BY SARAH STEPHEN
Getting a visa to stay in Australia depends on who you know and who you pay money to, rather than the veracity of your claim. That's the conclusion to be drawn from the "cash for visas" scandal currently engulfing immigration minister Philip Ruddock. It is alleged that he used his ministerial discretion to grant visas on three occasions after large donations were made to the Liberal Party.
The normally smug Ruddock looked distinctly uneasy during parliamentary question time in early June — with good reason. The allegations raise serious questions about Ruddock's conduct as minister. But they also point to serious flaws in a system in which a minister has the power to override all other decision-making bodies.
The first alleged cash-for-visa incident concerns the Maha Budhi Monastery in Ruddock's electorate. It was granted 10 temporary residence permits for religious workers over a period of three years — a large number of approvals for a single organisation.
The Buddhist monastery donated a $100,000 token of appreciation to Ruddock's electorate office, the largest individual donation received by the NSW Liberal Party in 2000-2001. Ruddock claims to know nothing of it.
The second allegation of corruption involves a fugitive corporate gangster from the Philippines, Dante Tan, who was the mastermind of a scandal that brought down the government of Joseph Estrada in early 2001 and caused the near collapse of that country's stock exchange.
In 1998, Tan was granted a business skills visa. Three years later it was cancelled due to compliance problems. In October 2001, a month after making a $10,000 donation to the Liberal Party, and with some help from a friend of Ruddock's, travel agent and "unofficial" migration advocate Karim Kisrwani, Tan had his visa reinstated. Six months later Tan was granted citizenship.
On June 6, Ruddock told parliament that he felt "uncomfortable" about the donation — so uncomfortable he denied having met Tan at the fundraising event where the donation was made. Tan fled Australia on June 11, the day after the cash-for-visa scandal hit the press.
The third allegation of corruption involves Lebanese asylum seeker Bedweny Hbeiche who, after exhausting all avenues of appeal, sought Ruddock's intervention — twice.
The second time, Ruddock wrote to Ross Cameron, Liberal MP for Parramatta who had asked Ruddock to look at Hbeiche's case, advising him not to raise the case again.
Then in September 2001, at a Liberal Party fundraiser, Kisrwani allegedly made a donation of $3000 on behalf of Hbeiche. Four months later, Ruddock granted Hbeiche a visa.
Ruddock told parliament that his decision had been based on supposed "new information" — that Hbeiche had three sisters living in Australia. Labor's immigration spokesperson Julia Gillard then produced a leaked copy of Hbeiche's initial 1996 application for a protection visa which listed the names and ages of his sisters in Australia.
Ruddock has been asked about his alleged request to refer two cases to him personally. This was after he had been approached by Lebanese Friends of Philip Ruddock, an informal group of supporters from Sydney's Lebanese Christian community. In 2001-02, this group reportedly made donations of $19,450 to the Liberal Party.
Ruddock has also been asked to supply more information about another 17 visas granted after representations by Kisrwani.
On June 19, the Senate agreed to an inquiry into the use of ministerial discretion to grant visas during the past seven years, Ruddock's period in office. It will deliver its findings by November 3.
Ministerial 'discretion'
The ALP may well have unearthed a scandal, but so far its MPs haven't been interested in exploring the deeper implications — namely scrutinising the entire decision-making structure relating to the granting of visas.
Ministerial discretion, as set out in section 417 of the migration act, can be exercised for all visa types. It allows the minister to grant a visa — an "s417 decision" — even after the Refugee Review Tribunal or the courts have decided otherwise. It is supposed to provide a "safety net" for people whose cases the legislation didn't foresee.
While the minister is required to provide a brief summary to federal parliament of each s417 decision made, they are not obliged to give reasons for deciding against. Neither is there an obligation for the minister to reconsider every rejected application, nor are the decisions subject to review.
Ruddock has made more s417 decisions — around 1700 over seven years — than any other immigration minister. In the 18 months up to January 2001, Ruddock granted 607 visas, more than one a day. This compares with just 173 s417 visas granted between 1993-95, the final three years of the Labor government.
But the high number of approvals doesn't mean Ruddock is more generous. In Future Seekers — Refugees and the Law in Australia, Mary Crock and Ben Saul point out that "the system as a whole became much tougher under the Coalition government, so that more people needed to seek his merciful intervention".
