In 2017, a wide range of actors from across the Australian refugee sector and movement worked together to articulate a platform for reform of Australian refugee policy in 2018 and beyond. The contributors included: people from refugee backgrounds, NGOs, community groups, academics and grassroots organisations. As such, the views expressed here are informed by a broad cross section of expertise from across Australia. A list of associated organisations and groups is listed below.
Outlined below are the five key policy areas that we must change for Australia to return to a fair, egalitarian nation that will prosper into the future:
- The permanent end to offshore processing
- A fair process for claiming asylum
- Reform of the immigration detention system
- A larger and more responsive Refugee and Humanitarian Program
- Australia’s improved engagement in Asia
We briefly outline the problem, followed by our proposed policy solutions, with references to evidence and research outlined against the proposed solutions.
The permanent end to offshore processing
The policy of detaining people seeking asylum on Nauru and Manus Island has had devastating impacts on those subject to it. This includes:
- Deteriorating mental health, including: very high levels of depression, anxiety or post-traumatic stress disorder; alarming incidents of threatened or actual self-harm; and high risk of suicide.
- Deteriorating physical health due to poor living conditions, limited access to medical facilities and doctors, and Immigration Department restrictions on transfers of people back to Australia (including the separation of families).
- Continued and escalating reports of sexual abuse and other serious harm, including fear of safety within detention centres and in the community.
- Escalating pattern of deportations and ‘voluntary returns’ despite lack of fair process and clearly established risk of harm.
- Families separated between the islands and Australia, without any current hope of resolution.
- The damage and human cost of this regime has been documented in a variety of reports and assessments by international and Australian organisations. Recently, those held on Manus Island sued the Australian Government for the harm that their ongoing detention has caused. The Australian Government settled for over A$70 million, the largest ever pay-out in a human rights class action.
Costly, damaging and illegal
- The offshore processing regime costs over A$1 billion per year, more than A$464,000 per person annually. Since the re-emergence of offshore processing in 2012, the Australian Government has spent more than A$5 billion on measures which have harmed people seeking protection.
- The refugee status determination processes have been marked by lengthy delays, inadequate processes and lack of judicial review in PNG. When people have been found to be in need of refugee protection, the options available to them – permanent settlement in PNG or Cambodia or temporary protection in Nauru – have offered no real hope of long-term security, safety or a viable future. The resettlement deal Australia has brokered with USA offers some hope to refugees on Nauru and Manus Island but there remains a lack of clarity around basic details of the transfer including how many people, when and treatment of those in Australia with split families.
- The expectation of basic safety cannot be met at offshore processing centres nor within communities. This is evident by the deaths of nine people over the past four years: one murdered, and eight others dying as a result of inadequate health care and/or suicide. The “Nauru Files”, over 2000 leaked documents, detail the lack of safety for people transferred to Nauru. These include records of sexual assaults (including against children), untreated injuries, and self-harm. The PNG detention centre has been subject to external attacks, including a shooting in April 2017.
- The PNG Supreme Court determined in April 2016 that the detention of people seeking asylum is not legal under the PNG constitution. Nevertheless, people remain without adequate options for safety and security.
Proposed policy solution
Our vision: Australia ends offshore processing and instead processes all people onshore. Australia ends the practice of “turning back boats” and instead provides search and rescue; cooperates with the region for safe disembarkation/reception and protection measures. Australia ends its detention and deterrence approach and instead responds to people seeking asylum in line with its responsibilities under the Refugee Convention.
This can be achieved by:
- Urgently resolving the situation of those currently in detention centres on Manus Island and Nauru, to end their long-running suffering.
- Closing all Australian-funded offshore detention, processing and transit facilities.
- Bringing all refugees and people seeking asylum to Australia while determinations are made about durable solutions.
The ideal option would be for Australia to resolve this issue quickly by itself by:
- bringing all people trapped on Nauru and PNG to safety in Australia
- ensuring all asylum applications are assessed fairly and quickly, and
- giving recognised refugees permanent protection.
