This week’s relocation of the first 27 individuals from detention into the community onto a bridging visa will finally bring Australia in line with other countries that implement comprehensive community-based processing. It is the action many of us hoped for when New Directions in Detention was announced in 2010, encompassing seven key immigration values, including No.5 “Detention in immigration detention centres is only to be used as a last resort and for the shortest practicable time”. Sadly, it has been three years and four months since this announcement and much suffering that has been experienced by detainees and staff.
Yet if there is any silver lining from this last period of long-term mandatory detention — it has become blatantly obvious that after both sides of government have tried it, both failed to keep people safe and healthy. As such, neither succeeded in establishing a sustainable environment for long-term detention, assuming this is even possible. Furthermore, it is clear that the non-statutory process for those arriving by sea has caused unnecessary delays and contributed to a less than robust and fair process.
Finally, with the decision to utilise bridging visas for sea arrivals and to phase out the non-statutory process, we are seeing the kind of leadership that we’ve needed to create a more compassionate and effective system for processing those who reach our shores.
So now it is time to move on.
Yet, the brave new world of community processing is actually neither new, nor particularly brave.
Community processing utilising bridging visas has existed for many years for those who arrive by air and subsequently apply for asylum. After a long campaign to overturn restrictions to access to work rights, finally granted in 2009 under the Rudd government, asylum seekers will be granted the right to work with the aim of achieving self-sustainability. There are established care models including health care, income support and other services for those who are deemed to have the vulnerabilities to require them.
The number of people being actively managed by the Department of Immigration in the community on bridging visas at any time is about 8500. So for all those media headlines since the announcement on Monday, designed to create fear of asylum seekers, they have already been on our streets, in our shops, as our neighbours and the sky has not fallen in. Less than 20% of this number rely on income support from government, with the bulk working independently or being supported by family or friends.
Any concerns about security or risk to the community will be addressed with an assessment before a person is relocated into the community and the largest risks at this stage lie in whether people will be able to find sustainable housing and work.
There is no doubt that the current community processing system is not perfect. For those who will be eligible for income support, living on $215 per week is a significant challenge if resources cannot be pooled with others to cover rent, or without support from community connections or agencies.
There is a further concern that those who have been in detention for extended periods may experience demise after the initial elation of community release, back into the anguish of uncertainty, separation from family and addressing the wounds of the detention experience. As a consequence, counselling services and torture and trauma services could well be inundated if appropriate provisions are not put in place.
The selection process as to who will move into the community and when, will be challenging and no doubt highly vexed for detainees. For those who have sustainable family or community links, the process may be fairly straightforward. But there are many involved in the design of transition arrangements, including Department of Immigration staff, who acknowledge that it would be detrimental to have detainees scrambling for a community link that may result in exploitation or in danger to the client. Yet the desperation levels will be high for eligible detainees and the need for appropriate placements will be an important priority for those working on the transition.
It may be big news in Australia, but internationally, community-based processing is a norm. There is no evidence to suggest it is a pull factor for others to arrive, just as there has been no evidence that mandatory detention provides a deterrent, as recently established by research conducted by the International Detention Coalition.
For now, the challenge is twofold. The first is to engage and educate community-based organisations on the entitlements for asylum seekers on a bridging visa and harness support networks and resources that will establish this model sustainably into the future.
The second is to turn our minds to those who will not be eligible to be relocated from a closed detention environment and find solutions that do not equate to further damage to the dignity and health of these people. This is a whole other issue.
*Caz Coleman is former director of the Hotham Mission Asylum Seeker Project and a member of the Council for Immigration Services and Status Resolution (CISSR) advising the Minister for Immigration. Opinions expressed are her own.
And when the ABC interview a Sri Lankan man the first thing they do is babble about how much he paid to leave danger as if that has one fucking thing to do with it.
The notion that asylum seekers have to have visas is not true, it has never been true and it never can be.
Ron Merkel said it best in Al Masri when he outlined Australian law.
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2002/1009.html?query=al%20masri
“60 In any event, while it is literally correct to describe the applicant as an “unlawful” entrant and an “unlawful non-citizen” that is not a complete description of his position. The nomenclature adopted under the Act provides for the description of persons as “uinlawful non-citizens” because they arrived in Australia without a visa. This does not fully explain their status in Australian law as such persons are on-shore applicants for protection visas on the basis that they are refugees under the Refugees Convention.
