin to
feeling one's way through a labyrinth. Perhaps there are officers
of the Department of Immigration, Local Government and Ethnic Affairs who
can confidently move around this new regulatory environment, but it must
be impossible for ordinary people affected by the regulations to do so;
particularly as many of these people have little or no command of English
or experience in legal matters. The desire to substitute guidelines
for unfettered discretion, in the area of visas and entry permits, is
understandable. But, if compliance with the requirements of
regulations is to be made critical to the success of an application,
fairness requires that the regulations be both readily available and
easily intelligible. In the latter connection, I wonder whether it
is really necessary to have so many classes of entry permits, many of
which only finely differ from other classes. (Eremin
-v- MILGEA (1990) 21 ALD 70).
Whilst the patent inconsistencies of the early regime have been
removed, to the uninitiated observer the current law remains highly
technical and complex. While residual discretions remain, the
skeleton has become obese.
As would be evident, migration law is a Federal matter, having its
basic constitutional validity in sections 51(xix),
(xxvi), (xxvii) and (xxix) of the Constitution.
There should be no discrimination.
Whilst Australia has no Bill of Rights and whilst there is little
constitutional basis for protecting the human rights of Australian
citizens, such protections have been given legislative effect with the
enactment of the Racial
Discrimination Act 1975, the Sex
Discrimination Act 1984 and the Disability
Discrimination Act 1992 all effectively giving domestic application to
Australia's obligations under international treaties and largely relying
on the external affairs power (1).
Until the decision of the High Court in Brandy
v HREOC and Ors (1995) EOC 92-662, the Human Rights and Equal
Opportunities Commission was charged with administering these Acts.
The government is at present reworking the national regime in response to
the Brandy decision. Most States and Territories have their own
Anti-Discrimination legislation.
As noted by the learned authors of the CCH Equal Opportunity Law and
Practice "in general terms discrimination is any practice that makes
distinctions between individuals or groups so as to disadvantage some and
advantage others. To find out whether one person has discriminated
against another person involved a comparison between how the other person
is treated and how a real or hypothetical person of a different status
(such as sex or race) is treated." (Para 4.200).
Discrimination can be either direct or indirect. In general terms
direct discrimination occurs where a person is treated less favourably on
the basis of an attribute that that person may possess such as race or
sex. Under the Federal Racial Discrimination Act an unlawful Act
involving racial discrimination is more broadly defined as one involving a
distinction, exclusion, restriction or preference based on race, colour,
descent or national or ethnic origin: s
9(1). Mahoney J in Boehringer Ingelheim Pty Limited v Reddropp
(1984) EOC 92 - 108 at 76, 052 stated that the words "less
favourably" required that there be two sets of circumstances, the
actual and the hypothesised, so that it can be determined by a comparison
whether the treatment in the former is "less favourable" than in
the latter.
Indirect discrimination does not concern itself so much with
discriminatory behaviour but more with policies and practices which may
have a discriminatory effect. It occurs where a rule practice or
policy which on its face appears to be neutral in effect has a
disproportionate impact on the group of which the complainant is a member.
Thus Bowen CJ and Gummow J stated "practices which are fair in form
and intention but discriminatory in impact and outcome" amount to
indirect discrimination - Secretary
of the Department of Foreign affairs & Trade v Styles & Anor
(1989) EOC 92-265 at page 77, 636. All jurisdictions in Australia
except in the Northern Territory prohibit indirect discrimination.
The authors of the CCH Practice consider that as issues of direct
discrimination are gradually addressed, attention will be focussed on the
more insidious forms of indirect discrimination which could well be a
growth area of anti-discrimination law in the 1990's. The High Court
has considered the issues of indirect discrimination in Australian
Iron & Steel Pty Limited v Banovic & Anor (1989) EOC 92-271
and Waters
& Ors v Public Transport Corporation (1991) EOC 92-390. The
Racial Discrimination Act s
9(1)(a), the Sex Discrimination Act s
5(2), 6(2)
and 7(2)
and the Disability Discrimination Act s
6 all contain provisions prohibiting indirect discrimination.
The Disability Discrimination Act contains four elements which must be
satisfied to establish a claim of indirect discrimination. These
are:
- the discriminator must require the aggrieved person to comply with a
requirement or condition.
- a substantially higher proportion of persons of a different status
than the aggrieved person must be able to comply with the requirement or
condition than persons of the same status as the aggrieved person;
- the aggrieved person must not be able to comply with the requirement
or condition ; and
- the requirement or condition is unreasonable in the circumstances.
