We can all sleep safer in our beds tonight knowing that Stefan Nystrom is somewhere in Sweden, not Australia. His most serious crime was committed, tried and dealt with when he was 16, a mere 17 years ago when this government was just a twinkle in John Howard’s eyes. Nevertheless, Philip Ruddock thinks we were at “considerable risk” from a person like this (hmm, I wonder how that compares to our heightened risk level post-9/11). Despite those shilly-shallying lawyer and human rights types talking about “embarrassment” and breeches of international covenants, they’re probably going to do it again to another lowlife who we could well do without.
Funnily enough, the fact that Nystrom spent his first month as a newborn in Sweden is considered grounds for sending him back there 33 long years later, but the fact that Tania Singh was born and had spent her entire life in Australia up to the point of her High Court case was not considered grounds for allowing her to keep living here.
It seems pretty simple…if you want to stay in Australia, don’t try and kill your spouse.
I think these are parameters most immigrants should be able to cope with.
That is a parameter that most people should be able to cope with and has nothing to do with being allowed to stay in Australia after decades of residency.
He’s not an immigrant, james. He’s Australian and he’s Australia’s problem. Just we haven’t got the class to deal with it. Just use a loop-hole in the immigration law to foist it upon someone else.
These cases are very common – my guess is about one in fifty makes it into the media. Ruddock started deploying this tactic a few years back when he discovered it was his personal power according to the Act. He was instantly crazed.
Now DIMIA and Vanstone just think it’s nothing at all to deport people to foreign parts whenever they feel like it. According to the Act you have to have commited a serious crime. The working definition is that you have served at least one year in gaol.
How marvellous James, thank you for that well-thought out and intelligent commentary upon our country’s capricious and apparently utterly nonsensical immigration laws.
He’s Australian and he’s Australia’s problem.
If he hasn’t taken out citizenship, he’s not Australian.
The common denominator in all these cases is that none of them bothered to become Australian citizens.
I don’t see why you guys want to keep them here so much?
Because being sent off to a country they’ve never lived in is an extremely disproportionate punishment for the crimes they’ve committed.
Justices Gleeson, Gummow, Hayne, Heydon and Crennan did not see Mr Nystrom as an Australian. They describe him as follows “He is a constitutional alien, and a citizen of Sweden, who has resided in Australia since 27 January 1974″. (para 3 of Decision)
They also don’t take the view that the Minister’s power derived from a loophole in the law. Their decision details the scheme of the Immigration Act for the cancellation of permanant residency visas and the deportation of undesirable aliens. It is clear from their decision that they found that the Parliament had envisaged the type of situation into which Nystrom fell and had legislated accordingly.
http://www.austlii.edu.au/au/cases/cth/high_ct/2006/50.html
From the reasons for decision of Crennan and Heydon:
He meets that working definition in spades.
Suz, when you say:
Would you care to cite which international covenant Australia is party to and which it has breached in the Nystrom decision?
I agree with you that Nystrom is a lowlife that we can well do without. Probably his conviction at age 16 excluded him from ever being able to obtain Australian citizenship but had he kept out of trouble after his release from jail for that crime he could have continued to live there without any risk of deportation. That was not his choice however, and so his actions had consequences. Tough for him.
Help! My comment is caught in moderation.
I guess it is just the great circular prison of history…
deported criminal’s founded this country and in the current government’s eye’s it must be okay if mother England did it.
All six years of her life spent as a child of parents who had failed in their application for refugee status (having originally overstayed on a Business Visa) with four years or more of those six spent, no doubt, on legal proceedings to avoid her parents’ and family’s deportation.
The Migration Act provides that a child born in Australia is only entitled to citizenship by virtue of their birth in Australia if at least one parent is an Australian citizen or permanant resident. You consider that unreasonable? Your alternative?
He won’t be missed here. Good riddance.
If persons in his situation don’t want to be deported, I recommend they DO NOT rack up a significant criminal record.
This must also apply to refugee & “asylum seeker” applicants, who committ crimes here. *phwhitt” straight back to point of origin, we don’t want them!
