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Submission
to the National Inquiry into Children in Immigration Detention from
the National Council of Churches
in Australia
The National Program on Refugees
and Displaced People
The National Program
on Refugees and Displaced People operates under the Christian World Service
Commission of the National Council of Churches in Australia, which has
been assisting refugees to resettle in Australia since 1948.
Mission Statement
Responding
to the teachings of Jesus Christ, the member churches of the National
Council of Churches in Australia through the Commission for Christian
World Service (come together) to break down the structures which create
poverty, oppression, injustice and division.
Over the last
three years, the focus of the National Program has been to Welcome the
Stranger. The National Program challenged the member churches to proclaim
the gospel by accompanying refugees and asylum seekers in their search
for a safe and better life. Accompanying refugees and asylum seekers implies
actively developing relationships, sharing in their hope and suffering,
and welcoming them.
"Come,
you that are blessed by my Father, inherit the kingdom prepared for
you from the foundation of the world; for I was hungry and you gave
me food, I was thirsty and you gave me something to drink, I was a stranger
and you welcomed me, I was naked and you gave me clothing, I was sick
and you took care of me, I was in prison and you visited me." (Matthew
25; 34 -36)
The National Program,
in conjunction with the State Ecumenical Councils, responds to the plight,
aspirations and needs of refugees and displaced people by helping refugees
to settle, educating Australians, providing advocacy and policy analysis
and supporting human rights.
Background
"Do not
neglect to show hospitality to strangers, for by doing that some have
entertained angels without knowing it" - Hebrews 13: 2
1. The National
Council of Churches in Australia (NCCA)
The NCCA is comprised
of fifteen major Christian Churches working together to strengthen relationships
and understanding of each other and to fulfil common witness, mission
and service.
The NCCA's National
Program on Refugees and Displaced People operates under the Christian
World Service Commission of the National Council of Churches in Australia,
which has been assisting refugees to resettle in Australia since 1948.
The National Program is concerned with policy relating to refugees, asylum,
settlement, access and equity. It is also directly involved in awareness
raising, education, community development and advocacy. This work is carried
out in conjunction with the State Councils of Churches under partnership
agreements. Each State Council has a Refugees and Displaced Peoples Program,
which is responsible for maintaining close links with the community sector
and involving member churches in providing direct services to refugees
and asylum seekers. The National Program and the State Councils involve
member Churches in issues relating to the legal and humanitarian aspects
of the appeals process .
2. The History
of the National Program on Refugees and Displaced People
The work of the National
Program on Refugees and Displaced People dates back to 1948, when the
National Program first began resettling refugees. Since then, it has become
one of the largest refugee resettlement, advocacy and education organisations
in Australia and virtually the only one that operates independently of
government funding. The National Program is also unique in that it links
through the NCCA and the World Council of Churches (WCC) to National Councils
of Churches around the world, giving the National Program a strong international
network.
The WCC and the NCCA
have both resolved to support the UN treaty System. The National Program's
work is based on biblical teachings and guided by international human
rights instruments. These treaties include:
- the 1948 Universal
Declaration on Human Rights (UDHR);
- the 1951 Convention
on the Status of Refugees and its 1967 Protocol;
- the 1966 International
Covenant on Civil and Political Rights (ICCPR).
- the 1989 Convention
on the Rights of the Child (CRC).
Sharing
the World's Burden
"When an
alien resides with you in your land, you shall not oppress the alien.
The alien who resides with you shall be to you as the citizen among
you; you shall love the alien as yourself, for you were aliens in the
land of Egypt".
- Leviticus 19:33
1. The Role of
Australia's Humanitarian Program in the International Protection System
The National Program
has a long history in participating in the annual Intake Submission.
[1] Each year, it has recommended that there be an
increase in the number of people who should come to Australia under
the Humanitarian Program.
In its 2001-2002
Intake Submission, the NCCA endorsed the Australian Government's ongoing
commitment to the Humanitarian Program, but strongly urged the Australian
Government to fulfil its international obligation to "share the
world's burden" by continuing to respond to the plight of refugees
arriving onshore. It also recommends that when migration visas are not
taken up, they be transferred to the Humanitarian Program.
2. The Size and
Composition of the Humanitarian Program
In its 2001-2002
Intake Submission, the NCCA recommends a continued increase in visas
for refugees from Sudan, Sierra Leone and other African countries, with
greater recognition for the plight of refugees from Burma, Indonesia
and Sri Lanka.
The NCCA recommends
that DIMA maintain an up-to-date comparative database of international
refugee determination systems of countries party to the relevant international
conventions.
