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This paper serves as background and additional information to the Australian Catholic Social Justice Council’s Position Paper, The Plight of Asylum Seekers.

The plight of asylum seekers today

The plight of people seeking refugee status in Australia is worsening as the Federal Government tightens regulations covering people applying for “protection visas” as asylum seekers, and restricts avenues of judicial appeal.

The people most affected are those who do not apply for refugee status within 45 days of their arrival in Australia. Under Government regulations administered through the Department of Immigration and Multicultural Affairs (DIMA), these people are not permitted to work while their cases are being considered (see “The 45-day rule”, below). Because they cannot work, they are also denied access to Medicare. Many are suffering from lack of nutrition and stress-related illness because they are unable support themselves and rely upon non-government support groups, many of which are already burdened by requests for general welfare assistance.

The Government has cut legal aid assistance formerly available to asylum seekers through the Legal Aid Commission – an additional burden for people involved in a complicated legal process who must deal with a confusing and unfamiliar administrative system. The Government has also made it harder to qualify for the limited financial assistance available under the Asylum Seekers Assistance Scheme (ASAS) (see “How the regulations work”).

The Government’s view is that the existing system allows illegal immigrants to extend the time they can stay in Australia while applications and appeals drag out over several years. At the end, they can then claim they have been in Australia long enough – and may by this time have children born here – to justify a change of status. While there are some abuses of the system, the Government has produced little evidence to substantiate its claims.

People working in the field of migrant and refugee assistance claim that “non-genuine” applicants for refugee status are a very small minority and that the hard line on asylum seekers is unfair to the many genuine applicants.

Human rights and refugee lawyer Kerry Murphy likens Government policy towards asylum seekers to “keeping the whole class in after school because one child talked”.

The regulations are forcing many asylum seekers to become destitute, according to groups working to support them. "There are now more and more asylum seekers coming to us asking for help," said the Coordinator of the Sydney Asylum Seekers Centre, Sylvia Winton.

"More are finding there are no ways around the ‘45-day rule’. There are no exceptions to the rule. They're saying to us, 'Why won't they let us work? How can I feed my children?'

"We're seeing a growing possibility of suicide among some of the people coming here. They genuinely believe they're refugees, they've been rejected and they're really devastated. They're saying, 'I may as well have stayed behind and be killed.'"

The tough Government stance is having a devastating effect on people who have fled intolerable circumstances in their own countries in the hope of a better life in Australia. As Ms Winton’s predecessor as Coordinator of the Sydney Asylum Seekers Centre, Frank Elvey, noted in his 1998 report: "A disturbing number of negative decisions by case officers from the Department of Immigration and members of the Refugee Review Tribunal in cases where applicants are victims of torture or trauma are leaving very vulnerable refugee applicants confused, frightened and acutely stressed."

Mr Elvey said many people seeking refugee status in Australia were now unable to afford adequate nutrition, with some even being undernourished, while they are denied the right to work while their cases are being considered.

“For people who may have suffered torture and persecution in their homelands, this treatment may be seen as a punishment for even asking to be treated as refugees,” said Mr Elvey. “The medical situation is really critical, particularly with people with stress-related and physical injuries.”

Mr Elvey’s claims are supported by the Brisbane Asylum Seekers Centre, which says the situation is now critical, as the resources of charities, church and asylum seekers’ support groups were being exhausted.

“Genuine refugee claimants are being harmed by the strategies designed to deter non-genuine applicants,” states a paper produced by the Brisbane group, which accompanies a “begging letter” seeking support to continue their assistance for asylum seekers. “Many worry about how they will survive and provide for their families while they wait for a decision from the Department or at the review stage without any form of income.”

Meanwhile, the Minister for Immigration and Multicultural Affairs, Philip Ruddock, is pursuing legislation in Parliament to effectively restrict asylum seekers from appealing to the Federal Court if their applications for refugee status are rejected by the Refugee Review Tribunal.

The Minister appealed to the High Court against several successful appeals to the Federal Court by asylum seekers in late 1998. Human rights lawyer Kerry Murphy said the Government has since withdrawn these High Court actions, but continues to advocate legislation to ensure that asylum seekers do not have the opportunity to have their cases properly assessed in the Federal Court.

Ms Winton said it is imperative that asylum seekers – many of whom have been tortured in their own country – should have access to a judicial process in Australia, and not be dealt with only by administrators. “The right to appeal continues in other tribunals, such as Social Security and Veterans Affairs,” she said. “So why, because these people are not yet citizens, do we take away this level of review?