Also we should terminate the citizenship of naturalised citizens who receive criminal convictions, & deport them likewise to their previous country of citizenship.
No laws were bent or stretched. These penalties were within the rule of law. These people refused to take up citizenship all those years they were here. Tough titties. Life wasn’t meant to be easy.
I’m not lawyer but I thought that the migration act doesn’t apply to people who have lived in Australia for more than 10 years? Obviously, this doesn’t include Tania Singh. GregM, I guess there is an exception for serious criminals?
It’s pretty sad actually. I’m of the view that if someone has lived in Australia for a suitably large period of time then if they committ crimes it is our problem. While Stefan Nystrom doesn’t seem to be a nice person he is only Swedish by law because he didn’t take Australian citizenship.
Rarely have I seen a post so comprehensively responded to – good work, GregM.
Apart from the unedifying spectacle of Vanstone and Ruddock throwing their weight about for the benefit of bovver right like Soon and Ward, Nystrom himself should have no problem. What’s all the gnashing of teeth all about? Sweden is a member of the European Union. The following countries also belong to the EU: Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and the United Kingdom. Should find one of those places amenable. Sweden has much higher dole and much pleasanter jails anyway. I wish someone would deport me to the EU.
Yes, I agree GregM has nailed it.
One further point: this legal principle allowing serious criminals to be deported is not some uniquely evil policy of the Howard Government, as some readers might think.
I did a little googling out of curiosity, and lo and behold, this is the UK position:
I’ll bet just about every country has a similar policy. And if the Swedes had found themselves with a rapist of Australian nationality, I’ll bet he’d be on the next flight to Sydney after his sentence had finished, regardless of how long he had resided in Sweden.
That’s about the size of it Sir Henry. Unfortunately the government (to its shame) repatriated that Serbian toe rag after a campaign by a group of misguided.
I recall distincltly some years ago the USA revoked the citizenship of one of it’s citizens of some 40 years & deported him to Australia, his previous country of citizenship, even though he no longer held ozzi citizenship.
Bleeding heart response to GregM’s demolition job:
but….but…but…
The point worth making is the where you are getting deported to and how disruptive it is to your life. Hence, does this extrajudical bastardry fit the crime?
(And, incidentally, it is extrajudicial punishment, above and beyond the statutory one which breaks an essential principle: that we are equal before the law. Australian born children of Australian citizens can’t get deported for whom extra punishment is not on. Auslander und Juden raus! Let us not have any of this fancy lawyering, pleeeze. This is naked political play for a calculated advantage playing to that part of the electorate that has always loved a good hanging. I know who you are.)
If, let’s say, you have a neat pad here on the Northern Beaches and have a family that depends, emotionally and financially on you, and you are being deported to, say, Bangladesh or the Burkina Faso because you have had a bit of bad luck (getting caught shoplifting, etc.), than this wouldn’t be very sporting. But then if you are living around here you would have your act together and/or you would have a smart mouthpiece on the case from the word go.
On the other hand, if you have had nothing but misery in Australia, in and out of strife, then getting deported to a civilised country like Sweden would help one with a fresh start. Sweden is nice, as are Denmark (excellent beer) and Finland.
So what we have here is putting the boot into declasse rubbish that aren’t capable of defending themselves. They are easy prey for ruthless politicians.
So, yes, let us take the case of the Serbian “toe rag”, Bobby Jovicic. First of all, deportation to Belgrade in the middle of European winter was over the top for a spot of thieving. Bobby had a bit of a problem with smack and that is what junkies do. There for the grace of the merciful God go quite a few of us on this blog.
And you are quite wrong young Steven. It wasn’t as a result of a campaign of some doogooders but tv footage that made the Federal Government go to water when a sick, destitute, blue from cold Jovicic decided to camp on the doorstep of the Australian Embassy in Belgrade. The PR looked very bad. The Government folded like a concertina. Plus, Jovicic was born in France, so the Government ultimately had to take him back because neither the Serbs nor the Frogs would take responsibility for him. Anyway, we brought him up and educated him, didn’t we. Like we did with Nystrom.
