the interpretOr

HIGH COURT OF AUSTRALIA

PLAINTIFF M70/2011 v MINISTER FOR IMMIGRATION AND CITIZENSHIP

PLAINTIFF M106 OF 2011 BY HIS LITIGATION GUARDIAN, PLAINTIFF M70/2011 v MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2011] HCA 32

Today the High Court held invalid the Minister for Immigration and Citizenship’s declaration of Malaysia as a country to which asylum seekers who entered Australia at Christmas Island can be taken for processing of their asylum claims. After an expedited hearing before the Full Bench, the Court by majority made permanent the injunctions that had been granted earlier and restrained the Minister from taking to Malaysia two asylum seekers who arrived at Christmas Island, as part of a larger group, less than four weeks ago.

The Court also decided that an unaccompanied asylum seeker who is under 18 years of age may not lawfully be taken from Australia without the Minister’s written consent under the Immigration (Guardianship of Children) Act 1946 (Cth). The Court granted an injunction restraining the Minister from removing the second plaintiff, an Afghan citizen aged 16, from Australia without that consent.

The Court held that, under s 198A of the Migration Act 1958 (Cth), the Minister cannot validly declare a country (as a country to which asylum seekers can be taken for processing) unless that country is legally bound to meet three criteria. The country must be legally bound by international law or its own domestic law to: provide access for asylum seekers to effective procedures for assessing their need for protection; provide protection for asylum seekers pending determination of their refugee status; and provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country. In addition to these criteria, the Migration Act requires that the country meet certain human rights standards in providing that protection.

The Court also held that the Minister has no other power under the Migration Act to remove from Australia asylum seekers whose claims for protection have not been determined. They can only be taken to a country validly declared under s 198A to be a country that provides the access and the protections and meets the standards described above. The general powers of removal of “unlawful non-citizens” given by the Migration Act (in particular s 198) cannot be used when the Migration Act has made specific provision for the taking of asylum seekers who are offshore entry persons and whose claims have not been processed to another country, and has specified particular statutory criteria that the country of removal must meet.

On the facts which the parties had agreed, the Court held that Malaysia is not legally bound to provide the access and protections the Migration Act requires for a valid declaration. Malaysia is not a party to the Refugees Convention or its Protocol. The Arrangement which the Minister

Please direct enquiries to Manager, Public Information Telephone: (02) 6270 6998 Mobile: 0415 144 283 Fax: (02) 6270 6868 Email: enquiries@hcourt.gov.au Website: http://www.hcourt.gov.au

31 August 20112

signed with the Malaysian Minister for Home Affairs on 25 July 2011 said expressly that it was not legally binding. The parties agreed that Malaysia is not legally bound to, and does not, recognise the status of refugee in its domestic law. They agreed that Malaysia does not itself undertake any activities related to the reception, registration, documentation or status determination of asylum seekers and refugees. Rather, the parties agreed, Malaysia permits the United Nations High Commissioner for Refugees (“UNHCR”) to undertake those activities in Malaysia and allows asylum seekers to remain in Malaysia while UNHCR does so.

The Court emphasised that, in deciding whether the Minister’s declaration of Malaysia was valid, it expressed no view about whether Malaysia in fact meets relevant human rights standards in dealing with asylum seekers or refugees or whether asylum seekers in that country are treated fairly or appropriately. The Court’s decision was based upon the criteria which the Minister must apply before he could make a declaration under s 198A.

Jeff Madrick, Senior Fellow at the Roosevelt Institute and former economic correspondent to the New York Times, has recently published a metaanalysis of the origins, historical contexts and characteristics of financial crises.

Similarities abound, as the following quote reveals:

“Throughout history, financial crises have been generally similar to each other. An asset – land, housing, stocks, bonds and so on – rises in price, financial institutions lend to investors to buy more, and prices are driven to unsustainable levels. When the bubble bursts, investors sell assets to repay their loans, and prices fall further, often in panic.”

(Jeff Madrick, The Age of Greed, Alfred A Knopff, New York 2011)

the interpretOr also reveals that prior to the collapse of Lehman’s in 2008, Wall St had made trillions from trading sub-prime mortgages that were based on a giant ‘Ponzi’ scheme. How this was achieved was attributable to ongoing deregulation of the finance sector, tacitly permitting finance houses such as AIG and Countrywide to trade essentially unsecured mortgages to a rapacious sector – the buy-in, or incentive, was that sub-prime mortgages were subject to very high interest rates – these flimsy, high risk/high yield products were sold in bulk, providing massive, short-term and unsustainable earnings.

