Asher Hirsch, Senior Policy Officer, Refugee Council of Australia
10 November 2017, Migration Institute of Australia Conference, Melbourne.
For refugee and humanitarian entrants, Australian citizenship has a special significance. Gaining citizenship marks both their integration into their new country and the end of their displacement. For many, it will mark the first time they have experienced the protection of a State, rather than its persecution.
Citizenship provides refugees with the safety they need to settle and heal, and gives them the security to build and imagine their new lives. For this reason, most refugees and humanitarian entrants are eager to apply for citizenship as soon as they can, and prize it highly.
However, rather than seeking to provide refugees with the security that citizenship brings, the Australian Government has sought to place numerous hurdles in their path.
The title of this paper — Denying Refugees Citizenship: The Australian way — is perhaps a little disingenuous, as the Australian Government hasn’t denied refugees citizenship outright. It has made accessing eligibility for citizenship harder, and in some cases impossible. However, the effects of these changes are the same – refugees are prevented from receiving safety, security and a new society.
The importance of citizenship for refugees
The right to a nationality is an essential human right. Article 15 of the 1948 Universal Declaration of Human Rights declares that everyone has the right to a nationality. Nationality creates rights and duties for both the State and the individual.
These rights are often not available to a person without citizenship, resulting in a lack of opportunity, protection and participation. As Hannah Arendt famously stated, those without citizenship are left without a “right to have rights”. While human rights apply globally, citizenship is the main way through which people can access these rights.
Citizenship has particular significance for refugee and humanitarian entrants. Refugees are, by definition, unable to return to their country of origin because of a well-founded fear of persecution or other forms of serious harm.
Australian citizenship is therefore often the first effective and durable form of protection that many refugees receive, and is celebrated and cherished by them. For those who know what it is like to live without freedom and democracy, obtaining citizenship in a free and democratic country is particularly meaningful.
As one former refugee noted in the Refugee Council of Australia (‘RCOA’)’s community consultations:
Having a citizenship is highly valued. It gives you equal rights and equal protection for the first time. Refugees are honoured to have an Australian citizenship and we appreciate the rights, protection and obligations that comes with it. If we didn’t have Australian citizenship, we would have nowhere to go.
Citizenship has a further important purpose for people who came by boat. Ministerial Direction 62 (now replaced by Ministerial Direction 72) places applications for split-family reunion by those who arrived by boat at the lowest processing priority. Given the large number of applications and the quota on these applications, this policy makes family reunion under the humanitarian program effectively impossible for those who arrived by boat, leaving tens of thousands without the chance to propose their family for resettlement. Once people receive citizenship, they are placed further up the priority list. However, with the increasing barriers to citizenship, these people can’t reunite with their family.
Obligations under the Refugee Convention
Gaining citizenship also plays a central role in resolving the situation of refugee and humanitarian entrants. This is recognised by the 1951 Refugee Convention, which requires its signatories to “as far as possible facilitate the assimilation and naturalisation of refugees” and “make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings”. Further, two of the three durable solutions for refugees promoted by the United Nations High Commissioner for Refugees (UNHCR) — local integration and resettlement — rely on refugees becoming citizens of another country.
For many refugee and humanitarian entrants, obtaining citizenship represents the culmination of their journey: the point at which they are no longer displaced; can rebuild their lives in safety and security; and feel the sense of belonging which was denied to them in their country of origin.
Citizenship has even greater significance for stateless people, who by definition are not recognised as nationals of any country. The status of stateless people can only be resolved by obtaining citizenship. Under the 1954 Convention Relating to the Status of Stateless Persons (‘Statelessness Convention’), Australia is also required to “make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings”.
However, rather than adhering to its obligations under the Refugee Convention and the Statelessness Convention, Australia has made it harder, not easier, for refugees to obtain citizenship. This is through freezing the processing of citizenship applications from refugees, introducing temporary protection visas, and seeking to introduce new English-language tests and other hurdles.
Delays in citizenship applications for refugees
In 2015, RCOA was contacted by a number of refugee community members who raised their concerns with us about the length of time their citizenship application was taking. At time, we did not expect it to be such a widespread issue. One evening, I held a consultation in our tiny three-person office, and over 50 people showed up to share their concerns about the length of time they were waiting for citizenship.
We compiled this information into a report, and found that in October 2015, refugees were waiting on average about 215 days to receive citizenship, with most of those affected being people who arrived by boat and had been found to be refugees onshore.
We heard stories of people being told they passed their citizenship test and that they will be invited to attend a ceremony within a few weeks, yet were never contacted again.
Some people received text messages the day before their ceremony informing them that the ceremony was cancelled. When people contacted the Department of Immigration and Boarder Protection (‘Department’), they were told that their applications were “processing” and to not to contact the Department again.
When we contacted the Minister for Immigration, he responded by saying that there was no change in policy, and that there was no policy that discriminated against refugees.
However, delays continued to increase, and we grew suspicious. Indeed, most citizenship applications were still being processed within the Department’s service standard of 80 days, but for refugees they were waiting sometimes over one year.
With the support of an amazing pro bono legal team, we lodged an application in the Federal Court on behalf of two Hazara refugees who were waiting over 14 months for an outcome on their citizenship application. By the time of the hearing in July 2016, over 10,000 other refugees were also waiting for citizenship, half of whom were waiting over 6 months.
Evidence eventually provided by the Department shows in fact there was a policy change, and that refugees without identity documents were discriminated against.
In 2014, an internal review of the Department’s processes for citizenship applications recommended a more thorough assessment to detect fraud in the citizenship application process.1 Further, in June 2015, the Australian National Audit Office released a report recommending that the Department revise their processes for assessing identity in the citizenship application process.2
These two policy changes, while on one hand understandable, have had a profound impact on refugees, many of whom have no documents that can attest to their identity from birth. Indeed, those fleeing persecution at the hands of their governments are often not going to be able to access identity documents before leaving.
