The Sri Lankan family – just a case of bloody mindedness. A repost from 2019.

Jun 18, 2021

We await further operation of Federal Court processes before the future of the Sri Lankan family being held on Christmas Island is finally known. In the meantime, it’s worth reflecting on why the government has chosen to take such a hard line on this family.

It’s open to the government to remove from Australia (deport) asylum seekers who have been found not to be in need of Australia’s protection and, in particular, who have exhausted all legal avenues to remain in Australia.

Equally, it’s open to Immigration Ministers to intervene to set aside a negative decision and grant any kind of visa to such people in the public interest. That power was included in the Migration Act because it was understood that there would always need to be exceptions. When migration criteria were codified in the Migration Act and Regulations, it was recognised that the human condition is too complicated for hard and fast rules to cover every circumstance. The intervention power was later extended to give Ministers even more discretion to give a visa to people being held in immigration detention.

Immigration Ministers have personally intervened to grant visas on thousands of occasions. In all cases, the beneficiaries of those decisions have not legally qualified for a visa, just as the Sri Lankan family have not legally qualified for Protection Visas. The fact that someone has not legally qualified for a visa and exhausted all their remedies in review Tribunals and the Courts is a starting point for considering intervention – not a reason why ministerial intervention should never take place.

Immigration Ministers have chosen to consider exercise of their intervention powers to grant visas based on published guidelines. However, these guidelines are not binding on Ministers and they have wide discretion to intervene and grant visas.

So, what is the case for intervening in favour of the Sri Lankan family?

We are not privy to every detail of their circumstances, but they don’t appear to fit obviously within the Ministers’ guidelines for consideration of intervention. However, neither did the now famous “au pairs” who were granted visas and nor would many others who ultimately benefited from intervention. So, not being strictly within the guidelines is not an insurmountable obstacle.

There is a good common sense public interest case for a Minister to exercise discretion to intervene and grant them some kind of long-term temporary visas. The government has trumpeted as its migration priority the need to get migrants to settle in Australia’s regions. This family has settled in Biloela in rural Queensland, is fully integrated there and has the strong support of the local community that wants them to stay. They appear to be the perfect model of regional settlement. How many migrant applicants in the past 12 months wanting to enter or remain in Australia have specified Biloela as their preferred destination?

Against this, the Prime Minister and Minister for Home Affairs and a number of commentators have rushed in with plausible, but dubious, reasons why discretion could not in any circumstances be used in the family’s favour.

Most of these arguments have been a variant of the idea that giving the family visas will open the floodgates of new boat arrivals.

The facts don’t support that analysis. The act of a Minister using his intervention power to give a long-term visa to someone does not set a legal precedent.

People who use the floodgates argument tend to be selective in what will, or won’t, open the floodgates. For example, refugees in offshore processing centres being resettled in the United States or other distant countries won’t open the floodgates, but anyone coming to Australia will open the floodgates, even if it’s for short-term medical treatment. It’s been argued that refugees going to New Zealand will open the floodgates (although Minister Dutton has reportedly said that perhaps they could go there at some future time without that happening).

The Prime Minister strengthened the floodgates argument, by suggesting that he couldn’t countenance intervention in favour of the family, because of the risk of deaths at sea after the floodgates open.

And yet, Scott Morrison, with then Opposition Leader Tony Abbott, blocked legislative implementation of the Gillard government’s Malaysia Arrangement which would have stopped boat arrivals in 2011. In doing so, he did not appear to be too worried about keeping open the floodgates or the risk of deaths at sea (30,000 more people arrived by sea AFTER the legislation was thwarted, including this family).

Then there is the suggestion that intervening to grant visas to the family will be an unacceptably good marketing tool for people smugglers. Whilst the government has to be aware of what people smugglers are saying to potential clients, it’s completely unsustainable for Ministers not to make sovereign decisions under Australian migration law because of what foreign criminals might say. In any case, people smugglers are not known for truth in advertising to their clients, so they will say what they want irrespective of Australian government actions.

The idea of the family returning to Sri Lanka and being considered for re-entry to Australia under some unspecified visa class has not been ruled out. It’s unclear why publicly contemplating this does not open the floodgates or give a marketing advantage to people smugglers when simply using Ministerial intervention power to let them stay longer will do so.

The government’s own revelations last week show that boat ventures from Sri Lanka have never completely ceased, irrespective of the hard line taken by the government.

Another published argument is that a Minister cannot intervene to give visas to this family because of the impact on thousands of other failed asylum seekers legally contesting their removal from Australia. In fact, most of those people will contest the removal by whatever legal means are available anyway. A positive Ministerial intervention decision based on an individual family’s circumstances does not set a legal precedent and is unlikely to have any significant impact on the broader caseload. The Biloela family’s circumstances are not easily replicated.

And then there is the disproportionate effort that seems to have gone into removal of a married couple and two very small children. We have seen a long stay in detention in Melbourne and then the drama of transfer to Christmas Island after a stay of removal by the Court. Was this all really essential? Was there a high risk of the family absconding? The operational decisions seem more appropriate for criminal deportation of an outlaw motorcycle gang.

This family’s situation has been elevated to a contest that the government seems to think it must win at all costs. Is there any strategy here or is it simply a matter of bloody-mindedness?

Given that the government has been extraordinarily slow to make decisions both on those people who arrived by sea over six years ago and the more recent surge in people arriving by air and claiming asylum, there is a huge task ahead in removal of failed asylum seekers who are becoming more integrated into the Australian community as every day goes by. Using the approach taken in relation to this family will be unsustainable in terms of costs, staff resources and time. The wise use of the ministerial intervention power for deserving exceptions would actually make the long term task easier. If a Minister had intervened earlier to give this family temporary stay, we would likely never have heard of them.

This article by Peter Hughes was originally published on Pearls and Irritations on 12 September 2019.

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