The point about all this is that politicians, like all bullies, are cowards, first and foremost – worried about their own hides and not the fabric of society. Otherwise what are all the Triad operators still doing in Australia? (Err, making money, and buying up real estate, they won’t get deported any time soon, I’ll give you the tip).
Termination of citizenship is a repugnant idea. If you are a citizen that’s it, full stop, end of story – you get the full rights, responsibilities and *protections* that go with it and NO ONE can take it off you, ever. (I can barely muster even grudging agreement with de-naturalisaton of Nazi war criminals but that’s a special case for a range of reasons – and Steve, the US has stripped over 70 former Nazis of their naturalised citizenship and deported somewhat less than that.)
Of course, the flip side holds as well, and if you ain’t a citizen, well, you ain’t.
That being said, I also think it’s cruel and unusual punishment to be taken from your home country and dropped into a foreign country in which you’ve never lived, know no one and don’t speak the language.
d
Some serious thought went into that one, Jason!
No laws as they exist on paper have been broken, but to think that Australians should be deported to anywhere where some tenuous link can be made is bending the spirit of the law.
Forget the person for a moment all you throw away the key types. What about the responsibility of Australia to deal with its own problems?
The other concern is that these Section 501 deportees have already done their time in our gaols. Then they’re transported – on release. At least the original convicts were deported as the punishment itself. Double jeopardy ain’t pretty.
“Australians” are being deported after serving time in gaol?
Come on.
They’re not Martians.
The point you raise was considered by the majority in the High Court decision, Mick, in paras 43 to 70. The Court held that the Minister could cancel the visa of any non-citizen on prescribed character grounds (including a substantial criminal record) under s 501 of the Migration Act, meaning that under s 198 of the Act the person was liable to removal from Australia, notwithstanding that under ss 200 and 201 of the Act the Minister can deport a person who has lived in Australia for less than ten years who has committed a crime punishable by not less than 1 year’s imprisonment. Nystrom argued that ss 200 and 201 provided him with a protection from the Minister exercising her powers under s 501. In effect the Court held that the operation of the Minister’s power under s501 is independent of, and not limited by, ss 200 and 201. The majority say, in para 69:
The minority (Heydon and Crennan) address the same issue from para 130 onward and reach the same conclusion as the majority.
SATP – what nationality is Nystrom? His citizenship says Swedish though he’s only been there for 3 weeks of his life. It seems pretty clear that his problems are problems that he got while he was here, I would suggest that makes them our problems and not those of the Swedes.
It might sound like a stupid idea but I think Australia should give citizenship (and all the rights and responsibilities that come with that mantle) to long term residents automatically. Maybe I’m just a weird pinko hippie.
GregM demolished nothing – all he has done is cite a small section of the High Court judgement as “proof” that Nystrom is not an Australian. It’s a flat out appeal to authority. His comments, like those of most of the other commenters don’t address the serious issue of whether it is just for Australia to deport long-term residents this way.
The High Court didn’t concern itself with that question in its judgement either – it merely found that Vanstone hadn’t exceeded the authority given her by Parliament. To say that no laws have been broken is to ignore the question of whether those laws should exist in the first place.
GregM, thanks for looking that up for me. Oh, and my above comment wasn’t directed at yours it was directed to SATP.
GregM, Gummo was kind to you. Give it away with cutting and pasting scripture. We’ve all got internet access.
mick, yes you are.
Section 501 deals with a lot more than just people with substantial criminal records. Follow the link down to s 501(6) and see just what can get a non-citizen have their visa cancelled and themselves deported for being of bad character. http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html
wbb, it was common ground in the Nystrom case that Nystrom was an alien (to use the legal terminology) and was not an Australian. You can hold a different opinion if you wish but the “spirit of the law” in democracies is that representative bodies, in this case the Australian Parliament, make laws and, subject to the Constitution, the Courts enforce those laws. The only way that Nystrom could have become an Australian citizen, and therefore immune from deportation, was by naturalisation under the Citizenship Act, and that never happened. If you want the law changed then lobby the Parliament to change it.
It did. Decisively. It shipped it off to Sweden.
