Realigning Our Migration Policies, Taking a Holistic Approach to View Refugees as Skilled Migrants

Abstract

Controlling who can and cannot migrate to Australia has been a part of the political landscape since Federation. In the first half of the twentieth century these exclusionary policies were based on race, predominantly aimed at restricting immigration from Asia and applied through a dictation test stipulated in the Immigration Restriction Act 1901 (Cth). One hundred years later, exclusionary sentiment remains. 

This time based on mode of arrival. Those who arrive by boat, without a valid visa are viewed not as immigrants who could contribute to Australian society, but as ‘queue jumpers’ and ‘welfare cheats’. Government policies demonise this immigrant group, moving them to detention centres on Manus Island and Nauru to prevent their entrance into Australia. The Convention Relating to the Status of Refugees (1951) is viewed as an hindrance, rather than a tool to promote human rights.

Events at the turn of the twenty-first century, like the Howard Government’s decision to refuse entry to the Norwegian vessel the Tampa, which had rescued 439 refugees from international waters, the sinking of the SIEV-X in which hundreds of refugees died, hunger strikes in detention centres, the decision to excise some Australian islands and the opening of detention centres on Nauru and Manus Island increased focus on refugee and asylum seeker issues. More than a decade after Tampa, the shock of SIEV-X and ongoing reports concerning harsh conditions in detentions centres little has changed and we are no closer to finding solutions. Refugees continue to be demonised, played as political footballs in a cyclical game of compassion against border control and a hardline stance. As more and more people languish in detention centres on Manus Island and Nauru, as more evidence is brought to light in terms of the terrible conditions in these camps it is time Australia united to find a bipartisan solution.

In an attempt to contribute to a solution this paper begins by analysing two early decisions of the High Court involving Australian-born former residents who lived in China and were declared prohibited immigrants when they returned to Australia and failed the dictation test under the Immigration Restriction Act 1901 (Cth). These cases indicate that migration and citizenship law in Australia was controlled not only by legislation like the Immigration Restriction Act 1901 (Cth), but also through policies and legal doctrine, including a test relating to community belonging. More than one century later, concerns in terms of becoming a part of the Australian community remains.

During the second half of the twentieth century Australia accepted more and more migrants, first from northern Europe, then southern and eastern Europe, and later Asia, Africa and the Middle East. This paper briefly charts these changes to migration policy to argue that migrants from across the globe now form part of the Australian community. Modern exclusion may be based on a method of arrival, but modern solutions should be based on a holistic view of Australian migration law, where refugees are viewed as immigrants who can, and will, given the right tools, contribute to the Australian community.

Introduction: Border Control, Exclusion, and Community Belonging

On Australia Day in 1908, James Francis Kitchen Minahan, also known as Ying Coon, returned to Melbourne, his place of birth.[1]  Unable to write fifty words in English he was declared a prohibited immigrant who could not enter Australia.[2]  The son of an Anglo-Australian mother, Winifred Minahan and Chinese father, Teung Ming, he lived with both until he moved to China with his father, when he was five years old.[3]  After court proceedings, including an appeal to the High Court of Australia, James Minahan was permitted entry into Australia. His mother’s status as an Australian born British subject of European descent provided him with an Australian domicile. He was not an immigrant. Victoria remained his ‘original home’ which he ‘never abandoned.’[4] 

Seventeen years later, Lucy Wong Sau, the Australian born daughter of Chinese parents and wife of an Australian resident was declared a prohibited immigrant and sentenced to six months imprisonment after she failed to write fifty words as dictated by a customs officer.[5] In 1875, eight years before Lucy Wong Sau was born her father, On Hing, who owned the general store in Gulgong in New South Wales was granted a naturalisation certificate in the then colony. 

When his health deteriorated the family left for China. Lucy On Hing, as she was then known, was six years old.  After marrying Wong Sau, a market gardener resident in Sydney in 1917, Lucy Wong Sau returned
to Australia in 1924.  Despite her husband’s residency and her father’s naturalisation certificate the High Court found there was ‘not the slightest evidence of anything Australian about’ her, ‘except her birth.’[6]  She ‘was not Australian in point of language, bringing-up, education, sentiment, marriage, or any of those indicia which go to establish Australian nationality.’[7]  She was not returning to her original home or domicile, but arriving in ‘a new home because she had married a husband who was living here.’[8]