While not ideal, still better options would be:
- An expedited U.S. resettlement deal which resolves the issue for most people
- Small numbers being resettled elsewhere, such as New Zealand
- Even smaller numbers being transferred to and remaining in Australia for medical treatment or other exceptional circumstances, with their cases resolved quietly (as with the last Pacific Solution)
- People with family links overseas being sponsored for resettlement in other countries
- Split families with members in Australia being reunited
- Resolving this situation would not create a pull factor if there is a broader regional vision and an increased commitment to refugee resettlement
- Legislating to bar future Australian Governments from enacting offshore processing and detention.
A fair process for claiming asylum
Inadequate legal rigour
Since 2014, people seeking asylum who arrive by boat and do not have a valid visa are no longer entitled to access the Refugee Status Determination process.A fair process requires adequate access to legal services and independent review. Research conducted in the UK and Ireland shows legal assistance increases the confidence of asylum seekers to present their case and improves the quality of decisions.
Forced destitution, exploitation and the threat of detention
Many people seeking asylum are left in the community with no government-funded support for 12 or more months awaiting legal processes and thus experience a prolonged period of financial crisis. Community Services are experiencing significantly increased demand for prolonged emergency relief (ER). The Australian Council for Social Service acknowledges that ‘ER was originally designed as a stop-gap measure, to help solve short-term financial problems’. However, the situation facing many vulnerable people seeking asylum falls outside of this traditional situation to which ER was intended to respond. The management of the ‘legacy caseload’ and the regular policy changes to the Status Resolution Support Service (SRSS) are directly resulting in increased destitution. Recent issuing of the ‘Final Departure Bridging E Visas’ is a prime example. The majority of vulnerable people affected by these decisions will also lose access to government-funded support, leaving them in the precarious situation of having to make important decisions about their future, often while struggling to meet their basic needs. Another area of concern is making people ineligible for SRSS if they send transfer money domestically or overseas.
If denied a bridging visa, people will live in fear of being re-detained, will be unable to access health care, have no income support and be unable to work. This situation has serious mental health ramifications across Australia.
Temporary protection: creating fear and obstructing settlement
Temporary Protection Visa (TPV) and Safe Haven Enterprise Visa (SHEV) holders do not have the same access to services, rights and residency or citizenship pathways as refugees who hold a Permanent Protection Visa. The key difference between people seeking asylum eligible for a Permanent Protection Visa and those eligible for a temporary visa is their method of arrival in Australia, not the legitimacy of their refugee status. TPVs cause a considerable amount of ‘human suffering’, as stated in the Senate Legal and Constitutional Affairs Committee’s 2006 Inquiry into the Administration and Operation of the Migration Act 1958 (Cth). This occurs both by introducing the risk that refugees might be removed to the country where they had feared persecution, and by denying refugees the right to be reunited with their families.
TPVs have detrimental effects on the mental health of refugees. These detrimental effects are compounded by limiting the entitlements of TPV holders to access accommodation, language training, health care and other essential services. Moreover, refugees who faced the prospect of ‘rolling’ TPVs are placed in a state of ongoing legal limbo. A study by mental health experts in 2006 found that refugees on TPVs experienced higher levels of anxiety, depression and post-traumatic stress disorder than refugees on Permanent Protection Visas, even though both groups of refugees had experienced similar levels of past trauma and persecution in their home countries.
The impact of TPVs on children was documented in 2004 by the Australian Human Rights Commission, who found that the uncertainty created by TPVs detrimentally affected the mental health of children and their ability to fully participate in educational opportunities in Australia. TPVs also had the effect of separating children from their parents and family for long, and potentially indefinite, periods of time.
In addition to the human costs of TPVs, the TPV regime is bureaucratically inefficient. It requires the full reassessment of an individual’s protection claim from scratch at the expiration of the TPV. There is little evidence that TPVs have a deterrent effect.
