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Refugee Response Index (RRI) Australia Review – Pillar 3: Refugees enjoy their rights

This report presents interim findings from the application of the Refugee Response Index (RRI) to the Australia context, focusing on Pillar 3 of the RRI on ‘Refugees enjoy their rights’.

RRI Pillar 3 interim report
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The RRI is a civil society led initiative that was officially launched in 2022 to assess and monitor countries’ responses to refugees and asylum seekers in an independent and comprehensive manner. It covers each component of an adequate refugee response and can be used in any country context, regardless of size and contribution to the global refugee response. Without a global monitoring and data collection tool to thoroughly and independently assess how states contribute to refugee protection, well-evidenced policy and program design suffers.The RRI provides a baseline measure of country performance as reflected in international legal standards and best practices including the Sustainable Development Goals, the non-binding 2018 Global Compact on Refugees and the 2016 New York Declaration for Refugees and Migrants.

New York Declaration for Refugees and Migrants

Developed over several years through extensive consultations with key actors in the international refugee protection regime, the RRI consists of six pillars which cover the main components of a multi-dimensional refugee response. It also includes cross-cutting indicators on gender, age, diversity, and conditions that enable a multi-stakeholder approach. In total, there are over 160 indicators that have been developed to measure a country’s response. More information and the guidebook detailing the RRI methodology and indicators can be found here.

RRI Pillar 3

About the RRI Australia Review

In early 2022, Refugee Council of Australia (RCOA) began coordinating a review of Australia’s response to refugees and people seeking asylum using the RRI methodology. This review has been undertaken by a team of staff, interns and volunteers, with considerable input from key experts in the field. External verification of indicator assessment by international experts on refugee law and policy and support with applying methodology has been facilitated by DARA.[1]

While RCOA is in the process of completing the full implementation of the Index, the findings from Pillar 3 are compiled here as a stand-alone piece of work. Pillar 3 reviews the extent to which refugees are able to enjoy their rights in Australia, and includes 52 indicators across four key components as well as cross-cutting themes.

Considering the significant variation in Australia’s response to refugees depending on a person’s mode of arrival to Australia and visa status, indicators have been assessed separately for refugees who have sought asylum or had their status recognised in Australia (‘refugees’) and for refugees resettled through the offshore Humanitarian Program (‘former refugees’). Appendix A in the full report provides a summary of the categories used in this RRI review. Appendix B also in the interim report provides an overview of scores for each Pillar 3 indicator and by cohort — cohort (a) being refugees on permanent, temporary or bridging visas; and cohort (b) being resettled (former) refugees.

For more information about the Australia RRI review and how you can contribute, or to view the detailed indicator assessments for Pillar 3, contact: Dr Louise Olliff, Senior Policy Advisor, Refugee Council of Australia (louise.olliff [AT] refugeecouncil.org.au).

Pillar 3. Refugees enjoy their rights

The following summarises the findings against Pillar 3 indicators in numerical and narrative form, including some of the evidence used to substantiate scoring of indicators. This review is for the 2021 calendar year. It should be noted that 2021 was an anomalous year in many ways due to the COVID-19 pandemic. Where data was not available for the 2021 calendar year, the 2020-21 fiscal year was used in its place.

Overview

In the Australian context, the extent to which refugees enjoy their rights is largely dependent on mode of arrival in Australia and, correspondingly, their legal status and visa subclass. While refugees enjoy many rights, across all components significant differences can be seen in rights enjoyment, entitlements and access to services and assistance for those who arrived in Australia seeking asylum compared with those who were found to be refugees in another country and arrived as permanent residents (i.e. resettled refugees).

Among refugees who sought asylum in Australia, those who arrived on another visa type and then applied for protection are treated differently to those who arrived without a visa (i.e. by boat), with the most precarious status and fewest rights being afforded to refugees subject to offshore (regional) processing.[2] In 2021, around 1,200 people in this cohort were living in the Australian community on short-term bridging visas or were held in immigration detention centres in Australia.[3] Many of this group are recognised refugees, all can be returned to Nauru or Papua New Guinea at any time, and there are very limited longer-term (durable) solutions available. As it can take several years for an asylum application to be finalised, refugees living on short-term bridging visas awaiting a resolution of their claim have limited entitlement to services and assistance to meet basic needs and face a range of distinct challenges that relate to visa and legal status.[4]

Variation in rights enjoyment within cohorts also exists. For example, among refugees who are waiting for a resolution of their status, some will have work rights and others will not.[5]  Even among resettled (former) refugees, whether a person was sponsored by a family member living in Australia through the Special Humanitarian Program or was granted a Refugee visa through a UNHCR referral processes will make some difference in terms of access to on-arrival assistance to meet basic needs.[6]

In sum, scoring of indicators under Pillar 3 should be treated with some caution because of the complexity of the policy context and how this leads to significant variation in the treatment of different cohorts of refugees. At the same time, it can be clearly seen that indicators that relate to resettled refugees were scored higher than for other cohorts, highlighting the capacity for refugees to enjoy their rights in the Australian context were access and entitlement not as contingent on mode of arrival, legal status or visa subclass.