James Minahan and Lucy Wong Sau fell foul of s 3(a) of the Immigration Restriction Act 1901 (Cth). Under this section fifty words in any European language could be dictated by customs officials to all immigrants entering Australia. If the immigrant failed to write the fifty words they would be declared a prohibited immigrant, sentenced to six months imprisonment and prevented from entering Australia.[9]  Australian migration law, however, has always been more complicated than a single piece of legislation. As the cases illustrate the High Court referenced not only the Immigration Restriction Act 1901 (Cth), but also created a test relating to whether or not the ‘prohibited immigrant’ was returning home as ‘a constituent part of the Australian community.’[10] 

Immigration restriction and community belonging are recurring themes in Australian migration law and policies, as is the fact that community attitudes and government policies shift and change. In 1908 the idea that someone could be born in Australia, lack English and still be a part of the broader Australian community was accepted by a majority of the High Court, this was not the case in 1925.[11]  As Australia’s migration policies evolved, and adapted a circularity of strong border protection stances, moving towards more compassionate policies and back again has occurred.

Australian Immigration Policies during the Twentieth Century, from Restriction to ‘Populate or Perish’ to Border Control

For the first half of the twentieth century Australian migration law was primarily concerned with upholding the White Australia Policy.  If focus fell on immigration it was usually in a restrictive sense.  The dictation test remained a part of Australian law for more than fifty years.[12]  The test was primarily aimed at curbing Asian immigration,[13]disproportionately affecting the Chinese community, although immigrants from countries ranging from the Philippines to Chile, Syria to Fiji, Portugal to the United States of American were also targeted and excluded.[14]  Under the Pacific Island Labourers Act 1901 (Cth) thousands of Pacific Island labourers were deported.[15]  With the introduction of the Naturalization Act 1903 (Cth) residents from Asia, Africa and the Pacific Islands could not apply for certificates of naturalisation.[16]  This discriminatory section was removed in 1920.[17] 

According to Kim Rubenstein these pieces of early legislation were framed by ‘a philosophy about membership of the Australian community’ which included a ‘fear and antagonism towards aliens, such as Chinese immigrants’ and lead to ‘a particularly “Australian” sense of nationhood.’[18]  Despite this, in a legal sense the concept of an Australian citizen, whether natural-born or naturalised did not exist until the Nationality and Citzenship Act 1948 (Cth) was implemented.[19]  Prior to this those born in or naturalised in Australia became subjects of the British monarch.[20] 

In the House of Representatives, during the second reading of the Nationality and Citizenship Bill 1948 the deputy opposition leader, John Eric Harrison, accused the second Chifley Government of creating ‘a sinister plan – to liquidate the British Empire’ and permitting ‘a secret conclave to take from us our British citizenship.’[21]  Kim Edward Beazley countered this, noting that Australian citizenship was a complex mess of entwining controversies

a Chinese from Hongkong is a British subject, a Chinese from Malaya is a British subject, and an Indian is a British subject, but none of them have ever been accorded the rights of Australian citizenship by previous legislation or practice of Australia … Before this legislation was introduced, coloured British subjects were excluded from Australian citizenship by practice, and there has been no political dispute about that practice.[22]

The Nationality and Citizenship Act 1948 (Cth) was a step away from Australia’s racially restrictive immigration policy, from which Australia would not return.  Nevertheless a discretionary policy where residents not from Europe were routinely refused naturalisation certificates remained.  In 1947 applications for naturalisation still asked ‘Is the applicant of European (white) race or descent?’[23]

Understandings of Australian citizenship was not the only change to occur during the 1940s.  Many commentators note that the end of World War II saw an increased focus on the need for Australia to ‘populate or perish’.[24]  The government favoured and wanted to encourage migration from Great Britain by offering assisted passages for British migrants who served in the armed forced and their families.  They were introduced in 1947 and later extended to include other European countries like the Netherlands, Italy, and Norway.[25]  Gradually, migration from outside Europe
increased.[26] 

The basis for this change can be seen in a speech on migration policy by Arthur Calwell, then Minister for Immigration, which stated that ‘Australia wants, and will welcome, new healthy citizens who are determined to become good Australians by adoption.’[27]  He outlined a ‘publicity campaign’ occurring ‘in Britain and in other centres of potential immigration on the European continent.’[28]  Negotiations between the British and Australian Governments led to the conclusion of two agreements, one provided free passage to British migrants who had served in the defence force, as well as their families, another allowed for ‘assisted passages to civilians in the United Kingdom who are not eligible under the free passage scheme.’[29]  The Government also set about welcoming ’50,000 orphans from Britain and other countries that have been devastated by the war.’[30] 

In the speech Calwell considered that ‘the door to Australia’ was ‘always open within the limits of our existing legislation to people from the various dominions, the United States of America, and from European continental countries,’ so long as they were ‘sound in health’ and would ‘not become a charge to the community.’[31]  In turn the Australian community was expected to assist in assimilation.[32]  His speech also referenced the United States’ defence policy, noting that it was ‘residence, and not nationality’ which determined whether or not someone could serve in the defence force.  In advising that ‘Australia closely examine this American attitude’, Calwell appeared to be moving away from a strict interpretation of the White Australia Policy.