However, rather than processing refugees’ citizenship application under this new system, evidence before the court shows that the Department simply left the applications on hold.
The Department even referred to these applications as being “filed in the Undocumented-Arrival Drawer”. It seems the Department simply left these applications in a draw (whether a physical or metaphorical drawer), for well over one year.
BMF16 v Minister for Immigration
Justice Bromberg in our case of BMF16 found that “the Department took no steps to progress [the applicants’] applications for some 14.5 months” (BMF16 v Minister for Immigration and Border Protection  FCA 1530 ).
Bromberg held that while “a delay of about 3 months to develop and implement new procedures seems justifiable”, any further delay is unreasonable and therefore unlawful under the Administrative Decisions (Judicial Review) Act (Ibid, ).
The Court also found that an “absence of resources is not in general an excuse for maladministration” and therefore the Department cannot simply point to understaffing or other resource issues to justify their failure to make a decision within a reasonable time (Ibid, ).
However, despite this finding, the Department continues to delay citizenship application for refugees, and the waiting time is getting worse.
In February 2017, as a follow-up to our 2015 report, RCOA conducted a survey of nearly 980 people of refugee background. Of these, 928 were still awaiting a response to their citizenship application.
92% of respondents experienced delays greater than six months – over this time, a delay would be unreasonable, according to the Federal Court. The average waiting time of those surveyed was over 16 months. Two-thirds of those waiting had been waiting over a year, while 13% had been waiting over two years.
Further, recently obtained freedom-of-information requests show that a majority of applicants from Afghanistan, Sri Lanka, Iraq are still waiting for an outcome of their applications submitted in 2015 and 2016.
For applicants from Afghanistan who lodged in 2016, only 21% have had a decision on their application, while only 37% of applicants from Afghanistan who lodged their application in 2015 have received a decision.
These delays are likely to be made worse with the Department freezing all citizenship applications since 20 April 2017, creating a backlog of over 120,000 applications. While citizenship applications are now being processed again, it is unclear if the Department has allocated additional staff to fix this backlog, as required by law.
On top of this, the new requirements to provide identity documents from birth is a significant hurdle which most refugees are unable to meet. This has led to increased refusals based on identity grounds.
The Department must look at developing alternative processes to ascertain the identity of refugees.
These people have lived in Australia for at least 4 years, remain on a permanent visa and cannot return home.
It makes no sense that the Department was satisfied of their identity when they granted them a permanent visa, but now cannot be satisfied of their identity to grant them citizenship.
In order to assess the identity of refugee applicants for citizenship, the Department has now also began conducting interviews to assess a person’s credibility.
These interviews are incredibly adversarial, with the Department going back to a person’s refugee application and quizzing them on minute details in order to trip them up and thereby refuse an application based on inconsistent information. This is often very traumatic for someone, as they are required to recount their entire claim of persecution, often without the assistance of a lawyer.
It seems to us that the Department is doing everything they can to find ways to deny refugees citizenship through this process, rather than seeking to welcome and include those wishing to join our community.
Temporary Protection Visas
A further barrier to citizenship is the reintroduction of Temporary Protection Visas (‘TPV’) and the introduction of Safe Haven Enterprise Visas (‘SHEV’). Refugees who arrived in Australia by boat before July 2013 are now only given the choice of a three-year TPV or a five-year SHEV.
For those on a TPV, they must be reassessed for protection every three years, with no prospect of permanent residency and therefore no prospect of citizenship. These are people who have fled war and persecution, and who often will never be able to return home. Instead of welcoming this group, we are creating a second class of residents who will never be able to settle in Australia.
The SHEV on the other hand has a tiny glimmer of hope. If a person on a SHEV works or studies in a designated regional area for three-and-a-half years out of their five-year visa, without receiving income support, they may be permitted to apply for another skilled, student or spouse visa in Australia. From this, a person can then transition to a permanent visa, and then eventually be eligible for citizenship. However, this process is likely to take many years, with many potential hurdles that would make a person unable to receive a visa, such as not meeting the skills or language requirements for their subsequent visa.
Australian Citizenship Legislation (Strengthening Requirements) Amendment Bill 2017
A further attempt to prevent refugees obtaining citizenship was the introduction of the Australian Citizenship Legislation (Strengthening Requirements) Amendment Bill 2017 (‘Bill’).
Fortunately, with strong community collaboration, this Bill was defeated in the Senate two weeks ago. However, the Minister for Immigration has indicated that he seeks to introduce an amended version of the Bill before June next year.
For the sake of time, I will not discuss the proposed changes in detail, as they have likely been covered previously at this conference. You can read our concerns with this Bill on RCOA’s website. Briefly, the Bill proposes including increased English-language test to IELTS Level 6, requiring four years on a permanent visa and demonstrating integration. The proposed changes would have hit refugee communities the hardest.
The Government has justified the proposed Bill by claiming it will improve social cohesion and ensure that citizenship is valued. Yet by effectively excluding certain people from citizenship, the Australian Governments is in fact undermining social cohesion, and denying citizenship to those who value it most.
Delays, increased tests, TPVs and the proposed changes will see more refugees denied a chance to make Australia their home. Not only are these barriers contrary to our international obligations and devastating for refugee communities, they are counter-productive to Australia’s own interests.
By denying refugees the security of citizenship, we create a second class of residents who have no place in the world to call home. We keep families part, and prevent people integrating and contributing to our economy and society.
The solutions are rather simple. We must adhere to our international obligations to make every effort to expedite naturalisation proceedings for refugees, end the cruel policy of TPVs and SHEVs, and seek to create a welcoming community for refugees.