Processing Asylum Seekers: Australia, you can do better.
'It’s too easy for a system to go badly off the rails if people accept complacently that what’s being done is being done with the authority of law. I think all lawyers, especially, have an obligation to look at the law and see whether it is justifiable.'
Julian Burnside AO QC, 'Burnside: Lawyers must challenge unjust laws' lawyersweekley.com.au, 3 February 2015.
The treatment of asylum seekers in Australia is very topical and raises distinct flaws in the system. The United Nations has been quite vocal in stating its disapproval of Australia’s treatment and lack of respect for asylum seekers, going as far to describe them as “worse than prisons.”[1] This post seeks to highlight to problems with the process that is currently in place and the need for the legal community to work together, with the aim of pushing for laws that respect the human rights of individuals who need respect, refuge and dignity.
Through 1947 and 1954, Australia accepted an astonishing 171,000 refugees (6 times more than its current statistics).[2] The economic, social and political make up of the world during these years were relatively different to the evolved conditions that are present today. [3] The year of 1992 saw the introduction of mandatory detention, through the amendment of the Migration Act 1958, with a limit of 273 days for individuals who arrived without a visa. However, two years later, the time limit itself was removed. The validity of indefinite detention was then reinforced by the High Court in the case of Al-Kateb v Godwin.[4] When describing mandatory detention, Gerry Hand professed that through detention, “a clear signal be sent that migration to Australia may not be achieved by simply arriving in this country and expecting to be allowed into the community,” which is not as welcoming as one would expect for those who are in need.[5] There are essential possible human rights violations present with mandatory detention; more precisely article 9(1) of the International Covenant on Civil and Political Rights.[6]
The Migration Act, does not set out a time limit as to how long a person can be detained for, which is increasingly worrying when thinking about the families, children[7]and vulnerable individuals who are subjected to such surroundings. Individuals are also not given the right to judicial review with regards to whether detention is required.[8] The Australian Human Rights Commission (hereafter “The Commission”) has raised concerns over mandatory detention, highlighting the importance of judicial oversight of mandatory detention to make sure that individuals are not detained for longer than is absolutely necessary.[9] These topics present the lack of satisfactory mechanisms with regards to the development of the law, whilst also highlighting the need for reform.
The 1951 Convention relating to the Status of Refugees and the 1967 Protocol, is the main source of international law concerning refugees.”[10] Australia’s use of deterrents to prevent asylum seekers entering the country include, the use of penalties (direct breach of Article 31(1) of the 1951 Refugee Convention), interceptions at sea, unnecessary use of force abroad and inhuman conditions of detention abroad, to name a few.[11] These methods have not only been accepted, but a general ignorance to the way in which politicians, for example portray asylum seekers go hand in hand with the actions named above. Tony Abbott, stated that the Refugee Convention refers to refugees as “illegals” and thus, no matter the circumstances, they are individuals who are incapable of abiding the law in a country that they seek refuge in. Such scapegoating of people only strengthens undesirable feelings amongst the general public with regards to acceptance.
The issue of children in detention demonstrated to be alarming by the findings in a National Inquiry into Children in Immigration Detention.[12] The inquiry found that above all, Australia’s detention laws relating to children were contradictory to the laws set out in the CRC.[13] The Commission also stressed the effect of detention in remote environments for children who are not aware of their surroundings with lack of space, access to education and activities. Shockingly, under domestic law, following the case of Re Woolley; Ex parte Applicants M276/2003 the High Court stated that the detention of children was lawful.[14] Currently, the guardian of an unaccompanied minor is the Minister. However, it would be of greater efficiency, if the Minister appointed an independent guardian for these minors in order to carry out the obligations set out in the CRC, as recommended by the Commission.[15] Such reform would allow the legal framework to safeguard children in order to create a safer environment.
In 2013, there were 4,313 reported incidents of actual, threatened and attempted self-harm in detention facilities in Australia.[16] In the same year, 12 deaths occurred in detention facilities, which 6 were proved by the coroner to be suicides.[17] When bringing together individuals who are all experiencing the same hardships, this would undoubtedly heighten the negative behavioral functions. To put it into context, the mental health impacts upon asylum seekers leaving the detention facilities, results in individuals needed further emotional support assistance, resulting in roughly $25,000 to treat mental health illnesses, something which could easily be avoided if individuals were not subjected to such conditions and treatment.[18]
The introduction of bridging visas is a prime example of Australia going against their obligation under the International Covenant on Economic, Social and Cultural rights. These visas would give asylum seekers basic accommodation and financial support. This method is preferred to detention facilities, however with these visas, the Australian government also limits labor.[19] The legal community must be aware that such processes do not create stability for these individuals who are struggling, in many cases, with a change of environment, language barriers and integration.
