Refugee Council of Australia
Two men huddling in yellow shelter

Eroding our identity as a generous nation: Community views on Australia’s treatment of people seeking asylum

People in Australia

Immigration detention

“It is time to release all the people locked up in immigration detention. It is time to stop paying millions and millions to lock people up for no purpose.”

– Community member, ACT

In community consultations conducted to develop this report, RCOA’s members strongly opposed the immigration detention regime as it currently operates. The mandatory and prolonged nature of immigration detention in Australia was viewed as detrimental and harmful: to the people subject to detention, to those working with and visiting people in detention who have to deal on a daily basis with immense human suffering and to Australia’s reputation as a fair and just nation. As one RCOA member put it, “our national identity as a generous and loving people [has been] eroded and fractured” by the mandatory and prolonged detention of people seeking our protection.

During 2014 and 2015, there was particular concern about the length of time for which many people seeking asylum were being detained. As the graph below illustrates, the time spent in immigration detention for both children and adults increased dramatically over the course the past two years, rising to over 14 months at its peak. The increasingly prolonged nature of immigration detention was seen to have serious consequences for the health and wellbeing of people seeking asylum, particularly children.

The “deterrence value” of mandatory and prolonged detention was called into question by several participants in RCOA’s networks and community consultations. RCOA regularly heard references to the strong body of evidence – from both Australian and international sources – clearly demonstrating that immigration detention is not and has not ever acted as a deterrent for people seeking protection.

In fact, two former Australian Immigration Ministers said as much during the 2014 Australian Human Rights Commission inquiry into children in detention. At the public hearings conducted as part of the inquiry, previous Ministers for Immigration Chris Bowen and Scott Morrison admitted that the detention of children was not an effective means of deterring boat arrivals or preventing deaths at sea. Mr Bowen stated that detention was “not an effective deterrent” and that the “cost on children was too great for any deterrence value”. When asked if the “purpose of long-term detention [is] to deter people from coming to Australia by boat”, Mr Morrison responded “no”.

There was overwhelming support for the expansion and continued use of community-based alternatives already in place as opposed to the use of closed immigration detention. Several consultation participants and network members advised that the use of community alternatives was essential not only as a policy position broadly but also particularly when qualified professionals made recommendations for a person’s release from closed immigration detention. These recommendations came from doctors, psychiatrists, the Human Rights Commission and the Commonwealth Ombudsman.

Refugees with adverse security or character assessments

RCOA’s networks and consulted communities yet again raised concern over the plight people in immigration detention who face spending the remainder of their natural lives deprived of liberty because of adverse security or character assessments. The release of several people who had had their negative assessments overturned – most of whom spent at least four to five years in closed detention – was welcomed.

At the same time, however, concerns were raised that these individuals were now being granted Temporary Protection Visas upon release from detention, which would further prolong uncertainty (and thus hamper recovery from trauma) and prevent them from being able to access settlement support services. In addition, ongoing concerns were expressed regarding the significant number of people who face indefinite detention due to having their visas refused or cancelled on character grounds.

Detention of children

Participants in RCOA’s community consultations echoed many of the concerns raised in the Australian Human Rights Commission’s National Inquiry into Children in Immigration Detention (which was presented to the Government in November 2014 and released in February 2015). Great concern was expressed about the adverse impacts of immigration detention on the health, wellbeing and development of children and young people and there was widespread consensus that the release of children from detention must be considered an urgent priority. In the words of a representative from the Sudanese community:

There have been discussions in Government in terms of little kids who are in detention…I don’t think young kids should be in the detention centre for such a long time because it’s not healthy for their wellbeing. They should go to a place where they are taken care of. [Detention] is an isolating place and, when you isolate a kid, when they grow up they will have issues.

There was also considerable concern for children held in closed detention facilities which had originally been designed to operate as Immigration Detention Centres (suitable for adults only) and had not undergone any substantive changes before being re-designated as Alternative Places of Detention (APODs). The APOD located within the Wickham Point detention facility was highlighted as a particularly unsuitable facility for children, as it was located directly next to the compound housing adult men and shared similar security features and configuration. RCOA heard that these facilities were not appropriate for children and family groups.

Re-detention

There was considerable concern amongst RCOA’s networks about people who had been re-detained. The basis of re-detention varied but the most disturbing cases involved unaccompanied children being removed from care in the community and re-detained in closed facilities. The reasons for re-detention in these circumstances were vague and not usually based on criminal charges or actions. A number of these unaccompanied children remained in closed detention for over one year. For some, release only occurred after legal action was taken to challenge their detention.

