Jeans Lawyers


23 December 2018

The United States continues to be deadlocked in immigration reform.

Wall. No wall. Resolving the status of children. Border security. Caravans. Judicial review. Government shut down. Gridlock in Congress.

Australia does not have millions of unlawful non-citizens; thousands of unauthorised border crossings every month, which are only estimated by the numbers detected; sanctuary counties, cities and states; criminal gangs of unlawful non-citizens; driving licences issued to unlawful non-citizens; and Immigration Courts with a backlog of 684,000 cases.

Applying the laws of Australia, this is what can happen which gives the Republicans their wall and border security; while giving the Democrats legalisation of all illegal aliens and border security.

With the United States’ 12 million unlawful non-citizens, that’s equivalent to 890,000 in Australia.  Australia has about 60,000. 

No one is “illegal” or an “alien”.  It is not a criminal offence to reside without a visa.  Aliens appear in Hollywood movies.

It is not possible to catch and remove all 12 million.  The status of these people must be resolved. 

Many unlawful non-citizens in USA are in the news for committing serious crimes, which is to be expected from any population group of that size.  Virtually all the 12 million are good people like everyone else in the broader community, but some will be murderers, gangsters, drug dealers etc.  Rather than blame all unlawful non-citizens and tar them with the same brush, the government has to resolve the status of everyone.

Combining Australia’s two past visa programs, there will be a cut-off date of entry to remove an incentive for new arrivals, for example, 1 January 2016; they must apply for the visa by a realistic deadline; pay an application fee of $10,000 per family; the main adult applicant must meet an acceptable level of English; and all applicants must pass the character and health tests. 

The health test may be subject to a waiver where the costs will not create an undue burden on the community. This will be implemented liberally so as to keep families together, not apart.

If there were 9 million families each paying $10,000, that is a lot of money to pay for the wall, border security and rebuild a few roads and bridges, even pay off some debt.

Adult applicants under retirement age will not have access to social security for 10 years. 

After being granted the visa, they can apply for citizenship after 4 years.

Those who do not apply by the deadline, or who arrived after the cut-off date, will be unlawful non-citizens and must be detained by ICE and deported.

Every unlawful non-citizen will be subject to mandatory immigration detention and deportation.  There is no distinction between those with no criminal record and those convicted of a misdemeanour or felony. The test is their immigration status, not that they have obeyed the laws, which is their duty in all cases.

All state and federal government agencies must notify ICE if they become aware of an unlawful non-citizen.  This includes traffic stops by the police, ticket checks on public transport, driving licence issuing offices, airport personnel and marriage registries. 

Officials who preside over sanctuary counties, cities and states will be in breach of people smuggling laws and risk jail time.  The same applies to officials who tip off unlawful non-citizens that an ICE raid will be conducted in their area. 

Migrants detected making an unauthorised border crossing into the United States will be detained at an immigration detention centre.  The same will apply for boat arrivals who try and sail around the border.   

Rather than create an offshore processing centre in the Caribbean for people who apply for asylum, there must be a turnback policy for all unauthorised arrivals.  This can be done by excluding the border areas from the migration zone, so that no one can make a valid application for any visa.

Operating detention centres in Australia and Pacific islands has been too problematic and creates new human rights problems.  Instead, there must be a system for offshore refugee visa applications from Central and South America, including for people who are still residing in their own country.

Migrants arriving by plane and denied entry will be detained and subject to removal on the next flight.  If they make an application for asylum, they cannot be released into the community.  They will be detained at an immigration detention centre in Alaska.  They can only be released if granted a refugee visa.  Otherwise, they must be deported.

The relevant prison authority must notify ICE of the imprisonment of a non-citizen and unlawful non-citizen.  In the case of non-citizens, if the penalty is 1 year or more imprisonment, their visa will be automatically cancelled.  They can appeal to an Immigration Court.  If the appeal is rejected, they cannot be released from jail after completing the minimum term.  The prison will be designated as an immigration detention centre.  If they are not granted a visa to remain permanently, they will be deported.

There will be clear guidelines on the situations in which a non-citizen can be deported for criminal activity.  In the Supreme Court decision in Sessions, Attorney-General v. Dimaya, 17 April 2018, the legislation for deportation eligibility contained the terms of “aggravated felony” and “crime of violence”.  A majority of the Court held the law to be unconstitutionally “void for vagueness”.  Instead, eligibility for deportation would not be linked to a vaguely defined offence, but rather, more general categories: having been sentenced to a 1 year term of imprisonment, regardless of the offence of if part of the sentence is not served in prison; past and present criminal conduct; having been sentenced to the death penalty; or the reasonable suspicion that the person will engage in criminal activity.

In the case of unlawful non-citizens who are imprisoned, they will be not be released after their grant of parole, but remain detained under the status of an immigration detainee.  They may be held at the same prison or moved to an immigration detention centre in Alaska.  Unless they have applied for a visa which is not finally determined, they will deported.  They must remain in immigration detention until granted a visa.  However, those with a criminal record are likely to fail the character test and the visa application will be refused.

