• Glenn Nicholls

22 June 2005There are no judicial checks on Australia’s system of mandatory removal, writes Glenn Nicholls



FOR A CENTURY Australia had a legal process for deportation, but since 2001 deportation has effectively disappeared. No new deportation orders were issued in Australia after 2001. Instead there is a process called ‘removal’, which is prone to overzealous action.



The removal system emerged from the Commonwealth Migration Reform Act introduced in 1992. It had three purposes: first, to keep up tough action against visa overstayers introduced in 1989 under a short-lived section of the Migration Act titled ‘mandatory deportation of illegal entrants’; second, to keep courts and tribunals out of deportation decisions; and third, to deal with the increase in applications for refugee status lodged by people already in Australia or arriving by boat seeking asylum (this increase began in 1989 after the ruthless repression of the democracy movement in the People’s Republic of China and continued through the early 1990s).



Although mandatory detention is the most controversial element of legislative changes made in 1992, the removal mechanism has now come under scrutiny with the deportation of Vivian Alvarez Solon and the attempted deportation of Cornelia Rau.



Previously, deportation was an active decision to send a non-citizen away, with the burden of proof on the government to show that the person was not entitled to stay in Australia. No one could be deported without being brought before a court to verify his or her identity and the bona fides of the deportation order. Now the system lacks a safeguard. The removal mechanism starts like a machine when a person cannot satisfy officials of the Department of Immigration that he or she is lawfully in Australia. Where an immigration official reasonably suspects that somebody is an unlawful non-citizen, the official must detain that person under s.189 of the Migration Act and under s.198 remove him or her from Australia as soon as practicable. As the Commonwealth Parliament’s Joint Standing Committee on Migration put it in 1998: ‘Mandatory removal was introduced to simplify the procedures for removing persons who had no legal authority to remain in Australia.’



The Alvarez Solon and Rau cases have shown that the burden of proof is all wrong here. Both were entitled to live freely in Australia, but both were in vulnerable situations and without identity or residence documentation showing their status in Australia.



In 1989 the Commonwealth Parliament’s Joint Standing Committee on Migration Regulation reported that the compliance functions of the Department of Immigration had been ‘of limited effectiveness’. Since then the system has gone to the other extreme. Annual targets have been set for the detection and removal of unlawful non-citizens in Australia by immigration officials. The number of people deported from Australia annually has risen steadily.



With legislative changes, numbers are not strictly comparable from year to year, but what the statistics unquestionably show is increasingly organised detection, detention and removal action by the Department of Immigration. There were approximately 1000 deportations a year through most of the 1980s, rising to more than 2000 a year in 1989 and 1990. Between 1999 and 2003 the average yearly number of removals was more than 10,000.



This is a higher rate of removals relative to population between 1991 and 2003 than either the United Kingdom or Canada (5.5 per 10,000 population as against 2.6 and 2.1 respectively). According to data collected on Europe by the International Organisation for Migration (Return Migration: Policies and Practices in Europe, 2004) only countries with far more refugee applications had higher rates in the early 2000s: Austria (9.8), the Netherlands (8.2) and Germany (6.0).



Australia’s high number of removals comes from concerted compliance action by the Department of Immigration in detecting and removing unlawful non-citizens. This is in accordance with the law and wholly consistent with the policies of successive governments, both Labor and Liberal. However, the system is inflexible and catches too many people up - as is attested by the 200 cases referred to the Palmer inquiry in addition to the cases of Rau and Alvarez Solon.



Just last week, an attempt to remove a Bangladeshi citizen refused refugee status was stopped at Perth Airport after an appeal to the United Nations (Age, 17 June 2005) - just as happened in 1998 when Sadiq Shek Elmi’s deportation to Somalia was stopped at Perth Airport following last-minute intervention from the United Nations. The Senate inquiry that examined Elmi’s case and the removal of heavily pregnant Zhu Qingping to China disclosed a range of problems with the removal system, and Democrats Senator Andrew Bartlett commented then the task of fixing the system was ‘far from over’.



It’s time to see the task through. A decade after its introduction, there is a need to re-examine the removal mechanism. It lacks the checks and balances that should be brought to bear when the grave action of thrusting someone out of the country is taken.



As an immediate step, judicial checks on removal actions should be introduced to stop any more wrongful deportations. •



Glenn Nicholls is writing a history of deportation in Australia at the Institute for Social Research, Swinburne University of Technology. This article first appeared in the Age.



Photo: Ian Britton/ Freefoto.com