For adults re-detained, there was concern that scores of people were in closed detention as a result of pending charges or minor breaches of visa conditions, including alleged misconduct which even if proven would not normally result in a custodial sentence. As one community organisation noted, the court would often grant bail but the asylum seeker nonetheless remained in immigration detention.

They advised, “We have seen cases where a person gets a one-year good behaviour bond but remains in detention – a much harsher penalty than that applied to anyone else.” Others provided examples of instances where people had been re-detained as a result of parking fines.

RCOA was also made aware of a number of cases where people had served their custodial sentences but remained in closed detention for months and even years afterwards. Disturbingly, RCOA heard that many people remained in closed detention even after charges had been dropped by police or people had been cleared of any wrongdoing. There was also considerable concern about access to legal advice and support for people in closed detention.

It was reported that the increase in cases of re-detention, particularly for very minor infringements or on tenuous grounds, had created significant fear amongst people seeking asylum who are currently living in the community. As explained by a service provider in Brisbane, “Those who are out in the community are just very scared [that] any moment they can just be taken.”

Asylum seekers in the community

“We have a lot of concern about people in Australia but who don’t have any rights to education or work. It’s very dangerous for them. They get depressed. There is a lot of suicide. It is very tragic. It breaks the heart of all of the people.”

– Hazara community representative, Tasmania

RCOA heard consistent and powerful messages about the inadequacy of support services for people seeking asylum living in the Australian community while waiting for the claims to be processed. While community alternatives to detention were seen as infinitely preferable to prolonged indefinite detention in closed facilities, there was widespread consensus that the level of support available through these programs is insufficient to allow people seeking asylum to live safely and sustainably in the community without facing housing stress, destitution or marginalisation.

Housing challenges

In 2013, RCOA conducted a national research project on housing challenges faced by refugee and humanitarian entrants. In addition to the general challenges faced by this group in securing affordable and appropriate housing, participants in this project identified a number of specific issues affecting people seeking asylum living in the community.

These included: temporary visa status, which can lead to reluctance amongst housing providers to rent properties to people seeking asylum due to concerns that that they not remain in Australia for the duration of the lease; exceptionally low income (and, in many cases, inability to supplement this income through paid work due to lack of work rights), which limits the housing options available to people seeking asylum and places them at higher risk of exploitation; the limitations of the service provision model for people seeking asylum living in the community, which preclude service providers from offering sufficient and targeted assistance with housing issues (with particular concern expressed that people seeking asylum could be exited from programs into homelessness); and the inadequacy of transition support for people seeking asylum moving through various support programs.

Feedback received through RCOA’s networks and community consultations during 2014 and 2015 indicates that housing remains a significant challenge for people seeking asylum living in the community. Some cited ongoing difficulties with securing access to housing due to visa status. In the words of a service provider in South Australia, “Many of them are expecting to be deported at any time. It is very hard to find housing for people in this situation. It is very difficult to explain to landlords that they have no idea how long they will be in Australia.” A member of the Hazara community living in Sydney noted that he had been unable to secure accommodation due to the fact that his Bridging Visa had expired.

RCOA also continued to receive reports of people seeking asylum living in precarious, overcrowded or substandard conditions and being exploited by unscrupulous real estate agents and property owners. A community member in Adelaide cited a case where 20 Bridging Visa holders had been living at a single address, while a service provider in Sydney reported instances where people seeking asylum had been convinced by real estate agents to rent non-residential properties (such as warehouses with dividers between the beds).

A service provider in Tasmania reported that people seeking asylum living in boarding houses may be forced to leave their accommodation to make way for seasonal workers who arrive during the summer. An organisation in Melbourne expressed concern that it was “running out of housing options for people” and had resorted to handing out sleeping bags and swags.

Service providers in Melbourne expressed concerns about limited access to housing and homelessness services. It was noted, for example, that people seeking asylum are often turned away from homelessness service providers due to confusion regarding their eligibility for support. Concern was also expressed that people seeking asylum who are recognised as refugees and granted a temporary substantive visa (such as Temporary Humanitarian Concern visa or Temporary Protection Visa) are not eligible for State Government bond and rent loans.

Income support and destitution

During 2014, many people seeking asylum in the community did not have the right to work and most had been in Australia for between several months and several years, without any indication of when their protection claims would be assessed. Most relied solely on income support payments which, depending on a person’s age and circumstance, are paid at 60%-89% of the Centrelink Newstart or Special Benefit rate. For single adults without dependent children (who comprise the majority of people seeking asylum living in the community), this means existing on an income of approximately $230 per week.