Temporary visa holders residing in the community may apply for a visa to remain permanently.  If the application is refused and they have exhausted appeal options, they have 35 days to leave the country.  If ICE does not believe they will depart, they can be detained at an immigration detention centre.  If they refuse to leave voluntarily, they will be deported.

The costs of removal, which may include airfares for them and a two officer escort, will become a debt to the government and must be repaid if the person wants to return. 

The United States needs to look beyond its borders to solve her immigration problems.  As an island, Australia has not had to deal with the same geographic reality of the United States.  However, with the near neighbour of Indonesia having over 265 million people, the general Asian population of over 4 billion people, and being a target for people smugglers bringing migrants from Asia, Africa and the Middle East, Australia has adopted strong border protection policies to maintain living standards and community harmony.

This solution protects those already settled in the United States and offers them a pathway to citizenship; while stopping the creation of another 12 million illegal aliens into the future.

Simon Jeans is a lawyer, an accredited specialist in immigration law and on the Best Lawyers list for Immigration Law in Australia.  He was previously a member of the Migration Review Tribunal and Refugee Review Tribunal.


Herald Sun, Opinions, Thursday 5 April 2018

The onshore refugee status determination system in Australia is broken. 

It was implemented in the early 1990s for the caseload of applicants at that time. 

But  now, it results in thousands of migrants who arrived by boat from Sri Lanka, Iran, Iraq, Afghanistan, Palestine, Bangladesh and Pakistan being accepted as refugees, when they are economic migrants for whom we have no protection obligations. 

Between 2008 and 2013, 45,250 migrants arrived by boat and applied for protection.  Some 14,800 or 88 percent of those first processed were granted a protection visa, mostly permanent, according to figures from the Australian Parliamentary Library.

Internal Department of Home Affairs figures from November 2017 show that more than 10,000 of the 32,250 unresolved boat arrivals have been granted a temporary protection visa.

(The time periods here overlap because of financial year statistics.)

Some 15,000 remained unresolved, coming from Iran (5800), Sri Lanka (3800), stateless (2200), Afghanistan (1800), Pakistan (1100), Iraq (800) and Vietnam (400). 

Of the remaining, 1,700 are on appeal to the Immigration Assessment Authority, while 3,600 have been refused and are likely to have appealed to the federal courts.  Appeals to those courts in Melbourne face a three-year backlog.

On current trends, that means about 38,000 migrants who came by boat will eventually stay here permanently.

The purpose of the Sri Lankans coming to Australia by boat was for economic reasons.  Many were fishermen from the west coast which was unaffected by the civil war that ended in 2009.   

The people of Iran have suffered from international sanctions, their currency has collapsed and future prospects bleak. 

The Iranians have, in their thousands, sought out well-meaning but naïve Christians to help them stay in Australia.  They have attended churches and undergone fake baptisms, in an attempt to convince the churchgoers and decision-makers that as “Christians”, they will be persecuted in Iran.  Others pretend to be homosexual.  Even after exhausting all appeals, we cannot remove them because Iran does not accept forced returnees.

The Afghan applicants have been living safely in Pakistan or Kabul for decades, with their own schools, houses and businesses. 

As for the Pakistanis, Bangladeshis and Iraqis, apart from a handful of Christians and minorities, they can live safely throughout their respective countries. 

Those who claim to be “stateless” turn out to have a nationality, on closer inspection.

The current rate of acceptance of the most recent boat arrivals is 60 percent. 

A more realistic rate of acceptance is 2 percent, after giving the benefit of the doubt.  Instead of up to 38,000 visa grants, it should be around 900. 

The migrants arriving by boat are supported by advocates within the community.  None of these groups have credible first-hand experience in how the system has failed or is being manipulated.

The migrants arriving by boat have significant levels of fraud in claims, identity, employment history, residence and family composition.  In many cases, we have no idea who they are.

The high level of visa grants is a result of the failures in the system and not the strength of claims. 

First, boat arrivals have government-funded migration agents/lawyers who are sympathetic and assist them to enhance their claims.  Many applicants had no idea about many of their claims.

Second, immigration officers conducting protection visa interviews lack training.  Few know how to conduct interviews and assess credibility.  The primary stage decision-making does not withstand objective scrutiny. 

Third, lawyers worked out that by applicants making up to 20 claims, however false or implausible, the case becomes very complex.  This made the case very difficult to assess and refuse.  

Fourth, if all the numerous claims are all dealt with the tribunal member or IAA officer will not meet their annual target because they will take more time than allowed by the management. 

Fifth, some Tribunal members were biased towards the migrants, despite knowing the claims were false.  Many have recently been reappointed until 2024.

All these factors, perhaps a “perfect storm”, have combined to create high levels of visa grants for migrants arriving by boat.

Everyone agrees we should assist refugees who are in need of Australia's protection.

