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Source: The Conversation (Au and NZ) – By Sara Dehm, Senior lecturer, International Migration and Refugee Law, University of Technology Sydney

Anyone following recent news reporting may rightly think Australia’s migration system is in “crisis”. Much of this reporting is fixated on the perceived threat posed by non-citizens to the safety or prosperity of the Australian community.

Last week, this panic was reflected in Immigration Minister Andrew Giles’ proposed revised directive to decision-makers to prioritise vague notions of “community safety” over other important considerations, such as an individual’s connection to Australia, when reviewing visa cancellation cases.

And earlier this month, Opposition Leader Peter Dutton dubiously claimed migration exacerbates Australia’s housing crisis, including through “excessive numbers” of international students.

Such framing misses the real “crisis” of Australia’s migration system and the real harms it enables and produces to non-citizens. Ongoing failures to bring in systemic, migrant-centred reforms has left many non-citizens exposed to situations of exploitation, prolonged immigration detention, painful legal uncertainty or even punitive deportation.

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Australia’s long history of ‘migration panic’

Sociologist Zymunt Bauman describes “migration panic” as a magnified hostility towards migrants animated by politically motivated fearmongering and xenophobia.

Non-citizen migrants become scapegoats for perceived dangers to the wellbeing of the national population. They can also be blamed for the “uncertainties” of contemporary global capitalism.

Such migration panic fosters an artificial “us and them” divide and creates the perception of a crisis around immigration that is then used to justify more migration controls and restrictions against non-citizens.

Such migration panic is not new. Australia has a long colonial history of racial exclusion through immigration law. The Whitlam government’s formal dismantling of the White Australia Policy in 1973 did not end this racial anxiety. In fact, the Whitlam government commissioned Australia’s first purpose-built immigration detention centres, with Sydney’s Villawood centre opening in 1976.

Today, this migration panic centres around “unauthorised” asylum seekers arriving by boat and criminalised non-citizens.

Prolonged detention or precarity

A key failure of successive recent governments has been their unwillingness to provide a pathway to permanency to all asylum seekers who arrived by boat from August 2012 onwards. During this time, around 35,000 people – mainly from Iran, Iraq, Afghanistan, Pakistan and Sri Lanka – arrived “unauthorised” by boat to seek asylum.

The vast majority of these people remained in Australia, first in immigration detention and later on short-term bridging visas. Successive governments have referred to this group of people as the “legacy caseload”.

A small portion of 4,245 people were forcibly sent to Australian-run immigration detention in Nauru and Papua New Guinea between 2012 and 2014. More than 1,000 of them are now in Australia on short-term final departure visas, after a decade of waiting for elusive third country resettlement. Despite the documented harms many suffered, and their rebuilding of lives in Australia, they all remain ineligible for any Australian visas.

From 2015 onwards, individuals in the legacy caseload were invited to apply for temporary protections visas. Unlike asylum seekers who arrived by plane, they were largely barred from permanent visas.

The process for reviewing their asylum applications (known as the “fast track” process) was discriminatory, flawed and unfair, with a disproportionately high rejection rate of cases.

In May 2022, the Albanese government was elected on an election promise to ensure “no migrant is ‘permanently temporary’”. In 2023, it created a pathway for temporary protection visa holders to apply for permanent ones.

But this process excluded around 7,500 people who were rejected via the fast-track process. They now remain either in immigration detention or on short-term final departure bridging visas.

The recent High Court case of a bisexual Iranian man who has been in immigration detention for almost a decade is a well-known example of a person failed by this fast-track process.

As a migration expert recently stated before a senate inquiry:

Given the legitimate criticisms of the fast-track process and the fact that those people have now been living in and contributing to Australian society for over a decade, this parliament should find a way to provide those persons a pathway to permanent residence.

Instead, the current government continues to maintain arbitrarily created distinctions between this population.

Visa cancellations as double punishment

Another failure has been successive governments’ decision to politicise the offending of non-citizens.

Since 2014, Australian law says certain non-citizens must have their visas cancelled. This includes people who have been convicted of a crime carrying a sentence of 12 months or more. These offences “vary enormously in seriousness” and can include non-violent property offences. All visa cancellation decisions can be reviewed by independent tribunal decision-makers.

Between July 2018 and December 2023, immigration ministers cancelled the visas of 4,415 people on the basis of “character grounds”, with New Zealanders being the single largest most cancelled visa nationality group. Many have lived in Australia for years, with strong family ties to Australia. Only a small proportion (883 people) managed to have this decision revoked by an administrative tribunal.

This has long caused friction in Australia’s relationship with New Zealand, prompting Giles to issue Ministerial Direction 99 in early 2023. This directed tribunal decision-makers to weigh up five factors when deciding to revoke a visa cancellation decision, including the “protection of the Australian community from criminal or other serious conduct” as well as the “strength, nature and duration of [a person’s] ties to Australia”. It also directed decision-makers to consider any future “risk” to the Australian community.

Last November, the High Court ruled indefinite detention to be unlawful where there was “no real prospect” of removal from Australia. A small cohort of people was then released from long-term immigration detention, including people with criminal convictions or who had been denied visas on “character grounds”.

Since then, there’s been a lot of media coverage around the reoffending of people released from immigration detention, as well as others who have had their visa cancellation decisions revoked by the tribunal decision-makers.

In response, Giles this week announced that he would revise Directive 99 to “ensure the protection of the community outweighs any other consideration” in reviews of visa cancellations.

Yet this means further entrenching how immigration law duplicates the work of the criminal law system. Criminal law can already broadly consider questions of the “risk” to or “protection” of the Australian community when making sentencing or parole decisions.

Mandatory visa cancellation laws effectively punish non-citizens twice. People impacted by visa denials or cancellations have been stuck for many years in immigration detention pending deportation. Even if they are eventually released, they are subject to heightened monitoring through the use of electronic ankle shackles and even drones.

But rather than reexamining this duplication between immigration law and criminal law, the government is now proposing a controversial new law that will further criminalise people who refuse to participate in their own deportation. This will lead to people being further caught between the criminal justice system and immigration detention.

There are currently around 900 people in Australian immigration detention, with the average time a person spends in immigration detention now reaching 610 days (almost two years).

Rather than promoting “migration panic”, perhaps the greater challenge is how to undo the enduring legacies of Australia’s long practice of inflicting harms to non-citizens at our borders.

The Conversation

Sara Dehm receives funding from the Australian Research Council.

ref. Migration has been in the news a lot lately. What’s going on? –