3. The Quota System
for Humanitarian Entrants (Linking vs De-linking of the onshore and offshore
programs)
In 2000-2001, the
Minister for Immigration and Multicultural Affairs effectively cut Australia's
offshore humanitarian intake from 10,000 back to 8,000 places. This
was achieved through capping the overall Humanitarian Program at 12,000,
and then taking away a position from the offshore program for every
person that arrived onshore. In 1999-2000, for example, the offshore
quota equalled 12,000 minus onshore arrivals, which totalled 4,174.
This represented a 20% cut to the 2000-2001 offshore program. Prior
to this, the offshore component of Australia's offshore Humanitarian
Program had remained steady at around 10,000 per year since 1996, while
the number of onshore arrivals fluctuated.
This cut came on
top of another 20% cut to made to the humanitarian program between 1995-96
and 1997-98 (from 15,000 to 12,000). [2]
The NCCA has long
opposed the numerical linking of the onshore and offshore programs.
[3] The link confuses voluntary contribution and international
obligation and creates tensions within ethnic communities, who are divided
as to whether to support those onshore arrivals wrongly branded as 'queue
jumpers'. The policy in practise also becomes divisive, as it creates
tensions within ethnic communities feel loyalty to both groups
4. In its 2001-2002
Intake Submission, the NCCA recommended:
- the de-linking
of Australia's onshore and off-shore programs so that these groups do
not have to compete, but can be assessed on the merits of their case,
and;
- that the offshore
component of the Humanitarian Program remain at 10,000, but the onshore
component be in addition to those asylum seekers found to be refugees
in accordance with the 1951 Convention.
Increased
Emphasis on 'Push' rather than 'Pull' factors
Refugees have
always experienced a sense of uprootedness and loss of all that is precious
in identity and security. Psalm 137 describes the feelings of the Jews
in exile- " By the rivers of Babylon - there we sat down and there
we wept when we remembered Zion. For there our captors asked us for
songs, and our tormentors asked for mirth, saying, sing us one of the
songs of Zion".
1. Addressing
the Root Causes of Uprooted People
Despite the fact
that most asylum seekers are driven by 'push' factors (namely the real
threat of persecution), the Federal Government has continued to emphasise
'pull' factors (the attractiveness of conditions in Australia) in order
to justify its harsh measures to deter 'illegal immigrants'. Accordingly,
there has been little attempt to address the root causes of refugees
and displaced people.
2. In its 2001-2002
Intake Submission, the NCCA recommended:
- that the government
focus more on resolving 'push' factors - rather than trying to deter
new arrivals by removing so-called 'pull' factors - by putting more
resources into addressing the root causes of refugees and displaced
people.
- that Australia
increase its funding to UNHCR and contribute more capacity-building
and governance-focused aid in both countries of first asylum and countries
of origin in order to improve international human rights practices and
stem the flow of uprooted people. In May 2001, the NCCA Executive requested
the government to increase its overseas aid.
3. Regarding Australia's
Review of the UN treaty System, the NCCA:
- Argues that staying
in the system could make it easier for Australia to retain its influence
in international forums and to play a positive role in reshaping the
international protection framework
- Believes that
any withdrawal from the Convention could be seen as Australia rejecting
international standards, and as pushing the asylum seeker burden on
other countries.
- under the UN
Treaty System and continue to fulfil its responsibilities to the UN's
various Treaty Committees.
- Recommends that
the Attorney-Generals Department, in conjunction with DIMA, incorporate
the non-refoulement obligations of the Convention Against Torture and
ICCPR into domestic law.
A Humane
Alternative to Mandatory Detention
"The loss
of liberty and personal freedom associated with detaining persons is
akin to the situation of prisoners held in prisons However, unlike
criminals immigration detainees appear to have lesser rights"
1. Australia's
Mandatory Detention System [5]
Since its inception
in 1992, successive Australian governments have endorsed a non-reviewable
[6] mandatory detention policy for undocumented onshore
arrivals, regardless of whether they are immigrants or refugees. Since
that time, the NCCA has opposed mandatory detention. [7]
"The detention
of refugees in Australia goes far beyond that which is necessary to
protect national security, verify identity, or determine the elements
upon which the claim to refugee status is based. The policy of detention
is universal, factors such as a persons health, age, bona fides and
previous experience of trauma or persecution are not considered. The
mere fact of arrival without authorisation is sufficient alone to require
detention. The universal detention of undocumented arrivals in these
conditions clearly breaches...human rights provisions. "
- Submission to
the Parliament of Australia Joint Standing Committee on Migration Inquiry
into Detention Practices, Australian Council of Churches, 30 July 1993.
Australia currently
spends over $300 million a year on detention ($170 a day for each detainee).
In the year ended 30 June 1999, approximately 97% of Iraqis and 92%
of Afghans who applied onshore were found to meet the strict definition
of refugee by either the Department of Immigration or the Refugee Review
Tribunal. Spending such amounts on detaining refugees is thus both exorbitant
and unjustified, when the money could easily be spent on settling refugees
and making them productive members of Australian society.