Proposed policy solution
Our vision: People seeking asylum in Australia are treated humanely and have access to a fair protection application process irrespective of how or when they arrived in Australia.
This can be achieved by:
- Repealing fast-tracking and restoring a single statutory Refugee Status Determination (RSD) process with full access to independent review by the Administrative Appeals Tribunal (AAT): independent review for those whose claims for protection are rejected is a central part of any open, fair and honest dispute process. After the restoration of a single RSD system, there must be reassessment of those whose claims were refused in the fast track process
- Providing a rigorous independent, merit-based appointment and re-appointment process for Members of the AAT (Migration and Refugee Division) and a minimum term of five years to avoid political influence and interference.
- Reinstating reference to the Refugee Convention in the Migration Act and repealing the provision (section 197C) that obligates the removal of a person from Australia irrespective of Australia’s international protection obligations (non-refoulement obligations, section 197C).
- Repealing temporary protection and restoring permanent protection: permanent protection provides the necessary degree of security people need to heal, settle and rebuild their lives.
- Restoring government funding for appropriate legal assistance and advice for people seeking asylum: reinstatement of government funding towards legal assistance for all people seeking asylum will assist the timeliness and quality of the application and review process.
- Ensuring access to income support, basic health care and work rights for all people seeking asylum. These supports need to be made available to all people – no matter their mode of arrival or stage in the determination process – assessed as being in financial hardship and at risk of destitution.
- Granting people seeking asylum access to mental health supports available to resettled refugees and others in the community and the right to send remittances without fear of losing support.
Reform of the immigration detention system
- Detention for people with no visa status is by law mandatory, or in effect the ‘first resort’ rather than the ‘last resort’.
- The system is deteriorating, with cruelty and dominance being used as tactics for control.
- There is no time limit on detention, resulting in prolonged and indefinite detention.
- There is no legislation that regulates the conditions of detention or its review, unlike in prisons.
- Release from detention is almost entirely at the discretion of the Minister and the Department of Immigration, with no transparency over most matters.
- Detention is only reviewed administratively and by some oversight bodies who can only make recommendations, and cannot be reviewed substantively by the courts.
- Increased securitisation of detention through introduction of Australian Border Force, including inappropriate use of restraints in detention, reduced freedom of movement within facilities and limits on visitor access.
- Laws requiring visas to be cancelled automatically, and empowering wide discretionary decisions resulting in detention, have significantly increased the population of those in detention, result in double and discriminatory punishment, and are not subject to independent or court review.
Proposed policy solution
Our vision: People seeking asylum in Australia are treated fairly and humanely with their human rights upheld. Mandatory, indefinite immigration detention ends and people seeking safety are free to live in the Australian community while their claims are transparently processed. A well-designed, risk-based triage process is implemented.
This can be achieved by a comprehensive review of immigration detention legislation, including:
- Repealing the mandatory detention provisions in the Migration Act.
- Stipulating in law maximum time limits on immigration detention.
- Codifying in law the prohibition of the detention of children.
- Regulating the criteria for immigration detention.
- Including in law the independent and judicial review of detention, to take place immediately when a person is detained and at regular intervals afterwards.
- Including in regulations and law the public scrutiny by independent monitoring bodies.
- Ensuring that all people have access to merits and judicial review of adverse security assessments.
A larger and more responsive Refugee and Humanitarian Program
- Enormous global need for resettlement, concurrent with the reduction of resettlement by the US government.
- De facto or announced exclusions of particular cohorts, including people stuck in Indonesia and particular minorities such as the Rohingya.
- Perception of certain groups being favoured because of perceived superior “integration potential” and hostility towards certain religions and ethnic groups.
- More than half of the current program is taken up effectively by applications for family reunion by people in Australia, but demand greatly exceeds supply.
- The community sponsorship of refugees is largely limited to the Community Support Program, which focuses on levying large visa application charges on family members as a way of cutting costs within the existing Refugee and Humanitarian Program.