RCOA heard regularly about the significant hardship faced by people seeking asylum who were forced to subsist on an insufficient level of income. Reports were received of people seeking asylum living in substandard and/or precarious accommodation, skipping meals and missing out on medication due their limited financial resources. In the words of a service provider in Sydney, “There is a lot of poverty, not enough food, people missing meals to feed the children.” Low income was also seen to be a major contributor to social isolation, in that the costs of transport or social activities could be too high for people seeking asylum to meet. As described by a service provider in Western Australia:

People who have been living in the community for a long period of time with all that uncertainty need to get engaged in something. They are keen to do volunteering but when it comes down to it, we don’t get them there, even if opportunities are there. There’s a disconnect. Some of it is about the space people are in but some of it is also about the affordability of travel. A lot of not-for-profits can’t pay for travel and clients can’t afford to spend excess dollars on travel. In this state there are no transport concessions so it hits in a wide range of areas, including people’s ability to get out and about and integrate and form some meaningful connections and keep themselves busy.

Indeed, the combination of destitution and marginalisation was seen to have serious negative impacts on mental health. A service provider in Tasmania described the “absolute hopelessness [people seeking asylum] feel from their lack of money”, noting that some were “utterly despondent – not getting out of bed, not leaving the house”.

Some expressed particular concern about people seeking asylum who had reached at the post-merits review stage of the refugee status determination process (that is, people who are seeking judicial review or Ministerial intervention). Income support payments cease as this stage of the process and most of these people do not have the right to work. It was reported that this group is at particularly high risk of destitution and homelessness and is often heavily reliant on friends or community groups to meet their basic needs.

A range of concerns were expressed regarding the proposal to subject people seeking asylum to mutual obligation requirements as a condition of receiving income support. These included: the inability of many people seeking asylum to afford transport and the implications this may have for meeting mutual obligation requirements; the additional burden likely to be placed on service providers participating in mutual obligation schemes (with some noting that strong casework support is often needed to keep people engaged); the potential for an increased burden on the health sector if people seeking asylum need to obtain a medical certificate in order to be exempted from mutual obligation requirements; language barriers; limited access to child care; and challenges in obtaining criminal record and Working With

Children checks, which can present a barrier to volunteering in some organisations. At the same time, it was felt that programs which provided opportunities for meaningful engagement and reduced social isolation could have some benefits for people seeking asylum.

Status Resolution Support Services

In the 2014-15 financial year, the Status Resolution Support Services (SRSS) program replaced services previously delivered as part of the community detention program, Community Assistance Support (CAS) program and Asylum Seeker Assistance Scheme (ASAS). Under SRSS, services are delivered to people seeking asylum under six bands: Band 1 for unaccompanied children in closed detention facilities; Band 2 for unaccompanied children in community detention; Band 3 for families and adults in community detention; Band 4 for transitional support for people being released from detention; Band 5 being CAS services for people seeking asylum living in the community deemed to have complex needs; and Band 6 being ASAS support for people seeking asylum experiencing financial hardship.

Participants in RCOA’s community consultation processes expressed concern about the very high caseworker-to-client ratio amongst some organisations delivering SRSS, with participants reporting ratios as high as 1:120. It was felt that these high ratios hampered the capacity of service providers to offer appropriate support to people seeking asylum. As noted by one consultation participant in Melbourne, “previously, people seeking asylum would have had fortnightly contact with their case worker and now they are having three-monthly face-to-face contact and monthly phone calls.” Another expressed concern that “quality is going to be compromised” if service providers have such limited contact with the people they are supposed to be supporting.

A range of issues were raised in relation to eligibility for SRSS Band 5 (formerly CAS) and Band 6 (formerly ASAS) services. There were concerns that the eligibility criteria were being applied too stringently, with the result that vulnerable people were missing out on support that they sorely needed. For example, some service providers reported that people applying for Band 6 were being asked to provide more information and documentation than had previously been the case, including documents which could be difficult or dangerous for them or their families to obtain (such as bank statements from their country of origin).

The process of preparing applications had consequently become more prolonged, with the result that people seeking asylum were living in the community without any stable source of income for longer periods of time. There were also concerns that Band 6 applications may be refused on the basis that a person could access financial support from a community organisation, despite that fact that this may not be a sustainable source of income. Indeed, some asylum seeker support organisations voiced fears that the higher rejection rates were placing additional pressures on not-for-profit community organisations with limited funding.
Similar concerns were raised in relation to Band 5 services.

