Sunday, October 09, 2005

Young and Free? Maybe Not

Here's a letter I noticed in Saturday's Age:

I work for the Immigration Department, and I must admit that I felt pretty embarrassed after reading your front page ( The Age, 7/10). No, not because of my employment — it was the thought that I had paid good money to read this hysterical trash that made me feel a bit ashamed.

What topic prompted not just the use of almost the entire front page, but even red ink in the headlines (something I have never before seen)? Surely it was something more serious than the recent mass murder in Bali or the many immensely important issues that face us. Well, actually, it was about the handling of a single case by a large government department.

Certainly the case was wrongly handled. However, the result was not that anybody died or was even injured, but an unfortunate woman in need of help ended up in a place where she received compassion and care in peaceful surrounds.

Having gone almost off the scale in its treatment of such a story, what will The Age do when something really big needs to be reported?
Michael Saville, Ashburton

That third paragraph neatly encapsulates most of the argument that's been advanced in defence of DIMIA's bungling of the Rau and Solon cases; it's a big department so mistakes sometimes happen but, crikey, it could have been a lot worse and (the part I really like) the end result was that Vivian Solon ended up in a fairly good place so what's all the damn fuss about?

Right now I'm tempted by the idea of going out one night and cruising some of Melbourne's darker laneways until I happen upon some hapless stranger whose living daylights I shall extract by the usual means; a damn good kicking. I know it sounds reprehensible, but you have to consider the bigger picture here. I'm not actually proposing to kill anyone and, if things go as they should, the victim can expect to receive care and compassion in peaceful surroundings. My one concern is that I'm no longer as spry and fleet of foot as I was in my youth, so the getaway could be a little touch and go. But that's all; there don't seem to be any serious ethical concerns in the way.

I think I'd better make it quite clear that I'm not reccommending this approach to anger management to anyone else, particularly Melburnians. The last thing I want is to cop a kicking some evening when I'm out on the town looking for a kickee of my own. It's also a bad idea to go about inflicting a bit of GBH on complete strangers if you were born in foreign parts and aren't yet fully de-wogged. You might find yourself facing deportation under section 501 of the Migration Act. Like Stefan Nystrom.

Nystrom's parents migrated to Australia from Sweden in 1966. In 1973, his mother went back to Sweden for a holiday; Stefan Nystrom was born there on December 31, 1973. She returned to Australia, with young Stefan in tow, on January 27, 1974. Stefan hasn't been out of the country since.

On 12 August, 2004 the Minister for Minister for Immigration and Multicultural and Indigenous Affairs (Amanda Vanstone), cancelled (or purported to cancel, in the words of Justices Moore and Gyles of the Federal Court) Nystrom's visa, using the discretionary powers conferred on her by section 501 of the Migration Act:

The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.

Stefan Nystrom had buckley's of passing the character test; as this report from The Age of October 6, 2004 mentions, he's served time for aggravated rape and armed burglary. Definitely not the sort of person we want in Australia. Nonetheless, Nystrom wants to stay here and on July 1, 2005 the Federal Court heard his appeal against the Minister's decision to give him the boot. He won by a 2-1 majority decision.

On the subject of Nystrom's criminal record, Justices Moore and Gyles say this in their majority decision:

29 ... The appellant has indeed behaved badly, but no worse than many of his age who have also lived as members of the Australian community all their lives but who happen to be citizens. The difference is the barest of technicalities. It is the chance result of an accident of birth, the inaction of the appellant’s parents and some contestable High Court decisions. Apart from the dire punishment of the individual involved, it presumes that Australia can export its problems elsewhere.

They go on to give Amanda a bit of a serve (but a dignified, judicial one, of course):

The third issue requiring reconsideration is the increasing tendency to utilise direct ministerial decision making. There will, no doubt, always be cases of particular political sensitivity which may require ministerial consideration. That cannot be true of the ordinary case of criminal conduct such as this.

Justice Emmett dissenting, upheld the Minister's decision, but wasn't exactly overjoyed about it:

49 I have had the advantage of reading the reasons of Moore and Gyles JJ for concluding that the appeal should be upheld. While I do not agree with that conclusion, I share the disquiet expressed by their Honours concerning the circumstances in which a man who has spent all of his life in Australia and who has no knowledge of the Swedish language will be removed to Sweden and banished from Australia because of what must be characterised as an accident of history and an oversight on the part of his parents. The material before the Court indicates that the appellant is a thoroughly unpleasant man having been convicted of serious and odious crimes. However, that is irrelevant to the question that has been raised concerning the validity of the Minister’s decision. [my emphasis]

Nystrom isn't the first person to face deportation under section 501 of the Migration Act. On October 11, 2004, The Age reported on the case of George Andary:

a 41-year-old former prison inmate who failed to take out Australian citizenship after his family migrated from Lebanon when he was four.

Chapter 11 of DIMIA's report Managing the Border: Immigration Compliance (June 2005) states:

In 2003-04, decisions under sections 200 and 201 of the Migration Act resulted in two criminals being deported. There were 60 removals of non-citizen criminals whose visas were cancelled under section 501.

Section 200 is merely the introduction to Division 9 of the Act; all it has to say is:

The Minister may order the deportation of a non-citizen to whom this Division applies.

Section 201 allows for the deportation of criminals who are not Australian citizens and who have lived here for less than ten years. But on the 2003-04 figures, a lot more people were removed from the country under the "character test" provisions of Section 501. When the decision is taken by the minister personally, Section 501 has this to say:

Decision of Minister—natural justice does not apply

As for Stefan Nystrom, his Federal Court win doesn't necessarily end the matter. The Age notes:

Senator Vanstone has lodged an application seeking leave to appeal against the decision in the High Court. She refused to comment while the case was before the court.


Anonymous said...

Re:Stefan Nystrom as reported "In a majority decision, judges Michael Moore and Roger Gyles said that while Mr Nystrom had behaved badly, it was no worse than many other Australians". No worse no worse tell that to the family of the 4 year old he raped and killed at the Moorabbin Bowl. I think it is quite a lot worse.

Aarghdvaark said...

Look, most everyone agrees he's nasty. But he's our mess, he's Australian and we're not proud of him.
How is it right for us to expect Sweden to just pick up the pieces? Are we a young country, able to say to other countries "sorry, we stuffed up, can you sort this out?"
But I do agree that "no worse than many other Australians" is a bridge too far.