Asylum policies: How we got into this mess and how we can do better

The Abbott and Turnbull Governments - Operation Sovereign Borders

The Abbott Government launched Operation Sovereign Borders on the same day it took office.  This was, and continues to be a military led, joint agency response to combat people smuggling which includes turning back boats and the use of life boats.  While the Government has maintained a strict policy of secrecy regarding all ‘on water’ activities it recently advised that only one boat has managed to reach Australia since its election with 15 boats turned back. The allegation by Amnesty International and Indonesian police that the Government has sanctioned payments to people smugglers to turn a boat back to Indonesia is of serious concern. The details surrounding turn backs remain unknown with little public discussion or debate on an issue that other countries in the region are dealing with on a daily basis. According to the UNHCR, approximately 54,000 people (predominately Rohingya Muslims originating from Myanmar) embarked on boat journeys in the South East Asian region in 2014.  The vast majority (53,000) sought refuge in Thailand and Malaysia with some attempting to reach Australia.  

Further narrowing of obligations

The Migration and Maritime Powers Legislation Amendment (Resolving the asylum legacy caseload) 2014 introduced major changes to Australia’s migration control, significantly expanding the minister’s authority to direct activities at sea. This wide reaching amendment clarifies a number of areas that had been subject to legal challenge in the High Court or rejected by the Senate.  The legislation was passed as a result of a deal between a number of crossbenchers in the Senate in return for a promise to move 108 children held at Christmas Island to the mainland. It is worth noting that a number of children, even though they were born in Australia, will remain in detention as they are considered to be 'unauthorised maritime arrivals' and therefore 'transitory' persons under the legislation changes.  

Under the amendment, decisions to turn back boats, detain people seeking asylum at sea, or transfer them to third countries do not have to take account of Australia’s international obligations including the obligation under the Refugee Convention not to send someone back to a place of persecution. The amendment specifies that such directions are not subject to the international obligations or domestic laws of any other country allowing people to be returned to another country without their permission.  The amendment tightens the circumstances test for the 'well-founded fear of persecution' claim of protection and allows for the removal of references to the 1951 United Nations Refugee Convention enabling the Government to use their own definition of a ‘refugee’.  While the minister must believe that the direction is in the national interest (which is not defined) it leaves people seeking asylum who are intercepted at sea very vulnerable and increases the possibility of refugees being returned to their country of origin where they face the risk of death or persecution.

The reintroduction of Temporary Protection Visas and ‘fast tracking’ claims

TPVs were also reintroduced under this amendment and a new category of visa – the Safe Haven Enterprise Visa (SHEV).  The SHEV is a five-year temporary protection visa that requires the holder to reside in regional Australia. As with the previous TPVs, TPV holders are not allowed to sponsor their family members for resettlement and have limited access to settlement services.  Unlike the previous policy, TPV holders who are still in need of protections after their visa expires cannot apply for permanent residency. The Minister can grant permanent residency by discretion after a person has held a TPV for five years. While the SHEV does appear to provide a pathway to permanent residency, the likelihood of this being the case for the majority of refugees has been questioned due to high application fees, lack of required English language skills, and a lack of recognised skills required for skilled migrant visas.

The amendment also allowed for the introduction of a fast track system for processing of applications allowing the Government to fast track the 33,000 applications resulting from its own freeze on issuing permanent visas. The legislation codifies and narrows the definition of a refugee in Australian migration law making it quicker and easier for Immigration Department officials to reject claims. While faster processing times are welcome, the changes to the definition of a refugee, the lack of any right of appeal to the Refugee Review Tribunal and a much more limited form of review based on whether the application has been assessed correctly is concerning and may deny people seeking asylum access to due process and procedural fairness.

