KERRY MURPHY. Interdicting refugees not protecting refugees

Feb 8, 2019

In the first Four Corners program of 2019 [1], Sophie McNeil reported on the major hurdles placed in the way of Saudi women getting to Australia to make a refugee claim.  McNeil interviewed not just Rahaf Mohammed, who was quickly resettled in Canada, but others who are now in Australia seeking asylum.  They told of other Saudi women who had been prevented from getting to Australia by either the Saudi Government or Australian Border Force officers.

The interdiction of asylum seekers coming directly to Australia to make a refugee claim has a long and tortuous history in Australia.  Much attention has been on those who come by boat, who are nicknamed ‘boat people’ in the media and common parlance.  Less attention is given to those who arrive by plane – the ‘’ plane people’.  I have had the honour of representing not just ‘boat people’ in their cases, but also those who arrive by plane.

The plane arrivals fall into two main categories, those with a visa and those without.  This now makes a difference as to what process you get and what visa if you are successful.  These days it is much harder for someone to board a flight for Australia without a visa than it used to be.  Around twenty years ago, I remember representing a number of asylum seekers who had arrived by plane without a visa.  In fact the first Afghan Hazara client I had was a plane arrival, as was the first Iraqi doctor I represented.  Over the next twenty years I have represented many other Hazaras and Iraqis, and they both still have good cases when you read the independent reports about what happens in their countries.

Those arriving by plane tend to be individuals or a few people at a time, unlike the boat arrivals.  That maybe a reason why they get less attention than those asylum seekers on boats receive.  After a short time, Australian Immigration started placing immigration officers in known transit centres such as Kuala Lumpur, Bangkok and Manilla.  These officers had to check passports and visas before people boarded their flight.  If they thought there was an irregularity with a visa or passport, the person would not be allowed to continue to Australia.

I remember once boarding a flight in Kuala Lumpur bound for Sydney and seeing an Immigration officer I knew checking the passports of those boarding the plane.  Luckily I had no problem with my passport, but others could be interdicted in this way.  It is also not new that if the Border officers at the airport think a person may make a refugee claim, or if the person says to an officer they want to make a refugee claim, they cancel their visas and the person is sent back on the next flight or to Immigration detention.

McNeil referred to this visa cancellation happening for Saudi women, usually offshore.  That person then is unable to continue to Australia.  If a person is immigration cleared and then makes a claim for protection some time after that, they will get a bridging visa to keep them lawfully in Australia and not be in detention.  These people are the lucky ones, they are entitled to a permanent protection visa if successful.  Those whose visa is cancelled at the airport and they apply for protection from immigration detention will only get a temporary protection visa at best.  Their uncertain future continues.

It is curious that Australian officials go to so much trouble to prevent asylum seekers being able to make a claim for protection, and then penalise those who tell them their intention to seek asylum at the border by cancelling their visa and sending them to detention.   In the thirty years of my involvement in working with or for refugees, I have seen at least 40-50 legislative changes just for the onshore applicants, and only one change was positive.  The others were mainly reactionary responses to reduce rights or make it easier to refuse, or after a change in Government, there tended to be some amelioration in the harshness and deliberate cruelty in law and policy.

I had a case some years ago where we had to obtain an injunction in the Federal Court preventing immigration removing a young Tamil who had been ‘screened out’ and not permitted to even make an application.  Not only was the injunction granted, but he was granted a protection visa after a full interview by a case officer, not just a ‘screening interview’ which was used to try and return him to the persecution he feared.

I have many clients who have been immigration cleared and made their claim for protection later, and most have been successful in getting protection.  Many still contact me years later to tell me about their Australian citizenship, their marriage, children, or even just to send Christmas greetings.  I now get more Christmas greetings and cards from Muslims than I do from Christians.

McNeil reported that little is known about the Saudi women who were prevented from getting to Australia through the intervention of the Saudi authorities, or by the cancellation of their visas by Australia.  Prima facie, a Saudi woman fleeing family abuse or threats would have a strong case, so why is Australia seeking to interdict them and leave them at risk of being sent home to what is very likely to be persecution?

It cannot be because of ‘risks of people drowning at sea’ which is the refrain trotted out about why we have to be cruel to asylum seekers arriving by boat.  The other ‘Yes Minister‘ refrain is that it takes the visa away from a ‘more deserving refugee’ chosen by the Government.  This queue jumping myth has a long history.  If you have a cap on the number of visas issued in a year, then every visa granted, even to those from offshore, means someone else misses out.  That is mathematics.

There will always be more people in need than places available.  Secondly in my experience of working with and for refugees over thirty years, it is almost impossible to say that refugee A is more deserving than refugee B.  People’s lives and stories can vary considerably, and so is it really possible to say that a Hazara woman fleeing the Taliban in Pakistan or Afghanistan is more deserving than a Saudi woman fleeing her family who intend to harm her?

The current approach to deal with this is to have an unofficial cap on the number of visas granted each year to those who arrive onshore and then apply for protection.  Then simply delay the processing for those who meet the protection definition but would mean more grants that the Government wishes to make in a year.  The effect is to leave people who prima facie meet the criteria for protection in a processing limbo, sometimes for years.

I do not think there is satisfactory answer to this conundrum.  Restating the myth of the queue detracts from the reality of ensuring people who seek asylum have a fair and thorough process. At the same time I do not think it is acceptable to prevent people from making claims for protection by trying to prevent them making applications or cancelling their visas to reduce their chances.  Let the case be properly presented and carefully considered, rather than a hasty decision to cancel a visa which may mean a less than thorough assessment that is required if we are to seriously adhere to our international obbligations.

Kerry Murphy


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