KERRY MURPHY. Retaining a cruel and punitive policy towards asylum seekers.

Recently re-elected deputy Prime Minister Barnaby Joyce warned the New Zealand Prime Minister to back off on her offer to help resettle refugees from Manus Island and Nauru in New Zealand.  His statement seemed to hint at a warning that if New Zealand continued to push this offer, it could harm bilateral relations[1].  Ironically he said they should not interfere in Australia’s sovereignty, regarding non Australians sent to non Australian Manus Island and independent Nauru.

The fact that relations with our closest friendly power could be damaged by a genuine offer to help resettle a small number of refugees shows how obsessed the Government is about boat people.  The Coalition in opposition and Government has been overwhelmingly aggressive and hostile towards people arriving by boat and seeking asylum.   Their position is that to do otherwise means that people will come again by boat and some asylum seekers will drown at sea.

The vilifying rhetoric, and punitively puritanical approach towards asylum seekers, especially those who come by boat, can be seen in a number of ways.   Firstly it is in the language used by Government and the Department.   Asylum seekers arriving by boat are continually vilified by the Government and the Department in the use of language such as calling them ‘illegal’, a pejorative term that does not appear in Migration Law.  Non-citizens in Australia are either lawful or unlawful – there is nothing criminal in their status, and the only penalty is administrative detention or removal from Australia for those who are unlawful.

Secondly it is seen in the punitive approach to changes in law and policy.  In the last 25 years, there has been only one positive legal change for asylum seekers out of around 45-50 legislative changes affecting asylum seekers.  That was the introduction of complementary protection in 2012.  All the others are either removing rights, or changes by Labor to soften the harshness of the regime when they were in power from 2007-2013.  The Coalition re-introduced the harsh policies and aggressive and vilifying rhetoric when they returned to Government in 2013.

Many of the refugees who came by boat are being granted temporary protection visas (TPV) for 3 or 5 years.  After that, their future depends on whether they can fit other visa types, so they might get a spouse visa, or a skilled visa for permanent residence, but never a permanent protection visa because to do otherwise will cause people to drown at sea.

A consequence of the TPV and its restrictions mean that many men who are in their forties or older, will never be able to get permanent residence or be reunited with their families in Australia.   Skilled migration effectively ceases at 45, and as a number of these men are close to that age, or will be by the time they are eligible for reconsideration for a another visa in 3-5 years,  they will never meet the skilled criteria and so never be able to sponsor their spouse or children to Australia.

This deliberately cruel policy of forcibly separating families causes some to permanently separate and divorce, because families overseas cannot believe Australia would be so cruel as to prevent family reunion for refugees.  Others become steadily more and more depressed, seeing no solution to their plight.  The justification for this intended and deliberate cruelty is that to do otherwise means we risk people coming by boat and some could drown at sea.

The persistent sloganeering to ‘stop the boats’ by the Coalition meant that the ALP changed its position on warehousing asylum seekers offshore in our poor neighbours.  In July 2013 Kevin Rudd reopened Manus Island and Nauru for assessing the claims of asylum seekers outside Australian jurisdiction.  The numbers of asylum seekers who came meant that the vast majority were actually left in Australia and are now being assessed under a new system of refugee assessing called ‘fast track’.

The fast track process is mainly for those who arrived by boat between 13 August 2012 (the date of the Expert Panel Report under Prime Minister Gillard) and 1 January 2014.   The process provides a lesser level of assessment, with legal changes to make review less thorough, and thereby the Government hoped less open to judicial review.

The system of review for the Fast Track cases is extremely limited.  After it was explained by a barrister for a client to one Federal Court judge, the judge asked rhetorically  ‘what sort of review is this?’.    The system of review is conducted by the Immigration Assessment Authority (IAA), a part of the Administrative Appeals Tribunal (AAT).  However where non Fast Track cases are entitled to a hearing, and to have new information considered, and also provided with some procedural fairness in the AAT, the IAA is not required even to interview applicants, and is precluded from considering any new information unless there are exceptional circumstances, and there is little procedural fairness.  The process is one which is designed to make it easier to refuse cases without too much risk of being overturned in the Courts.  To have a fairer and more equitable process means we risk people coming by boat and some could drown at sea.