Australia’s policy of offshore processing is a topic that many know about, and disagree with, yet very few speak out against. Through this policy, those who arrived by boat after August 2012, were moved offshore to Nauru and Manus Island in Papua New Guinea (PNG). Unfortunately, upon review, the Parliamentary Joint Committee on Human Rights (PJCHR) stated that “measures as currently implemented carry a significant risk of being incompatible with a range of human rights.”[20] Upon assessment the UNHCR found that the conditions did not meet international standards and that the processing systems were insufficient. In particular, the Commission specifically stressed the danger that members of the LGBTI community were in through the third country processing policy due to homosexual activity not being legal worldwide, thus pointing out that the injustice and danger of such a policy.[21]
Proposed policy changes include temporary protection visas (TPVs). Under the circumstances, the Refugee Convention does not allow TPVs.[22] It is arguable that the uncertainty placed upon asylum seekers with TPVs would intensify the negative mental health impacts. Momartin reiterates this argument by affirming that TPVs only intensify mental illnesses.[23] These visas have particular limitations such as placing restrictions on ones right to a family reunion and bans on overseas travel which in many cases would affect individuals who are separated from their families, which in itself may cause a greater influx of individuals who want to join their loved ones.[24]Schloenhardt also argues that TPVs place too many restrictions and obligations on individuals, which actually prevent them from integrating, creating greater hostility. [25]
Turning back boats that arrive is overlooked and unconsciously accepted. By returning these boats, Australia is directly going against the policy of non-refoulement.[26] There are clear ethical arguments that refugees do not travel through the waters, under extreme conditions whilst enduring immense stress in order to only be sent back to an environment where they are purely unsafe and vulnerable. Refugees face difficulties such as language barriers, poor living conditions, lack of sanitary water supply, insufficient medical facilities and above all the lack of adequate legal knowledge and representation.[27] The absence of legal assistance could lead to further complexities and will ultimately exploit those who are most vulnerable.[28] Additionally, suggestion of the removing the right to appeal to the Refugee Review Tribunal raises further worries. From 2011 to 2012, the tribunal overturned 84.2% of decisions made by the Department to refuse protection visas for refugees.[29] It is important to address the very important fact that without such a mechanism in place, refugees would be subject to returning to unimaginable conditions. It is unfathomable to contemplate that this body could be abolished, as it is so important in assessing the information relevant to the circumstances.
When assessing the current law, it is helpful to look at other jurisdictions. Sweden’s current approach is remarkably organized. Sweden does not detain refugees whilst processing their claims. Conversely, Sweden provides asylum seekers with identification documents in order to be monitored by immigration services, something that could be implemented with individuals in Australia.[30] Individuals are given accommodation, the right to healthcare, employment and basic financial assistance. This kind of support not only fuels individuals to better themselves but it also eradicates the pressures and stress that they would be in a contained environment with no access to opportunities that could better their situation.
To conclude, it is fair to suggest that the way in which the law cooperates with asylum seekers has progressively become harsh. If the world were perfect, individuals would not risk their lives and people would not leave their beloved homes. Yet, we live in a day and age where the world is a broken place. People turn to the law to protect, rebuild and safeguard them from atrocities. A well-developed country such as Australia should be doing its upmost best to adapt its legal system in order to protect fellow human beings who are at risk. Asylum seekers, first and foremost are human beings, thus the law should treat them with compassion, respect and dignity. It is no longer acceptable to turn a blind eye to these atrocities; the time for the legal profession to wake up and make a change is now.
[1] Bianca Hall, Julie-Anne Davies, Lisa Visentin, Detention centres inhumane: UN, The Sydney Morning Herald, < http://www.smh.com.au/federal-politics/political-news/detention-centres-inhumane-un-20131126-2y8hk.html > accessed 07 September 2015
[2] Elibritt Karlsen, Janet Phillips and Elsa Koleth, ‘Seeking Asylum: Australia’s Humanitarian Program’ (Australian Parliamentary Library, Background Note, 21 Jan 2011) p 28, <http://parlinfo.
aph.gov.au/parlInfo/download/library/prspub/158141/upload_binary/158141.pdf;fileType=application%2Fpdf#search=%22Immigration%20%20publications%202010s%2>, accessed 10 September 2015
[3] Jane McAdam, ‘Australia and Asylum Seekers’, International Journal of Refugee Law Vol. 25 No. 3 pp. 435–448, p 436.