"Refugee decisions are first made by departmental officers, often on the basis of papers submitted, without an interview with the applicant. If the application is unsuccessful an appeal can then be made to the Refugee Review Tribunal. These people are selected for a range of skills and qualifications, and are not necessarily lawyers.

“Judicial review is about these decisions being scrutinised by the legal system ... not about presenting additional material. This level of checks and balances must not be removed.”

Asylum seekers should have the right of appeal to the courts against adverse decisions by an administrative or review tribunal, and should share with other citizens the right to equal access to the law.

Ms Winton said that in another attempt to reduce the number of people successfully seeking asylum, the Minister has declared that any person making a second appeal against an earlier refusal by his office will be placed in detention while the matter is dealt with.

“Perhaps a case does not meet the very tight criteria to be recognised as a refugee,” said Ms Winton. “As one lawyer said, ‘Not just any torture will make a successful refugee case, it must be a UNHCR definition of torture.’ Often those ‘others’ experience horrific persecution or torture, yet fall outside the refugee definition. One would hope the Minister sees these people as humanitarian cases, and allows them to stay in Australia.”

The “45-day rule”

The Brisbane Asylum Seekers Centre notes serious problems with the operation of the “45-day rule”. Under this regulation, people claiming to be refugees must apply for asylum (known as a “protection visa”) within 45 days of arriving in Australia. If they do not, they are refused permission to work while their application is being considered, which could take many months. Not being able to work, they are ineligible for Medicare.

“The so-called 45-day rule assumes that a genuine asylum seeker will lodge an application for protection immediately after arriving in Australia,” states the Brisbane Asylum Seekers Centre paper.

“It assumes that asylum seekers come to Australia knowing about the protection system, or have access to specific information about the protection system, or have the capacity to make an application soon after arrival. Paradoxically, genuine asylum seekers are the people perhaps least likely to arrive in Australia with this information.

“It could be argued that a significant proportion of non-genuine applicants arrive in Australia with the intention of exploiting the system. These non-genuine applicants are the people most likely to enter Australia with knowledge of the 45-day rule, thereby obtaining work permission and access to Medicare because they lodge an application within the prescribed 45-day period.”

Genuine asylum seekers often do not lodge applications in time because of factors such as:

  • Fear of authorities and fear in general (which often causes people to keep a low profile and avoid attracting attention).
  • Unfamiliarity with Australia's legal and administrative system and how to make an application.
  • Language difficulties, cultural, religious and societal barriers.
  • A less than stable mental state (often suffering from post-traumatic stress disorder) and general confusion and disorientation.
  • Misinformation from well-meaning family or others about their status and what is required of them.

Other reasons are that some asylum seekers who have been living in Australia (for example, on student visas) apply for refugee status only after the situation has changed in their own country, preventing them from returning home due to a fear for their lives. Others apply as a last resort after waiting in hope that conditions in their own country would improve and allow them to return.

“The restrictions ‘punish’ all refugee claimants who lodge their applications after 45 days, regardless of the nature of their claims or whether they have survived torture,” states the Brisbane group. “[They feel] persecuted in ways that often seem to be a continuation of the circumstances from which they have fled.

“The restrictions also prevent them from engaging in any form of purposeful activity [including voluntary work] so there is no distraction from thinking endlessly about their situation and the fear they feel. They are destitute, frightened and desperate. The experience is harmful to both their physical and emotional/psychological health.”

The ACSJC and ACMRO, along with many non-government groups providing assistance to asylum seekers, support the call by the Brisbane Asylum Seekers Centre on the Government to review the “45-day rule”, to restore government assistance to former levels and to grant refugee claimants permission to work.

And as Ms Winton argues, there should be exemptions based on extenuating circumstances, such as cases involving children, when asylum seekers are homeless or living in refuge accommodation, or when welfare agencies have exhausted support.

“There are ways to reduce the number of non-genuine applicants without having this effect on genuine asylum seekers,” said Mr Elvey. “It’s a matter of basic human rights to design a refugee determination process that avoids making these people go through such an extremely stressful experience.”

The Asylum Seekers Centres in Sydney and Brisbane receive the bulk of their funding from Catholic organisations, including the Good Shepherd Sisters and the Mercy Foundation. Services include assistance with accommodation, employment and health, limited emergency relief, English language classes, emotional support, information and referral.

A problem of definition

The beliefs underpinning Catholic Social Teaching on refugees bring the Catholic Church to embrace a much wider definition of the term refugee than the United Nations has adopted and which is the most broadly accepted definition found in the major international legal instruments dealing with misplaced persons.

The Convention Relating to the Status of Refugees (1951) and the Protocol Relating to the Status of Refugees (1967) recognise as refugees only people who flee their homes because of a well-founded fear of persecution on the basis of their race, religion, membership of a social group or political opinion (see “The UN and other definitions” below). This strict interpretation does not offer protection to numerous others whose human rights are equally violated.