Proposed policy solution
Our vision: Australia’s Refugee and Humanitarian Program increases significantly in size as Australia recognises that it should and can do more to contribute to durable solutions for the world’s refugees. Australia uses its refugee resettlement program strategically and holistically, linking it to aid and diplomatic efforts, which support solutions for refugees who cannot get access to resettlement. As part of its commitment to an enhanced response, Australia expands alternative migration pathways for refugees, increases access to family reunion outside of the Special Humanitarian Program and creates opportunities for increased community involvement in the refugee resettlement process.
This can be achieved by:
- The Refugee and Humanitarian Program (RHP) increasing in size in response to growing global need, and being strategically used as a lever to improve protection for those who are not resettled, especially in our region. The Program should be considered as an element in a whole-of-government approach to promoting protection, including through the use of aid and diplomacy.
- Promoting family reunion of refugees through the inclusion of a separate stream of humanitarian family reunion in the Migration Program.
- Enhancing public support for the Refugee Program by replacing the Community Support Program with a larger community-based private sponsorship program. Replacing the high-cost and restrictive Community Support Program with a separate and additional private sponsorship program for refugees based on the best aspects of the Canadian model, creating opportunities for broad-based community networks to get involved in raising funds and offering support to build a private sponsorship program of 10,000 places annually within five years.
- Restoring the Refugee and Humanitarian Program immediately to 20,000 and increasing the size of the Program to between 27,000 and 30,000 places annually within three years, and increasing each year in light of global needs.
- Increasing resettlement from Africa and most urgently resettling Rohingya refugees.
- Establishing an Emergency Response contingency quota to provide additional capacity to respond to urgent protection needs (such as the current crisis in Syria/Iraq).
- Establishing a pilot program to protect children at risk.
- Developing alternative pathways to protection through our Migration Program.
- Developing a whole-of-government approach that promotes peace and reconciliation in countries of origin, improves protection in countries of asylum, and enhances cooperation among resettlement states and between countries in the region.
- Using regional leadership, diplomacy and the benefits of our existing Refugee and Humanitarian Program to neighbouring states in advocating for better protection in countries of asylum in our region, including most critically:
- Durable solutions for Rohingya refugees
- The right to live and work legally and access to basic education and health services
- Reduce incentives for irregular movement by family members and promote the mental health of refugees in Australia through promoting family reunion by:
▪ Developing a separate Humanitarian Family Reunion program
▪ Alternatively, by improving access to the family stream of the Migration Program through concessions and waivers, and improved access to migration advice
▪ Removing restrictions on family reunion on those who come by boat
Australia’s improved engagement in Asia
- Most countries in the Asia Pacific region are not signatories to the Refugee Convention but several (Thailand, Malaysia and Indonesia) host large numbers of refugees.
- An urgent crisis in the region is the persecution of the Rohingya, which is rapidly coming close to genocide, without any durable solutions in prospect.
- Refugees in these countries face many challenges, including most critically:
- They are often not able to live or work legally, resulting in constant fear of deportation, destitution, illegal employment, and exploitation. In Indonesia this destitution is driving refugees to present themselves to detention in order to survive.
- They are often unable to access basic services, including health services and education.
- Calls by Australia for regional cooperation by Asia in relation to refugees often fail to recognise:
- The far greater numbers of irregular migrant workers in those countries, which pose a greater challenge for those countries, and the comparatively small number received by Australia.
- The fear of those countries that greater protection will act as a driver for further irregular migration and a shifting of the moral burden.
- The lack of Australia’s credibility in the region when it comes to refugee protection.
- The complexity of regional politics and the region’s attitudes to Australia.
Proposed policy solution
Our vision: Australia recognises that the interests of people and governments in the Asia-Pacific region are best served if nations work together to find the best answers available for people displaced by conflict and persecution, using its diplomacy, aid and refugee resettlement program to address the causes of displacement and increase access to durable solutions.
