Category Archives: immigration

Reflection on good fortune

Last night, I went to a friend’s hen’s night, and after dinner, we went out dancing. I am not sure how many years it is since I have done something like that…a long time, to be sure. Anyway, I caught a taxi home, and my driver was a Somalian man of about my age. He had three children, and the two youngest were either side of my daughter in age. So we had a good laugh about the funny things little kids do, the temper tantrums they throw, their affection and all of that kind of thing. Then he was telling me about how he came to leave Somalia, how he goes back to help kids with medical problems, and the advantages and disadvantages of living so far from home in Australia. “The peace in Australia, it is beautiful,” he said. “If I was at home, I would have all my extended family. I miss that. But the peace here is so good.” We were then talking about the terrible things happening in Kenya, and hoping that civil war doesn’t break out there.

And as I type, I think about the terrible things happening in Pakistan. If I was a lawyer in Pakistan, I wouldn’t be able to speak my mind on a blog. I’d be in gaol, probably.

This is where I am a passionate believer in human rights; unfortunately, the kind of situations where they are most needed are exactly the kind of situations where they are unlikely to be respected. Mob violence, corrupt governments, anarchy, civil war…

How lucky most of us are in Australia. Most of us have clean drinking water, enough food, and do not have to worry about epidemic diseases for which immunisation and treatment is available. Since settlement, we’ve never had a civil war, never had a military coup, and never had a dictator.

The exception to this is of course, indigenous people, some of whom still do not have clean drinking water and suffer from treatable diseases. And the various phases of European settlement have had a devastating impact on indigenous communities and people. But otherwise, we are incredibly lucky. Sometimes it’s worth sitting back and thinking about that. Thank you to that taxi driver for making me reflect on how good my life is. And I wish he and his family all the best here in Australia.

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Filed under Australia, human rights, immigration, Personal, refugees, society, war

Playing the race card

Last night when I was driving home, I saw a large group of boys standing on the pavement outside the Housing Commission flats. The boys were predominately of African descent. I was thinking about it when I got home. The boys had been dominating the footpath. Would I have felt nervous if I had been walking on the street and had to push past them? Yes, I would have. Was it because they were African? No, not at all. It was because they were male and blocking the footpath. Regardless of race, religion or class, as a lone woman, I would feel slightly worried about having to pass a large group of boys. I don’t think they were a gang, they were just a group of boys hanging out with nothing better to do, but that’s when boys get up to mischief. It made me think more deeply about the news of the last few days.

It was with a sinking heart that I watched the news the other night with stories of Sudanese gangs terrorising Noble Park and Dandenong. The news release dredged up the crimes committed by Sudanese refugees Taban Gany and Hakeem Hakeem. The implication seemed to be that all Sudanese refugees were lawless drunkards and rapists. Sudanese refugees had become an issue because a young Sudanese man, Liep Gony, was bashed to death at Noble Park railway station by two youths who were not of Sudanese descent. Sudanese people have been victims of crime too.

The response of the Federal government was to say that it had limited the intake of African refugees to Australia because of their difficulties in integrating. Various interest groups and Sudanese community groups then said that this was racist.

Neither response is going to resolve the problem. Just because some Sudanese refugees commit crimes does not mean that all Sudanese refugees have integration problems. On the other hand, if there are problems with a small section of the community, they should be faced and people’s concerns should not simply be dismissed as racist. That dismisses the concerns of people who may feel worried. It’s better to actually confront the concerns and see if there’s any valid points.

Sudan is a very troubled area of the world, to put it mildly. It has been involved in successive civil wars and conflicts with neighbouring countries. The conflicts have been partly on religious, ethnic and tribal grounds. Presently there is a terrible conflict in Dafur where it has been alleged that the Janjaweed militia have committed acts of genocide against rebel groups.

The 1951 Convention relating to the Status of Refugees says that a refugee is a person who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country…”

Refugee and asylum law only really developed after World War II, where there was a massive number of displaced persons. The idea is that blameless civilians should be granted asylum in other countries which are safe and in which people will be free from war and violence. My attitude toward refugee law is “Do unto others as you would have them do to you.” If Australia were suddenly dragged into a civil war, and I escaped with my family, I would hope that another country would offer me refuge. Some of my dear friends came to Australia as refugees.