Greg M:
According to the link in my post, Australia has breached the International Covenant of Political and Civil Rights in this case.
Greg M:
I do consider that unreasonable. An alternative? That all children born here are entitled to citizenship. Do you think millions of expectant couples would flock to Australia in order for their children to be born here? If they did, wouldn’t that be great – they’d be supplying Peter Costello with his “one for the country”.
“….our country’s capricious and apparently utterly nonsensical immigration laws.”
Hmmmm…….
It seems GregM that ss200 and 201 probably were intended to restrict the Minister’s capacity to deport long-term residents however it fails to do so? The judgement included the comment that when s500 was added to the Act that the Government seemed to be aware that they were creating a provision for deportation that was independent of the earlier act.
Oh and Paulus, it appears from reading the judgement that while the Government has always had the power to deport non-citizens, the Howard Government granted the Minster additional oversight in the process.
It seems that mos tof this comes down to a failure of s200 of the Act to grant long-term residents any protections.
By the way, reading judgments is fun, way more fun than the grant proposal I’m writing.
Jason, I seem to recall, with my handily search-engine enhanced memory, that you weren’t quite so sanguine about ministerial discretion being (mis)used to keep supposed undesirables out of Australia.
In both cases, the letter of the law may have empowered Ruddock and/or Vanstone to act as they did. Doesn’t make it right.
Steve at the Pub says:
I believe this government is working on just such a policy. Maybe they’ll go even further and strip dual citizens of their Australian citizenship if they don’t like them. Which makes the very concept of naturalisation and even citizenship a joke and extends the notion of “un-Australian” to breaking point – just about anyone could be un-Australianised in this scheme of things.
It really is laughable, in a sick kind of way, that a nation founded on deportation is now hellbent on deporting troublemakers itself.
[Usual disclaimer that of course none of these crims are particularly nice people, but that is very much beside the point of principle and as Gummo pointed out, all this legalism has very little to do with justice.]
Gummo, I was responding, as is my wont, to a post that contained factual errors (ie Nystrom is an Australian) and false appeals to some imaginary supranational body of law, quoted without authority, (international covenants) as a basis for arguing about the legality of Nystrom’s deportation. Of course my argument was a flat out appeal to authority. That’s what the High Court is to the law in Australia. They say Nystrom is not an Australian well then that’s it legally.
But you are also quite right to say that the serious issue is as to whether it is just to deport a long term resident, such as Nystrom in this way. That is a political and social question, however, not a legal one. My own view of Nystrom is that given his early, serious and continuing criminal history, for which he is responsible, and not the society upon which he inflicted his criminal behaviour, then in his case, revocation of visa and deportation is fine by me.
However in other cases I could see the application of the present law could be unjust. By analogy at the moment the United States is, under post 9/11 laws, deporting young Cambodians, who arrived in the US as refugee infants but who did not for various reasons take out US citizenship, back to Cambodia, where they are virtually dumped on the streets. Often the criminal records for which they are being deported are as trivial as shop-lifting and drink-driving offences and urinating in public. http://www.washingtonpost.com/ac2/wp-dyn/A46121-2002Dec27?language=printer
Cambodia is not Sweden. It is a corrupt, violent, impoverished society. Unlike Sweden where Nystrom will find that most people speak English, most better than he does, I suspect, few Cambodians speak English, and the country has a non-existent social welfare net, only basic health care and high unemployment. I think I will save my compassion for the Cambodian returnees, and give Nystrom a pass.
I’m not sure that the Government can legally strip citizenship off someone who has been granted it. Apparently this requires a change to the constitution rather than just a change to the Migration act. I can’t remember where I read that and I may be wrong of course. Oh, and I find the idea repugnant.
Bravo Gummo. Makes a mockery of our signatory status to the International Covenant on Civil and Political rights. (And contempt by pollies for the optional protocol allowing complaints by individuals.)
While the cases are not identical by any means, some of the human rights principles could well be applicable.