Component 3.1: Refugees are not arbitrarily deported

The three indicators in component 3.1 were assessed only for refugees seeking asylum, on bridging, temporary or permanent protection visas (i.e. cohort 1). This is because resettled refugees arrive in Australia as permanent residents, in which case cessation clauses and collective expulsions are not relevant, and risk of arbitrary deportation is very low.[7]

On the question of whether recognised refugees are sent back to their country of origin, a transit country, or any third country where adequate protection is not guaranteed, it is clear that select categorical returns do occur. Refugees subject to Australia’s offshore regional processing have been sent, or are at risk of being returned to, third countries (Papua New Guinea and Nauru) where protection has been found to be inadequate.[8] In addition, Australia’s boat turn back policy (Operation Sovereign Borders) has returned recognised refugees to Indonesia (transit country) where adequate protection is not guaranteed, as well as asylum seekers to Sri Lanka (country of origin) who have subsequently been found to be refugees.[9]  Boats have been returned to Sri Lanka as recently as June 2022.[10]

With regard to cessation clauses, there has been good application in the Australian context. The majority of recognised refugees are granted permanent protection visas, in which case cessation clauses are not applicable. In the case of those granted temporary protection, there is precedent for cessation clauses to be applied in decisions not to renew a protection visa, but there are avenues to challenge decisions.[11]

The international prohibition of collective expulsions has been applied consistently by Australia.

Component 3.2: Refugees enjoy civil and political rights

As seen in many of the indicators under component 3.2, Australia generally extends civil and political rights to refugees and people seeking asylum. This includes the right to property ownership, non-political civil association, the practice of one’s own religion, access to courts and the legal system, and the issuance of international travel documents to recognised refugees. The areas where rights enjoyment are more limited or only partially applied concern the guarantee of security and physical integrity, access to family reunification, freedom of movement, and the issuance and renewal of official identity documents.

Whether or not the security and physical integrity of recognised refugees is guaranteed depends on mode of arrival, visa status and where a person is located. For refugees subject to Australia’s offshore processing regime in Nauru, PNG or in held detention in Australia, there is clear evidence to suggest a lack of security and physical integrity in practice.[12] This includes incidents of assaults, sexual abuse, self-harm attempts, child abuse and inadequate living conditions.[13] During the COVID-19 pandemic, the physical safety of refugees held in immigration detention centres was compromised[14] and legal cases are ongoing concerning the lack of security and physical safety of refugees subject to offshore processing.[15]

In terms of the right to family reunification for recognised refugees, refugees granted permanent protection visas (886 subclass visa) are eligible to reunite with nuclear (‘split’) family members under the Special Humanitarian Program (SHP).[16] Applications for split family members are prioritised for processing. Recognised refugees who arrived in Australia by boat are also technically eligible to apply to reunite with split family members through the SHP, however government policy makes it practically impossible for visas to be granted. This is due to government policy which places applications proposed by someone who arrived by boat as the lowest processing priority. Due to the vast oversubscription of the SHP, in practice the applications submitted by temporary visa holders to reunite with immediate (split) family are unlikely to ever be processed under current policy settings. The wide gap between demand for family reunification through the SHP and number of visas allocated under this program also means there are significant obstacles to family reunification in practice.[17]

Concerning restrictions on freedom of movement, while the majority of recognised refugees can move freely within Australia, there are a small number who have been detained in closed immigration detention facilities where there is no freedom of movement. Moreover, this restriction on movement for refugees in detention can be indefinite. In 2020-21 there were 73 recognised refugees in immigration detention centres without freedom of movement due to visa cancellation.[18] Furthermore, recognised refugees subject to offshore (regional) processing can be forcibly transferred to Nauru or PNG at the discretion of the Australian government.