[4] Al-Kateb v Godwin [2004] HCA 37
[5] Commonwealth, Parliamentary Debates, House of Representatives, 5 May 1992, 2370 (Gerry Hand, Migration Amendment Bill 1992, Second Reading Speech), <http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F1992-05-05%2F0031%22> accessed 10 September 2015
[6] Article 9(1) “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law” International Covenant on Civil and Political Rights < http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx > accessed 10 September 2015
[7] Detention of children as a first instance may amount to a possible violation of article 37, Convention on the Rights of the Child, < http://www.ohchr.org/en/professionalinterest/pages/crc.aspx> accessed 03 September 2015
[8] Migration Act 1958 (Cth), s 183
[9] Australian Human Rights Commission, Asylum Seekers, Refugees and Human Rights, p 6 < https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/asylum-seekers-refugees-and-human-rights-snapshot > accessed 07 September 2015
[10] Article 1A(2) Refugee Convention as amended by the Refugee Protocol, defined a refugee as an individual who is “owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his/her nationality and is unable to or, owing to such fear is unwilling to avail him/herself of the protection of that country.”
[11] Human Rights Watch, ‘“By Invitation Only”: Australian Asylum Policy’ (Dec 2002) <http://www.hrw.org/reports/2002/australia/> accessed 10 September 2015
[12] National Inquiry into Children in Immigration Detention < https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014 >
[13] Convention on the Rights of the Child, < http://www.ohchr.org/en/professionalinterest/pages/crc.aspx>
[14] Re Woolleys [2004] HCA 49; (2004) 225 CLR 1; (2004) 210 ALR 369; (2004) 79 ALJR 43
[15] Australian Human Rights Commission, Asylum Seekers, Refugees and Human Rights, p 9 < https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/asylum-seekers-refugees-and-human-rights-snapshot > accessed 07 September 2015
[16] Commonwealth Ombudsman, Suicide and Self-harm in the Immigration Detention Network (2013), p 150. < www.gov.au/reports/investigation/2013 >
[17] Australian Human Rights Commission, Asylum Seekers, Refugees and Human Rights, p 10 < https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/asylum-seekers-refugees-and-human-rights-snapshot > accessed 07 September 2015
[18] Ibid., p 11.
[19] Contrary to article 6 of the ICESCR.
[20] Parliamentary Joint Committee on Human Rights, Parliament of Australia, Ninth Report of 2013: Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation (2013), para 2.200. < www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/ Completed_inquiries/2013/92013/index > accessed 06 September 2015
[21] Section 210 of the PNG Criminal Code Act 1974 makes male homosexual acts criminal and provides for punishment of up to 14 years’ imprisonment.
[22] UNHCR, Global Consultations on International, Protection: Protection of Refugees in Mass Influx, Situations: Overall Protection Framework, UN Doc, EC/GC/01/4 (2001), paras 4, 13, 14 and 15. < www.refworld.org/docid/3bfa83504.html > accessed 08 September 2015
[23] S Momartin ‘A Comparison of the Mental Health of Refugees with Temporary versus Permanent Protection Visas’ (2006) 185 Medical Journal of Australia 360.
[24] Human Rights and Equal Opportunity Commission (HREOC), A last resort? National Inquiry into Children in Immigration Detention (2004). section 16.2.2., < https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/projects/last-resort-report-national-inquiry-children > accessed 03 September 2015
[25] Andreas Schloenhardt, To Deter, Detain and Deny: Protection of Onshore Asylum Seekers in Australia, Int J Refugee Law (2002) 14 (2 and 3): 302-328. p 317.
[26] Article 32 Refugee Convention specifically points out that refugees must not be refused or sent back to “the frontiers of territories where his (or her) life or freedom would be threatened.”
[27] Amnesty International (2013), ‘This is Breaking People: Human Rights Violations at Australia’s Asylum Seeker Processing Centre on Manus Island, Papua New Guinea’
[28] Australian Human Rights Commission, Asylum Seekers, Refugees and Human Rights, p 20. < https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/asylum-seekers-refugees-and-human-rights-snapshot > accessed 07 September 2015
[29] Department of Immigration and Citizenship, Asylum Trends – Australia 2011–12 (2012), p 30. < www.immi.gov.au/media/publications/statistics/ > accessed 09 September 2015
[30] Australian Human Rights Commission, Asylum Seekers, Refugees and Human Rights, p 12 < https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/asylum-seekers-refugees-and-human-rights-snapshot > accessed 07 September 2015
