Merit or Belief in assessing Refugees? – Immigration Minister or Member for McMohan

by Gaja Lakshmi Paramasivam

(November 12, Melbourne, Sri Lanka Guardian) I refer to the latest judgment by the High Court of Australia. Having ‘experienced’ the Australian High Court as a migrant (Gaja Lakshmi Paramasivam v John Howard – S51 of 2001 in the High Court of Australia) – I am driven by my belief as per that experience in reading this latest outcome through fellow Tamils of Lankan origin. Through this decision, resources shift from Government Business to Judicial Business. To the extent you use merit basis which would largely be through your position as Minister for Immigration and Citizenship, I strongly suggest that you take an intellectual approach. To the extent your electorate of McMohan is driven by belief and common faith before taking an intellectual approach, you have the responsibility to take a belief based approach not as a person but as your electorate would have taken.

Mr. Howard’s excision policies following the Tampa reality, took place effective 08 September 2001. A few months prior to that my High Court appeal against Mr. Howard and Others on the basis of Unlawful Racial Discrimination, was dismissed for ‘procedural reasons’. A migrant taking a racial discrimination case to our judiciary is likely to be dismissed for ‘procedural reasons’ and it never gets the real hearing of the court. Hence, to me, the above High Court decision is largely to boost legal business rather than to be fair and just to asylum seekers. If it were indeed due to genuine feelings – the decision amounts to a handout one of common belief.

Mr. Bowen, the issue of refugees needs to be driven more by belief and less by intellectual analyses through objectively measurable merit basis. The latter is driven by cause and the former by effect. Given that we do not have a system in place (we could have but do not have one) to measure on merit basis, the assessment is largely left to the discretionary powers of immigration officers. For refugees in the excised areas this now goes to legal business instead of these immigration officers.


Take for example, my own history. I was an outstanding performer and followed the Common Law as well as the standards of my profession at the highest levels. But once I went beyond a certain level in Public Service I had to ‘forget’ my higher level thinking to ‘belong’ in that institution – in this instance the University of NSW. The only way one can then belong is by believing through the Truth of that institution, towards which one has to ‘convert’ the excessive intellectual knowledge into common belief. I did that and hence took the ‘system’ from the Administration of the University of NSW up to the CEO of the country – which was then Mr. Howard. That way I registered my experience and belief that I had worked to earn the direct attention of the CEO. Since I did not take revenge (I could have at least added to the powers of the revengeful, but did not) I left it to God’s system. ‘Time did tell’ when Mr. Howard was demoted by his electorate. Belief based system works precisely even though it often takes time for us to ‘see’ the results.

I was a genuine migrant who sacrificed much to ‘be’ real Australian. This often required me to sacrifice my earned status as a professional. Mr. Bowen, in relation to foreign students you are reported to have stated “The new points test will ensure we select the best and brightest people from a large pool of potential migrants.” But have you done your homework to know that they would not contribute to rebellion against the government because their own expectations as per their countries of origin are not met? Some rebel and many go into depression because they feel they do not ‘belong’. Not many migrants are honest about their life here and hence deceive their own by neglecting them until they arrive here.

In our law courts, I was easily defeated through ‘legal processes’ and I expect that to be the case with the asylum seekers unless they are represented by expensive lawyers. I do not know of a single Australian Tamil lawyer who could have won in the High Court on merit basis. You have to be elected first before becoming a Minister. Likewise we need to be elected by majority in the Australian profession before being able to win on merit basis. This, is yet to happen in my profession. As per our history, it usually takes at least two generations for this to happen at the professional level.

You are reported to have stated also “For example, the current test puts an overseas student with a short term vocational qualification and one year’s work experience in Australia ahead of a Harvard educated environmental engineer with three years’ relevant work experience.”

If you take the Sri Lankan war as an example, if not for the funding from overseas – not only from Governments but also from individuals – the war would have been over long time ago as happened prior to 1983. It is the difference between a refugee being processed within the Australian system and another through the offshore system. The parallel of the ‘settlements’ prior to 1983 is onshore processing of refugees using our sovereignty to interpret the relevant international laws. But from 1983, the issue has become global and it happened due to the negligence of global agencies including Australia, which is a party to the International Convention on the Elimination of All Forms of Racial Discrimination. Hence the issue has reached the global level and asylum seekers are entitled to Processes of Global Standards – to be processed by those who have invested in the issue at global level.

On that basis, it does seem to me that the processing of applications from offshore applicants, by Australian officials is inappropriate. The High Court decision rectifies the damage from that to a degree but the question arises as to whether they were themselves uphold that global principle – which would require offshore applicants to be governed by global policies and the subjective evidence of global agencies such as the UNHCR to be accepted as genuine certification rather than the assessment of Australian Officers and Australian Judges through their discretionary powers.

If offshore refugee applicants have access to the High Court of Australia, then so should offshore student applicants – where the applicant is able to find ‘procedural errors’ in processing of the student visa. As the records would show, many refugees who came by plane did use student visas to enter Australia. Even if that were not the case, education being a fundamental requirement for many cultures to maintain their status in wider society, through merit basis, it requires equal facility as refugee issue except where one is specially targeted by the government and/or its enemy to the extent that the person’s life is in danger. The core value in all this is work and how it is valued. Lack of proper assessment leads to rebellion which in the extreme becomes terrorism.

If we manage to recruit the genuine applicants – through an appropriate combination of belief and merit – we would be winners.