As Australia's citizenship drama has expanded to claim more political scalps, the Minister for Immigration quietly introduced regulations of devastating effect for migrants who slip up at any stage in the complicated process of applying for an Australian visa.
The Migration Legislation Amendment (2017 Measures No 4) Regulations introduced a raft of new hazards for migrants from November 18.
Slipped into law amid the chaos of recent weeks, Greens Senator Nick McKim is introducing a motion to disallow these regulations today.
Unlike primary legislation, which is debated and voted on in Parliament before becoming law, regulations come into force immediately upon a signing by the Governor-General. Regulations are "tabled" in Parliament and it is only then that politicians can vote to have them "disallowed".
We can only hope that enough politicians of goodwill survive the citizenship purges to realise the injustice of these measures and strike them out.
Visa application 'slip' brings 10-year ban
The regulations are likely to increase dramatically the number of visas being cancelled or refused and — in consequence — the number of migrants being detained for potentially long periods of time.
Considering the repeated claims by our disbarred politicians that they are innocent "slip" victims of the draconian section 44 of the Constitution, there is more than a little irony in Minister Dutton's harsh new rules for migrants.
Where individuals submit false documents or make misleading statements, our migration laws have always provided for the cancellation of visas (permanent or temporary) granted on the basis of those false claims.
However, the new regulations raise the penalties in these cases to a whole new level.
Where a person has made a false or misleading statement or submits such a document in the course of applying for a visa, they will face a 10-year ban on applying again. There is already a three-year ban that applies if a visa application is rejected on the basis of false or misleading material.
The ban includes the situation where false material is given on a person's behalf, without their knowledge. In the context of recent cases where migrants have suffered at the hands of fraudulent agents or advisers, these provisions have the potential to visit disproportionate injustice on people who deserve sympathy rather than punishment.
Family applicants, refugees worst affected
Although the provision does not apply to those seeking a protection or humanitarian visa, it catches everyone applying for any other kind of visa. Family applicants from refugee producing countries tend to be disproportionately affected, because identity documents and records can be inconsistent or disrupted by displacement. Moreover, the new rules are retrospective in that they require consideration of any documents submitted in the previous 10 years.
A raft of new conditions imposed across many visa types will affect both humanitarian and general migrants.
The changes make it a mandatory visa condition for most temporary visas, including temporary protection visas, that the person:
- not engage in criminal conduct;
- not endanger or threaten any individual;
- not engage in activities disruptive to the Australian community; and
- use the same name in all dealings with government.
Names can be lost in translation
These measures may appear unobjectionable. It is how they will operate in practice that is the problem.
For refugee claimants, the "name" requirements are inherently problematic and unfair. Applicants from developing countries often present with complex names that get mangled in translation.
Anyone who has changed their surname after marriage, or who is burdened with too many middle names, can surely sympathise with the dilemmas many migrants face.
In our view, these new rules will only exacerbate the inadequacies of current laws concerning how we determine a person's "legal" identity. Again, they will increase potential for false findings that migrants intend to mislead or defraud.
The regulations empower immigration officials to arrest and detain anyone holding a temporary visa who breaches a condition on their visa.
For the "behaviour" conditions, there is no requirement for the individual to be even charged with a criminal offence, much less to be convicted in a court. Everything will turn on how the eponymous immigration official interprets the inherently vague concepts of endangering, threatening and disrupting either individuals or the community.
'Health debt' a deal-breaker
These changes could devastate refugees who apply for future temporary protection visas.
After spending years in detention or on insecure bridging visas, temporary protection visas provide a modicum of stability. Imposing these threatening new conditions underscores the fragility of temporary status, exposing a person to the discretion of immigration officers and the prospect of renewed incarceration.
As a final stab, a new condition that many temporary visa holders not have an outstanding "health debt", exposes migrants to cancellation of their visa if they get sick and cannot pay back the costs of their healthcare.
Breach of these new conditions could (we predict, will) see individuals detained and removed to remote detention at Yongah Hill in Western Australia or Christmas Island in the middle of the Indian Ocean, there to languish for months or years if they are unable to be returned to their country of origin.
Mary Crock is Professor of Public Law at the University of Sydney and an accredited specialist in immigration law. Kate Bones is a solicitor at Refugee Legal.