Increasing the Minister’s personal power

Another amendment that significantly increases the personal power of the Minister is the Migration Amendment (Character and General Visa Cancellation) Act 2014.  The Minister’s power to cancel a visa without natural justice and without review has been expanded, giving the Minister greater discretion to overturn decisions of independent bodies like the Administrative Appeals Tribunal. Under the amendment the Minister can refuse or cancel visas on the basis of a substantially lowered threshold. The minister can cancel a visa if he or she ‘reasonably suspects’ that a migrant has ‘an association’ with a group or person that ‘has been or is involved in criminal conduct’. Concerns have been expressed at the broad nature of the word 'association' and what this will mean in practice.  Another concern is the lowering of the threshold where a visa can be cancelled if the Minister believes that a migrant ‘may’ be a risk to the health, safety or good order of the Australian community instead of being an ‘actual risk’.  The Protection and Other Measures Bill which became law in March 2015 also increases the likelihood that people seeking asylum will be returned to danger.  Under this law people seeking asylum may face a negative credibility assessment if they did not disclose all the information relevant to their application at the time of applying.

Increasing the secrecy surrounding detention

In 2015 the Government passed legislation making it illegal for employees at detention centres to disclose 'protected information' about the centres to the media, punishable by a maximum of two years in jail. The law has been criticised by staff and rights groups given the serious allegations of abuse and lack of any credible independent oversight of the Nauru and Manus Island detention centres. While some members of parliament have claimed that staff would still be protected by whistle blower legislation, the uncertainty surrounding the potential operation of this provision continues to cause confusion and uncertainty. The refusal of the Government to provide the UN Special Rapporteur on the human rights of migrants with written assurance that no one meeting with him during his official visit to Australia would be at risk of any intimidation or sanctions under the Act, provides evidence of the continued uncertainty surrounding the operation of these provisions.

Resettling refugees in other countries

Like the Gillard Government before it, the Government has also sought to expand efforts to resettle refugees in other countries. An agreement was reached with Cambodia in September 2014 to accept refugees from Nauru in exchange for an increase in aid of $55 million. Cambodians have protested against the new plans to settle refugees there, arguing that the country already struggles to provide basic services to its own people. To date only five refugees from Nauru have agreed to resettle in Cambodia and two recently opted to return to the country they originally fled. Nauru was declared an ‘open' centre in October 2015. Attempts to develop agreements with other countries such as the Philippines and Kyrgyzstan have been unsuccessful. Recent media reports have also indicated that the Government has also decided not to send refugees to New Zealand under an agreement struck with the Gillard Government. The agreement reserved 150 places per year over a three year period in New Zealand’s humanitarian program for refugees from Australia’s offshore centres.

In relation to Manus Island, only a small number of men with a positive final determination have taken up the option of moving into the transit centre which is meant to ready them for resettlement in the community.  The transit centre offers some independence but has a 12 hour night curfew in place.  The PNG Government has announced that it will close the Manus Island centre as a result of the recent Supreme Court ruling that the detention centre is illegal and breaches basic human liberty. The resettlement prospects of the men detained there are now uncertain pending the Australian Government's response to the PNG Government's decision

Helping Syrian Refugees

In September 2015, under enormous pressure from backbenchers, state premiers and the Australian public the Government agreed to settle 12,000 Syrian refugees in Australia on permanent humanitarian visas – in addition to the current humanitarian program intake of 13,750. Syrians currently in detention on Manus Island and Nauru, however, will not be included in the resettlement. Prime Minister Abbott said he would 'never ever do anything that encourages the evil trade of people smuggling and all of those who have come to Australia by boat are here as a result of people smuggling.' This conflation of legal activity - people seeking asylum, with the illegal activities of people smugglers goes a long way to explaining the prison like conditions of people held in detention.  The Government also announced $44 million in aid to the UNHCR to help support 240,000 people through winter and into next year. The money will come from the emergency fund in the Department of Foreign Affairs and Trade's Overseas Development Aid budget which is used to respond to emergencies like tsunamis and earthquakes.

The human cost of the Abbott and Turnbull Government’s policies

Through the Abbott years the UNHCR and rights groups remained highly critical about the conditions in the offshore detention centres and the holding of women, men and children in arbitrary, indefinite detention in breach of international standards. Poor hygiene, cramped conditions, unrelenting heat and a lack of facilities remained areas of concern causing physical and mental health issues. The riot on Manus which resulted in the death of a young man and the injury of up to 60 others, along with the recent death of another young man from a foot infection provide tragic testament to the concerns raised by the UNHCR and others.  The recent incidents of self-immolation of a young man and a young woman on Nauru under the Turnbull Government, shows the shocking level of despair that people seeking asylum continue to experience in the offshore centres.