This can be achieved by:
The Australian Government must shift its focus from promoting deterrence and detention for people on the move in Asia, bringing the aid and diplomacy activities of the Department of Foreign Affairs and Trade and the refugee resettlement program of the Department of Home Affairs together into a coherent strategy to support:
- The early identification of causes of displacement in the Asia-Pacific region.
- Rebuilding after conflict and supporting the process of voluntary and safe repatriation of refugees when that becomes possible, viable and appropriate.
- Efforts to encourage host nations in the region to address the needs of refugees within their borders, particularly the need for safety, freedom from detention, legal status, the right to work and access to education and health programs.
- Continuing engagement in refugee resettlement from the region, working with other resettlement states (particularly New Zealand, Canada and USA) to focus on the protection of the most vulnerable and those with fewest options for durable solutions, while also using engagement in resettlement strategically to push for improved protection of refugees in host nations.
- Greater engagement with civil society across the region, encouraging governments to work with NGOs, refugee community networks, business and local leaders to work together on better answers for refugees, returnees and host communities.
- Refugee Council of Australia
- Academics for Refugees
- Advocacy for Oromia Association in Victoria Australia Inc
- AEU – NSW Teachers Federation
- Aireys Inlet Rural Australians for Refugees
- Amnesty International Australia
- Armidale Rural Australians for Refugees
- Asylum Seeker Advocacy Group
- Asylum Seeker Resource Centre
- Asylum Seekers Centre NSW
- Australian Catholic Migrant and Refugee Office
- Australian Catholic Social Justice Centre
- Australian Churches Refugee Taskforce
- Australian Council of Social Service
- Australian Women in Support of Women on Nauru
- Ballina Region for Refugees
- Blue Mountains Refugee Support Group
- Brigidine Asylum Seekers Project
- Canberra Refugee Action Committee
- Caritas Australia
- Catholic Alliance for People Seeking Asylum
- Centre for Asylum Seekers, Refugees and Detainees
- Centre for Human Rights Education, Curtin University
- ChildFund Australia
- ChilOut – Children out of Immigration Detention Centres
- Darwin Asylum Seeker Support and Advocacy Network inc.
- Edmund Rice Centre for Justice and Community Education
- Ethnic Communities Council of Victoria
- Ethnic Communities Council of Western Australia Inc.
- Federation of Ethnic Communities’ Councils of Australia
- Grandmothers Against Detention of Refugee Children JagaJaga
- Grandmothers Against Detention of Refugee Children Newcastle
- Grandmothers Against Detention of Refugee Children NSW
- Haiti 35 Incorporated
- Human Rights for All Pty Ltd
- Hunter Asylum Seeker Advocacy
- Independent Education Union of Australia
- Institute of Sisters of Mercy of Australia and Papua New Guinea
- International Alliance Against Mandatory Detention
- International Social Service Australia
- International Society for Human Rights Australia Inc.
- Jesuit Refugee Services
- Jesuit Social Services
- Justice for Refugees SA
- Mercy Works
- Missionaries of the Sacred Heart Justice and Peace Centre
- Multicultural Centre for Women’s Health
- Multicultural Services Centre
- NSW Council for Civil Liberties
- Oromia Support Group Australia
- Pax Christi Australia
- Refugee Advice and Casework Service
- Refugee Advocacy Network
- Refugee Action Collective Eurobdalla
- Refugee and Immigration Legal Service Inc.
- Refugee Legal
- Rural Australians for Refugees
- Safe Asylum
- SCARF Incorporated
- Social Justice Commission, Catholic Diocese of Toowoomba
- Sydney Multicultural Services
- The Bayside Refugee Advocacy and Support Association
- The Community of South Sudan and Other Marginalised Areas NSW
- The Friends of HEAL Foundation
- The Humanitarian Group
- The Tasmania Opportunity
- Trinity Aid for Refugees
- Welcome to Australia
- Welcome to Eltham
- Whittlesea Community Connections
- Wyndham Community and Education Centre