A year ago to the day, Robert Jovicic was set to be detained in Villawood Detention Centre.
An ex-drug addict with a robbery rap sheet who’d lived in Australia since he was two-years-old but was not a citizen, Robert was discovered shivering on the steps of the Australian embassy in Serbia in 2006, pleading to come home. He’d been deported on character grounds by former Immigration minister Phillip Ruddock. His prison record meant he was deemed an undesirable, and given that he was not a citizen he was suddenly escorted out of the country.
After a public outcry, new Minister Amanda Vanstone attempted to clean up the mess by flying Robert home on compassionate grounds. But arguments over citizenship, visas, and Robert’s “character” meant that he lived with the threat of being deported back to a country whose language he didn’t speak. The Howard government insisted that Robert apply for Serbian citizenship. He refused, despite being warned that he could be detained for his refusal.
And so, a year ago to the day, after much campaigning on the part of Robert and his support crew, including a trip to Canberra, months of stonewalling from the Minister and the department, and having had his fate in the hands of three different ministers, Robert’s deadline was up.
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But instead of being detained, the Howard government had a change of heart.
Hammered by the Hicks issue in an election year, new Immigration Minister Kevin Andrews decided not to detain Robert, and instead granted him a two year special purpose visa.
Yesterday, new Immigration Minister Chris Evans confessed to a Senate Estimates Committee that he was uncomfortable with the idea of “playing God” and ordered a review into his own role, saying he believed his position had too much power. Power over people like Robert.
Evans said there had been a large increase in immigration ministers intervening in individual migration cases under the previous government.
Former immigration minister Kevin Andrews used section 501 of the Migration Act, the same act which decided Robert’s fate (which allows ministers to cancel visas on character grounds) to revoke the visa of terror suspect Dr Mohamed Haneef.
“I have formed the view that I have too much power … in terms of the power given to the minister to make decisions about individual cases,” Evans said. “I’m uncomfortable with that, not just because of concern about playing God, but also because of the lack of transparency and accountability for those decisions.”
So does this mark the beginning of the depoliticisation of the Department of Immigration?
“This area of migration legislation has developed into something that has departed radically from the mainstream Australian legal system,” coordinator and principal solicitor at the Refugee and Immigration Legal Centre David Manne told Crikey. “It involves extraordinary and unprecedented legal architecture in which a minister of the crown is the only person in the country who is able to decide the fate of literally thousands of people.”
“Quite a number of these powers have been around for some time but we witnessed an increase and concentration of ministerial power under the Howard government, particularly under Ruddock,” says Manne. “There are over twenty sets of personal powers , where decisions which often significantly affect the rights of people are at the discretionary whim of the minister. Many of these powers don’t have guidelines … instead, they include vague descriptions like the minister thinks intervention is ‘in the public interest’.”
“Depending on the minister of the day, the approach may involve…some sort of particular predisposition for pouring over individual cases every year. They would receive briefings on literally hundreds if not thousands of cases. Others were less inclined to do so. One of the crucial problems was a striking inconsistency in the application of principles and outcomes between each minister,” says Manne.
Sources have told Crikey that Ruddock in particular had an almost obsessive interest in poring over the minutae of individual cases and was renowned for making detailed annotations on departmental briefings on individual cases, including spelling and grammar. Sources also say that Vanstone was far less inclined towards that kind of micro management and was far more inclined to a hands off approach — taking advice but letting things pile up so that there were huge backlogs.
“It’s a serious job description problem for a minister of the crown to literally personally be determining the fate of thousands of people. To be given unfettered power, where decisions about people’s lives are made on a personal whim, without the right of appeal, or to even compel the minister to consider the case let alone provide reasons for the decision.”
“These decisions include the minister acting as sole gatekeeper on a whole range of international human rights treaty obligations that relate to issues like the Torture convention and the convention on the Rights of the Child. These kinds of decisions should be regulated not by the political process but by the rule of law,” says Manne.
According to Manne, the case of Haneef, and Robert for that matter, is a cautionary tale of what can happen “when any politician is given unfettered powers.”
“It’s time to bring immigration back into the mainstream of the legal system so that when it comes to people like Robert, the decision is made by law, not by the personal discretionary whim of a politician, with no explanation and no accountability except providing it comes to light, the court of public opinion,” says Manne.
As for Robert Jovicic, his special purpose visa is due to expire in February next year. In the meantime, he’s not entitled to Medicare and cannot leave the country.
Crikey asked Senator Evans if he, or the department, will be reviewing Robert Jovicic’s two year special purpose visa with a view to reinstating his permanent residency. We were told the Senator is in meetings this morning but that he will endeavour to get back to us with a comment for tomorrow’s edition.