Kerry Murphy. More punishment for asylum seekers and refugees.

“As a young boat people refugee, I arrived here 36 years ago with nothing but an invisible suitcase filled with dreams, [with] a dream to live in a peaceful, safe and free country and to live a meaningful and fulfilling life.” said the new Governor of South Australia Hue Van Le OAM.  He arrived on a boat in Darwin back in 1978, a ‘boat person’ from Vietnam, or an ‘íllegal’ as Scott Morrison would prefer. Mr Le and his family were accepted as refugees and granted permanent residence. The announcement was made public, appropriately just after refugee week.

On World Refugee day (20 June) the High Court held that the limit on granting permanent visas for refugees in Australia announced by Minister Morrison on 4 March was invalid.  The Court held it conflicted with an obligation in the Migration Act to decide protection visa cases within 90 days, a provision inserted under the Howard Government in 2005.   At the time, the Howard Government stated ‘that decisions on protection visa applications should be made in a timely and efficient manner so as to provide greater transparency and certainty for protection visa applicants.’

It seems this objective to provide ‘greater transparency and certainty’ is no longer the view of the Coalition in Government.  Now the focus is on punishment with a policy that resembles a ‘fundamentalist belief’ rather than a properly articulated and balanced system.  The obsession with people on boats is remarkable and has driven the Coalition especially under Morrison.  It seems that there is nothing that people arriving by boat could do that would improve their image with the Government apart from taking money and going home to face the persecution they fear.

The recent changes announced yet again to our refugee process illustrate the obsession in punishment and deterrence rather than a fair system that seeks to ensure our international obligations and human rights are respected.  The innocuously named Migration Amendment (Protection and Other Measures) Bill 2014 is not all bad, but you have to look hard amongst the 38 pages of Bill and 73 pages of explanatory memorandum to find anything positive.

There are a number of key issues of concern and space restricts the ability to provide a full commentary so it may be better to focus on the major points.  Refugee determination is a complex process of fact finding but this Bill tries to simplify the process to enable more refusals, not to make it easier for refugees.  On 31 March the Minister announced that money provided like legal aid to assist applicants prepare their cases would be cut off for all arriving by boat, and also cut off entirely for those in the review process.  This Bill has several measures which make competent representation more important for applicants who do not speak English, and may be traumatised by experiences in their home country, or even the boat journey to Australia

It proposes a requirement that an applicant ‘specify all particulars of their claim and supporting evidence to Immigration and if they raise new claims or provide new evidence to the Review Tribunal, there is a rebuttable presumption against their credibility.  Commonly it can take some time to get a full story from an asylum seeker and the short time to prepare and present cases in detention takes many dangerous short cuts. The system we have is inquisitorial or investigative, not adversarial however this proposal makes the process more likely an adversarial one, especially for unrepresented or poorly represented applicants flailing their way through the complexity of Australian refugee law.

Another change is a requirement to refuse a case where a person has no identity documents or has destroyed them.  It is common for people to have few identity documents but the detail they can provide about themselves, their family and where they lived helps satisfy decision makers as to identity.  Some people have even been asked to get identity documents from their Government, despite their cases still being on review or appeal, or their limited funding to pay rent and food in the community could be removed.  This again shows the ‘return oriented environment’ referred to by UNHCR when discussing Manus detention centre that is a theme of this government.

A third major change is the change in the threshold for protection under Complementary Protection (CP).   CP covers our non return obligations under the Convention Against Torture and ICCPR.  The current threshold test is the same as the Refugee test- a real chance.  This test was explained in a US Supreme Court case as like the ancient Roman punishment of decimation – killing one in ten.  If you are in the group of ten and you know one will be killed, you have a well-founded fear, and there is a real chance you could be the one.  Unlike a probability test, which is better than 50% which is the test the Government wants. Making the test a probability one increases the risk of someone facing serious harm or persecution and is at odds with similar laws in a number of countries including the UK and New Zealand. It makes protection less likely and the risk of the refugee suffering harm on return more likely.

It is expected there will be more changes to reintroduce Temporary Protection Visas (TPVs) despite the overwhelming social and psychological evidence against TPVs.  TPVs are another obsession of this Minister.  Sadly for refugees, the future is bleak and vilification and demonization continues.  Maybe there is some hope with the appointment of Mr Le as Governor for as he says,  “This appointment, however, says much more about our society than about me. It sends a powerful message affirming our inclusive and egalitarian society.”

Kerry Murphy is a Sydney solicitor who specialises in Immigration and Refugee law.

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