Some participants in RCOA’s networks reported cases where highly vulnerable people had been denied access to these services on grounds which were not appropriate or reasonable. One service provider provided the example of a woman with multiple mental health issues who had separated from her partner due to domestic violence. She was reportedly deemed ineligible for Band 5 assistance due to the fact that an appointment had been arranged for her with a mental health facility, even though she had not yet gone to the appointment.

RCOA also received feedback suggesting that there has been an increase in the number of people being transitioned to lower levels of support despite having significant vulnerabilities or complex needs. A service provider in Sydney, for example, raised concerns about “the complexity of clients who sit in Band 6 that aren’t meant to be complex”:

Whether that’s mental health issues, whether it’s housing issues, whether it’s DHS, there’s also the other area of just straight medical issues that we’re dealing with as well, leukaemia, cancers, the whole range of things that you would see in a normal population, which I guess weren’t really considered or thought of at the time.
While the expansion of community alternatives to detention for children and young people was warmly welcomed, a number of participants in RCOA’s consultations and networks expressed ongoing concerns about the inadequacy of support services for young people living in the community, particularly unaccompanied children.

A service provider based in Canberra, for example, felt that being held in long-term community detention was “destructive” for vulnerable young people and that unaccompanied children were not receiving adequate care and support. Specific concerns were raised about the situation of young people making the transition through various services and from childhood to adulthood. A service provider in Tasmania, for example, expressed concern that unaccompanied children were not being provided with sufficient support while making the transition to adulthood (that is, from intensive support services to “light touch” services): “Some of them turn 18 and it’s meant to be a great time for them – adulthood and those sorts of things – but the reality for them is they won’t have a roof over their head.”

The need for – and ongoing lack of – an adequately resourced English language program for people seeking asylum was raised consistently throughout 2014 and 2015. The limited 45 hour program for people seeking asylum living on a bridging visa (or 90 hours for some people living in community detention) was viewed as wholly inadequate.

In addition to these ongoing concerns, a number of issues were raised regarding changes implemented as part of the SRSS program. These included: concerns that some expenses were no longer covered under the new program (namely translating and interpreting services and ambulance cover); and issues with the transition of the income support component of SRSS to the Department of Human Services.

Work rights

RCOA continued to receive consistent feedback during 2014 and 2015 about the challenges faced by people seeking asylum who do not have the right to work. Those consulted by RCOA expressed concern about serious destitution experienced by people seeking asylum who subsist on income support alone, with one service provider in Western Australia claiming that these people seeking asylum “are living like beggars”.

Concerns were also raised about the impact of the denial of work rights on mental health. A service provider in Tasmania, for example, noted that people seeking asylum who were not able to work lacked opportunities for meaningful social engagement: “[They are] just sitting there and waiting.” A community member in Brisbane claimed that the denial of work rights “is destroying people. People have many skills. No work rights destroys people’s minds.” Others noted that allowing people seeking asylum to support themselves would be more cost-effective than forcing them to subsist on income support. Many also expressed concern about the Government’s decision to strip work rights from those who did have permission to work.

RCOA therefore welcomed the announcement at the end of 2014 that the Federal Government would progressively grant work rights to people seeking asylum living in the community on Bridging Visas. We encouraged the Government to complete this process promptly.

At the same time, however, RCOA recognises that some people seeking asylum will not have the capacity to work (due to caring responsibilities or mental health issues, for example) or may struggle to find employment (due to factors such as limited English language skills, qualifications not being recognised in Australia and difficulties in navigating the Australian job market.

Temporary visa status has also been highlighted as a significant barrier to employment for people seeking asylum. As noted by one service provider in regional Victoria, “there are a handful of people who are in the process of being invited to apply [for work rights] have only been offered a three month visa. Which is not much value because who’s going to employ someone who’s only got a three month visa?” A member of the Rohingya community commented that “companies seems to get scared of bridging visas”.

While people seeking asylum who have work rights do have access to Stream A jobactive support services, participants in RCOA’s consultations and networks pointed out that this support is very limited in practice and largely ineffective in assisting people to find work. As explained by a service provider in Sydney, “the only eligibility that that is, is that you can walk into a job provider and you can use their computer. It doesn’t actually involve any one-to-one support. So obviously that is not going to make a huge difference…What they really need would be one-on-one consultations.”

