Living on the margins
The combination of policies by the Labor Government – various changes in the processes of determining refugee status and an effective suspension of processing their claims – left around 30,000 people in Australia whose claims were either frozen or had not even begun when the Liberal Government came to power. The Government refers to these people as the ‘Legacy Caseload’.
For over a year, the Government refused to let these people’s claims be processed, because they had promised that they would only be given temporary protection. However, the Government could not do this without changing the law itself, as the High Court ruled, and did not have enough support in Parliament until a new law was passed in December 2014, more than a year after the Government had been elected.
The new law introduced a new system of refugee status determination for people whose claims had not yet begun, the Government introduced a policy called ‘fast track processing’. This was intended to give them less time to make their claims for protection, and reduce the level of independent oversight, because people would no longer be given the right to present the case before a tribunal . At the same time, they also took away the government-funded legal help they could get to help them make their claims for protection. These changes made it much more likely that people would not be found to be refugees.
The ‘fast tracking’ name has been misleading, as the process has taken much longer than initially promised. The policy did not begin to be implemented until the middle of 2015, and first people could only apply if they were invited by the Minister. There was a lot of uncertainty caused by the new process and the legal changes, which among other things defined ‘refugee’ in a way that is different from that in the Refugee Convention. As well, the new law established a new body to review the claims, known as the Immigration Assessment Authority, with different procedures. All this meant that most people did not start to have their claims decided until 2017.
After taking a very long time to get the process running, the Government changed the game late in 2017 when it decided that, even though it had not yet made most of the decisions before it, that everyone had to finish lodging their application. Originally, the threat was to cut them off from the meagre income support they received if they did not apply, and the threat was applied to people by date of arrival. However, this suddenly changed again in May 2018 so that everyone had to apply by 1 October 2018. If they did not, they would be barred from applying for any kind of visa.
The withdrawal of funding and the lack of financial support meant many people were on long waiting lists with the few specialist legal services, most of whom also had to spend valuable time raising funds to ensure their survival and recruiting pro bono legal help at the same time. Many people ended up getting help from generous volunteers who spent hours filling in long and complex forms. Others had no help at all. All of this will make it harder for the government to make fair and accurate decisions in a timely way.
The new law also changed the definition of ‘refugee’, meaning that the Australian definition of ‘refugee’ is no longer consistent with that under international law. For example, the definition of whether a person could safely live elsewhere in their country of origin (a principle known as ‘internal relocation’ or ‘internal flight alternative’) was changed to make it easier to find that, even though the person had a genuine fear, they could be sent back because they could in theory live elsewhere.
The new law also expressly allowed the government to send someone home even if there was a real risk that there would be sent to persecution or other serious danger (called ‘non-refoulement’ in international law.) This would breach our international legal obligations under the Refugee Convention and under international law.