Stop hypocritical 'character tests' for asylum seekers

Image: Pxhere

Seeking asylum in Australia means leaving your home, friends and family forever and embarking on an often treacherous journey. Once you arrive, you must relive the horror from which you have escaped to prove to a tribunal that you are deserving of asylum.

The power afforded to the Department of Home Affairs (previously the Department of Immigration and Border Protection) to judge the character of visa applicants means that anyone who deviates from the department’s view of morality will not be granted asylum.

But what is good character, and who can determine it? More importantly, what is its relevance to determining asylum status?

The proposed , which is currently before parliament, will significantly extend the powers of the character test, for those who might be rejected on character grounds.

Australia has a shameful history when it comes to refugee policies. Despite the comparatively insignificant number of refugee arrivals compared to hot-spots like Turkey, Uganda and Germany, Australia is infamous for its harsh and punitive treatment of refugees.

Human rights groups and refugee advocacy groups have long condemned Australia's policies towards asylum seekers, but the politicians responsible refuse to acknowledge the harms caused.

Despite cutting Australia’s humanitarian intake by almost a third since 2018, the federal government now spends an estimated  a year on its offshore processing centres — or more than .

This amount, ironically, dwarfs shock-jock Neil Mitchell’s scaremongering claim that refugees will cost taxpayers “” if settled into communities.

The idea of an unlawful or “illegal” refugee is in itself nonsense under international law by which — in theory — Australia is bound. Under the , a person found to be an asylum seeker is by definition legally entitled to seek refuge, visa or not.

Australia, however, imposes additional criteria that a “genuine” refugee must fulfil if they want a chance at settlement. Today’s iteration of the  (it has seen some twenty-plus distinct amendments since 2014) effectively creates a new class of unlawful entrant whose future is almost entirely at the mercy of the immigration minister and their assessment of the applicant’s “character.”

At face-value, the Migration Act’s character test assesses whether a person should be granted a visa based on any history of criminality. Some might consider this reasonable, but in reality the test captures any individual convicted of non-violent crimes, such as property damage and drug possession.

If the same standard was applied to prospective parliamentarians, many MPs would fail including current Secretary of the NSW Department of Premier and Cabinet Michael Coutts-Trotter, who

Even people without proven criminal records can be captured under this law. The immigration minister may refuse or cancel a visa on these grounds if they a person does not meet the requisite standard.

The character test is not a new feature of Australian immigration law, but it has become far more severe in the past twenty years, in both in its scope and application.

An amendment to the Act in 2014 introduced mandatory visa cancellation on character grounds. Before this, the minister had the discretion to weigh a number of factors, criminality among them, before making the call.

The Act explicitly precludes natural justice or procedural fairness from the minister’s decision-making role. Accordingly, mandatory visa cancellation decisions can not be reviewed by the Administrative Appeals Tribunal (AAT).

Applicants can seek revocation of the visa cancellation, and somewhat confusingly, the minister’s responding refusal to revoke the cancellation can be reviewed by the AAT. But if the AAT decide to revoke the cancellation, the decision can be overturned by the minister.

It’s like a game of Monopoly where one player gets unlimited throws of the dice.

Any questions of injustice regarding this system are inevitably met with the government’s claim that it is in “the national interest”. But migration law already provides a separate test wherein a visa can be refused or cancelled on national security grounds as assessed by the Australian Security Intelligence Organisation (ASIO).

If we remove any concerns of terrorism from the equation, we are left with one of two conclusions as to the test’s actual purpose. It either punishes people who have already paid their debt to society, going against every principle of fairness.

Or, it is a punitive mechanism to deliberately circumvent Australia’s humanitarian obligations by denying as many visas as possible.