Visa seekers stay while they manipulate our system

Bhavjeet Singh’s* Mardi Gras days appear to be over, if indeed they ever began, after the Administrative Appeals Tribunal upheld a refusal to grant him asylum on the grounds that he was gay.

Singh left his wife and two children at home in the Indian state of Haryana more than four years ago and entered Australia on a temporary visa. A year or so later he filed a futile application for refugee status claiming his fondness for men could lead to physical injury, imprisonment or even death were he sent home.

A refused visa is seldom the end of the story, as any migration lawyer will tell you. Singh appealed the decision, thus guaranteeing him a bridging visa and the right to live and work in Australia while his appeal was processed.

Three years later, in September last year, the AAT upheld the original verdict, concluding that his story was “so evasive and superficial as to be lacking in any credibility”. It did not accept that Singh had engaged in homosexual sex or that he intended to live as a homosexual man in India on return, whether openly or not.

In any case, the AAT pointed out, the Supreme Court of India ruled last year that consensual gay sex in private was no longer an offence under the Indian Penal Code.

Preserving our sovereign right to determine who comes to this country and the circumstances in which they come is easier said than done.

Singh’s tedious, tawdry and time-wasting appeal against reasonable departmental and ministerial decisions is sadly typical of the 54,000-odd refugee and other visa refusal cases that were waiting to be decided by the AAT at the end of last month.

Despite the Coalition’s best endeavours to close the loopholes, a bunch of irregular immigrants equivalent to 2½ times the population of Goulburn, is living and working in Australia on bridging visas despite legitimate rulings from the Immigration Department and the minister that they should be deported.

The number of active appeals has more than doubled in 18 months. The average time between lodging a claim and receiving a judgment has blown out from 40 weeks to 63 weeks, making the $1673 lodgement fee for an appeal look a steal. Live and work in Australia for less than $27 a week.

Pity the poor AAT officers who have to wade through these cases, listening patiently to excuses, separating fact from fiction and resisting choreographed tugs at the heartstrings.

A single technical error in the process could give grounds to appeal to the Federal Circuit Court, which will mean the extension of the bridging visa and with it the chance of perhaps another year here.

There is abundant circumstantial evidence that the appeals system is being used mostly to buy time in Australia. Six out of 10 newly lodged appeals against refusal of asylum come from Malaysia and 96 per cent of the decisions are ultimately upheld. China is a distant second with 10 per cent, followed by Vietnam on 7 per cent.

Delaying tactics are par for the course. Appellants are inclined to plead poor English, requiring the tortuous use of interpreters at hearings, halving the number of questions they are asked and increasing scope for evasion.

With the appeals machine grinding ever slower, Attorney-General Christian Porter last year ordered a review by former High Court justice Ian Callinan.

His job is to work out how to take the sugar off the table while still leaving a path open for genuine appeals. Removing automatic bridging visas would be a good start. There is no obvious reason, for example, why those appealing against adverse run-of-the-mill decisions on student, working or partner visas should be allowed to stay while their claim is processed.

Labor is unlikely to back such reforms, judging by the policies in its draft national platform presented to its 48th national conference in Adelaide before Christmas.

Labor plans to abolish temporary protection visas and instead grant instant refugee status, stripping the authorities of any power to expel those who subsequently commit serious crimes or are found to have lied.

Labor also plans to remove the ability to expel New Zealand citizens of bad character. More than 1300 Kiwis who have committed crimes or were suspected of being involved in crime have been deported in the past three years.

The good news for self-identifying lesbian, gay, bisexual, transgender, intersex or queer asylum-seekers from countries where homosexuality is illegal is that they will automatically qualify for refugee status under Labor’s draft policy.

“The fact that the country the person is fleeing has criminal penalties for engaging in consensual homosexual sex is sufficient of itself to establish that fear of persecution is well-founded,” Labor’s draft platform reads. Homosexuality remains illegal in 70 countries, according to the Inter­national Lesbian, Gay, Bisexual, Trans and Intersex Association.

The list covers every unsavoury corner of the earth imaginable including most of the Middle East and Africa. It also includes countries nearer to home such as Malaysia. What’s more, Labor will ensure that LGBTI asylum-seekers “will be assessed by officers who have expertise and empathy with anti-discrimination principles and human rights law”.

No such special treatment will be granted to, say, persecuted Christians, white Zimbabwean farmers or Chinese practitioners of Falun Gong, who apparently do not qualify for victimhood status on the scale of identity politics.

The rhetoric of Labor’s platform will send a chill down the spine of those who recall how the Rudd government justified its policy of going soft on boats.

“Labor will reverse the practice of referring to asylum-seekers as ‘illegals’,” the platform reads. Australia’s government-funded humanitarian intake will be increased to 27,000 places a year.

Practical steps such as these that help maintain the quality of the social fabric matter less to Labor’s Left than expressing “compassion, justice, human rights, fairness and generosity”.

Treating asylum claims on their merits is less important than treating asylum-seekers “with dignity and compassion and in accordance with our international obligations”.

Labor pledges to enshrine those international obligations in domestic law. The pattern seems clear. When unscrupulous migrants and their agents see a crack in the door, Labor’s instinct is to open it further.

Nick Cater is executive director of the Menzies Research Centre. *Bhavjeet Singh is a pseudonym. The identity of appellants is withheld by the Administrative Appeals Tribunal.