- In the AIS case the "last on, first off" retrenchment
policy was found to be indirectly discriminatory having regard to past
discriminatory hiring practices of the company whereby the employment of
women was delayed in preference to the employment of men.
The background
The Migration
Act contains no statement by way of preamble that the law is intended
to operate in a non-discriminatory manner. The Act provides as
follows at s
4:
(1) The object of this Act is to regulate, in the national
interest, the coming into and presence in, Australia of non-citizens.
(2) To advance its object, this Act provides for visas
permitting non-citizens to enter or remain in Australia and the
Parliament intends that this Act be the only source of the right of
non-citizens to so enter or remain.
(3) To advance its object, this Act requires persons, whether citizens
or non-citizens, entering Australia to identify themselves so that the
Commonwealth Government can know who are the non-citizens so entering.
(4) To advance its object, this Act provides for the removal or
deportation from Australia of citizens whose presence in Australia is not
permitted by this Act.
As the Migration Reform Act postdates the Racial Discrimination, the
Sex Discrimination and the Disability Discrimination Acts it is assumed
that these Acts override the Migration Act where an inconsistency would
occur. This appears to have been accepted by Parliament when
discussing and passing the Migration Legislation Amendment Act (Number 1)
(No 27 of 1997) which inter alia allows for a distinction to be made in
regulations and decision making between married people and those in de
facto relationships and it was intended to over ride the provisions of the
Sex Discrimination Act.
The Migration Act provides that all persons other than Australian
citizens require a visa to enter and remain in Australia. The Regulations
list a large number of visa classes and subclasses which provide for
permanent or temporary residence. Any non citizen in Australia who
does not hold a valid visa is liable for mandatory detention and removal.
The Migration Reform Act introduced the concept of bridging visas and
substantive visas, the former intended to provide temporary legal status
in general after the expiration of a substantive visa and pending the
determination of a substantive visa application or pending a person's
authorised departure from Australia. Schedules 1,
2,
3
and 4
of the Migration Regulations prescribe criteria which must be met if an
applicant is to be granted a visa. Where the applicant meets all the
criteria the applicant is entitled to the visa (s
65). If an applicant does not meet the criteria then the
application must be refused. Conditions may be imposed on some visas
as set forth in Schedule
8 of the Regulations.
Complimenting the legal regime set forth in the Act and Regulations,
are the migration policies which are published in either the Procedure
Advice Manuals or Migration Series Instructions. These policies
often comprise elements of discretion for decision makers and amplify the
mandatory legal regime.
In this paper I do not intend to analyse each visa category but rather
to highlight the current position of the most common visa classes and to
consider whether or not these withstand the test of being
non-discriminatory.
There are three major categories in the migration program: the
skills based programs, the preferential family programs and the
humanitarian and refugee programs. Each financial year the
government sets the quota of visa places for the following migration year
based on the visa categories.
The Processing realities
Before analysing the various visa categories to see whether the law or
policy expressly or indirectly contains discriminatory provisions
consideration should be given as to whether the actual process can be
styled accurately as non-discriminatory.
All valid applications for a visa must be in writing and lodged on
prescribed forms on payment of prescribed fees: ss
45 to 46 and reg
2.07(1). Forms must be completed in English and the most common
forms, form 47 (for most offshore visa applications), and form 887 (for
most onshore visa applications) contain 74 questions and 130 questions
respectively. Information guides to assist in the completion of
these forms are 10 and 11 pages respectively. No official
translations of these forms are given into other languages are available.
The most common offshore application for migration attracts a
non-refundable filing fee of $1,060.00. Most onshore applications
for permanent residence attract a non-refundable filing fee of $1,570.00.
Additional substantial charges are levied for adult applicants for most
classes of offshore visas who do not have basic (functional) English
language. For all categories of preferential migration, both onshore
and offshore, with the exception of spouse and interdependency visa
applications, assurances of support from sponsors are mandatory as well as
the payment of bonds and Medicare levies. The current bonds
applicable are $3,500.00 for the principal applicant and $1,500.00 for
each secondary applicant aged over 18 included in the application and
$924.00 for the Medicare levy for each applicant.
Reference has been made to onshore and offshore applications.
Because of an almost phobia like paranoia with queue jumping and control,
and a determination by successive governments to ensure that an orderly
migration program is maintained, programs have been developed and the law
progressively refined to prevent applicants from applying within Australia
for permanent residence (change of status). Hence, whilst onshore
applications are permissible there are legal restrictions on the ability
of applicants to validly apply within Australia (which it is outside the
scope of this paper to traverse) and increasingly applications must be
made offshore. Inevitably this involves substantial financial
expense and emotional cost to applicants in particular those who have
close personal connections to Australia.
