Constitutional Law: Visa Application for Asylum Seekers and Curtailment of Free Speech

Running head: CONSTITUTIONAL LAW 1
Constitutional Law
Name
Institutional Affiliation

CONSTITUTIONAL LAW 2
CONSTITUTIONAL LAW
Part A:
Issue
The first issue is that visa application for Australia’s asylum seekers is taking
exceedingly long to get efficiently processed. This is seen in the case of Mr. Rubinstein, whose
visa application has taken a long time before approval. This issue is compounded by the fact that
Australia requires much documentation (that are rare amongst the asylum seeker) from Russian
government who have taken more than one year (actually 15 months) to supply the fabricated
information about him. This means that information needed to process the asylum seekers visa
application is missing and which has made the Minister to ignore the data from Russia.
The issue is that Australia needs such information to identify the asylum seeker, his
financial status, and any proof of a mental illness or criminal record. This is because the
Australian Commonwealth Government remains concerned regarding the integrity of certain
“shared information” being provided to them by some IIIST member states. This issue is
compounded by the fact that individual member States are sharing information regarding citizens
who have been illegally procured or fabricated to dissuade other member States from accepting
applications of visa from such citizens. Thus, the Commonwealth Government has responded by
passing the Foreign Information Sharing Act 2010. This Act is further a significant impediment
to the visa application of Mr. Rubinstein (a Russian political dissident). This is because it has
given the Minister for Immigration powers to deny him visa application because he has ignored
the shared information citing precise fabrication.
Another issue is the detention of the asylum seekers on Christmas Island. This issue is
compounded by the fact that Mr. Rubinstein has started to display signs of a mental breakdown

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due to prolonged detention (Higgins, 2016). This is why he is now exhibiting symptoms
consistent with the acute paranoia and even starting to attack other detainees as he thinks they are
Russian government agents. Indeed, his problem results from the fact that Australia
Commonwealth government has allowed the Christmas Island detention center to be staffed by
independent security contractors who are illegally contracted to provide security in the absence
of legislation authorizing such expenditure. This has seen this independent security contractor
unlawfully restraining Mr. Rubinstein due to his mental condition and deterring any contract
with the rest of detainees, which will only worsen his paranoiac condition.
Law:
The Migration Act 1958 applies to this case. It is legislation regulating the treatment of
asylum seekers and refugees. This Act states that a non-citizen who arrives in the country without
a valid visa, whether on Australia mainland or at an “exercised offshore place” can never make a
visa application without the intervention of by the Minister for Immigration and remains subject
to mandatory detention (Triggs, 2016). Another applicable law is s.197C of the Migration Act
that states that an officer’s duty of removing as soon as reasonably practicable an unlawful non-
citizen under s.198 emerges regardless of whether an assessment has been done under the law of
Australia’s non-refoulment obligations concerning non-citizen (Fentiman & O'Sullivan, 2018).
Thus, Australia remains a nation whose law says explicitly that it is non-refoulment obligation
stay irrelevant when removing or returning an asylum seeker (Balint, 2019). Another applicable
law is Information Sharing Act 2010 (Cth), which grants the Minister for Migration to intervene
during the asylum seekers’ visa application.
Application