RCOA therefore recommends that the Government consider granting people seeking asylum who have work rights access to support services (such as English classes and targeted employment support services) which will assist in maximising their access to employment. We also encourage the Government to address the issues highlighted above relating to income support, to ensure an adequate standard of living for those who cannot work or do not immediately find work.

Code of behaviour

RCOA heard regularly that requiring people seeking asylum to sign the Code of Behaviour in order to have a Bridging Visa granted or renewed had detrimental effects on people living in the community. A support worker advised that in one household, an person was suicidal and the people he lived with were too scared to call an ambulance for fear that engaging with emergency services would mean a violation of the Code of Behaviour, because police might have to be involved.

Many viewed the Code as not only causing uncertainty and confusion for people in the community but also disempowering to people seeking asylum. As one Sydney provider reflected, “For a group which already feels like they are being discriminated against and treated differently because of the method by which they came to Australia…it is just a little bit more power taken away from them.”

A community member in Western Australian agreed, saying that there was “no natural justice for people in the context of Code of Behaviour. It creates stress for the client. It’s another dimension of criminalisation.” Organisations supporting people seeking asylum were also concerned that the Code of Behaviour contained ambiguous terms like “anti-social behaviour”. They were worried that actions like speaking loudly on the phone or eating strong-smelling food could lead to neighbours reporting an asylum seeker to the police.

A number of people seeking asylum also expressed their worry that they could not engage in any kind of public gathering or rally, fearing that this could have a negative impact on their visa application. One young person voiced his frustration and worry about not being able to share his story with the public:

I am not allowed to go to the media. You are banned by Immigration. Whatever you do, you are not allowed to go to any media. Our caseworker called us and said, “you are not allowed to go to any media, if the media comes to you, you are not allowed to talk to them”. I wish I could…They warned all of the people on Bridging Visas that if you go to the media, you will be detained.

A consultation participant from Tasmania shared his sadness that fears about participating in positive community gatherings meant that many people seeking asylum and refugees in the community did not get to join the people that supported them and feel a sense of belonging. He advised that a number of people seeking asylum refused to go to a Walk Together gathering because they feared that their photo may be taken and this could adversely impact their cases in some way.

People seeking asylum who arrive with visas

Many of RCOA’s members expressed their concern for people seeking asylum who arrived with a prior visa and then sought protection. In particular, there was considerable worry for people who arrived at an Australian airport and sought asylum from the first official that they saw.

People in this scenario are not immigration cleared, so they are subject to mandatory immigration detention and also lose access to a permanent Protection Visa. There was concern that people who “do the right thing” by presenting immediately were being punished through the use of immigration detention and denial of access to permanent protection.

There was also concern for the wellbeing of people seeking asylum who arrive with valid visas and are allowed to live in the community while their claims are processed, as many find it difficult to access adequate support services. Many agencies felt that there was a tightening of eligibility criteria for support programs and that some decisions were inconsistent with policy and program guidelines. This resulted in vulnerable people relying on community structures for support or facing destitution and homelessness.

Refugee status determination

“As much as we would welcome the asylum seeker permanent protection visa procedure to be sped up, the proposed fast-track system does not ensure a fair and due process. The applicant has no opportunity to put his case, gets no legal assistance and gets traumatised further. Why are we constantly trying to prove that people seeking asylum are not genuine refugees?”

– Community group, Western Australia

Service providers and community members consulted by RCOA continued to express concerns about ongoing delays in the processing of asylum claims. These prolonged and indefinite delays were highlighted as a source of significant anxiety and distress for people seeking asylum. In the words of a service provider in Western Australia, “The children have psychological problems. The parents have psychological problems. When will this beautiful news arrive? Waiting creates a lot of emotions and psychological issues.”

Since the passing of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 in December last year, RCOA has received a significant amount of feedback about the potential implications of this legislation. Many raised concerns about the changes to Australia’s refugee status determination process, namely the introduction of a fast-track review procedure and the redefinition of Australia’s international protection obligations.

One community group asserted that the legislation represented an attempt “not to honour Australia’s obligations, but to bypass them”. A service provider in Canberra stated that the removal of references to the Refugee Convention “sets a new low” and expressed concern that it would create “a benchmark which can copied by others in the region. This can only be detrimental for refugees in the region”.

