This report outlines the issues and concerns about Australia’s asylum policies and practices that RCOA gathered in 2014 and 2015. It provides an overview of the issues that people seeking asylum themselves have raised, as well as concerns communicated by individuals and agencies supporting people seeking asylum.
Key issues include immigration detention, people seeking asylum in the community, refugee status determination, offshore processing, returns and refoulement, public and political debate, and the cost of Australia’s policies. The topic that RCOA heard most about was Australia’s treatment of people seeking asylum, including mandatory and prolonged detention, which was seen to erode our identity as a generous nation.
Recommendation 1: Develop a plan of action for Asia-Pacific
RCOA recommends that the Australian Government, as a matter of urgency, develop a plan of action to enhance access to effective protection across the Asia-Pacific region, in line with the suggestions put forward in Section 5.1 of this report.
Recommendation 2: End Operation Sovereign Borders
RCOA recommends that the Australian Government:
a) End Operation Sovereign Borders and cease the interdiction of boats carrying people seeking asylum
b) End the practice of “enhanced screening” and ensure that all people seeking asylum have access to the full refugee status determination process, and
c) Replace Operation Sovereign Borders with a search-and-rescue response focused on safeguarding the rights of people seeking asylum.
Recommendation 3: End offshore processing
- Offshore processing of asylum claims be abolished and the detention centres in Nauru and Manus Island should be closed
- All people currently subject to offshore processing should be returned to Australia for processing of their claims, and
- All people who have been found to be refugees after having their claims processed offshore should be returned to Australia and granted permanent Protection Visas.
Recommendation 4: Reform immigration detention
The Australian Government should introduce legislation to:
- Abolish mandatory immigration detention in favour of a discretionary system under which detention is applied as a last resort and only when strictly necessary
- Restrict immigration detention to a maximum of 30 days without judicial review and six months overall
- Establish a system of judicial review of immigration detention longer than 30 days, with subsequent reviews carried out at regular intervals if continued detention is deemed appropriate
- Codify clear criteria for lawful detention and minimum standards of treatment for people subject to immigration detention, in line with UNHCR’s Detention Guidelines, and
- Prohibit the detention of children in closed immigration detention facilities, with community-based support arrangements to be used in place of closed detention.
Recommendation 5: Support people seeking asylum
- Immediate action should be taken to enhance the capacity of the Department of Immigration and Border Protection to expeditiously renew expired Bridging Visas for people seeking asylum and ensure that no one becomes unlawful due to delays in visa renewals
- Income support rates under the Status Resolution Support Service should be revised to a level which more accurately reflects the cost of living
- Work rights should be granted expeditiously to people seeking asylum living in the community and targeted employment support services be made available to people with work rights
- Vulnerable people who are not able to find employment should be given access to increased income support to reduce the risk of destitution and homelessness
- Education and training opportunities should be expanded to ensure the young people have study options beyond high school
- People seeking asylum should be granted access to the Adult Migrant English Program on the same basis as temporary and permanent humanitarian visa holders, and
- Interpreting should be included as a “client service” for all support provided to people seeking asylum through the Status Resolution Support Services program and through torture and trauma counselling programs.
Recommendation 6: A fair decision-making process
The Australian Government should:
- Restore a single statutory status determination process for all people seeking asylum, consisting of primary decision-making by the Department of Immigration, review by the Refugee Review Tribunal and access to opportunities for judicial review and Ministerial intervention
- Restore access to the Immigration Advice and Application Assistance Scheme for all people seeking asylum at both the primary and review stages of decision-making
- Repeal the Migration Amendment (Protection and Other Measures) Act 2015 and the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 to bring Australia’s refugee status determination process back in line with our Refugee Convention obligations and international guidelines on the assessment of
refugee claims, and
- Establish a system of periodic monitoring for failed people seeking asylum who are deported from Australia, to ensure that they are not subject to persecution or other forms of serious harm upon return.
Recommendation 7: End discrimination against people who arrive by boat
The Australian Government should repeal all legislative provisions and abolish all policies which discriminate against people seeking asylum refugees solely on the basis of their mode and date of arrival, including:
- Exclusion from Australia’s migration zone
- Requirement for mandatory immigration detention
- Differentiated refugee status determination procedures
- Denial of access to permanent residency and citizenship
- Restrictions on access to family reunion opportunities, including differentiated processing priorities for family reunion applications
- Restrictions on access to various support services, including legal advice and settlement services
- Restrictions on overseas travel with right of return, and
- Differentiated reporting requirements regarding change of address.
Recommendation 8: Guardianship of unaccompanied minors
The Australian Government should:
- Amend the Immigration (Guardianship of Children) Act 1946 to remove the Minister for Immigration’s status as legal guardian for the unaccompanied children and appoint an alternative independent legal guardian
- In consultation with State and Territory Governments, develop a national strategy for the care and support of unaccompanied children, and
- Explore options for providing ongoing support to young people aged between 18 and 21 who arrived as unaccompanied children.
Recommendation 9: Protect the stateless
The Australian Government should:
- Implement a statutory Statelessness Status Determination Procedure, based on recommendations from UNHCR and the draft model proposed in RCOA’s Stateless in Australia report
- Establish a permanent substantive visa for stateless people who do not have other protection needs, granting the same level of access to support services and citizenship as permanent refugee and humanitarian visa holders
- Grant citizenship to stateless children born in Australia within a reasonable time, as required by the Australian Citizenship Act 2007, and
- Amend the Australian Citizenship and Other Legislation Amendment Bill 2014 to remove
provisions which may increase the incidence of statelessness.
Recommendation 10: Change the public debate
- Australian Parliamentarians should demonstrate leadership in driving a calm, level-headed discussion on refugee and asylum seeker policy, with a focus on eradicating the myths and misinformation which permeates the public debate
- In parallel (and in the absence of this political leadership), civil society members and other key decision-makers should seek to lead positive changes in public discourse
- The Australian Government, as a priority, should cease using the word “illegal” to describe people seeking asylum who arrive by boat. This should apply both the departmental staff and Parliamentarians
- The Department of Immigration and Border Protection, in consultation with civil society and refugee community members, develop a comprehensive communications strategy to both clearly explain the protection process to people seeking asylum and dispel myths and misinformation about forced migration amongst the Australian public, and
- Funding for human rights education should be reinstated.
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