Finally, while all recognised refugees are issued an ImmiCard[19] without cost that can be used as an official identity document, there can be delays and costs for issuing other important forms of identity documents, including Convention Travel Documents (CTDs) and Certificates of Identity (COIs), as well as Medicare cards and driver’s licences that are issued by different Federal or State/Territory authorities. ImmiCards are not always accepted as primary forms of ID when applying for access to services or supports which may require multiple forms of ID that refugees may find difficult to procure. Although recognised refugees should be able to renew identity documents, there are a range of obstacles that can result in delays, difficulties and costs. For example, ImmiCards have an expiry date that is not automatically renewed and there can be substantial delays and costs associated with renewing a CTD or COI with the Australian Passports Office.[20]

Component 3.3: Refugees are provided with basic needs and services

Access to housing, food and (some) healthcare for refugees in Australia is mostly facilitated through the provision of financial assistance unless a person is held in immigration detention. There were a number of indicators under this component where scores were assessed as ‘3’ (minimum standards met or some gaps) because of the significant financial hardship facing refugees reliant on government financial assistance. For example, while there is high quality and diverse foods available in Australia, refugees on temporary visas and people seeking asylum on bridging visas may experience destitution due to policy restricting work rights and the inadequacy of financial assistance available. Financial assistance that those seeking a resolution of their protection claim may be eligible for through the Status Resolution Support Service (SRSS) has been shown to have led to destitution, a reliance on charity, and an inability to access sufficient food.[21] The Australian Human Rights Commission notes that SRSS payments put recipients well below the poverty line.[22] While most private and social housing in Australia meets international standards, recognised refugees on temporary visas face a range of challenges accessing adequate accommodation and are at higher risk of homelessness or housing insecurity. Due to the crisis of housing affordability in Australia more broadly,[23] refugees receiving financial assistance or on a low income without a rental history face significant barriers accessing suitable accommodation.[24]

There are a very wide range of State-sponsored social services in Australia delivered across three levels of government (federal, state/territory and local). While access to services for recognised refugees is frequent, it is not always systemic or equal to those available to Australian citizens or permanent residents.[25] There may be varying eligibility to different services depending on whether someone was granted a permanent or temporary protection visa, and very limited eligibility for those on bridging visas waiting for a resolution of their status. For example, refugees on temporary or bridging visas who were eligible for some income support received significantly less State-sponsored social assistance during the COVID-19 pandemic than citizens or permanent visa holders.[26]

There are a range of barriers that refugees in Australia face in accessing adequate healthcare, relating to familiarity and trust in the Australian healthcare system and a range of systemic barriers, particularly for refugees on temporary or bridging visas. Although interpreting services and targeted health promotion campaigns are available and used widely in Australia, there are still recognised gaps, such as the inconsistent use of interpreters in mainstream healthcare settings.[27]

While access to primary and secondary school for refugees in Australia is universal, access to university education is an area where refugees face a range of difficulties in practice. In theory, refugees on temporary and bridging visas are eligible to access university education under the same conditions as non-refugee foreigners, but in practice university courses are inaccessible to this cohort due to very high university fees charged to international students. A limited number of refugee scholarships exist to facilitate access.[28]

Component 3.4: Refugees have access to the labour market

In Australia, refugees on temporary and permanent protection visas have the right to work. Whether a person on a bridging visa waiting for a resolution of their status has the right to work, on the other hand, is largely contingent on where they are in the legal process[29] and what visa they originally arrived on. Asylum seekers usually remain on a bridging visa with the same conditions as their original visa. It means their access to work rights can be limited or denied, despite the change in their personal circumstances. For example, people who entered Australia on a tourist visa often have no work rights. As of 31 August 2021, there were 1,782 people on bridging visas without work rights.[30] With finalisation of refugee status determination (RSD) taking up to 8 years, this can mean a denial of work rights for a substantial period of time.[31]

While refugees with work rights have access to the same protections from discrimination in the workplace as nationals, refugees without work rights trying to survive may be working informally and vulnerable to exploitative conditions without access to labour protections or legal recourse.[32] Research suggests higher reported rates of racism and discrimination in the workplace by refugees in Australia compared to other migrants and Australia-born.[33]

Two areas where Australia’s response could be improved significantly include support for job placement and overseas skills and qualification recognition. Refugees on permanent visas have access to State-funded employment services on par with nationals. Refugees on temporary visas have some access to these services, but with limitation placed on the level of support able to be provided by contracted services (i.e. lower than nationals). Refugees on bridging visas have limited or no access to government-funded job placement assistance, although there are a number of non-government asylum services that have established employment assistance to fill this gap.

