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The treatment of asylum seekers, both those waiting confirmation of their status and those accepted as legitimate refugees, has been lacking in humanity, often violating their basic rights and causing them bodily harm.
As a signatory to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, Australia has a duty to protect and help refugees seeking asylum. According to the Convention, refugee status applies to any person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country”. The universally accepted principle in international law of “non-refoulement”, (the protection of refugees from being returned to places where their lives or freedoms could be threatened) enshrined in the Convention means that contracting states cannot expel or return persons who have the right to be recognised as refugees and who will be removed to a place where there is real risk to their life or freedom. These principles apply to asylum seekers whose claims to refugee status have been validated. Other moral principles apply to the treatment of asylum seekers who are awaiting assessment of their claims. They include speed of assessment, the nature of confinement, treatment during any confinement, separation of families and the treatment of children.
Asylum seekers entering Australia without a visa before 20 October 1999 could formally apply for asylum once in Australia and could be granted either the same rights and entitlements as refugees who have entered under the Refugee and Special Humanitarian Program or alternatively could be given a three year Temporary Protection Visa (TPV). Under the Howard Government, asylum seekers who arrived after 20 October 1999 ceased to be eligible for permanent residence and could only be granted a three year Temporary Protection Visa. These temporary visas had limited entitlements, for example, restrictive eligibility requirements for work and welfare, including Centrelink payments and Medicare; no family reunion rights; and also no automatic right of return if the person left the country. According to the Asylum Seeker Resource Centre, over 90% of asylum seekers in the community received no support of any kind from the Federal Government.
In May 2008, the Rudd government abolished the TPV scheme. Now, people found to be refugees will receive a permanent visa, regardless of their mode of arrival. In addition, about 1000 refugees currently in Australia on TPVs will have their status resolved and will be given the same benefits and entitlements as holders of a Permanent Protection visa.
In conjunction with the restrictions imposed by the Temporary Protection Visas and other temporary visas such as the Removal Pending Bridging Visa (RPBV) and the Bridging Visa E (BVE), a number of other policies under the Howard Government were introduced to deter the so called ‘influx’ of asylum seekers coming into Australia. Such measures included mandatory detention in immigration centres in Australia (for asylum seekers without a valid visa or passport); the continuing excision of vast expanses of Australian territories from the migration zone (the zone considered to be a part of Australia within which asylum and visa applications can be made); border control interception powers; and limitations of judicial review for protection applications. Many asylum seekers were denied protection status and deported before their case even received a full investigation.
Some important reforms to these measures were introduced by the Rudd Government in July 2008. Under these reforms, detention in immigration detention centres will only be used as a last resort and for the shortest practicable time. Detention will be reserved for those deemed to be a risk, and the department will have to justify why a person should be detained, with revisions every three months. Children will no longer be detained. There will still be detention for those who arrive in unauthorised boats at excised places, which include Christmas Island and Ashmore Reef, but this will be primarily for health, identity and security checks. Arrivals at excised places will continue to be processed on Christmas Island but asylum seekers will now have access to legal assistance and an independent review of unfavourable decisions.
The unlawful deportation of Australian citizen Vivian Solon Alvarez, and the subsequent cover-up from the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA), was described in an Ombudsman report as ‘inexcusable’. An inquiry into the detention of Australian resident Cornelia Rau (the Palmer Report) concluded that urgent reform in immigration policy was necessary. Subsequently, the Commonwealth Ombudsman was given new legislative powers to make recommendations concerning the release of persons in detention centres and/or grant permanent residency to people detained for two or more years. The Federal Court also found that a duty of care to people in detention centres required the government to ensure that a level of medical and psychiatric care was made available. More expeditious processing periods, in conjunction with amendments to the Migration Act, the acknowledgement of fathers as part of the family unit and the introduction of Residential Housing Projects for the detainment of families, also marked slight improvements in immigration policy. However, delays, inconsistencies, mandatory detention, lack of support in the post-release stage (resulting in homelessness, mental health problems, poverty and unemployment), and temporary visa protection continued to prevent asylum seekers and refugees from obtaining adequate protection and assistance in Australia. Senator Evans, however made a commitment in March 2008 to personally examine the 72 cases of detention in excess of two years.
The Rudd Government has announced the dismantling of significant elements of the Howard Government’s offshore processing regime, known as the ‘Pacific Solution’. Detention facilities on Nauru and Manus Island are being closed. Commitments for improved detention accommodation include a proposal to redevelop Villawood Detention Centre.