The full Communication here
http://www1.umn.edu/humanrts/undocs/html/1011-2001.html
A summary here
http://www.nswccl.org.au/issues/hr_violations.php#Madafferi
Madafferi v Australia (2004)
UN Doc CCPR/C/81/D/1011/2001 (26 August 2004)
What these cases demonstrate by federal executive acts of bastardry is the burning necessity for a constitutional Bill of Rights, to stop our pollies appealing to the lowest common denominator/Laura Norder/ Xenophobia—whatever.
I take it you are referring to Article 13 of the Covenant, (as none of the others seem relevant):
In what respect has the Australian government breached Article 13?
It was agreed by his own counsel that Nystrom was an alien in Australia. Aside for any representations he made under the Migration Act he had the Minister’s decision reviewed by three competent authorities; the Federal Magistrate’s Court, the Federal Court (on appeal) and the High Court (on further appeal). He was represented by counsel for his court appeals.
Or is it your default position that anything that the Australian Government does which you don’t like is automatically a breach of an international covenant?
GregM says:
“My own view of Nystrom is that given his early, serious and continuing criminal history, for which he is responsible, and not the society upon which he inflicted his criminal behaviour, then in his case, revocation of visa and deportation is fine by me.”
This is way too harsh. Nystrom is a product of this society, even if he must accept personal responsibility for his actions. It is also downright embarrassing- and downright bad manners- to dump him on Sweden. Nystrom is our problem and we should be mature enough to accept that responsibility.
patrickm, there is no definition in Australian law of who an alien is. Citizenship, itself, is a murky area. This is the stuff that the High Courts argues about and delivers split deicsions on. ie – it’s all stuff worth having the debate.
Nobody here is going to go respectfully silent before your selective cut and pastes from various decisions. Principle begat the law.
It’s GregM this time, wbb
Exactly.
Suz, given the attraction of Australia to many people who would love to migrate to it I would consider that would be a serious possibility, given that they would then claim, on grounds in the International Covenant of Political and Civil Rights, such as Peter Kemp has alluded to in the Madaferri case, that the fact that the child was an Australian citizen the parents were also entitled to residence in Australia, so as not to split the family, and so too were its siblings, whether in Australia or not, for the same convention reasons. That, after all, was the game being played Tania Singh’s family.
However from the little I’ve been able to read on the Madaferri case I’d have to agree with Peter that it looks like an act of Federal Executive bastardry given that Mr Madaferri had only one conviction, at a relatively early age (23), had been open in his disclosure of that conviction in his application and had apparently lived six years in Australia as an apparently law-abiding citizen before his spouse visa application was rejected. On those facts I think decency would require that compassion be shown and if he subsequently got into criminal activity to Minister would still have the right to revoke the spouse visa on grounds related to his conduct in Australia.
One other issue that I don’t think has been commented on explicitly is that it’s generally desirable to exercise any ministerial discretion with regard to immigration matters very judiciously indeed – the flipside of this sort of abuse being the granting of visas for essentially political purposes, or worse, through bribery by intermediaries.
GregM (!) – millions of people would flock to Australia? How would they do that?
Six months in a leaky boat, I imagine.
wbb, I have not been selective in my quotations, and it is pathetic that you have said that I have been. I have provided a link to the Nystrom case. If you think that my quotations have been selective, ie that they are selected to advance an argument but ignore a contrary view adopted by any of the judges, then have the common decency to point out where I have done that. Otherwise its just a cheap shot which goes to your credibility, not mine.
Your point being? Whether a person is an alien or not is a matter of legal status and rights and is therefore a matter of legal definition for Parliament and the courts. The High Court delivers split decisions in most cases. In the Singh case it looked at the issue of who is an alien head-on and held by a majority of five to two that under current Australian law a child born to aliens on Australian soil is an alien and is not automatically entitled by reason of birth in Australia to Australian citizenship. That, therefore is the law as it stands. You may not like it but that is just your opinion.
http://www.austlii.edu.au/au/cases/cth/HCA/2004/43.html
Care to cite a legal precedent that cites that principle? Or are you just making it up as you go along for the feel-good factor?
Because they don’t teach that in law school. They teach that, subject to the Constitution, the Parliament makes the law and the Courts enforce it.