The ratings agencies, (see earlier interpretOr posts), S&P, Moody’s and Fitch, rated these bulk packages of very risky, partially unsecured mortgages, without elaborating on their inherent risks, weaknesses and unsustainability. European and other banks around the globe, bought into these toxic tranches and the resultant GFC was and is the outcome.

see also: the interpretOr: ratings agencies are robbing the poor, the sick and the elderly

plus…ratings agency S&P’s $2 trilliOn error and ‘race to the bottom’

also….http://hsgac.senate.gov/public/_files/Financial_Crisis/FinancialCrisisReport.pdf

John Kampfner was a political correspondent and commentator for the BBC and Financial Times and is currently Political Editor of the New Statesman. He has exposed the origins of the link and subsequent bond between former Prime Minister Tony Blair, and ex President George W Bush. A young George W Bush spent a summer on the Perthshire (Scotland) family farm of the Gammell family. Young Willy Gammell became a childhood and lifelong friend of George W, oh…and young Willy Gammell was also one of Blair’s closest school friends at the elite Fettes College in Edinburgh.

Truth is indeed stranger than fiction…

Wikipedia:

Bill Gammell was born in Edinburgh. His father was an investment banker, invited at an early age to join Edinbugh’s Ivory & Sime (which was started in the late 1800s with the formation of the British Assets Trust.) Gammell attended Edinburgh’s exclusive Fettes College where he was friends and debating partners with future British Prime Minister Tony Blair. The two have remained close friends. After Fettes, Gammell attended the University of Stirling where he obtained a BA in Economics and Accountancy.

Gammell’s father invested in US oil company Bush-Overbey, owned by future US President George H. W. Bush. The two families became friends, with George W. Bush spending the summer at the Gammell’s farm in Scotland. George W. attended Bill Gammell’s wedding in Glasgow in 1983. The two have remained close friends. When George W. Bush assumed the Presidency, both he and Blair reportedly called their mutual friend Gammell to ask his opinion of the other.

Guardian, BBC & Reuters reporting that Italian Police have raided Milan offices of ratings agencies Moody’s and also Standard & Poor’s…accountability, anyone?

…Guantanamo: “nOw open for business” 

BBC World Service correspondent in New York, prefacing his piece on plunging markets with a thumbnail of the ratings agencies scene – there are only 3 major players (Standard & Poor’s – S&P, Moody’s and Fitch) and they rate the world’s bonds and derivatives – but omitting an essential piece of information:

Listeners were not told that these same ratings agencies derive their primary, if not sole revenue stream, from the commission that they are paid by the merchant banks and governments that are issuing the bonds that they, the ratings agencies, rate.

Err, herein lies an inherent contradiction – a whopping great, objective conflict of interest. In late 2010, a Eurobond dealer broke away from the conformist consensus of his peers and spoke out against the ratings agencies…

This lone voice had made it onto the BBC World Service and clearly stated that the ratings that these agencies had given toxic Greek, Spanish and Irish sovereign debt were incorrect. He ‘called’ these government bonds as sub-junk trash. He derided the ratings as being as fetid as the subprime ‘miscalculations’ of 2008 and earlier.

Afghan refugee, Arif Ruhani, shared his harrowing story with me in 2009. In April of that year there was a burning boat near Ashmore reef that reignited debate on refugee policy and responses. Then Prime Minister, Kevin Rudd, acknowledged that deteriorating conditions, particularly in countries like Afghanistan and Sri Lanka, were causing people to flee their homelands. 

Perhaps we need to ask ourselves as human beings, what would it be like for us if we awoke to the armies of the night? What would we do if we were no longer safe due to sporadic acts of violence, murder on our doorstep? What steps would we take to try and survive the carnage? What would we do to protect those that we love? We may find answers to some of these fundamental human questions in Arif’s candid and courageous account:

Arif Ruhani’s story begins in Afghanistan in 2001 when the Taliban seized control of Oruzgan Province. This was not a unified event as Mujahedeen factions were fighting between each other  for power and populations were being murdered. His family became homeless and were displaced from village to village.

