The Inherent Hypocrisy of Immigration’s Asylum Seeker “Character Tests”

A version of this article was first published on Green Left

Joanna Psaros

3 December 2021

Indefinite detention is a consequence of failing the “character test”

Seeking asylum in Australia. What could be simpler?

There’s the dislocation of leaving your home, friends and family forever. There’s the journey itself. And then there’s reliving the horror from which you’ve just escaped to prove to a tribunal that you have adequately suffered to be deserving of asylum. The power afforded to the Minister of Immigration and Border Control to judge the character of visa applicants however means that these trials may just be the beginning for any asylum seeker accused of deviating from immigration’s fixed view of morality. 

But what is good character, and who can determine it? More importantly, what is its relevance to determining asylum status? With a proposed Bill extending the test’s powers currently before Parliament these are questions we’re running out of time to answer- and failure to do so will lead to more serious consequences than ever for Australia’s refugees.  

You don’t have to be a politics obsessive to know that Australia has a tenuous history when it comes to refugees. Despite our comparatively insignificant number of refugee arrivals (particularly when compared to immigration hotspots Turkey, Uganda and Germany) we are internationally infamous for the harsh way such arrivals are treated, though condemnation from human rights groups appears to barely register with politicians responsible. And despite cutting Australia’s humanitarian intake by almost a third since 2018, the Federal Government now spends an estimated $812 million per annum on its offshore processing centres alone; or over $9000 taxpayer dollars per day per detainee. (An amount that ironically dwarfs the scaremongering shock jock claim that refugees cost taxpayers $100 million in welfare.) 

Politics aside, it’s hard to imagine that anyone would consider immigration detention and the constraint of freedoms associated to be in a person’s best interests. But isn’t that why it’s reserved for unlawful refugees? Well, yes and no. 

Firstly, the idea of an unlawful or “illegal” refugee is in itself a nonsense under international law by which- in theory- Australia is bound. Under the United Nations Convention on Refugees, 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 fulfill if they want even a chance at settlement. Today’s iteration of the Migration Act 1958 (it has seen some twenty-plus distinct amendments since 2014) therefore effectively creates a new class of unlawful entrant whose future is almost entirely at the mercy of the Minister for Immigration and Border Control and their assessment of the applicant’s “character.”

The Minister for Immigration and Border Protection has far-reaching powers under the Migration Act

On its face, 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- large-scale resettlement of murderers and rapists would hardly be a popular policy- but in reality the test has scope to encompass the commission of non-violent crimes such as property damage and drug possession. If this same standard were applied to prospective parliamentarians, many s MPs would have failed including current Secretary of the NSW Department of Premier and Cabinet Michael Coutts-Trotter who previously served time for heroin trafficking.  

Even people without proven criminal records could be captured under this law. The Minister of Immigration and Border Protection is granted such power that they may refuse or cancel a visa on these grounds if they merely suspect a person does not meet the requisite standard. 

The character test is not a new feature of Australian immigration law. But the last few decades have seen it become far more severe both in its scope and application, with a potential extension of its powers currently being debated. In 2014 for example, an amendment to the Act introduced mandatory visa cancellation on character grounds (before this the Minister had discretion to weigh a number of factors, criminality among them, before making the call). 

Of course, applicants are still afforded natural justice throughout this process. Except- wait- a closer look at the Act shows that this legislation explicitly precludes natural justice from the minister’s decision-making role. Accordingly, mandatory visa cancellation decisions are not reviewable by the Administrative Appeals Tribunal. Applicants can seek revocation of the visa cancellation, and somewhat confusingly, the Minister’s responding refusal to revoke the cancellation is reviewable by the AAT. But if the AAT decide to revoke the cancellation? This decision can be overturned by nonother than 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 trump card, that is, the Australian 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 ASIO. So, if we remove any concerns of terrorism from the equation, we’re 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 and rehabilitation. Or it is a mechanism to deliberately circumvent Australia’s humanitarian obligations by denying as many visas as possible.    

Those most affected by Australia’s immigration character test may not fit what we consider the mould of a model citizen. But to deny them the safe, secure lives they desperately seek is mindlessly punitive at best. Perhaps the Minister should turn his attention to the morality of indefinite detention and reconsider whether overseeing this inherently unfair system is in fact in Australia’s national interest. 

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