Extract from The Guardian
The government’s review process prioritises speed over fairness, but the children’s best interests should take precedence
Legal
action in the federal court has, until at least Friday, put a stay on
the deportation of a Tamil family of four “failed” refugee claimants.
The parents (who arrived by boat in 2012 and 2013), along with their
Australian-born children, had previously been living in the community of
Biloela for several years.
Their substantive claims for refugee protection (and temporary visas) have been refused, and immigration officials and the independent review body have said there is no real chance of significant harm if they are returned to Sri Lanka in the foreseeable future. Subsequent court challenges that have alleged that legal and procedural errors tainted the review process have been unsuccessful.
The government remains steadfast: the family are not refugees and
will be deported. And on Wednesday the immigration minister tried to
pre-empt the latest rounds of legal proceedings before the federal court
by stressing that he would not be prepared to exercise his
discretionary ministerial powers and entertain a visa application from
the youngest daughter. Apparently his department had already considered
her case and the matter was now closed, all of which came as a surprise
to the family’s legal team.Their substantive claims for refugee protection (and temporary visas) have been refused, and immigration officials and the independent review body have said there is no real chance of significant harm if they are returned to Sri Lanka in the foreseeable future. Subsequent court challenges that have alleged that legal and procedural errors tainted the review process have been unsuccessful.
The government’s view is that the family has received due process at substantial cost to the taxpayer and that Australia has discharged its international legal obligations. This is not an unreasonable position for the government to maintain; though the type of process the family has been subjected to (the “fast-track” procedure) is, arguably, flawed, offering an unconventional and limited form of review that prioritises speed over fairness.
Far less plausible is the government’s claim that the integrity of immigration controls would be compromised by allowing one family to remain on compassionate and humanitarian grounds. This is because Operation Sovereign Borders, notably the interception of boats at sea, has effectively insulated Australia from boat arrivals for several years and it serves as a formidable deterrent to potential boat arrivals.
The latest round of legal proceedings has further delayed the deportation of the family, who languish in detention on Christmas Island. The legal team’s strategy has permitted a public campaign to gain some momentum and attract high-profile supporters. The significant period of time they have spent in Biloela, the fact the two daughters were born in Australia, and their community ties have all been raised in the family’s favour. The Australian children’s commissioner, Megan Mitchell, and the human rights commissioner, Edward Santow, have lent intellectual heft to this stance, both calling for the exercise of ministerial intervention in the case to protect the human rights of the family.
The immigration minister has broad and unparalleled personal discretionary powers under the Migration Act 1958 (Cth), permitting them to substitute a favourable decision if the minister thinks it is in the “public interest” to do so. Use of the powers is non-compellable and non-reviewable, and what is in “the public interest” is not defined in the legislation: it is effectively an unreviewable political question. And that, we argue, is part of the problem in a liberal democracy founded on the rule of law and checks and balances. These exorbitant “God-like” powers are used frequently and, sometimes, controversially. Alan Jones pointedly asked “why can’t they get a bit of ‘au pair’ treatment?” in his Telegraph column this week, in reference to Peter Dutton’s use of ministerial discretion to prevent the deportation of two European au pairs in 2018. Why indeed?
There are policy guidelines as to when cases might be referred to the minister for consideration. Unique and exceptional circumstances are required; these include (but are not limited to) compassionate circumstances regarding age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.
The minister’s discretion and the rights of the children
The UN Convention on the Rights of the Child requires the best interests of the child to be a primary consideration in any decision affecting them. Although not a decisive consideration, UN bodies, including the United Nations High Commissioner for Refugees and the UN Committee on the Rights of the Child, have stated that non-rights based considerations, including those related to migration control and immigration, cannot override a child’s best interests. A child’s best interests should have high priority; what best serves the child must have a larger weight. Further, children should be kept with their parents unless it is against their best interests.Given that the two young children in this case were born and raised in Australia, have evidently developed strong ties within their community in rural Queensland, and have never been to Sri Lanka, a strong principled argument can be made that it is in their best interests to remain in Australia. Indeed, according to the UN Committee on the Rights of the Child, children should be removed only if it is in their best interests. Further, removal should not be pursued where there is a “reasonable risk” that it will violate their fundamental rights”, including rights to life, health, and education, and development to the maximum extent possible. While the Department of Foreign Affairs and Trade’s current country information report states that Tamils are generally safe in Sri Lanka, others have argued strongly that the country remains dangerous for them.
It is open to the immigration minister to grant the family visas because it is strongly arguable that it is in the children’s best interests. Taking into account the particular circumstances of the Tamil family, the immigration minister, David Coleman, could grant the family visas to remain in Australia on a principled legal basis relating to the best interests of the children. To date, there has been no official recognition that the government has canvassed this approach: we say it should do so, now.
• Associate professor Peter Billings and Dr Joseph Lelliott are at UQ Law School, University of Queensland
No comments:
Post a Comment