For example, Catholic teaching maintains that people who are victims of armed conflicts, misguided economic policies or natural disasters, as well as “internally displaced persons” uprooted from their homes without having crossed an international frontier, should also be recognised as refugees and offered international protection.

This principle is well supported and documented in Refugees: A Challenge to Solidarity, published in 1992 by the Pontifical Council for the Pastoral Care of Migrants and Itinerant People and the Pontifical Council “Cor Unum”.

In widening the net of people who should be deemed refugees and challenging the arguments in favour of limiting the granting of asylum, the document also makes the case for including “economic migrants” under the refugee umbrella.

“Those who flee economic conditions that threaten their lives and physical safety must be treated differently from those who emigrate simply to improve their position,” the document states. Economic reasons can be, and often are, sufficient reason to justify granting asylum status.

The UN and other definitions

The International Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967) defines as a refugee a person who:

“... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” (Article 1)

A major criticism of the UN definition is that it is based on the circumstances existing in Europe immediately after World War II and during the Cold War, and does not address the massive changes which have since occurred in other parts of the world.

Alternative regional definitions have been developed to recognise these differing circumstances, and the World Council of Churches (WCC) has adopted elements of these, along with the UN definition. They include:

  • The Organisation for African Unity’s Convention on the Specific Aspects of Refugee Problems in Africa (1969), which includes as reasons to justify refugee status, “external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of the country of origin or nationality”.
  • The Declaration of Cartagena (1984) produced by Latin American states, which defines refugees as people whose “lives, security or liberty [are] being threatened by generalised violence, foreign oppression, internal conflicts, mass violations of human rights or other circumstances which have seriously disturbed the public order”.

The Australian Government position

The Migration Act 1958 contains few actual references to refugees, and the Australian Government position is based more on interpretations of the Act.

Like many other western nations, Australia has adopted the narrow United Nations definition of a refugee as the standard when dealing with applications for asylum.

Under the Migration Act 1958, people seeking asylum in Australia must apply for a “protection visa”. A requirement for being granted a protection visa is proof that a person is a refugee as defined by the UN Convention (1951) and Protocol (1967).

Section 5 [36] of the Act, under the heading “Protection visas”, states that: “(1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

The ACSJC and ACMRO believe that to reduce litigation and costs, the Act should be simplified and regulations made transparent and clear in understandable language for both the claimant and decision maker.

How the Regulations Work

Permission to work

Before 1997, asylum seekers with valid visas were routinely granted permission to work (under a “bridging visa”) when they lodged an application for a “protection visa”. Because they had been granted work permission, asylum seekers also became potential tax payers, and so were eligible for Medicare. Those whose bridging visas had expired had to specifically apply for permission to work.

Applications for protection visas can take up to several years to be finalised, and the Federal Government in 1996 stated there was a major problem of what it termed “non-genuine applicants” clogging up the system and exploiting the regulations to have a prolonged working holiday in Australia. The regulations were then changed to deter these alleged non-genuine applicants (although there are no objective criteria to determine who is or is not a “genuine” applicant).

These changes were introduced on 1 July 1997 and sought to deter “non-genuine” applicants by imposing a limit on the issue of work (“bridging”) visas to those who lodge a protection visa application within 45 days of arriving in Australia.

Many genuine asylum seekers may not lodge an application within 45 days of arrival for many reasons (see “The 45-day rule”, above) and so do not have permission to work or enroll in Medicare.

Asylum Seekers Assistance Scheme

Before 1997, those who could not work or obtain work were entitled to a small fortnightly payment (less than unemployment benefits) through the Asylum Seekers Assistance Scheme (ASAS). The payment was available subject to certain criteria, including evidence of financial hardship. ASAS was funded by the Department of Immigration and Multicultural Affairs (DIMA) and administered by the Red Cross.

The ASAS program was changed in October 1996 so that asylum seekers whose cases were rejected by DIMA and were waiting for the Refugee Review Tribunal (RRT) to consider their claims for refugee status were no longer entitled to government assistance.

Although claimants were previously entitled to receive ASAS money only after a six-month period following the lodgment of their review, special cases had been able to gain hardship waivers from this waiting period. This option was closed after October 1996.

In practice, the Department places priority on decisions regarding applicants who have also applied for ASAS. This means that as soon as DIMA makes a decision, their eligibility for ASAS ceases, effectively making income support for unsuccessful asylum claimants non-existent. Other asylum cases given priority are for claimants in detention and those with evidence of suffering torture and/or trauma.