There is no common processing time for particular offshore applications
by these posts. Inevitably some immigration posts are much busier
than others. Factors causing delay in processing include the number
of applications received, the number of immigration officers in posts, the
frequency of document fraud in particular countries necessitating more in
depth investigation of applicants, and, whilst it would never be accepted
by governments, personal motivations of immigration officers in terms of
the manner in which the selection criteria are to be applied.
Further, the location
of immigration postings overseas in itself adds to the burden placed
on applicant's offshore in accessing the system. It is notable that
for the whole of Latin America (Central and South America)
immigration processing is conducted from only one post in Santiago.
Applicants from the whole of Africa are dealt with by either Cairo
(Saharan Africa), Nairobi (Central Africa) and Pretoria (Southern Africa).
Athens deals with not only Greece but many countries in the Middle East.
Bangkok deals with not only with Thailand, but also deals with applicants
from Bangladesh, Burma and Laos. As is evident from the location of
immigration postings, most of the poorer nations of the world are
inadequately serviced by Australian Immigration Officers.
On the other hand, the USA and Canada alone are served by four posts in
Los Angeles, Washington, Ottowa and Vancouver and the U.K and
Ireland with three, London, Manchester and Dublin. In Europe there
are a further 10 posts, whilst in Asia the source of the largest demand
for visas, only 14.
An equitable distribution of Departmental resources would achieve some
degree of equality in processing times. Given the high cost of
application fees, and the expressed requirements encouraging the lodgement
of applications offshore all applicants regardless of country of origin
are entitled to expect a similarly expeditious (or delayed) period of
processing.
Notwithstanding the extraordinary discrepancy in processing times
between posts no concession in terms of application fee applies to persons
from third world countries who are expected to pay filing fees which in
many countries amount to in excess of 12 months the average national
income. Anecdotal evidence suggests that processing delays for
Australian migration compare unfavourably with processing times for
applications lodged for Canada and New Zealand. Recommendations made
repeatedly to successive governments to enable applicants to "front
end load" processing procedures have been knocked back. Thus, it is
not possible in most instances for applicants to have academic or
professional qualifications assessed prior to lodgement of the application
although such assessments are an essential feature of the skills-based
migration programs. Similarly, applicants are unable to initiate
medical assessments prior to lodgement of applications even though these
are a frequent cause for prolonged delays.
Some essentially core criteria must be satisfied at the time of
application and also at the time of decision. This leads to frequent
problems, often to the disadvantage of applicants where the applicable
criteria change between the date of application and the date of decision,
most significantly with regard to the points test but also in other areas;
for example, the recent retrospective requirement of English language
fluency by the expansion of the Occupations Requiring English List (O.R.E)
The government has the legal power to "change the goal posts"
midstream which it does with frequency and to the bewilderment of
frustrated applicants who see what was likely to be a successful
application refused as a consequence, and with the resultant loss of
filing fees. In any other area of the law retrospective application
of law changes would be unacceptable. In the immigration field it is
commonplace.
Significant features of the principal migration categories
The skill based program contains five major subcategories: the
independent category (visa class 126), the skilled-Australian linked
category (formerly concessional family) (visa class 105), the business
migration categories, the employer sponsored categories, and the
numerically insignificant distinguished talent category.
Success under the independent and skilled-Australian linked categories
is dependent on an applicant passing a points test. Section
93 provides that an applicant is scored against the points test in
effect at the date of assessment, not at the date of application, however
based on the law applicable at the date of application. Points are
allocated for the following factors:
(a) The applicant's occupational skills at the date of application.
(b) The age at the date of application.
(c) English language ability of the applicant.
(d) For the skilled-Australian link category, points for various factors
in respect of the applicant's sponsor.
The current pass mark for both categories is 115 with a pool entry mark
set at 100 for the visa class 126 and 110 for the visa class 105.
Fundamentally under the current points test, an applicant for a class
126 visa has no prospect of succeeding unless he or she is aged under 35,
speaks fluent English and has recognised and relevant academic and/or
trade qualifications in the applicant's occupation and over 3 years
employment experience in that occupation after acquiring the qualification
including 2 years such experience in the 3 years before lodgement of the
application. The eye to the needle is very narrow! Further
the present government has unashamedly indicated that persons who do not
speak vocational English (tested through an English test unless the
applicant completed postgraduate academic qualifications fully in the
English medium) cannot possibly be accepted under the current program with
the recent expansion of the O.R.E. list.
