In the time approaching Christmas, asylum seekers in Australia have been the target for increasingly harsh and punitive policies from the new Government. None of this is really surprising as the Coalition policy documents stated the broad outline of their intentions. It may help to outline the recent major events and to put them in context.
No one is illegal
Mr Abbott has often stated ‘‘This government will never allow people who come here illegally by boat to gain permanent residency in Australia.’’ . This is an example of the incorrect use of the word ‘illegal’. Under the Migration Act, people are either lawful non-citizens (s 13) or unlawful non-citizens (s14) – illegal is not mentioned. There is no punishment for being unlawful, but you face detention and removal from Australia unless you have a visa application in process. Until September 1994, it was an offence to be ‘íllegal’ but the offence was repealed in September 1994.
The use of the word ‘illegal’ creates a negative connotation mainly against asylum seekers and this is reinforced by linking asylum seekers with people smugglers. People smuggling is an offence in Australian law and also in several overseas jurisdictions. Asylum seekers are fleeing persecution and using smugglers is a common way of escaping persecution. However by linking the two, and then incorrectly calling the asylum seekers ‘illegal’ – they are stigmatised and seen as undesirable to the general public.
Temporary Protection Visas
There are several recent changes in the law which also target asylum seekers. The first was the reintroduction of Temporary Protection Visas (TPVs) on 18 October for those arriving without a visa. The TPV is only for 3 years, and does not allow the refugee to apply for any other visa nor to sponsor their immediate family. It was documented as causing psychological harm in the Howard era, and the return to such a punitive visa for people found to be refugees and in need of protection is seriously disturbing.
The TPV regulations were disallowed by the Senate on 1 December but the same day, the Minister retaliated by capping the number of protection visas to be granted until 1 July 2014 at 1650. Last year there were 7504 protection visas granted, including 2555 to those arriving on visas and subsequently being granted a protection visa. Already 1650 was met so it meant no-one could be granted a protection visa until the new Immigration Year. This affected those refugees who had not come without a visa, but had a visa on arrival and subsequently applied for a protection visa. Then on 19 December this was revoked after a High Court challenge was commenced.
Abolishing Complementary Protection
Then the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Bill was introduced. The Bill will abolish Complementary Protection. How control over “Australia’s Protection Obligations” was ever lost was not explained by the explanatory memorandum. Complementary Protection (CP) was introduced under Labor and took effect from 24 March 2012. CP introduced a mechanism for people to access protection under the non-refoulement (not be sent back) obligations under the Convention Against Torture (CAT), International Covenant on Civil and Political Rights (ICCPR) and other international Human Rights Instruments.
This long overdue reform brought into Australian law provisions which already existed in other similar countries such as Canada, UK, New Zealand and the EU. The only way of accessing such protection in Australia, when it could not be shown it was for a Convention Refugee reason, was to seek the personal unreviewable and non-transparent discretionary intervention of the Minister. This is only possible after you lose at Immigration and at the Refugee Review Tribunal (RRT). Whilst such a power is needed for the complicated and hard cases, administratively and legally it made sense to reduce the need to access the Minister by establishing administrative procedures at an earlier stage in the assessment process.
So far only 57 cases were found to meet the Complementary Protection provisions, but that is 57 people who otherwise would have had to try their luck with the Minister. The Complementary Protection law was reviewed by the Senate Legal and Constitutional Committee back in 2009. The same Committee is now reviewing its proposed abolition. Abolition of Complementary Protection would be a serious retrograde step and just make a complex system less reviewable and not transparent.
Code of Behaviour
13th December was also unlucky for asylum seekers because they learned of yet further changes to commence the next day. A Code of Behaviour was introduced. This required asylum seekers on a bridging visa E to sign the Code to state they would comply with all Australian laws and comply with reasonable requests to attend interviews. Curiously, road laws were specifically mentioned, along with sexual offences, violent offences and ‘anti-social or disruptive activities’. Whilst this may seem innocuous, it is nothing of the sort. All visa applicants must sign a statement they will comply with Australian laws and values, but only asylum seekers must sign this extra Code of Behaviour.
Failure to comply with the Code can lean to a cancellation of the Bridging Visa and a return to mandatory detention. So a breach of driving laws which would normally only lead to a fine means the putative refugee will have their visa cancelled before the Local Court even considers the matter. Once cancelled, they must remain in detention until they are removed or are granted a protection visa. However another change makes the grant of a protection visa no longer possible.
Since 14 December it is impossible to get the permanent protection visa if you arrived in Australia without a visa. This means that a person can be found to meet the refugee or Complementary Protection criteria (a complex process) but not be able to get any visa apart from a bridging visa.
Another new regulation which authorises the disclosure of information to the State or Federal Police regarding the address details for applicants on bridging visas. Why do the police need to know where asylum seekers are living? Only applicants for protection face this demeaning provision – the thousands of others who apply for partner, skilled, student, business or employer sponsored visas are not caught by this odious regulation. This is yet further vilification.
Since Labor re-established offshore processing in Nauru and Papua New Guinea on 19 July 2013, all arrivals by boat are excluded from the Australia process entirely, so the changes announced in the last few months by the Coalition Government are designed for around 30,000 asylum seekers who arrived before that date and are still in the process. Vilifying and targeting a group in the community is a poisonous way of dealing with people, as it makes other forms of discrimination and ill-treatment seem acceptable to the wider public.
The overall impact of these policies is to deliberately demean and punish a group of vulnerable people, because of how they arrived in Australia. This is punishment of refugees. At a time when many are expressing hope and peace for Christmas and the New Year, these policies do not promote Australia and Australians in the region as supporters and advocates of human rights. Maybe we need to change the second verse of our national anthem – where it states’ for those who’ve come across the seas we’ve boundless plains to share’- not anymore we don’t.
“Hostility comes from ignorance, hospitality from openness. Hostility towards strangers is born in a heart with barriers, hardened and incapable of seeing richness in diversity. The collective hostility of the western world can be healed by learning from hospitality in other cultures. The shift from hostility to hospitality happens when one experiences welcome, this gift of opening oneself to the reality of an individual or a family of refugees.”
(Luis Magrina sj, In the footsteps of Pedro Arrupe p41)
Kerry Murphy is a solicitor who works in the asylum and refugee area.
 Zachary STEEL, Derrick SILOVE, Robert BROOKS, Shakeh MOMARTIN, Bushra ALZUHAIRI and Ina SUSLJIK, “Impact of immigration detention and temporary protection on the mental health of refugees.’ BRITISH JOURNAL OF PSYCHIATRY (2006) 188, 58 – 64, http://bjp.rcpsych.org/content/188/1/58.full.pdf