Applicants seeking a review of a negative DIMA decision were previously not eligible for assistance under ASAS. However, the Government has recently changed the system to provide limited assistance to people putting their case to the RRT.

Review

The waiting time for an appeal to the RRT against a DIMA decision can be up to a year.

Asylum seekers who have their applications rejected by both DIMA and the RRT can appeal to the Federal Court on points of law, although the Minister for Immigration and Multicultural Affairs, Philip Ruddock, is attempting to close this avenue (see “The plight of asylum seekers today”, above).

A regulation to remove the right to work for some asylum seekers came into effect on 1 July 1998. The asylum seekers concerned are those whose refugee claims have been rejected by the RRT and who are making further appeals to the courts or to the Minister. Their right to work ceases 28 days after the notification of rejection by the RRT.

However, from 1 March 1999 a limited number of cases awaiting the Minister’s discretion may receive permission to work if they can prove severe financial hardship.

Humanitarian grounds

If the RRT rules that an applicant does not meet the UN definition of refugee, the Migration Act 1958 allows applicants to claim protection on humanitarian grounds. This usually relates to situations in which a person has been “persecuted” but not for one of the reasons contained in the UN Convention; or the person may have been abused under a listed Convention reason, but the abuse is deemed not to be “persecution”.

If the refugee claimant can demonstrate strong and compelling humanitarian grounds, he or she can seek Ministerial discretion under Section 417 of the Migration Act to grant a protection visa on humanitarian grounds.

However, applications on humanitarian grounds take months to process, placing a heavy burden on the families of applicants who are not permitted to work.

Legal Aid

Legal aid for asylum seekers has also become much more difficult to obtain. From July 1998, the Government ruled that the Legal Aid Commission could no longer grant legal aid to assist asylum seekers.

A limited amount of departmental funding is available to solicitors and agents preparing cases before the RRT and DIMA, as well as extremely limited legal aid for Federal Court cases.

Immigration Advice and Application Assistance Scheme (IAAAS)

The Immigration Advice and Application Assistance Scheme (IAAAS) is a new scheme based on the 1997 amalgamation of the Immigration Advisory Service (IAS) and the Application Assistance Scheme (AAS). The scheme is designed to help protection visa applicants in immigration detention, those living in the community and other eligible non-protection visa applicants. Immigration advice is available to members of the general community.

The scheme provides assistance with preparing, lodging and presenting applications for visas, at the merits review stage when a primary application has been refused. But the scheme is not available for assistance with applications for judicial review.

Detention

The Migration Act 1958 requires people who arrive in Australia without authority to be placed in immigration detention until their situation is resolved. Unless they are granted permission to remain in Australia, they must be removed from Australia as soon as practicable.

The Department of Immigration and Multicultural Affairs (DIMA) states that about 4,000 “boat people” have arrived as illegal immigrants since 1989. Although these people have attracted most media and community attention, the Department says that since 1996 there has been a marked rise in the number of people arriving illegally at Australia’s airports, while the number of illegal arrivals by boat has dropped.

In the first half of 1998-99 (to 31 December 1998), 1,046 people were refused entry at Australia's airports (37 per cent more than the 764 people refused entry between 1 July and 31 December 1997), and 94 people arrived without authority in eight boats. In 1997-98, 1,555 people were refused entry on arrival at Australian airports (up from 1,350 in 1996-97). In the same period, 159 people arrived by boat (365 in 1996-97).

According to DIMA, 2,716 people were admitted to Australia's immigration detention facilities during 1997-98. By the end of June 1998, there were 375 people held in immigration detention facilities, of whom 243 people were in Villawood, 65 in Maribyrnong, 31 in Perth and 33 in Port Hedland. Media reports show the number held in mid-1999 at Port Hedland was much higher, following an increase in the number of attempted entries intercepted at sea.

According to DIMA, most people in immigration detention are held for a short time, in some cases as little as a few hours. But a number of factors can contribute to longer stays, including the court appeal process and delays in procuring travel documents.

DIMA maintains four immigration detention facilities:

  • Villawood Immigration Detention Centre (IDC) in Sydney, established in 1976 with a capacity of about 270 people.
  • Maribyrnong IDC in Melbourne, established in 1966 with a capacity of about 70.
  • Perth IDC, established in 1981 with a capacity of about 40.
  • The Immigration Reception and Processing Centre (IRPC) in Port Hedland, Western Australia, established in 1991 with a capacity of about 700.

While DIMA is ultimately responsible for immigration detention, in late 1997 the Department contracted operational management of the detention facilities to a private service provider, Australasian Correctional Services Pty Ltd (ACS), a subsidiary of a US-based private prisons operator. DIMA staff remain on location at all the detention facilities to both monitor the delivery of services to detainees by ACS and to deal with all immigration-related matters.