Three significant reports during the Abbott Government highlighted the particular and severe conditions for women and children living in offshore centres. The AHRC’s report into the effect on children in long term detention found that one in three children suffered from significant psychological distress as a result of their detainment. The Moss Review reported claims of sexual harassment and abuse of women in Nauru, including three allegations of rape. The Review raised concerns that sexual assault was likely to be under-reported due to family or cultural reasons and fear that reporting abuse may impact on future refugee status. The Review also found a concerning lack of oversight by the private contractor. A Senate Committee found that the conditions on Nauru were ‘not adequate, appropriate or safe.’ The report noted the inability for vulnerable women and children to be removed from dangerous situations. Broadspectrum Services (formerly Transfield) which operates the centre, reported to the Committee that 30 formal allegations of child abuse had been made against staff, 15 allegations of sexual assault or rape and 4 allegations relating to the exchange of sexual favours for contraband.  The Committee was highly critical of the Department for not ensuring it received comprehensive reports about incidents from Broadspectrum and said that the Department appeared to be largely unaware of what was happening.

 

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30. Doherty, B and Medhora, S. 2015. ‘Australia confirms 15 boats carrying 429 asylum seekers have been turned back’, The Guardian, 28/01/15, viewed 12/10/15.
31. 
Amnesty International. 2015. ‘By Hook or by Crook: Australia’s Abuse of Asylum Seekers at Sea.’
32. Spinks. 2015. ‘Asylum seekers and refugees: what are the facts?’ Op. cit., p. 12.
33. Mares, Peter. 2015. 'Scott Morrison's unfinished business' in Inside Story 04/02/15 viewed 12/10/15, p.2.
34. Asylum Seeker Resource Centre. 2015. 'Timeline of Events', viewed 23/12/15, p. 7.
35. Mares, op. cit., p. 3.
36. 
Asylum Seeker Resource Centre. 2015. 'Timeline of Events', op. cit., p. 7.
37. Mares, op. cit., p. 3.
38. 
Asylum Seeker Resource Centre.  2014. ‘Changes to Refugee Laws in Australia: what it means for asylum seekers and refugees’ Information Sheet, viewed 23/12/15. 
39. Mares, op. cit., p. 2.
40. Mares, op. cit., p. 3.
41. 
Asylum Seeker Resource Centre. 2015. ‘Timeline of Events’, op. cit., p 3.
42. 
Karlsen, Elibritt. 2015. ‘Whistle-blowing under the Border Force Act: Three months on’, in Flagpost, Parliamentary library, Parliament of Australia.
43.Mares, Peter. 2015. ‘Another cruel twist in Australia’s refugee policy’ in Inside Story 24/12/15 viewed 07/01/16, p. 1.  
44. Salnis, Karna.2016. ‘NZ Maintains offer to take refugees’ in News.com.au viewed 19/02/16.
45. Mares, ibid, p. 2.
46. 
Doherty, Ben. 2015. ‘Australia’s generosity to Syrian refugees ignores those still languishing offshore' in the guardian Australia edition 10/09/15 viewed 4/12/15.
47. Ibid.
48. 
Asylum Seeker Resource Centre, ‘Timeline of Events’, op. cit., pp. 4,5,7,8,10 and 13.
49. Refugee Council of Australia, ‘Timeline’, op. cit., pp. 14-15.
50. 
Australian Human Rights Commission. 2015. The Forgotten Children: National Inquiry into Children in Immigration Detention (2014).
51. 
Moss, Phillip. 2015. ‘Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru’  
52. 
The Senate. 2015. ‘Select Committee on the recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru’. Parliament House, Canberra, p. 23. 
 53. Senate. 2015. ‘Select Committee on the recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru’. Parliament House, Canberra.