Many have expressed opposition and abhorrence towards US President Donald Trump’s plan to deport undocumented migrants en masse from the United States.
Last Wednesday, Trump signed executive orders vowing to deport or incarcerate an estimated 2-3 million non-citizens who have been charged with or convicted of a crime; who have “abused” public welfare programmes; and who, in the opinion of an immigration officer, “pose a risk to public safety or national security”. A further executive order instructed the US Department of Homeland Security to publish a “weekly list” of crimes committed by undocumented migrants. When signing the order, the president— performing a kind of dark political pageant — recited names of Americans allegedly murdered by undocumented migrants. Before Trump, the Obama administration deported more than 2.5 million immigrants from the time Barack Obama took office until 2015 — more than any other US president. Two-thirds of deportees had committed only minor infractions, such as driving without a licence or jumping a turnstile. Others had no criminal record at all. In the same period, detention of non-citizens increased by 25 per cent.
Trump’s executive orders may take racialised border control, Islamophobia and aggressive deportation of non-citizens to new extremes. But in the last two decades, successive Australian governments have paved the way in showing there is no rock bottom when it comes to inhumane treatment of refugees and non-citizens.
On Monday, former Australian immigration minister, Scott Morrison, boasted that “the world is catching up to Australia” by implementing harsh border protection policies. The executive in Australia can already deport adult non-citizens found guilty or suspected of criminal offences. These powers apply to all non-citizens, including people who have lived in Australia for most of their lives or whose immediate family are Australian citizens.
The Turnbull government has repeatedly trumpeted its offshore detention centres, where asylum seekers are held in conditions that have been described by the UN as amounting to torture, as the prototype for tough border control. Indeed, this week Turnbull “welcomed” the US to “emulate” Australia’s approach.
US and Australian border control policies comprise part of what US law professor Juliet Stumpf has called the “crimmigration crisis”: a trend of migration law — with its largely unfettered and unscrutinised executive powers — encroaching on the distinct regime of the criminal law, and vice versa.
A symptom of this crimmigration crisis is that immigration officials increasingly adopt a “law and order” approach to migration control. Police resources are diverted away from prosecuting criminal offences and towards policing “irregular” or “undocumented” migrants. Non-citizens live in a perpetual state of anxiety, fearful that their interactions with police, state welfare agencies, their employers or their neighbours, might result in an allegation that could lead to their removal. Penalties imposed on non-citizens are often cruelly disproportionate to their alleged transgressions.
The Australian government has expanded its visa cancellation powers against non-citizens for criminal or “anti-social” conduct across three key areas. The first is on “character grounds”. The immigration minister may cancel a visa if she reasonably suspects a non-citizen does not pass the character test. Changes introduced under former prime minister Tony Abbott in 2014 significantly expanded these powers.
Unprecedented initiatives
Before 2014, two consecutive years of imprisonment were required as grounds for visa cancellation. Now, a person may not pass the character test if they are serving a sentence of 12 months’ imprisonment; if the minister reasonably suspects the person is “associated” with someone involved in criminal conduct; if the minister foresees a risk that they may engage in criminal conduct; or if the person harasses, molests, intimidates or stalks someone in Australia.
Between 2013–14 and 2015–16, the number of visa cancellations on character grounds increased tenfold. In 2015-16, the immigration minister Peter Dutton cancelled 983 visas on character grounds.
One of the government’s unprecedented initiatives was when in 2013, it introduced a code of behaviour for asylum seekers. The Australian government has signalled its intention to expand these already-broad powers. This year, Dutton announced that a parliamentary committee was looking at lowering the age for visa cancellation on character grounds to include children of 16 or 17 years. This would allow the commonwealth to further encroach on “law and order” issues including Victoria’s Apex gang-related problems. Such criminal justice issues are ordinarily within the purview of state and territory governments.
The second category of visa cancellation exists for actual or suspected criminals. The minister may cancel the bridging visas of people who have committed or are suspected of committing a crime. Between June 29, 2013 and October 9, 2016, the minister used these powers to cancel 322 bridging visas of so-called “illegal maritime arrivals”.
Controversial code
These migration law powers reverse the fundamental presumption of innocence under Australian common law. An asylum seeker charged with, but not convicted of, a crime may have just 10 minutes to make their case against visa cancellation. At the close of 2016, the Commonwealth Ombudsman released two reports expressing serious concerns about the exercise and scope of the minister’s immigration powers. The Ombudsman found that people whose visas had been cancelled faced “unnecessarily prolonged and potentially indefinite periods of immigration detention”. This is due to the combination of delays in the resolution of criminal charges and a neglectful, under-resourced immigration case management system.
One of the government’s unprecedented initiatives was when in 2013, it introduced a code of behaviour for asylum seekers living in the community. This code, which all bridging visa holders over 18 must sign, forbids asylum seekers from engaging in “antisocial” or “disruptive” activities including spitting, swearing, bullying, being “disrespectful” or “inconsiderate”. It demands that asylum seekers respect “Australian values” and cooperate with government authorities. If accused of a breach, an asylum seeker (not the minister) must prove she did not engage in the alleged behaviour.
Consequences of breaching the code are severe. They include being sent to an onshore or offshore detention centre (such as Nauru or Manus Island); reduced (already meagre) income support payments; and separation of the family unit. In recent protests against the “Muslim ban” in New York, demonstrators shouted “let them stay” outside the courthouse that placed a temporary stay on the ban. This demand is all-too familiar to Australians who oppose the government’s treatment of asylum seekers
Trump’s executive orders against non-citizens constitute crimmigration in action. Rather than sigh with relief in the knowledge that we are not living in Trump’s America, Australians should recognise how his policies are founded and reflected in our own, and unite with Americans in protest against the use of non-citizens as political fodder.
— Guardian News & Media Ltd
Anthea Vogl is a Quentin Bryce doctoral scholar and teaching fellow at the Faculty of Law, University of Technology. She researches migration law and policy. Elyse Methven is an associate lecturer and Quentin Bryce Doctoral Scholar at the University of Technology, Sydney.