Human rights concerns

The Australian Government's policy of detaining asylum seekers who enter the country without valid visas has aroused intense community debate since the arrival of the first boats from Cambodia in 1989. The issue attracted further controversy with the opening of the Port Hedland immigration detention centre in north-western Australia in 1991.

The isolation of the centre, reports of poor facilities for detainees and the slow processing of applications, generated adverse media attention and community divisions.

Concerns have been raised by numerous groups throughout Australia, including major Church and non-governmental organisations and the Human Rights and Equal Opportunity Commission (HREOC). Australian detention practice has also attracted adverse comment from international organisations including the US Department of State and the International Secretariat of Amnesty International.

HREOC and Amnesty International released reports in 1998 condemning the practice and the conditions under which detainees are held. These reports can be accessed through these organisations.

The HREOC report found that human rights are being violated due to the conditions of detention; restricted access to services; the practice and effects of long-term detention and restricted access to judicial review. DIMA has since responded to the HREOC report by adopting only a small proportion of the recommendations in it.

What can be done?

The view of the Refugee Council of Australia (RCOA) – of which the Director of ACMRO is a board member – is that once identity and intent have been established, asylum seekers should only be detained if it can be established that individuals concerned pose a threat to national security or public order.

In accordance with international law, states RCOA, there should be independent review of the decision to detain an asylum seeker. Detained asylum seekers should be informed automatically of their entitlement to legal advice and assistance. Often this does not happen.

However, DIMA supports a recommendation made by HREOC to establish an immigration detention centre advisory committee at each centre, including representatives from custodial and DIMA staff and detainees from the major ethnic and cultural groups in the centre. The committees would monitor conditions and services provided at the centres.

Two documents have been published highlighting the plight of asylum seekers in detention:*

  • The Alternative Detention Model, as its name suggests, seeks to provide an alternative to the current regime while addressing the stated security and financial concerns of the Australian Government.
  • The Detention Standards Document sets out the minimum standards and conditions under which detainees should be held.

While detention remains the norm for unauthorised arrivals, there have been a number of positive developments over the past three years, including:

  • Significant improvements in the conditions in the detention centres.
  • Priority processing of detainees at both primary and review levels.
  • Case management of detainees in some facilities.
  • More rigorous and expert determination of claims.
  • Provision for release from detention for certain designated groups of asylum seekers.

Despite these improvements, serious concerns remain, including:

  • The human rights implications of the detention of asylum seekers.
  • The suffering imposed on the detainees.
  • The significant costs of the detention of asylum seekers.

The rationale for detaining asylum seekers who enter the country without immigration clearance is immigration control, as well as deterrence. The RCOA recognises the place of detention as an instrument of immigration control. But detention is costly politically, socially and economically as well as in human terms. It is therefore preferable to modify the present regime to achieve a better balance between immigration objectives on the one hand and the costs of detention on the other.

Alternative Detention Model

The alternative model provides a legislative and regulatory framework for a more flexible detention regime.

Under this model current restrictions on the liberty of protection visa applicants should be kept to a minimum, usually to less than 90 days. After the initial period in closed detention, most asylum claimants would pass on to a more liberal regime; one that is most appropriate to the individual’s circumstances.

The alternative model proposes a simple three-stage regime, ranging from severe restrictions on personal liberty to more liberal provisions:

1. Closed detention: All asylum claimants who have not been immigration cleared would be initially held in closed detention. During this period, the asylum claimant’s identity and circumstances would be established to ascertain the most appropriate form of detention. Most asylum claimants would be moved to one of the two more liberal detention regimes within 90 days of arrival in Australia.

2. Open detention: An intermediate regime, for asylum claimants considered to be unsuitable for community release, either because this was judged not to be in the interests of the community or not in the best interests of the applicant. Freedom of movement would be restricted by curfew requirements.

3. Community release: DIMA would not be responsible for providing accommodation and welfare for the asylum claimant. Family members or community organisations would undertake some responsibilities for the asylum claimant. Restriction on personal liberty would be limited to living at a designated address and reporting requirements.

Further Reading

Australian Catholic Bishops Conference Media Release, 16 April 1997: "Federal Government shows little compassion for asylum seekers"

Pontifical Council for the Pastoral Care of Migrants and Itinerant People & Pontifical Council ‘Cor Unum’, Refugees: A Challenge to Solidarity, 1992.

Human Rights and Equal Opportunities Commission, Those Who’ve Come Across the Seas: detention of unauthorised arrivals, 1998

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