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Securing fairness for Australian visa applicants

I was having a debate with a neighbour last week, and the conversation went from politics to whether Australia is a racist country.

My neighbour took the view that Australia is no worse than any other country in the world, and a lot better than most. I took the view that Australia still has a way to go to eliminate racism. Common public statements by our leaders are that Australia is an egalitarian and fair country, the land of the "fair go". This is not always the case.

The past - racism in migration law and its administration

One of the first pieces of legislation of the Australian Parliament was the Immigration Restriction Act 1901. This law brought in what became known as the White Australia Policy. The effect of this policy was that customs officers were given the power to exclude all non-Europeans.

Officials did not want to appear racially discriminatory. Therefore, potential immigrants were asked to pass the Dictation Test. The Test was administered as it happened in any European language of the officer's choice. This Test was used by Customs to exclude non-Europeans until the early 1960s.

The White Australia Policy was partially dismantled from March 1966 and by 1973 the Whitlam government finished the process.

The present - the use of profiling statistics

A common question is whether Australia's Department of Immigration is racist today in its policy and administration of migration law?

In the administration of Australian migration law not all countries are equal. The Department keeps figures on overstaying rates and other statistics. It uses these statistics. For example:

  • For student visas the Department defines countries as essentially low to high risk in deciding what conditions to impose on applicants.
  • For visitors visas people coming from some countries with high overstaying rates face greater difficulties obtaining a visitors visa than people from countries with low rates.

Although not directly racist, the statistics can lead to entrenched negative profiling. This means that some Departmental decision makers may in some cases have fixed expectations of wrong doing, or potential wrong doing. They may reject a visitor visa application when more careful enquiry might result in acceptance.

Like other experienced migration lawyers, I consider this risk when making submissions for visa applicants. Where appropriate, I alert decision makers to the risk of racist profiling.

The Department must always consider the specific circumstances of each applicant. Australia fortunately is a country where it is unlawful to apply policy inflexibly.


Author

Paul Hense BA, LLB, BSW (University of Sydney), Principal, Paul Hense Migration Lawyers

Tel (61 2) 9262 4242  |  Email: paul.hense AT henselaw.com.au

If you wish to proceed to personalised assistance from Mr Hense of any inquiry, it will be done on a strict fee for service basis.

Mr Hense has been a migration lawyer since 1994. He has run a number of landmark cases, including before the High Court of Australia. He frequently represents clients before the Migration Review Tribunal and Refugee Review Tribunal. He has lectured for the University of NSW on refugee law and for the Immigration Advice and Rights Centre.  From 1990 and until recently he was a volunteer with the Immigration Advice and Rights Service. Previously he was a Senior Research Officer for the Australian Taxation Office.


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