Clearly, there would be many Sudanese people who qualified as refugees. Many of those who arrived here would be traumatised and would have seen and suffered terrible things. Many Sudanese would have grown up in a war zone, with little or no laws. Obviously, there are going to be adjustment problems when people who are traumatised suddenly have to adapt to a totally new society. Sometimes, also, ethnic, religious and tribal conflict is also likely to have been brought across to the new country, especially if a person’s family has been killed by another group. That’s just a fact of life (I remember those Serbia-Croatia soccer matches when I was a kid – which turned into mini-civil wars in the stands). Some refugees may be both perpetrators and victims of violence. Furthermore, refugees may have grown up with little or no laws, a very different culture and a different language.

I should think that, given the above factors, it’s clear that at least some Sudanese refugees will have integration problems, and it does no one any good to deny it. It is also true that there are some “bad eggs” within the Sudanese community, as there are within every community. But does that mean the intake of African refugees should be limited? Aren’t integration problems part and parcel of taking in refugees, and to be expected? I don’t think we should exclude Sudanese or African refugees on a blanket basis. That would be unfair to those Sudanese and African people who genuinely wish to live here in peace and harmony with other Australians. It reminds me of times when teachers say “I’m going to give you all detentions because of the behaviour of one person in this class”. I really hated that. The expectation was that the group would discipline the individual as a result – but why should everyone be punished for the crimes of one or a few? I always felt angry, and as if the teacher was abrogating his or her responsibility.

It must be ensured that refugees are given proper support and counselling, as well as education in English language and Australian laws and culture. I have heard of some refugees being dumped in rural towns, with little or no support, and it is hardly surprising that problems then arise. As the UNHCR says, refugees are required to comply with the law of the country which has given them asylum. Refugees must be made aware of our laws and customs (but certainly not in the manner of that really stupid citizenship test). It must also be ensured that community leaders communicate with their members and say that ethnic violence, tribal violence and violent crime are not acceptable in this country.

Also the concerns of shopkeepers and the like in Noble Park should be addressed. They obviously perceive a problem, and while it’s easy just to write them off as “racist”, I think that this actually makes the problem worse and increases resentment. People have a right to feel safe, and there should be a swift response to crime which gives a message that it is not acceptable. I tend to think no excuses should be made on the basis that someone is a refugee.

Thinking back to that group of boys on the pavement yesterday, perhaps boys should be made aware that congregating in a large group can sometimes be intimidating and scary to others, whatever one’s ethnicity or religion. But I suspect it’s just something that naughty, bored boys do, wherever they are from and whatever their culture. And I also suspect that some boys enjoy and cultivate the intimidation factor.

It’s a problem that can’t just be fixed by one side alone. The refugee communities, the police, the government, the social workers and schools have to all work together. And there’s always going to be a few bad eggs. It is a fact of life that there will always be negative aspects to granting asylum to refugees. Some people will have difficulty adapting or will be undesirable or criminal. But there are also immense positives. I think of my dear friend, who came here as a two year old, a stateless refugee. She’s now a success story: a businesswoman with two degrees, a mother and wife, an Australian citizen, an Aussie Rules footy fan (far more than me) and an all-round great person. I couldn’t think of a better addition to Australian society. It’s not worth throwing the baby out with the bathwater. Some common sense from all sides would not go amiss.

Finally, I wish the press would show some restraint as well. Sensationalised reporting creates the sense of a crisis and inflames tension. I’m sure there are genuine problems, but sensationalising them helps nobody. Let’s look at this logically and calmly. What am I saying? It’s election time – no one can look at anything sensibly during election time… Sigh!


Filed under human rights, immigration, law, media, politics, racism, refugees, society, tolerance

Limits on executive power

I venture into questions of migration law and executive power somewhat tentatively. They are far from my “comfort zone”. But I couldn’t help having a curious look at the case of Haneef v Minister for Immigration [2007] FCA 1273.

The primary question in this decision is the interpretation of s 501(6)(b) of the Migration Act 1958 (Cth). Section 501 (3) provides that the Minister can cancel a person’s visa if the Minister suspects that a person does not pass the “character test” and the Minister believes the cancellation is in the national interest. Section 501(6)(b) says that person will not pass the character test if the person “an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct”. The question for the consideration of the Court was the test to be applied in deciding whether a person has an “association” with a group or organisation which was involved in criminal conduct.