61 The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia: see ss 36 and 65 of the Act. It has always been fundamental to the operation of the Refugees Convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban in Afghanistan and many others, may also be called “unlawful non-citizens” in the countries in which they seek asylum. Such a description, however, conceals, rather than reveals, their lawful entitlement under conventional international law since the early 1950’s (which has been enacted into Australian law) to claim refugee status as persons who are “unlawfully” in the country in which the asylum application is made.
62 The Refugees Convention implicitly requires that, generally, the signatory countries process applications for refugee status of on-shore applicants irrespective of the legality of their arrival, or continued presence, in that country: see Art 31. That right is not only conferred upon them under international law but is also recognised by the Act (see s 36) and the Migration Regulations 1994 (Cth) which do not require lawful arrival or presence as a criterion for a protection visa. If the position were otherwise many of the protection obligations undertaken by signatories to the Refugees Convention, including Australia, would be undermined and ultimately rendered nugatory.
63 Notwithstanding that the applicant is an “unlawful non-citizen” under the Act who entered Australia unlawfully and has had his application for a protection visa refused, in making that application he was exercising a “right” conferred upon him under Australian law.”
Now those four paragraphs make the law pretty clear and that was upheld by three more judges in the Full Court of the Federal court in April 2003 after Akram had been deported.
So far so good on the “unlawful” = “illegal” story.
So let’s wander off to the High Court appeal which became Behrooz, Al Kateb and Al Khafaji and have a look at the meaning of “unlawful”.
GUMMOW J: What is the baggage of the word “unlawful”?
MR BENNETT: Your Honour, none. It is a word used in a definition provisihttp://www.austlii.edu.au/cgi-bin/sinodisp/au/other/HCATrans/2003/456.html?query=behroozon, it is simply a defined phrase. It is not a phrase which necessarily involves the commission of a criminal offence.
http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/HCATrans/2003/458.html?query=behrooz
“GUMMOW J: What is the force of the word “unlawful”?
MR BENNETT: It is merely a word which is used in a definition section, your Honour.
GLEESON CJ: Does it mean without lawful permission?
MR BENNETT: Yes, that is perhaps the best way of paraphrasing – – –
GUMMOW J: But in the Austinian sense that is meaningless, is it not?
MR BENNETT: Yes, your Honour. The draftsperson of the Act is not necessarily taken to be familiar with the – – –
GUMMOW J: Well, perhaps they ought to be.”
And still our bloody media don’t get the law.
In the latest DIAC report again we see bias and discrimination against those who come by sea.
Afghans accepted at primary level – sea 38%, air 69%
Iranians – sea 28%, air 79%
Iraqis – sea 40%, air 67%.
Most of the by sea are overturned on appeal but the people have by then spent nearly 2 years in prison.
For those who can do their maths, clearly New Directions in Detention was announced in July 2008, apologies for the error!
Great article. The hype about asylum seekers…. If people really only knew the facts.
I shake my head in disbelief every time a report comes on the media about “another boat entered our waters – this one with 50 asylum seekers on board”. Then maybe 3 weeks later another one comes “another 60 arrivals.” My goodness! We must be getting flooded!
What the media is not telling us, is that inbetween those two boats, with 110 people on board, during the month inbetween, probably 400 to 600 people turned up on various planes (coming in with visitors visas, student visas, workers visas etc) and once they got here, they say “I need to change my status: I am really a refugee. Please dont send me back. Can I stay please?” Those people are not put in jails, holding centres, etc… they are permitted to live in the broad community until their claims are decided on. And guess what? About a half of them end up being deemed to be real refugees and about half are sent home.
But they live in the community for the months (sometimes more than a year) while their cases are assessed.
About 80% plane arrivals – live in the community (and all is well, the sky has not fallen in…)
Less that 20% come by boat – and are until now, locked up.
Some years it is 90% plane arrivals, and 10% boat. Sometimes it has been 95% plane and 5% boat.
By the way, when boat arrivals claims are finally assessed, about 95% are genuine refugees and about 5% are sent back.
So we lock up the real refugees and allow the 50:50 ones to stay in the community.
Time to allow all of them to live in the broader community (once security and heath checks are done of course – jobs that should take no more than a couple of months). Looks like that just might be happening.
Oh …. the fun conservative commentators and shock jocks will get out of distorting those figures!
Some of these refugees may come to wonder what kind of people we are. The other day I jumped into my car and the radio came on. I heard the interviewer ask his guest why he hated the ‘boat people’ so much? The answer was delivered in a calm voice. “It’s because of them we will end up at war”.
So, work that one out.
VA:
Surely he should have said: “It’s because of us helping start wars that we end up with them” ?
(Some of them, anyway….)