Unfortunately, campaigns are fostered in this country from time to time on racial and religious grounds by persons who have ulterior motives to serve.  The activities of such people cannot be too strongly condemned.  They are anti-Australia and anti-Christian, and make not for national unity and national well-being but for the creation of discord and bitterness
that is harmful to Australia at home and abroad.[33]

In Australia the aftermath of the Second World War focused the Government’s attention on migration policy and population increase, in the international arena the world’s attention began to focus more keenly on the plight of refugees.  Australia was the first country outside Europe to accede to the Convention Relating to the Status of Refugees (1951) on 22 January 1954, three months before it entered into force.[34]  Under the Convention a refugee was defined as someone outside their country of nationality due to fear of persecution because ‘of race, religion, nationality, membership of a particular social group or political opinion.’[35] 

Australia’s approach to refugees prior to World War II was limited.  In 1938 at the Evian Conference Australia agreed to re-settle 15,000 European refugees over a three year period.  This was, however, half the recommendation of S M Bruce, the British High Commissioner, and actually represented a reduction in Australia’s refugee intake.[36]  Furthermore, despite the persecution facing Jewish communities in Europe only 12,000 of these refugees were required to be Jewish.[37]  This inadequate response to Jewish refugees did not immediately improve in the post-war period.  In August 1945, the same month in which Calwell’s speech promised to welcome 50,000 British orphans,[38] only two thousand Jewish refugees were allowed to settle in Australia – moreover they were required to have a close relative already resident in Australia and to be a survivor of the Holocaust.[39]  This was eventually increased to include Jewish refugees who escaped Europe but still required resettlement,[40] it provides an interesting contrast to the Displaced Persons Scheme which settled ‘thousands of refugees from Hungary, Czechoslovakia, Poland, Russia, the Ukraine, and the Baltic states.’[41]  Gwenda Tavan explains that for refugees arriving under the Displaced Persons Scheme

Two-year work contracts were imposed on the refugees to ensure they would supply labour where it was most needed and hardest to obtain.  The contracts were also aimed at keeping the trade union movement on side, and the native-born population assured that the newcomers would not take Australian jobs or threaten living standards.[42]

Tavan also explains that it was policies such as this one which ‘had major implications for how the White Australia policy would be administered and presented by governments during the next two decades.’[43]  Tavan’s book, The Long Slow Death of White Australia clearly articulates the ways in which the White Australia Policy was gradually dismantled, arguing that Australia’s ‘roots of continuing sensitivity about various immigration issues lie, in essence, in the nature of the abolition of the White Australia.’[44]

Changes to immigration policies were less open during the 1950s.  It was not until 1956 when Harold Holt, then Minister for Immigration announced that ‘non-European wives or husbands of Australian citizens’, as well as some non-European residents who had ‘been here for a long period of years’ would be eligible for naturalisation.[45]  Two years later the Migration Act 1958 (Cth) was passed, repealing the dictation test first introduced in the Immigration Restriction Act 1901 (Cth).[46]  During debate concerning the bill, Hugh Alan Leslie, the member for Moore in Western Australia considered ‘that the dictation test and the constant use of the words “White Australia” have done more harm to this country than we can calculate.’  According to Leslie

One aspect of the bill, which, I think, will provide satisfaction is the abolition of the dictation test in connexion with our immigration policy.  Those who have read the history of this test will recall that it was a dishonest subterfuge which was endorsed by the National Parliament out of respect for the dictates of the good people at Westminster.  The subterfuge was adopted in an attempt to be selective in our immigration policy and to make sure that, in laying down the standards we would apply, we would not offend anybody outside.[47]

Despite this sentiment, obstacles in terms of access to Australian citizenship and nationality persisted for those residents not born in Europe until well into the 1960s.[48]  During the 1960s and 1970s Australia’s understanding of who would be considered a part of the Australia community began to shift, correspondingly in the international arena the definition of who could be considered a refugee was broadened. 