Fears were expressed that the changes introduced by the Legacy Caseload Act would undermine the robustness of the refugee status determination process and heighten the risk of people being erroneously returned to danger. A number of service providers raised concerns that some people seeking asylum, particularly those who had experienced trauma, would struggle to articulate their protection claims under the fast-track process and may be denied protection despite having a well-founded fear of persecution. In the words of a service provider in regional New South Wales, “It’s really scary to think a whole bunch of people won’t even be able to get temporary protection visas as they won’t be able to put their case properly…There won’t be anybody delving in to details enough.”

The changes to the refugee status determination process were seen as being of particular concern in light of the withdrawal of access to the Immigration Advice and Application Assistance Scheme (IAAAS) for people who arrived in Australia by boat. It was felt that lack of access to legal advice would further compound the difficulties faced by people seeking asylum (especially survivors of torture and trauma) in articulating their claims. As noted by one service provider:

Lack of access to the IAAAS has had a dramatic impact on the capacity of people seeking asylum to prepare their claims for asylum in a timely and appropriate manner…The impact of the trauma often results in complex psychological issues which may affect the presentation of the applicant and how they provide their evidence to claim asylum. As a result, the most vulnerable people seeking asylum are likely to be the most disadvantaged by lack of access to appropriate legal assistance.

Another consultation participant claimed that the withdrawal of access to free legal advice is “putting some people’s lives on the line”. Service providers in Melbourne also expressed concern that lack of access to funded legal advice would lead to people seeking asylum relying on caseworkers and other non-legal service providers for legal information, which these services are not in a position to provide.

People affected by SZQRB

In 2013, the Federal Court of Australia handed down a judgment in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33. The ruling on SZQRB found that decision-makers had been applying the wrong legal test to assess Australia’s complementary protection obligations. The Government’s response was to subject the people affected by SZQRB to a new International Treaty Obligations Assessment (ITOA). While undergoing this ITOA, people seeking asylum are not eligible Band 6 support under SRSS and most do not have the right to work. This has left people facing destitution and homelessness, as they are unable to either support themselves or receive support. RCOA’s network members relayed their concerns that people who had a right to have their case reviewed were relying on friends and the community to survive.

Statelessness

For many years, RCOA and other concerned groups have expressed concern regarding the lack of a permanent solution for stateless people in Australia. While some stateless people also have protection claims and are therefore able to resolve their status through Australia’s refugee and complementary protection frameworks, there is currently no solution for those who are stateless yet not refugees or otherwise in need of protection. Statelessness alone is not a ground to receive protection under Australian legislation. With no country to return to and no pathway to gaining citizenship, stateless people can face indefinite detention or extended periods on temporary visas.

Australia has obligations to stateless people under the 1954 Convention Relating to the Status of Stateless Persons and 1961 Convention on the Reduction of Statelessness. However, as there is no statutory Statelessness Status Determination procedure in Australia, there is a significant risk that stateless people can be misidentified and thus may not receive adequate protection of their rights. The United Nations High Commissioner for Refugees (UNHCR) has recently launched a campaign to end statelessness by 2024 and RCOA’s members have called upon Australia to commit to this pledge.

During 2014 and 2015, refugee community members and others expressed their concern regarding the situation of stateless babies born in Australia. As one community member expressed, “it is cruel that children born in detention are not recognised as Australian citizens, particularly if the family is stateless. Any child born in the US or Liberia is considered a national by birth. It is very painful for a child to be denied an identity.”

While the Australian Citizenship Act 2007 grants stateless children born in Australia a non-discretionary right to citizenship, successive Ministers for Immigration have yet to act upon this duty to grant citizenship, leaving these children stateless. RCOA’s members outlined their concern with this delay, especially as this duty is not discretionary.

Consulted communities and agencies also raised concerns regarding the Australian Citizenship and Other Legislation Amendment Bill 2014, currently before Parliament. The Bill aims to extend the good character requirements for citizenship, clarify residency requirements and provide the Minister more powers to cancel, defer or revoke a person’s citizenship. The Bill is likely to have a significant impact on stateless people if passed.

In particular, the Bill may restrict access to citizenship for some stateless people and even allow for some individuals to be rendered stateless through revocation of citizenship. The Bill proposes amendments which would grant the Minister discretionary powers to overturn the findings of the Administrative Appeals Tribunal and prevent merits review of decisions made personally by the Minister in the public interest. Consequently, citizenship applications, such as those made by stateless people, may be refused by the Minister simply because they are not in the ‘public interest’, a very broad test which may result in the revocation of citizenship on grounds which are not fair or reasonable.

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