Recognition of overseas trade or professional qualifications, an
essential feature of the present system, has historically been heavily
skewed towards persons who have acquired such qualifications in the United
Kingdom, South Africa, New Zealand, Canada and to a certain extent the
USA. While it is true that the criteria do not place
distinctions based on sex, ethnicity or other background, for persons who
have acquired recognised qualifications, applying the indirect
discrimination principles referred to above the obvious questions remains
unaddressed. In many countries women in particular are disadvantaged
with regard to educational and trade opportunities.
In numerical terms historically the largest number of visa places have
been reserved for persons what is now termed the preferential family
stream; particularly spouses, fiances and parents. The term spouse
is defined to include a heterosexual de facto spouse. Persons in
same sex relationships (interdependent relationships) have been able to
sponsor for migration their companions since 1985 but cannot include
companions as secondary persons in visa applications. This program
size however has been dramatically reduced in the current year and
certainly does not represent 10% of the available places, a figure which
some would argue reflects the size of the homosexual population in the
community.
Reference above has been made to Migration Legislation Amendment Act
1997 Number 1. Prior to the coming into effect of this legislation
the criteria for assessing applications by marital and de facto spouses
were identical. Now, however, an additional legal requirement has
been imposed for de facto spouse sponsorships, namely 12 months
cohabitation prior to the date of lodgement of the application, unless
compelling circumstances could be established by the applicants.
Some commentators have argued that this requirement, coupled with the
standard requirement of 2 years post application continued cohabitation
for all spouse applicants before final residence approval can be granted,
places an onerous obligation on Australian sponsors of persons, especially
those coming from countries where divorce is not part of the domestic law,
(the Philippines - traditionally a major source country for spouse visa
applicants) or where women have difficulties in accessing the right to
apply for a divorce (certain Muslim nations). The consequences on
Australian sponsors can be devastating and regrettably often leads to ill
conceived attempts by applicants to circumvent by illegal means the legal
requirements.
It is an established demographic factor that wealthier families tend to
have less children. The rules applying in relation to parent
sponsorships are skewed heavily in favour of persons coming from small
families. Parents can be sponsored under one of three programs: the
skilled-Australian linked program (where one parent must past the points
test), the parent visa (class 103) (where the parents must pass the
balance of family test), and the aged dependent relative program (class
104) (where a widowed, divorced, formally separated or single parent who
is old enough to be granted an aged pension under the Social Security Act
and has been dependent upon the Australian sponsor child for a reasonable
period) can apply. The most common way in which parents are
sponsored is under the parent visa category (103) whereby parents must
pass the balance of family test. This test provides in the
alternative that at least 50% of the children of the applicant parents
must be permanently resident in Australia or alternatively more must live
permanently in Australia than live in any other one country.
Clearly, applicants with large families are placed at a disadvantage as
against those with one or two children.
The largest number of people travelling to Australia are of course
overseas visitors who come for short term visits. The criteria for
the grant of a visitor visa fundamentally rest on bona fides testing of
the applicant's intentions. Applicants must also satisfy prescribed
public interest criteria, and in particular the quaintly named "risk
factor" - regulation 4011. Can any policy be more openly
discriminatory?
Persons seeking to enter Australia whether for permanent or temporary
stay must also satisfy a general health and character requirement.
Significantly, with regard to the health requirement, applicants are
ineligible to be granted visas where the applicant suffers from a disease
or condition which could threaten public health in Australia, would result
in significant cost to the Australia community in the area of health care
or community service or could prejudice the access of an Australian to
health care or community service. It is not uncommon for persons
suffering from any manner of disability, from obesity to intellectual
disability, and who pose no threat to the community to be denied entry to
Australia, even when sponsored under the spouse or child program.
Conclusion
On 30 October 1996, the Prime Minister moved a motion which was
supported by the Leader of the Opposition which reaffirmed the
Parliament's commitment to the right of all Australians to enjoy equal
rights and to be treated with equal respect regardless of race, colour,
creed or origin. The motion further reaffirmed the commitment of the
House to maintaining an immigration policy wholly non-discriminatory on
grounds of race, colour, creed or origin.
Listeners are invited to draw their own conclusions from this paper as
to whether Australia's immigration laws reflect the grand statements which
have been propagated. Given the contemporary political debate,
honesty and integrity demand an answer to the question whether or not
Australia's immigration law and policies are truly non-discriminatory:
myth or reality? The challenge for us all is to ensure a truly non
discriminatory immigration program is developed.
1 Relevant International instruments
include:
Return to text
|