The facts of the Haneef case are well known (and discussed in a previous post here). Dr Haneef, a doctor working in a Gold Coast hospital, apparently loaned his SIM card to his second cousins, Kafeel and Sabeel Ahmed, who went on to make attempted suicide bombing attacks in London and Glasgow. He was charged with recklessly providing resources to a terrorist organisation. After the magistrate granted bail to Dr Haneef, the Minister for Immigration, Kevin Andrews, immediately revoked his visa, meaning that the government would be entitled to detain him under its immigration powers.

The Minister argued that he was entitled to judge Dr Haneef as failing the character test because of his association with Kabeel and Sabeel Ahmed. It did not matter whether the association was innocent or not, or whether Dr Haneef had any knowledge of his second cousins’ plans – any association was enough (applying MIMA v Wai Kuen Chan [2001] FCA 1552). Spender J said that Chan was incorrect, and that accordingly, the Minister had not applied the correct test and the decision was a nullity. However, it is important to note that his Honour was of the opinion that the Minister could have been entitled to cancel Dr Haneef’s visa if he had applied the proper test. The proper test would have taken into account the fact that UK Police had advised the AFP that Dr Haneef was a person of interest to their investigation through his association with the Ahmed brothers, and that Dr Haneef had been charged with a criminal offence pursuant to the Criminal Code, and found that there was more than just any association.

His Honour made a number of pertinent comments about the rule of law. He found that the breadth of the test in Chan allowed the administrative arm of the government free rein. A woman who was battered by her husband could be said to have an association with a criminal by reason of the fact that a crime had been committed against her. There had to be some limits to the way in which the administrative arm of government could exercise its powers.

The decision of Minister Andrews to revoke Dr Haneef’s visa makes me deeply uncomfortable. It seems to me that if the court was satisfied that he should be let out on bail on strict conditions, then that was enough. Of course the administrative arm of government should be allowed to intervene in matters of national security, but they should not have carte blanche to do as they wish. The fall-out of the Haneef affair establishes why this is so. The government should have put all relevant facts before the magistrate who heard the bail application, and should not have tried to get around the exercise of independent judicial power which has been delegated to the courts.


Filed under Federal Court, immigration, law, politics, terrorism

We ain’t that bad, really!

As a lawyer, my eye was caught by an excerpt from one of The Road to Surfdom’s latest posts:

In a country where the federal cabinet consists of little but grey soulless lawyers, it’s ironic that some of the most admirable characters in the struggle to defend personal liberty and democratic principle are also members of the legal profession. Major Michael Mori showed us the best of the US law fraternity and now along comes Stephen Keim SC, with terrific personal courage, to challenge the government’s contemptible attempts to exploit Dr Mohamed Haneef for political advantage.

On behalf of my species, I wish to reiterate that not all lawyers are grey and soulless. Many lawyers are defenders of human rights and fair process. Stephen Keim seems to be one of these lawyers. But he is not alone. Look at the guys over at A Roll of the Dice in this post here, or Marcellous’ posts and Law Font’s post, just to pick a few. Many lawyers are acutely aware of the power that the law has over people’s lives, which is why I think civil libertarian organisations attract more than their fair share of lawyers.

Just because one is a lawyer doesn’t mean that one is a bad person. On the other hand, nor does it mean that you are better or more moral than other people. Let’s have a look at a few prominent historical lawyers (and/or people who received legal training): Thomas Jefferson, Goethe, Nelson Mandela, Slobodan Milocevic, Gandhi, Bill Clinton, John Howard, Lenin, Franz Kafka, Jeremy Bentham, Abraham Lincoln, Karl Marx, Gough Whitlam. I think you’ll agree that lawyers, like any other group, are a mixed bag.

So many of the mixed bag mentioned above are politicians or involved in political thought. Why is it that lawyers are attracted to politics? As I have explained previously, I think the law is in itself intrinsically political. That is why this blog became political. The law proscribes what people can do, and imposes certain standards of behaviour on society. It is involved with all the important processes of life. Indeed law in the form of legislation is the end product of the democratic process.

Anyway, don’t blame us all for the sins of some of our brethren. Some of us are decent people. Seriously, we are! Wouldn’t you trust this face?