It’s called representative democracy and the rule of law.
If you don’t like the law as it stands or as it is applied by the Executive then lobby to have the law or its application changed. That is the democratic way.
Don’t pretend, however, that something is unlawful just because it offends your principles or values. Others have different principles and values which they have every right to have respected alongside yours. What may be your sense of what is just could be deeply offensive to their sense of justice and you have no monopoly of being right in your sense of justice.
250 people per boat = 4,000 boats just to get to our first million – Mandy’ll bust a gut! Bring it on.
Millions was suz’s little flourish that I let go through to the keeper. But how would people who wanted their child to be born in Australia so as to get the benefit of Australian citizenship? Same way as the Singhs tried it. Get a short term visa (in their case a Business Visa but a tourist visa would do as well) as DIMA isn’t likely to make any enquiries as to whether the female applicant is pregnant and then fly in and have the kid, overstaying the visa if necessary. Then, of course, claim that the kid as a citizen by birth, is entitled to stay in Australia, the parents are too as they can’t be separated from it and the other siblings are entitled to join them to keep the family unit intact.
It almost worked for the Singhs until the High Court ruled against them.
This thread should have been over 45 comments ago. Why are all you moonbats still arguing against the bleeding obvious?
All I can say is, watch what you buy from Ikea in future. Perhaps the Swedes will export a little ‘payback’?
One yobbo’s “bleeding obvious” is another thinking person’s civilised discussion.
Hilarious. Business types flying around the globe usually have more lucrative things to worry about than this type of desperate subterfuge.
yobbo, as a New Australian yourself, surely you have more to contribute to this debate than that.
Some panjandrum has decided that my shiny new Public Service job warrants a security clearance. After four months I still can’t see why. After two months The Authorities have finally looked at the 20+ pages of material I was required to submit. I’ve been asked a number of trivial (bordering on actually stupid) questions … and I’ve been told that I need to submit proof of citizenship. It seems that being on the electoral roll for 20 years, and travelling on an Australian passport (which they’ve seen) for more than 10 just isn’t enough proof for these folks. I won’t be surprised if they ask me to verify that the nine-year-old named on my mother’s citizenship certificate is really me …
Stefan Nystrom’s fate is cruel, and harsh, and utterly unwarranted by anything he has done. And for those of us not gifted with citizenship at birth, it sometimes feels a little too real a threat. Even without a criminal record.
PS for those with a literary bent, check out Mowbray’s speech, beginning with “A heavy sentence, my most sovereign liege”, in Richard II Act One Scene Three.
No Greg, you were responding, as is your wont, to a post that presented facts that you find unpalatable with prolix comments citing the facts you prefer to address. No one – certainly not me – has argued that Nystrom is an Australian in law. But the fact is that bar a couple of weeks in infancy he has spent is whole life here and grown up in Australian. So what does that make him? An Australian in a Swede’s body perhaps?
In this case, I’m pleased to see you nicely hoist on your own petard, with mick’s comment on the High Court judgement here demonstrating more understanding of the judgement in three short paragraphs than you can manage to pack into six long ones.
Exactly Gummo and Mick.
The fact that nothing illegal has been done, that nobody has exceeded their powers, only points to the shittiness of the legislation. The outcome is unjust, and bordering on true farce, so what does its legality actually mean?
Change the frickin’ law, that’s what.
Section 501 doesn’t require the minister to deport these people, either. The minister does it at their pleasure. So short of changing the law we could just change the government.
First one, then t’other!
wbb:
Spot on!
So let’s have a judicial or Senate investigation into dodginess inside Immigration. Reviewing the circumstance of the marvellously clean police records and the brilliant academic records and the outstandingly successful business ventures of certain very favoured applicants for residency in Australia would be as good a place to start as any. Then such an investigation might care to meet personally some of the decent, hard-working families that failed to get into Australia – just can’t help bad luck, can you?
Then …. close down the whole Immigration circus and all the private operator feeding off it. In the past two decades it has served Australia very badly indeed.
FDB [11:39am]:
My sentiments exactly.