“We were trying to lead a ‘normal life’ after the Taliban came in to power and then the whole thing changed. The threat to our life was more imminent. They were killing people for no reasons, oppressing people and trying to make everyday life harder and harder. That was causing my family to choose for me to flee Afghanistan.”

The family pooled money for Arif to escape…”there was not even a single office in my area of any international government or organisation. Impossible.” His father made a deal with people smugglers on the ground in Afghanistan. Arif was then taken with a group of people to Pakistan and “from there my journey starts.”

Traveling under a false passport, he flew to Indonesia where he spent three months in hiding before boarding a small boat bound for Australia. Suitable for 20 people, but with 80 on board, the boat’s engines stopped working after 6 hours at sea. It was night and the vessel began taking on water. Two of his friends drowned before reaching land.  Arif returned to Jakarta where other Afghan asylum seekers were arrested by Indonesian police. While there, he became aware of the Tampa Affair where in 2001, 400 asylum seekers were picked up from their sinking vessel by the Norwegian container ship Tampa and then refused entry to Australia. He also learned of the Howard Government’s Pacific Solution, which saw those refugees set offshore to places including Nauru.

“We heard the news about the Pacific Solution, about the (Australian) Government trying to stop people coming by boat, but    we still had no choice. We couldn’t go   back to Afghanistan”

After a month in hiding, he boarded another small boat that was soon intercepted off Christmas Island by a large Australian Customs vessel. Women and children were taken aboard the customs ship, while Arif and many other men were detained aboard their boat for 13 days…

“This was a really difficult part of my journey coming to Australia. We were prisoners. The fishing boat was very cramped. They didn’t allow us to move freely and we were watched the whole time. We even had to wait for permission to go to the toilet…some people that spoke out were then sleep deprived. It was like torture.”

The Australian authorities tried to fix the boat to send it back to Indonesia, but it started leaking and was deemed too dangerous. The remaining passengers were transferred to the customs ship and after two days, they were detained at Christmas Island detention centre, which was still being built at the time. After two months on Christmas Island, they were transferred to Nauru, arriving on December 22, 2001. They were initially interviewed by the Australian Department of Immigration and refused refugee status. Many people were wrongly classified as Pakistani, reportedly due to inept interpreters working for the Australian Government. Arif too was initially classified as Pakistani.

“Many of my friends were sent back to Afghanistan and were killed.”

So began a long period of detention on Nauru that was to last until June 2005. Over this period, Arif and other detainees had no access to telephones or the Internet; in fact, no access to the outside world. Arif estimates that there were over 100 children also in detention, ranging in age from 1 to 17 years old. One young boy was detained on Nauru, his mother had died and he was separated from his father who was in Australia under a Temporary Protection Visa (TPV). After three years, the boy was repatriated with his father.

The detention centre on Nauru was funded and administrated by a body called The International Organisation for Migration (IOM) and Chubb were contracted for security. Arif said he and others were told repeatedly by Australian authorities (during the Howard years):

“If you don’t go back to Afghanistan, we will send you back by force.” 

“We were living in constant fear of being deported by force”, said Arif. Many detainees arrived on Nauru with chronic PTSD (Post Traumatic stress Disorder), while others also developed other severe psychological problems and had no access to treatment. Hunger strikes were also symptomatic of people’s acute distress.

The Office of the United Nations High Commissioner for Refugees (UNHCR) was finally able to visit detainees an Nauru in 2004. This prompted the Australian Department of Immigration to interview individual detainees – Arif was among 29 Afghan asylum seekers whose cases were rejected. He was told by Australian officials that they had reached a new agreement with the Afghan Government whereby he and other remaining Afghan refugees would be sent back. After an agonising delay, Arif was later told that he would be accepted after all, and gained entry to Australia under a TPV, arriving in June 2005. Under the terms of these visas, refugees were denied the right to travel and there was no right of even temporary family reunion.

Arif was granted permanent residency in 2008 and lives in Perth, where he talks of the relationships he has made with local people:

“I am very thankful to them: they have helped me a lot. I will be thankful to them forever.”

Asked about his experiences and the plight of other refugees, Arif Ruhani said:

“It is very difficult to express how I feel. I would definitely say to anybody who will read this, please, please help these   people. These people are putting their lives at risk for a safe life, for peace and for freedom.”