Originally, the Refugee Convention was limited to those affected by events occurring prior to 1 January 1951.  It was at the discretion of the signatory nation whether its scope extended beyond Europe.[49]  In 1967 the Protocol Relating to the Status of Refugees (1967) acknowledged that ‘new refugee situations have arisen’, making it ‘desirable that equal status should be enjoyed by all refugees covered by the definition in the Convention irrespective of the dateline 1 January 1951.’[50]  The Convention now assisted refugees from all over the world – from those fleeing fascism in South America to those fleeing Communism in Vietnam. 

In 1972 the Australian Labor Party, lead by Gough Whitlam, gained power on an election platform which included ‘a non-racially based immigration policy and ratification of the International Convention for the Elimination of All Forms of Racial Discrimination’.[51]  Al Grassby, then Minister for Immigration, removed the ‘privileges reserved for British ‘white’ immigrants’, as well as the ‘discriminatory practices against ‘non-white’ and non-British immigrants.’[52]  Nevertheless, immigration intake under the Whitlam Labor Government actually decreased.[53]  It would increase under the Coalition which came to power under Malcolm Fraser in 1975.

The following year the first refugees from Vietnam arrived on a small boat off the coast of Australia.  Fraser’s response was one of compassion.[54]  From 1976 until 1982 the Fraser Government permitted more than two thousand Vietnamese refugees who arrived by boat to settle in the community.[55]  More than 200,000 refugees lingering in camps in Malaysia, Hong Kong and Thailand were able to migrate to Australia.[56] 

Ten years later, when refugees fleeing Cambodia arrived by boat Australia’s compassionate response reversed.  These refugees were greeted with legislation establishing detention centres and the ‘Special Assistance Category Program’ designed ‘to encourage boat arrivals to return to Cambodia and apply for sponsorship to Australia under normal migration procedures.’[57]  In 1992 Prime Minister Paul Keating introduced mandatory detention for all people who arrived in Australia lacking a valid visa.[58]

This less compassionate stance continued.  When refugees from the Middle East arrived in the late 1990s, the Howard Government introduced temporary protection visas (TPVs).  A TPV lasted only three years, holders then had to reapply to remain in Australia, they could not sponsor family members to come to Australia, were not permitted to return to Australia if they travelled overseas and had access to limited social and settlement services.[59]  This policy, coupled with mandatory detention was draconian and cruel, increasing uncertainty, exacerbating mental health issues and denying refugees the ability to make a full and productive life in Australia.[60]  Although the Howard Government viewed the outcome of the November 2001 election as ‘a mandate’ in terms of ‘their treatment of asylum seekers,’ Don McMaster notes that ‘by February 2002 the strategy of dehumanising asylum seekers came back to haunt both Howard and his government.’[61]  By 2007 as more people in the community questioned these policies, John Howard became only the second Prime Minister to lose his seat as  the Australian Labor Party, lead by Kevin Rudd, won the election by campaigning for an end to ‘the so-called “Pacific Solution”‘, promising to provide ‘permanent, not temporary, protection to all refugees’ and to limit ‘the detention of asylum seekers.’[62]

Fast forward another seven years, and compassion is gone.  In 2012 under Julia Gillard the Australian Labor Party introduced the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth), which provided ‘for the taking of offshore entry persons from Australia to a regional processing country.’[63]  Today, under a Coalition Government lead by Prime Minister Tony Abbott, many refugees are in indefinite detention, in squalid camps on Nauru and Manus Island and temporary protection visas look set to be re-introduced.[64] 

The Abbott Coalition Government is currently legislating to change the Maritime Powers Act 2013 (Cth) and the Migration Act 1958 (Cth) through the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill which began its ascent through the House of Representatives and the Senate on 25 September 2014.  This bill allows international obligations and the rules of natural justice to be disregarded during certain exercises of maritime power Australia, ignores our non-refoulement obligations integral to
the Convention Relating to the Status of Refugees (1951) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), re-defines ‘a well-founded fear of persecution’ so that it does not exist if people can ‘modify’ their behaviour, fast-tracks cases so that appropriate judicial review will not always be available, and re-introduces a number of forms of temporary protection visas.[65]

These temporary protection measures include a safe haven enterprise visa where those found to be refugees would be required to work in regional areas for five years, if during this period they did not access welfare benefits for three and a half years they could apply for another visa – it could be another form of temporary protection, or an employment visa, for example the 457 work visa.  The safe haven enterprise visa will not be made available to people in detention on Nauru and Manas Island, it would be accessible only by refugees already in Australia.  Furthermore, despite being found to be genuine refugees the visa is not a path to Australian citizenship and gives no ongoing guarantee of permanent protection.[66]  Despite linking Australia’s humanitarian migration intake with a labour policy, it is in fact another punitive measure aimed at curtailing the rights of refugees who arrive by boat. 