It makes him what the High Court says he is: “He is a constitutional alien, and a citizen of Sweden, who has resided in Australia since 27 January 1974″.
If you don’t like the law then, as FDB says, change the frickin’ law. Don’t try to pretend that it is other than it is to make your case and then have a whinge when I call you on it.
Since you obviously have no understanding of the High Court decision at all that is a laughable comment. My six paragraphs were to explain a particular point that mick raised. His comment is just commentary that confirmed what I was saying.
Well Greg, one thing that’s signally lacking in the High Court judgement is any consideration of whether Nysrom’s treatment is on keepong with the common law tradition we purport to have carried over from English jurisprudence, princuples of natural justice and all that jazz.
Instead the decision is reached on the purely technical grounds that Parliament has given the Minister this power, Parliament wants the Monoster to exercise this power, thereforw the Minoster can exercise this power. You consistently refuse to address the issue of whether this is a just use of authority because, at bottom, you know yoi can’t produce a principled defence of the existence and use of s501 of the migration act. It’s you who are being ridiculous.
Hope there aren’t too many ty[ps – I’m posting this from a net cafe without the benefit of reading glasses.
WBB: My family has been here since before Federation, so I don’t think I really count as a New Australian. Either you have me confused with someone else or are being so clever that your point went completely over my head…
Gummo, on the just use of power issue I see that there are three issues:
1. Should the Parliament give the Minister or anyone else the power to remove aliens from the country? The answer to that is obviously yes.
2. What constraints, by way of criteria for use of the power, should restrict the Minister’s exercise of it? In Nystrom’s case should the power be limited to exclude those who have been ”absorbed” into the society? In principle my answer is “no” because there will always be arguments about when a person is “absorbed” and there will be instances where the reasons for removal are so compelling that they overwhelm the “absorption” argument.
However the issue of “absorption” should be a relevant criterion for the Minister to consider in weighing up whether to exercise the power. In Nystrom’s case such is the severity of his criminal behaviour over a protracted period and up until the time that proceedings for his removal commenced that I find it hard to believe that he had not been warned of the dire consequences for him as an alien (as I recall the Minister said he had been) if he did not desist. Therefore I believe that the “absorption” argument should not prevail.
Therefore while I consider that the Minister’s decision, while harsh to Nystrom, was a just one. (You will note that on the facts as set out by Peter Kemp in the Madaferri case, I drew a different conclusion).
3. Finally there is the issue of review on merits. This is a problem for me as generally Ministerial decisions are not subject to independent review. Still, on the whole, I think that there should be some form of review beyond appeals to the Courts on narrow legal grounds. I am not sure that that happened in Nystrom’s case and that concerns me.
PS Loved your typing without glasses. Minister almost came out as Monster in a couple of places.
Hey Yob, I guess your rellos did a mighty fine job there in the south-east wheatbelt. Pity about all that salt though…
Another commentor who pretends to know where I live.
I have a full history of my family, where they came from, where they have been, what they did and what they continue to do.
When you misinformed bigots get close to warm, I’ll let you know.
Gummo,
Since when was Natural Justice a principle of common law in English Jurisprudence??
Natural justice is a product of modern administrative law (and don’t the luvvies go all goeey in the fork over it!!).
If you ain’t an Australian Citizen, no matter how long you’ve been here, don’t make a prick of yourself or you’ll get deported – the message is clear and simple.
Oh, and Yobbo is located in the SW of the continent.
I believe Sir Hank may have been referring to the S/E wheatbelt of WA, where salinity is a major problem.
Which may or may not be where Yobbo’s family are from, but is not so far off the mark as you thought.
GregM said
2. What constraints, by way of criteria for use of the power, should restrict the Minister’s exercise of it?
As I implied above, a Bill of Rights equivilant to the European Covenant on Human Rights AND a special court to appeal to, (eg the European Court of Human Rights), would be just dandy.