Ruddock himself explains that most of his interventions involve family connections where non-citizens have married Australian citizens and have children. Crock and Saul note "allegations of favouritism towards particular ethnic communities".
Both major parties have tried to cultivate political support among different ethnic communities. The Lebanese community is just one case in point.
As Russell Skelton and Meaghan Shaw reported in the June 18 Melbourne Age, Iraqis and Afghans who have had their claims rejected are most likely to appeal to Ruddock on humanitarian grounds. Yet these are the claims most commonly rejected.
"According to official statistics, Lebanese have made 146 successful appeals for visas on humanitarian and non-humanitarian grounds, and Fijians a record 173 since 1999. Tongans, whose major problems seem to be lifestyle-related, also did exceptionally well with 79 being granted non-humanitarian visas. But no Afghans and only five Iraqis attracted the ministerial sympathy in that period."
Asked why there were so many interventions favourable to Fijians and Lebanese, the minister's spokesperson was quoted as saying that family links played an important role. "Few Iraqis, Afghans and Iranians were approved because of the way most arrived and the lack of family connections", Skelton and Shaw conclude.
Inherent injustice
Herein lies the inherent injustice of a discretionary decision-making system run by a minister whose aim is to deter asylum seekers from coming to Australia, and then punishing those who get here.
Family connections and the method of arrival should be irrelevant to the assessment of whether someone is a refugee. Yet Ruddock has made these criteria central to all assessments, in violation of the guidelines governing ministerial discretion.
The Age article reported on a study by Johanna Stratton for the Australian National University's law faculty which found that "it was extraordinary that Afghanistan and Iraq did not feature in the top 18 countries for which the minister exercised his discretion favourably. 'By contrast, Lebanon does not feature as a top 10 source country for asylum seekers in Australia', Stratton wrote."
Departmental staff summarise cases and decide which requests should go to the minister to consider. Ruddock admits he doesn't see every request for intervention. "I receive correspondence in the order of 30,000 to 40,000 a year. I do not attempt or purport to remember every letter that comes to me", he said on June 6. But then neither should he have to. One person cannot hope to fulfill such a brief effectively.
Perhaps of greatest concern with ministerial discretion, and something that is yet to be scrutinised in the present debate, are those people who are refused visas. The minister is able to grant an asylum seeker, who doesn't fit the refugee convention definition, the right to stay in Australia on humanitarian grounds — that is, if they would face discrimination if they returned to the country they fled.
Ruddock has issued hundreds of visas over the last four years and yet none have gone to Afghans and only five to Iraqis. Recent legislation tightening the definition of a refugee means that it has become much harder to meet the assessment criteria. The only avenue for those whose applications and appeals have been rejected is to appeal to the minister for humanitarian consideration.
The case of Iranian asylum seeker Ebrahim Sammaki, who remains in the Baxter detention centre, shows the cruel arbitrariness of the way ministerial discretion is used, and abused. Sammaki arrived by boat in Australia in 2001, hoping to establish a home for his family who had stayed behind in Indonesia. But Sammaki's Indonesian wife died in the Bali bombing and his two young children are now stranded there.
Sammaki is a candidate for a humanitarian visa under the guidelines of ministerial discretion. He cannot go back to Indonesia because he has no status there. And even if it was safe for him to return to Iran, his children would not be accepted because his marriage would not be recognised by the regime. Despite this, Ruddock refuses to grant Sammaki a visa — no doubt to "teach" other would-be desperate people a lesson.
Corruption and cronyism is an inherent risk when discretional decisions made by the minister are immune from scrutiny. The cases above illustrate this. For a single person to hold discretionary power over tens of thousands of people's lives is wrong. Such powers should be transferred to the courts. Only this would remove the temptation to hand out favours, or use the power as a means of punishment.
Ruddock's decisions are suspect enough to warrant him stepping down. In the seven years he has held the immigration portfolio, Ruddock has presided over some of the harshest treatment of refugees and asylum seekers in Australia's history.
His demonisation of refugees has contributed to an escalating climate of fear and suspicion. Ruddock's abuse of power has gone on for too long — he has to go!
From 91×ÔÅÄÂÛ̳ Weekly, June 25, 2003.
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