Changes to the character test under the Migration Act, regional cooperation framework
Wednesday, 27 April 2011
Interview with Madonna King, ABC Brisbane
Madonna King: Will this solve the problem: is it too hard as the Greens say, is it too soft as the Opposition says? Chris Bowen is the Immigration Minister. Good morning minister.
Chris Bowen: Good morning Madonna, or is it just right?
King: Just briefly, how will this work?
Bowen: Well, what we've got is a situation, we have an existing character test of course, which says if you fail the character test the department or the minister can deny you a visa. Now, at the moment the long-standing law has been that the character test is triggered if you get a sentence of twelve months or more in relation to any conviction; or general character, but the courts have held general character to require some sort of series of events, rather than just a one-off event. Now, I think the circumstances in Christmas Island and Villawood have underlined the need for a different approach to say that if you are convicted of any offence during your time in immigration detention, that would trigger the character test.
King: And does that mean you get a visa that will be the beginning of your deportation?
Bowen: Well, it will be on a case-by-case basis. So there are things that we have at the moment called a bridging pending removal visa. There are people in the community on those as we speak, they're quite long-standing and they are issued generally to people who have character issues but for whatever reason can't be returned to the country of their citizenship. And there are also another type of visa called 'safe-haven' visas.
So what we would say to people who failed the character test is, 'You're not getting a permanent visa, if we can't return you to the country you've come from because you are a genuine refugee in fear of persecution, we will consider a temporary visa, they have very different conditions to a permanent visa', and then we will assess the situation. Now –
King: Why can't they just be deported if they burned down a building in Villawood?
Bowen: Well, we have international obligations and as a humanitarian country, we – regardless of that, we wouldn't return people to where they are likely to suffer severe persecution. Now, every case is different here Madonna, and I try to avoid generalisations while answering your questions.
So take for example some of the protesters at Villawood, they have been rejected as refugees, so the Department of Immigration, the Independent Merits Review does not regard them as genuine refugees, some of them have court cases pending. In those cases we would certainly take action to return them, either voluntarily or involuntarily to the country from whence they've come. When somebody is a genuine refugee, it's more complex. If they've committed an offence, we then have a case-by-case approach, which would certainly indicate that there is a significant disincentive for bad behaviour in detention.
King: And the rule of law would suggest that they must be found guilty in a general court of law before you make that decision to deport them, they must have a conviction?
Bowen: Generally. So the changes I've announced yesterday say that any conviction for any offence while in immigration detention would automatically trigger the character test. There's still the general character grounds…
King: …Yes, I understand that. My point here is if they are given a temporary visa, given our court system couldn't they be as part of the Australian community for two years before they even face a court?
Bowen: Well certainly, as I say Madonna, each case would be different. Now if a case came to me as minister, said this person is a genuine refugee but they have a conviction or a court case pending, I would look at the instance and I would say well, in some instances I would issue a temporary visa, in some instances I might take a different approach. There's also other powers under the Act to deny people the right to apply for a protection visa if they've arrived offshore. So there are a range of powers that would be applied on a case-by-case basis.
King: Does this mean you as a minister, your in-tray's just going to fill and fill and you will have to make these decisions on whether someone is deported or what happens, what visa they get?
Bowen: I already make – the minister of the day already makes thousands of these decisions a year. Yes, there will be personal decisions for the minister to make here, but that's part of the role of being Immigration Minister.
King: The Opposition's saying that they should not get a visa and told to apply to another country.
Bowen: Well, the Opposition really has been at sixes and sevens on this. For days they've been saying people shouldn't get permanent visas, I agree with that if they've been convicted. Now they're saying they shouldn't even get temporary visas. They might want to outline whether they think people should be returned to countries that they're a genuine refugee from or which other countries are they proposing that they apply to a visa for?
King: Alright, so what about their criticism of your policy in part is that it is a return – it's what they always advocated, it's a return to John Howard's policy. It gives refugees protection, it is temporary and it limits the refugee's rights: that's how you've just described it to me too.
Bowen: It's a very long bow to draw though, to say that an existing visa, which would be given to a relatively small number of people who commit an offence while they're in immigration detention, as opposed to the Opposition's policy of blanket temporary protection visas for absolutely everybody, which was a three year visa and then in most cases was rolled-over to a permanent visa. So it's a very different approach, and if you of course have temporary protection visas for everybody there's little incentive to behave in immigration detention if everybody's going to get the same visa in the end, as they did in the Woomera or Baxter riots for example under the previous Government.
King: Those involved in the trouble at Villawood, will they now automatically fail the character test?
Bowen: If they're convicted of an offence, yes.
King: So will they be charged with offences and that will then go to a general court of law?
Bowen: Well, as you know Madonna, under our system minister's don't lay charges, Director's of Public Prosecutions do. But certainly I know the Australian Federal Police has continued to question people, they'll make a reference to the Director of Public Prosecutions. Certainly there'll be a very assiduous investigation of all those matters and it could well be that charges are laid, yes.
King: How many arrivals have there been since you've been in power?
Bowen: Well certainly we see arrivals move up and down. We've got about 6 000 people in detention at the moment. The number of arrivals in the first quarter of this year has been half of that of the last quarter. If you look at the period from 2007 there were very few arrivals in the first couple of years of Government, then you've seen arrivals, you know, certainly reach around 10 000 and up.
King: What would you say to listeners who are thinking before the election your Government said people would be processed in East Timor, that's now not happening; that this is more of the same?
Bowen: Well look, certainly you manage the situation you have, and we have said before the election we were committed to an international solution with an East Timor processing centre as part of that. We've made good progress on an international solution, we had the Bali Ministerial Meeting a little while ago…
King: … But are you still believing that there will be an offshore processing operation in East Timor?
Bowen: Look, I certainly think President Horta himself said the other day that he still regards that as a real possibility. But the main thing is Madonna, we continue to be focused on those discussions and broader discussions about an international framework. It does take time, it has taken longer than, you know, cheap three-word-slogans to say 'we'll stop the boats'…
King: That's right, that's right, but a cynic might say also that before the election you took this off the agenda in a sense by saying that there would be a processing plant in East Timor and that's not the case.
Bowen: Well certainly these discussions and negotiations have taken time. The Prime Minister when she announced that said that it would – she didn't say it would have an East Timor processing centre up and running by any particular timeframe. In fairness to what she said before the election, she said that discussions had commenced and that was one of the areas for discussion. And those discussions continue, as I say, the Bali Ministerial Process, which agreed on an international framework just a few weeks ago.
King: On the latest announcements, those made this weekend, the Opposition is not giving any guarantee it will back these changes. What's your Plan B?
Bowen: Well, can I say it would be highly hypocritical of the Opposition not to back them. I'll certainly make the appropriate briefings available to them, but they have been calling for people not to be issued permanent visas. If they oppose then legislation which makes it easier not to issue permanent visas, that would be highly hypocritical on their behalf.
King: Is there an argument though, given the asylum issue, that both you and counterpart on the Opposition sit down and work together on a solution, or is that na?ve of me to suggest?
Bowen: I wouldn't suggest that you're na?ve Madonna, I wouldn't be so rude. But I do think the Opposition does take a highly political approach to these things and does take any opportunity to score political points, and we have a different approach. Their approach is Nauru, which is in my view another Christmas Island, which is not part of an international framework; and they have temporary protection visas. I have the approach you just can't make your domestic regime harsher and more punitive, you've got to engage in these international discussions.
King: Chris Bowen, thank you.
Bowen: Pleasure Madonna.
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Last update: Wednesday, 27 April 2011 at 13:56 AEST