We are the ONLY democratic nation in the world without a national Bill of Rights.
http://jurist.law.pitt.edu/forumy/2006/12/terrorism-law-and-australian-bill-of.php
Razor:
That’s a bit tough. Half the scoundrels and scalliwags on the planet can pay their money (regardless of how they came by it) and take relatively easy jumps though a few bureaucratic hoops and get to stay here ….. and yet decent hardworking Aussies who spent almost all their lives here are at risk of being snatched and deported simply because they hadn’t completed all their forms to the complete satisfaction of some overefficious petty dictator or another. The subject of this post sounds downright unlovable but by commonly accepted community standards that are already in law, though not necessarily in the Immigration Act itself,he is an Australian and is accepted by his fellow Australians as such..
These people are being deported because they committed crimes serious enough to land themselves in prison. Hardly decent, hardworking, or – by virtue of not caring about becoming citizens – Aussies.
One of them tried to murder his wife. The other has a rap sheet a mile long including rape. Why exactly do you guys feel the need to defend these people? Why do you want them to stay in Australia?
What a load of bullshit. What community standards?
“Why exactly do you guys feel the need to defend these people? Why do you want them to stay in Australia?”
It’s the principle that counts. The direction in which this government is taking immigration policy concerns and angers me. I also don’t like the appeal to ‘law and order’ and smug nationalism which this government thrives on and which cases like this are part of.
GregM
In brief – if anyone is going to make decisions like these it ought to be a member of the judiciary, in open court, with consideration of all available evidence. The proposed deportee should be given the opportunity to defend themselves with evidence that their character has improved.
As the law stands, it’s based on a crude count of years of imprisonment (including court ordered periods of residential drug rehabilitation or psychiatric treatment). If memory serves, there’s no requirement in the Act for the Minister to consider exculpatory evidence.
It’s very much a Star Chamber proceeding.
One way for non-citizens to avoid deportation is to not rack up a criminal record. Just a thought.
There would be an abrogation of principle were we to allow them to stay.
Not every case of deporting or imprisoning a criminal is “an appeal to law and order”. Sometimes its just the day-to-day job of carrying out law and order.
If either of these guys had done nothing worse than not paying parking fines or trying to import some porn I could really see your point. But they are violent criminals.
How serious does the crime have to be before we don’t get to hear their sob story? Attempted murder and rape would qualify, I would think. Or would you rather we up it to mass-murder of Port Arthur magnitudes?
Suz, Wbb, Mark, Mick, Steve Munn & others.
It seems you support retention in this country granting of full citizenship rights to non citizen criminals who happen to live here.
Do any of you oppose the granting of a visitors visa to holocause denier David Irving? (who to date has restricted himself to mouthing off on matters of history, & hasn’t physically attacked or stolen property of so much as one Australian household)
There’s no limit. If deportation is to happen in this way, it should be after a court – not DIMIA or the Minister – has weighed the merits of the case.
And if you don’t want to hear the “sob story”, there’s no need to read the reports of deportation proceedings in the media. It’s as simple as that.
SteveAtThePub:
The very temporary and utterly forgettable presence in Australia of Holocaust-denying David Irving might well have served as a warning to the young of the folly of onanism …. but banning him from coming to Australia at all was a sign that the same affliction had spread to people in government.
“There’s no limit. If deportation is to happen in this way, it should be after a court – not DIMIA or the Minister – has weighed the merits of the case.”
Yeah, but that’s not within the function or capability of a court. Deportation is not meant to be a secondary punishment for the accused (even though it may have that effect in practice). Instead, the purpose of deportation relates to national interest and public good issues which courts are not equipped to handle. Such criteria are normally left to governments.
I realise that many people who comment here would like to see all executive decision-making handed over to courts — at least until Australia has rid itself of TEH MONSTROUS EVIL that is the Howard government!
Lol
Paulus,
It’s not in the function or capability of a court? Sez who? Oh, you do.
Well, that aside, it’s within the function, purview or capability of the Parliament to enact legislation which makes the courts responsible for determining such matters. And it’s entirely in keeping with the doctrine of the separation of powers that Parliament should do that rather than ceding the power to the Minister for Immigration as an executive perk of office, which is where things stand at the moment.
In brief – when parliament passed s501 of the Migration Act in 1998 (if memory serves), they comprehensively stuffed it.