There are significant gaps in formal processes to recognise overseas qualifications, skills and experience in Australia. Processes are complex, overseen by different authorities and regulatory bodies (state/territory governments, industry regulatory bodies etc.) and can be inaccessible for many skilled and qualified refugees due to cost, language barriers, difficulties accessing required documentation and other challenges.[34] In some industries, refugees must retrain in Australia despite having relevant qualifications and work experience.[35]

Indicator 3.4.7 asked if refugees who obtain employment have the same access to social security and benefits available to nationals. Although this was a yes (5) /no (1) answer, we assessed this indicators as a ‘3’ as most refugees do have access, however refugees on temporary or bridging visas who are employed do not necessarily have  the same degree of access as that available to nationals or permanent residents. For example, during the COVID-19 pandemic, temporary visa holders were not eligible for government-funded social security for employees who were unable to work due to lockdowns.[36]

Component: Cross-cutting issues

In so far as basic assistance is available (see above), the needs of cross-cutting groups in Australia are taken into some consideration. For example, for refugees who are eligible for social security payments there is streamed income support for women with caring roles, disability services, pension and carer support payments for people with disabilities, and income support that is sensitive to life stages (e.g. youth allowance, aged pension). There are specialist health services in Australia that target refugee women and refugee men, people with disabilities, sexual minorities and older and younger people. However, access to many basic services and supports can be contingent on visa status, with refugees on bridging or temporary visas ineligible or facing additional challenges accessing basic assistance to meet their needs irrespective of gender, age, disability, sexual or ethnic minority status.[37]

Alongside shared concerns raised about differential access to basic assistance and visa status, groups representing LGBTQIA+ refugee communities in Australia have highlighted a range of concerns about the protection of LGBTQIA+ refugees’ civil and political rights and access to work.[38] Similarly, groups supporting trafficking victims suggest that, while Australia has a comprehensive framework to guarantee civil and political rights of survivors of trafficking and slavery, some of these protections (e.g. referral for a Referred Stay Visa and long term support under the Support for Trafficked People Program) are contingent on whether a person is willing to participate in a criminal justice process, with significant concerns voiced about the limitations to this approach.[39]

Finally, the Australian government does facilitate a multi-stakeholder approach in the pursuit of refugees enjoying rights, with active and robust engagement between different levels of government, civil society actors, and the private sector.

[1] RCOA: Louise Olliff (Pillar 3 Lead), Asher Hirsch, Sahar Okhovat, Rebecca Eckard, Aníbal González Quinteros, Jennifer Watson, Paula Cruz Manrique.. Verification: DARA

[2] Refugee Council of Australia (2022). Offshore processing statistics

[3] Human Rights Law Centre, Andrew & Renata Kaldor Centre for International Refugee Law, & Refugee Council of Australia (2022). Torture and cruel treatment in Australia’s refugee protection and immigration detention regimes: Submission to the UN Committee Against Torture’s sixth periodic review of Australia, 27th Session: NGO response to State party report.

[4] Refugee Council of Australia (2022). Statistics on people seeking asylum in the community: Delays and what happens to them

[5] Kaldor Centre for International Refugee Law (2020). Bridging visas and eligibility

[6] Refugee Council of Australia (2019). How do refugees come to Australia under its Refugee and Humanitarian Program?

[7] It is possible for a refugee on a permanent visa, including those resettled, to have their visa cancelled on character grounds and risk deportation. In 2020 there were reportedly over 100 people who had previously held permanent protection visas held in immigration detention centres, and reports of over 10 who had been deported either voluntarily or involuntarily. The Australian Government has stated that refugees who have had their visas cancelled will not be returned to their country of origin. In practice, a former refugee who has had their visa cancelled may choose to return to a country where they have residency rights but no safety because of a lack of viable options and the prospect of indefinite detention.  See: Fernandes (2020). Mamer came to Australia as a refugee. He committed a violent crime. Can he be deported back to a war-torn country?

[8] UNHCR’s (2021) statement on the 8 year anniversary of offshore processing stated: ‘This externalization of Australia’s asylum obligations has undermined the rights of those seeking safety and protection and significantly harmed their physical and mental health.”

[9] Sadjad & Walden (2019). The Nexus of Human Rights and Security in Indonesia’s Approach to Refugees; RCOA (2021). Recent changes in Australian refugee policy: Enhanced screening; RCOA (2021). Submission on pushback practices and their impact on the human rights of migrants

[10] Senanayake, Geeth and Doherty (2022). Exploited in a crisis: why are Sri Lankans getting on boats bound for Australia?