Last century when James Minahan and Lucy Wong Sau returned to Australia, one was allowed to stay, the other forced to leave.  As it stands Australia’s current migration program is not based on race, but it remains restrictive and exclusionary in terms of mode of arrival.  From 2012-2013 only 20,019 places were provided for migrants to settle in Australia on humanitarian grounds, more than sixty percent of these visas were granted to offshore refugees.  Of the 7504 visas granted to onshore refugees, 4949 visas were granted to people who arrived by boat.  In contrast there were 129,200 available under skilled migration programs and 60,800 for family reunions.[67] 

One part of the skilled migrant program which has garnered media attention is the 457 visa.  This visa was implemented in 1996 to permit ‘skilled workers to be employed in Australia for up to four years.’[68]  The occupations included are diverse, ranging from various forms of engineering, to fashion designers, from teachers to brick layers, flower growers to dancers, nurses to real estate agents and cafe managers.[69]  Australia clearly needs skilled migrants, safe haven enterprise visas envisage that refugees can fit within this criteria, why should the humanitarian program be their only option in terms of settlement in Australia?

Balancing Lost at Sea with Lost on Land, finding Compassionate Responses towards Refugees who arrive by Boat

Refugees are migrants who can, will and do contribute to the Australian economy and community. However to successfully do this we must provide refugees with appropriate paths to citizenship and permanent protection.  Writing in The Age on 18 June 2014 Julian Burnside suggested that ‘all boat arrivals to Australia’ could ‘be released into the community’ and ‘required to live in a specified rural town or regional city.’[70]  In a sense this is similar to the safe haven enterprise visa suggested by the government. Burnside’s solution, however, was challenged when the television program
Q & A visited Geelong on 30 June 2014 due to fears of rising unemployment and cuts to government services.[71]  Opposition to a proposal for a mosque to be built in Bendigo displayed some of the prejudices which remain in many regional areas.[72]  There are regions in Australia experiencing a jobs surplus, however, many also struggle to maintain viable health and welfare services.  Confining refugees to regional areas of Australia without adequate support is cruel and unsustainable.  Regional Australia should not be the sole solution.

Temporary protection visas – whether they include work rights or not, mandatory and offshore detention, ignoring our international obligations and rules of natural justice will not provide Australia with a way forward.  We need to create programs where refugees can migrate to Australia, not only under humanitarian programs, but also through the skilled migration intake. For unauthorised arrivals this may include the issuing of a visa stipulating the work they must undertake, or that they undertake training to work in certain occupations or industries for a specified period of time, but this should provide for permanent protection, so that refugees can contribute not only in terms of economics and labour, but as Australian citizens who are
an vital part of the Australian community. This could address some of the skilled shortages, but should not be limited to rural industries.  Both regional and metropolitan Australia must be part of the solution. 

Australia’s history is one of a migrant nation, working to attract skilled migrants from across the globe. We need to view refugees as a viable part of Australia’s migration scheme.  Discourse viewing those who come for humanitarian reasons as queue jumpers, Centrelink recipients and economic migrants must shift.  Refugees should be viewed as another group of skilled, semi-skilled or possibly skilled migrants who can and will contribute to the Australian economy.  A recent article in Good Weekend magazine indicates that this is a real possibility. Dr Munjed Al Muderis arrived in Australia by boat in 1999, fleeing Saddam Hussein’s regime in Iraq.  Under Australia’s mandatory detention policy he was sent to Curtain Detention Centre, in northern Western Australia; two months after his release he found work at the Mildura Base Hospital.  He now works as a surgeon providing amputees with prosthesis which allow for greater movement and less discomfit.  His interview with Greg Callaghan demonstrated the fallacies of terming refugees who arrive by boat as burdens on Australian society – ‘I received Centrelink payments for two months before becoming an Australian tax payer … There’s this argument that I’m the exception, but that’s completely false.  Out of the 1252 people who were with me in Curtain, 13 were doctors – and 12 of those are now practicing as specialists in Australia.’[73] 

Our refugee and asylum seeker policies appear to be perpetually cyclical – hardline, followed by compassion, followed by even more draconian measures.  It is time for change.  We need to move the boundaries in our migration law, and view refugees as other migrants who can, and will contribute to Australia, who have a right to permanent protection and citizenship.  We exist in a globalised world, as part of an international community.  We are a signatory of the Convention and as a well-resourced country have a responsibility to care for refugees whatever their mode of arrival.