Puss in Boots

[Puss in Boots from Shrek 2]


Filed under Australia, good and evil, human rights, immigration, law, politics

Citizenship tests II (or why I hate multiple-choice)

Have a look at some of the proposed citizenship questions, reported in the Herald Sun. Apparently I’m not the only one who is severely unimpressed. I really dislike dumb multiple choice questions. Quite often on forms and the like I can think of more than one answer which applies, but I’m just supposed to tick one box. And I’m a tertiary educated person currently undertaking a postgraduate degree whose first language is English. I can only imagine how confusing it must be for other people.

Some of the citizenship questions just seem pretty silly. For example:

4. Which is a popular sport in Australia?

a. Ice hockey

b. Water polo

c. Cricket

d. Table tennis


20. What is Australia’s biggest river system?

a. The Murray Darling

b. The Murrumbidgee

c The Yarra

d. The Mississippi

How does knowing these things prove that you are going to be a good citizen? It reminds me of the horrible stuff we had to learn in Geography. I had to know all of the main rivers of Australia and be able to identify them on a map. Geez, it was boring. Can I remember it now? Nope. Thank God. I’ve got more interesting things to put in my brain.

As Irfan Yusuf has pointed out in a post on the topic, some of the questions have multiple correct answers:

5. Australia’s political system is a …

a. Parliamentary democracy

b. Monarchy

c. Dictatorship

d. Socialist state

Well, we are a parliamentary democracy. As Yusuf points out, we are also a constitutional monarchy.

What about:

8. Where did the first European settlers to Australia come from?

a. Spain

b. France

c. England

d. Ireland

La Perouse, a Frenchman, landed in Australia just after Captain Phillip. He subsequently disappeared. Does he count as a settler or not? What about convicts of Irish background who were transported by the English? Do they count?

9. Who is Australia’s head of state?

a. Prime Minister John Howard

b. Queen Elizabeth II

c. Governor General Michael Jeffery

d. Premier Steve Bracks

As Yusuf points out on this one, again, there are a couple of correct answers. The Queen is our monarch, so she’s technically at the top of the tree, but anyone knows that she never actually intervenes in the running of Australia. The Governor General is the representative of the Queen in Australia and our head of state. However, the Prime Minister is the real head of state – the one who goes abroad and represents us on a practical level. About the only one who doesn’t have a head-of-state-like role is Steve Bracks. He’s just the head of a State (distinguishing between a head of state and the head of a State could be a problem for those whose first language is not English).

15. Australia’s values are based on the …

a. Teachings of the Koran

b. The Judaeo-Christian tradition

c. Catholicism

d. Secularism

Again, as Yusuf points out, the Judaeo-Christian tradition informs both the teachings of the Koran and Catholicism. So (a) and (c) are subsets of category (b). Are the options suggesting that they are not subsets of category (b)? – if so, I would suggest that is inaccurate and offensive. If not, the question is just unclear. Also, unlike many countries, we don’t have a state religion. So could it be argued that (d) is also a valid answer.

But the very, very, very, very WORST question follows. It makes me squirm. It’s so jingoistic:

14. Which of the following are Australian values?

a. Men and women are equal

b. ‘A fair go’

c. Mateship

d. All of the above

What exactly do the options in this question mean? (Does it mean that I’m not a real Australian if I don’t know what these terms mean???)

What is mateship? Is it friendship? Or something different? Somehow mateship has always seemed exclusively masculine to me: mates hangin’ out together, knockin’ back a few cold ones. What about “Men and women are equal”? Does this mean just formal equality? Or does it mean substantive equality? And then, the one that makes me squirm the most, “A fair go”. What the heck does that mean? A fair go for whom? (Certainly not the poor suckers who are taking this test). To me, a citizenship test just sounds like the kind of BS that a fair-dinkum Aussie would laugh at and flush down the loo. Perhaps that’s the answer, and it’s all a big trick! All successful applicants must laugh at the test and flush it down the loo.

As long-time readers may recall, I was never enamoured with the citizenship test to begin with, and these stupid questions have realised my worst fears. People will just learn what the “right” answers are, but they won’t actually believe them.

The best way to get people to believe in “Australian values” is to give migrants the language skills to settle into this country well, and help them to mix with the general Australian populace. To really sink in, values have to be learned through example and interaction, not through a class.