However, the processing of migrants who arrived by boat between 2008-2013 has exposed the failure of the refugee legal system, instead offering residence to migrants who are not refugees. 

Only a complete reform can provide a new system to deal with the next 25 years.

Simon Jeans is a specialist in immigration law in NSW and has worked for the Jesuit Refugee Service, RACS, UNHCR and Legal Aid


The Mercury, Talking Point, Tuesday 10 October 2017

GREG Barns demonises Immigration Department case officers and Immigration Minister Peter Dutton based on slogans and no credible evidence (Talking Point, September 25).

Mr Barns wrote: “The Immigration Department presides over and feeds daily a culture of cruelty.” He described them as the “most sinister and dangerous group of bureaucrats in Australia”. He described Minister Dutton as a “common, garden variety authoritarian”.

These allegations reflect poorly on the opinions of Mr Barns because they fly in the face of the reality facing Mr Dutton, Department of Immigration case officers and Tribunal decision-makers.

As a member of the Migration Review Tribunal and Refugee Review Tribunal between 2010 and 2015, I reviewed decisions of immigration case officers.

What I found is that case officers are routinely facing a barrage of oral and written lies, false documents, criminal activity, people giving false evidence in statutory declarations, false identities and overseas students using the system to reside and not study.

For example, the market price to bring in a fake spouse is $100,000. It is a significant problem in the Chinese, Vietnamese and Fijian Indian caseload.

In one case, I found that a man had paid money as a fake spouse to get a visa; that meant he could bring his parents here; then he sponsored his brother who pretended to be single to meet the last remaining relative criteria, but was actually married; and the real wife of the man had sponsored another man on a fake spouse visa.

The boat arrivals between 1999-2001 and 2009-2013 provide another example of the massive fraud faced by the Immigration Department.

During the first period, I worked as a lawyer in the detention centres of South Australia and Western Australia. The main group of arrivals were Afghan citizens. They had all been living safely in Pakistan.

Most had left as children by 1996 when the Taliban took control and gone to live in Quetta, Pakistan. They had their own schools, houses, businesses and were at no risk of harm in Pakistan. But they all claimed to have just fled Afghanistan from the Taliban. It was nonsense.

The Immigration Department later started an investigation by sending people to Quetta with photos of the boat arrivals, with a view to identifying them and cancelling their visas, but that became too dangerous after September 11, 2001, and the subsequent conflict.

The main group of arrivals after then prime minister Kevin Rudd opened the border were also Afghans living safely in Pakistan, fishermen from Sri Lanka, Sri Lankans living safely in India, and Iranians.

The Sri Lankan fishermen were mostly from the west coast and untouched by the civil war. They had previously gone to work in the Middle East, but after a downturn in construction there were fewer jobs. So they got a boat to Australia.

The Iranians left Iran legally, not easy with the controls of that regime, and were escaping poor economic conditions caused by international sanctions.

Hundreds have since pretended to convert to Christianity and are supported by well-meaning but naive priests and pastors. Others pretend to be a member of a minority, the Faili Kurds, while other pretend to be homosexual.

The website which reports decisions,, shows that almost all the refugee cases rejected by the tribunal are done so on the basis of credibility, which is a polite way of saying the applicant lied under oath.

Sometimes the lies and false documents are too hard to deal with or too time consuming.

In the High Court case of S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, two men from Bangladesh claimed to be in a homosexual relationship. Four different members of the Refugee Review Tribunal had rejected the case, mostly because they found the applicants were lying and were pretending to be homosexual.

On appeal to a federal court, each decision was remitted to the tribunal because of a legal error. The case remained dormant for more than a year, after which the then principal member conducted a two-hour hearing and allowed the appeal, effectively granting them visas. She handed down the decision in the first week of January 2015.

It is quite common for applicants to “kill off” their relatives to meet visa criteria, such as being an “orphan relative”. In one case I reviewed at the tribunal, the sponsor gave sworn evidence her parents had been killed in Kabul during a rocket attack. A witness came to the hearing and swore he was at the funeral. However, a disgruntled person in Afghanistan had provided photos of the parents, very much alive, and an investigation in Kabul proved the father ran a pharmacy.

I have found in my 27 years as an immigration lawyer that people who lied in visa applications did not retire.

They went on to lie in other systems: social security, tax, workers compensation, personal injury, motor vehicle insurance, first-home buyers’ schemes, car registration and public housing. They also made their way back to the immigration system with a fraudulent case, such as fake spouse.

The minister and Department of Immigration officers are facing an avalanche of lies, false information, false documents, criminal behaviour and potential terrorist threats.

Rather than make allegations without credible evidence, armchair critics such as Mr Barns should support the minister’s efforts to keep Australia safe.

Simon Jeans is an accredited specialist in immigration law in New South Wales. He has worked for the Jesuit Refugee Service, UNHCR and Legal Aid (NSW). He was previously a member of the Migration Review Tribunal and Refugee Review Tribunal.