Why people are still waiting for protection
Most of the people seeking asylum in our community have been living here now for years. As people seeking asylum by boat were sent to Nauru or PNG after 19 July 2013, those in Australia are mostly those who came before then. Those who came by plane are also now waiting years for their claims to be determined. These long delays mean that people are losing years of their lives in limbo, and are living ever longer in the shadows of our society.
For people seeking asylum by boat, these delays have been caused by constantly changing policies limiting their capacity to apply for protection.
Barring them from protection
Most people seeking asylum who came to Australia by boat after 13 August 2012 waited for well over three years for the opportunity to lodge a protection application. This is because from August 2012 until the year 2015, the Australian Government made it impossible for them to get protection.
The Australian Government first refused to grant them visas until they would have received them had they applied to resettle, on the basis that they should get ‘no advantage’ from having applied in Australia. Then a law was passed which prevented anyone who came by boat from making a valid application for protection, unless the Minister invited them to do so (referred to as ‘lifting the bar’). This extended a previous law that prevented people from making a valid application if they arrived on an ‘excised offshore place’, such as Christmas Island.
Not fast, nor fair
The Coalition Government came to power in September 2013 promising to introduce a so-called ‘fast track’ process to decide whether people who came to Australia by boat were refugees. However, the necessary legislation was not passed until the end of 2014, and the process only began to be implemented in 2015 by the Department of Immigration and Border Protection, now the Department of Home Affairs (‘the Department’).
This process applies to those who came by boat between 13 August 2012 and 1 January 2014, and were not taken to Nauru or Papua New Guinea for offshore processing. Those who came to Australia by boat before 13 August 2012 and were still waiting for their claims to be finalised in September 2013 are still having their claims considered under the previous process, although this group are also only granted temporary protection.
The process put in place tight timelines for providing claims and evidence and changed the definition of refugee. Most importantly, it radically reduced the independence and quality of the review process by turning it into a paper review of the decision by the Department of Immigration, creating a real risk of returning people to persecution.
People who are not recognised as refugees only have the right to ask a court to review the lawfulness of the Department’s decision, which is very difficult to do, especially if you cannot afford a lawyer and do not speak good English. Court hearings can be months and even years away, with some people now receiving court dates in 2021.
At first, the Government began by ‘lifting the bar’ for certain priority groups and by the date of arrival. It did not get properly started on the process until mid-2015, and did not finish ‘lifting the bar’ for all groups until late 2016.
The Government initially promised that all claims under the ‘fast track’ process would be decided by the end of 2017. In practice, only about half of the claims had been decided by March 2018.
Denying them help
The ‘fast track’ process was never going to be fast. The Government had changed the process once again for people who were already facing many barriers to making their claims. Refugee law in Australia is extremely complex, and even just filling out the long forms (in English) takes many hours with help. As people had been waiting years to apply, they found it difficult to remember details and to find evidence, even when they could get help.
However, the Government made this all much harder not only by changing the process and the definition of refugee, but by removing people’s access to government-funded legal advice. Most people seeking asylum could not afford a lawyer, but needed help to navigate the system. This resulted in long waiting lists (of up to one year) at the handful of small, underfunded legal centres who were offering to help them for free. Meanwhile, those same lawyers spent many hours learning the intricacies of the new process, seeking urgent clarification on policies, forming partnerships with large law firms for pro bono support, and coming up with novel ways to fundraise to keep the centres open.
The snap deadline
After a very slow start to the so-called ‘fast track’ process, the Department of Immigration suddenly, and without warning, began to threaten people who were still waiting for legal help.
At the end of 2016, it sent warning letters to people who were yet to apply for protection. If they did not apply within 60 days (with a possible extension of 30 days), they would lose all income support, their right to live lawfully in the community, and the right to apply for protection. Legal centres scrambled to re-prioritise their lists to meet these extremely tight deadlines.
On 21 May 2017, the Minister for Immigration went further. Again without warning, the Minister announced that if people did not apply for protection visas by 1 October 2017, they would never be able to get any visa in Australia and would be forced to return to their countries of origin. This was so even though there were thousands of valid applications still waiting for decisions by the Department.
Heroically, and under enormous pressure, the legal centres, pro bono lawyers and volunteers across Australia largely succeeded in meeting this arbitrary and extremely tight deadline. All but 71 of the thousands still waiting did manage to apply by the deadline, although surely at severe cost to the quality of their applications.