Read Ninglun’s very amusing take on the topic. Cracked me up!

Update 2

Looks like the questions were purely the invention of the Herald Sun. Sucked in! Guess it’s one of those cases of “wanting to believe”…

(Thanks to Skepticlawyer for the heads up)


Filed under Australia, citizenship, crazy stuff, immigration

“Everyone wants you when you’re bi…”

That’s what Living Colour said in a song a few years back. But it seems that they might have been wrong.

I was surprised by the account of a recent decision of the Refugee Review Tribunal (discovered via Anonymous Lefty). Ali Humayun sought asylum on the basis that he was a bisexual Christian and would be persecuted if he was returned to Pakistan. He had commenced a relationship with a Mr Lorenzo after being detained in the Villawood detention centre.

Giles Short, the Refugee Review Tribunal member found:

… I do not accept that the Applicant is in fact bisexual in sexual orientation as he claims. I consider that his relationship with Mr Lorenzo is simply the product of the situation where only partners of the same sex are available and says nothing about his sexual orientation. I am not satisfied that the Applicant’s conduct in telling his family in Pakistan about his claimed bisexuality and his claimed relationship with Mr Lorenzo was engaged in otherwise than for the purpose of strengthening his claim to be a refugee… Since I do not accept that the Applicant is in fact bisexual in sexual orientation, as he claims … I do not accept that, if the Applicant returns to Pakistan now or in the reasonably foreseeable future, there is a real chance that he will be persecuted for reasons of his actual or perceived membership of the particular social group of homosexuals or bisexuals in Pakistan.

Huh? The Member accepted that Mr Humayun has had sexual relationships with both men and women, but then refused to accept that he was “really” bisexual? Seems a little illogical to me. Does it matter that the cause of Mr Humayun’s relationship with Mr Lorenzo is his incarceration? Does it matter that Mr Humayun’s relationship with Mr Lorenzo may be simply a casual one? I would suggest that neither of these things are relevant. What is important is whether Mr Humayun would be persecuted for entering into a relationship with Mr Lorenzo when he returns to Pakistan (regardless of the cause of the relationship and the duration and seriousness of it).

The concern seems to be that refugees should be deterred from entering into short term homosexual relationships simply to gain refugee status.

I have since looked at the decision of the Federal Magistrates’ Court which reviewed and upheld Mr Short’s determination, and it sheds more light on the real reasons behind the decision.

First, Mr Humayun also made an unconvincing argument that he had converted to Christianity after 9/11, but showed no knowledge of the Christian faith, and he did not realise that homosexuality was frowned upon by the church of which he claimed to be a member. Therefore, it seems that his credibility was limited. Secondly, Mr Humayun is a heroin addict.

It seems to me that Mr Short should have concluded either:

(a) that Mr Humayun had entered into a supposed homosexual relationship as a sham to gain refugee status, and his lack of credibility on the issue of his conversion to Christianity also cast doubt on his evidence with respect to his relationship with Mr Lorenzo; or

(b) that Mr Humayun was bisexual, but had over-emphasised the seriousness of his relationship with Mr Lorenzo for the purposes of his application.

If the conclusion is (b), even if Mr Humayun’s relationship with Mr Lorenzo is a casual one created by the circumstances of incarceration, there remains a question of whether he would be persecuted in Pakistan because of the relationship. You can’t say “He is bisexual, but it’s not “real” bisexuality, even though he has had a sexual relationship with a man.” It’s just a matter of definition.

The other question which springs to mind is – if the relationship was caused by the circumstances of incarceration, could Mr Humayun argue that the Australian government had “caused” his bisexuality and thus ought to wear the consequences…?

If I were a refugee who had been genuinely persecuted because of my homosexuality, I would be angry if Mr Humayun had cynically claimed to be bisexual and had entered into a relationship with Mr Lorenzo solely for the purposes of getting refugee status. On the other hand, if he was in a relationship with Mr Lorenzo for more genuine reasons (even if those reasons were created by circumstance) and he would be persecuted for it when he returned home, I would want to see him protected from persecution.

If the Australian government wants to give a message that false claims with regard to sexuality will not be tolerated, it would be better to just say it outright.


Filed under immigration, law, sex, sexuality, tolerance