[11] O’Sullivan (2018). Withdrawing Protection Under Article 1C(5) of the 1951 Convention: Lessons From Australia

[12] Human Rights Watch (2022). Submission by Human Rights Watch on the Inquiry into the Ending Indefinite and Arbitrary Immigration Detention Bill 2021. RCOA & Amnesty (2018). Until When? The Forgotten Men on Manus Island; RCOA & ASRC (2018). Australia’s man-made crisis on Nauru: Six years on; Farrell, Evershed & Davidson (2018). The Nauru files: cache of 2,000 leaked reports reveal scale of abuse of children in Australian offshore detention

[13] RCOA & ASRC (2018). Australia’s man-made crisis on Nauru: Six years on; Farrell, Evershed & Davidson (2018). The Nauru files: cache of 2,000 leaked reports reveal scale of abuse of children in Australian offshore detention

[14] Australian Human Rights Commission (2021). Commission urges immediate action on COVID-19 risk to people in immigration detention

[15] Osborne (2021). Two refugees to sue Australia over continued detention

[16] Split family members are defined as: partner, dependent child or, if the proposer is not 18 or more years of age, the proposer’s parent.

[17] RCOA (2021). Family reunion issues; Human Rights Law Centre (2021). Together in safety: A report on the Australian Government’s separation of families seeking safety

[18]  RCOA (2022). Statistics on people in detention in Australia

[19] Australian ImmiCard – https://immi.homeaffairs.gov.au/visas/already-have-a-visa/immicard

[20] RCOA (2020). Identity documents for refugees 

[21] RCOA (2022). Thousands of people seeking asylum living in poverty; RCOA (2018). With empty hands: How the Australian Government is forcing people seeking asylum into destitution; Jesuit Refugee Services & Western Sydney University (2022). A Place to Call Home: A Report on the Experiences of Homelessness and Housing Exclusion among People Seeking Asylum in Greater Sydney

[22] Australian Human Rights Commission (2019). Lives on hold: Refugees and asylum seekers in the ‘Legacy Caseload’

[23] Australian Institute of Health and Welfare (2021). Housing affordability

[24] Hermant (2022). Australia’s ‘hidden’ housing problem: Refugees and migrants are overrepresented among the homeless population; Due, Ziersch, Walsh & Duivesteyn (2020). Housing and health for people with refugee- and asylum-seeking backgrounds ; RCOA (2013). Housing issues for refugees and asylum seekers in Australia: A literature review

[25] Department of Social Services (2015). Australian Government Support

[26] RCOA (2021). Information about COVID-19 and Social Security

[27] Australian Refugee Health Practice Guide; Au, Anandakumar, Preston, Ray & Davis (2019). A model explaining refugee experiences of the Australian healthcare system: a systematic review of refugee perceptions

[28]  Perales, Kubler, Xiang & Tomaszewski (2021). Understanding access to higher education for humanitarian migrants in Australia; Refugee Education Special Interest Group (2021). University Scholarships

[29] A person whose application for protection has been refused at the final review stage can have their work rights removed.

[30] RCOA (2022). People seeking asylum in the community on a bridging visa by work rights status

[31] RCOA (2022). Statistics on people seeking asylum in the community: What happens while they are seeking asylum?; Liberty Victoria (2021). Bridging the Department’s Visa Blindspot; Global Refugee Work Rights Scorecard: Australia

[32] Liberty Victoria (2021). Bridging the Department’s Visa Blindspot; The Age (2021). Asylum seekers denied access to bridging visas work illegal jobs to survive as advocates call for change

[33] Cain, Daly & Reid (2021). How Refugees Experience the Australian Workplace: A Comparative Mixed Methods Study

[34] Settlement Council of Australia (2019). Recognising Overseas Skills and Qualifications: Maximising Human Capital in Newly Arrived Australians

[35] Deloitte Access Economics (2018). Seizing the opportunity: Making the most of the skills and experience of migrants and refugees

[36] RCOA (2021). Information about COVID-19 and Social Security

[37] For example, women on temporary or bridging visas facing domestic and family violence face a range of challenges accessing basic assistance. (See: AWAVA. Women on temporary visas experiencing DFV); There is evidence that persons with disabilities face many challenges accessing disability services. See: FECCA, NEDA & RCOA (2019). Barriers and exclusions: The support needs of newly arrived refugees with a disability

[38] Queer Sisterhood Project (2018). Human Rights Violations of Lesbian, Gay, Bisexual, Transgender and Intersex Asylum-seeking and Refugee Women in Australia: A Shadow Report for Australia; FDPN. Policy

[39] Commonwealth of Australia (2017). Chapter 6. Support for Victims. Hidden in Plain Sight; Expert opinion – interview for RRI Australia review (2022).

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