There are multiple legislative bars to prevent certain asylum seekers even making applications unless the Minister literally personally intervenes to lift the bar and allows the application.   This process is slow, bureaucratic and not transparent.  It has left many without visas in the community, and others with a bridging visa but no permission to work.    However to have a more flexible and sensible system means we risk people coming by boat and possibly some drowning at sea.

Any attempts at reducing the punitive policies and laws are deflected with the fear mongering that this would cause people to drown at sea.  So it is better to be cruel and heartless, to leave people only on a temporary visa and unable to sponsor their spouse and children, to continue to vilify them, to seek to cancel their visas, to attack critics of the Government, and to warn off friendly neighbours like New Zealand rather than show any form of reasonableness and compassion.  That is where we have arrived.

The law is used to punish people who arrive by boat and are granted asylum in Australia.  They face indefinite separation from their immediate families.  Those who were granted permanent protection under Labor found themselves penalised in sponsoring their spouse and children by Ministerial Direction 62 (now 72) which said that if you came by boat, you are in the lowest assessment priority for having your sponsorship of your spouse and children determined.  People who arrived later and were not boat arrivals, could ‘jump the queue’ to get their sponsorship and visa applications assessed more quickly.  This ludicrously harsh direction was only changed after a High Court challenge was made to allow case officers to consider compelling circumstances for the Australian resident sponsor to allow the processing of their spouse’s application to be done.

Recent comments by the Prime Minister and Deputy Prime Minister mean that there will be no amelioration of these inflexible policies – to act otherwise means the boats start to come again.  Their ‘logic’ is that crude and whilst it is seen as having political support, it will not change.

Kerry Murphy is solicitor specialising in immigration and refugee cases.



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2 Responses to KERRY MURPHY. Retaining a cruel and punitive policy towards asylum seekers.

  1. Lawry Herron says:

    It’s a sorry story, Kerry, and thanks to you for spelling it out – and that is without any reference to male fides in (non-)application of international law and the Refugee Convention and the deviousness and artificiality of definition of Australian “territory” to exclude Australian territory, plus subversion of the PNG constitution, subornation of a weak and economically dependent Nauru and the hypocrisy of supporting one of the chief architects and administrators of the regime into a seat on the UN Human Rights Committee. Nevertheless we have the comfort of being a law-abiding rules-bound country: it says so in our White Paper.

  2. Tony Kevin says:

    Thank you Kerry Murphy,

    I would like to remind readers as a matter of historical record that deaths at sea of approximately 1600 asylum-seekers in the 300 mile sea gap between Indonesia and Christmas Island repeatedly happened, because

    1. both Coalition and Labor governments before 2013 observed a black-letter maritime safety law approach that unseaworthy overloaded asylum-seeker boats on the high seas were not Australia’s responsibility unless they made distress calls according to strict Distress at Sea technical protocols , or until they penetrated Christmas Island’s 24 Mile contiguous zone.

    2. Even when broadly correct Distress at Sea protocols were followed by asylum seeker vessels in trouble on the high seas, Australian border protection and maritime safety authorities did everything possible to delay rescue responses, so that some people drowned who could and should by any objective humanitarian standard have been saved. This cynical approach to asylum-seeker safely of life at sea was known and followed up to the level of ministers and even prime ministers, according to a ‘don’t ask, don’t tell’ operational protocol. Of course this would all be denied now by both parties .

    Only with the inception of OperationSovereign Borders in 2012 did Australiann border protection authorities at last find a Government-approved way of combining effective border protection with the protection of asylum seeker human lives previously at risk at sea.

    The refugee movement finds it difficult t9 accept these unpalatable truths about the previous hypocritical conduct of the Howard, Rudd and Gillard governments in respect of asylum-seeker safety of life at sea. Under all these three former administrations, boat sinkings and consequent deaths at sea were being normalised as hoped-for deterrents to asylum-seeker voyages. Of course the voyages continued – a 3% death rate was considered good odds by desperate asylum seekers. What stopped the boats after 2012 was the new OSB strategy of safe immediate return of boats and/or passengers to Indonesia. The ALP now understands and supports this. The refugee movement does not.

    Details in my books ‘A Certain Maritime Incident (2004) and ‘Reluctant Rescuers’ (2012). See

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