In February 2001,
there were 2,458 people being held in detention, including 371 women,
408 children and 48 unaccompanied children. [8] Many
of these were not immigrants, but refugees whose only 'crime' was to
flee persecution.
The conditions under
which these asylum seekers are detained may be acceptable over the short
term, but when detention is prolonged, they constitute a violation of
Australia's human rights commitments. Education, welfare services, recreation
facilities, provision for religious and cultural observance, and access
to specialist medical services, for example, would not be required, or
would not be required at a high standard, during short-term detention.
However, when people are detained for more than a couple of weeks - or
much longer, as is often the case - human rights law requires that an
appropriate standard of services be provided.
The main concerns
that the NCCA continues to raise with DIMA are:
- the length and
indefinite nature of the period of detention and its effects on the
detainee's physical and mental health
- people not being
informed of their right to request access to legal advice when they
are taken into detention
- inadequate legal
assistance in preparing asylum applications
- people being held
in isolation from both other parts of the immigration detention centre
and the world outside
- the use of force
to control disturbances and restrain people
- the poor conditions
of detention, such as food, medical services, education, recreation
facilities, the level of security, privacy, sleeping arrangements and
accommodation of detainees of different religions. We do acknowledge
that these conditions are slowly being addressed.
- frustrations from
delays in processing;
The frustration and
distress caused by these factors has led to self-harm, suicide attempts,
violence, property damage and hunger strikes.
The NCCA believes
that the mandatory detention of asylum seekers not only breaches Australia's
international human rights obligations by constituting a form of punishment
for undocumented onshore arrivals. It also views detention as unjustifiable,
as more than 90% of Iraqi and Afghan asylum seekers (the top two countries
of origin) are found by the Australian government to be refugees. [9]
This is tantamount to goaling the innocent before proving them guilty.
It also goes against Australia's traditional values of justice, fairness
and equity.
While the NCCA understands
that 'temporary' detention is necessary to establish identity and conduct
basic health checks, prolonged detention cannot be justified unless the
person poses a demonstrable threat to national security or public order;
is likely to abscond, [10] or breaches release conditions
without good reason. [11]
2. The NCCA continues
to:
- oppose the mandatory
detention of asylum seekers, believing that it not only breaches Australia's
international human rights obligations by constituting a form of punishment
for onshore arrivals, but is unnecessary, as the vast majority are genuine
refugees and are unlikely to abscond;
- advocate for a
humane alternative to indefinite mandatory detention;
- believe that
there should be a nine-month limit on detention, which is more than
enough time to establish a person's identity and whether or not they
pose a health or security risk to Australia;
- believe that the
Minister of Immigration and Multicultural Affairs should be under obligation
to ensure that detained asylum seekers are informed of their rights
and entitlements, particular as regards legal advice and assistance,
and;
- believe that all
detainees should have the right to religious worship and should have
free and unhindered access to pastoral care.
Children
in Detention
"Then little
children were being brought to Jesus in order that he might lay his
hands on them and pray. The disciples spoke sternly to those who brought
them; but Jesus said, Let the little children come to me, and do not
stop them; for it is such as these that the kingdom of heaven belongs".
- Matthew19: 13-14
1. Children in
Australia's Detention Centres [12]
In February 2001,
some 827 women and children were being held in Australian detention
centres with around 1,631 men. This included 371 women, 408 children
and 48 minors without parents, family or adult care. [13]
At present, all
children entering Australia without proper documentation are subject
to indefinite, non-reviewable [14] mandatory detention.
The NCCA has criticised this practice for breaching Article 37 of the
Convention on the Rights of the Child (CRC), which states that the detention
of a child shall be used only as a measure of last resort and for the
shortest period of time.
Although children
with parents can apply to be released from detention on a bridging visa,
children are rarely released in practise as there is no provision for
the release of their parents, and it is usually considered in the best
interests of the child not to be separated from their families and placed
into foster care. This 'catch', which keeps children in detention, has
been roundly criticised by the NCCA. [15]
The NCCA has also
expressed a number of concerns about the treatment of children in detention.
[16] These include;
- The question of
whether ACM - a profit-driven subsidiary of an American Prison firm
whose business is managing the detentions centres - is capable of providing
adequate care for the health, educational and psychological needs of
children
- Whether its staff
have sufficient training and sensitivity required to meet the needs
of children;
- The lack of qualified
staff with early childhood experience;
- that ACM staff
may fear contacting police due to fears of intimidation from ACM or
being fired, and;
- that the procedures
for handling complaints or suspicions of assault against children are
inadequate, lack sufficient transparency, and are not subject to community
consultation from childcare experts.
On 22 November 2000,
the NCCA in conjunction with other non government organisations, community
and church groups [17] wrote an open letter to the Minister
for Immigration and Multicultural Affairs, expressing its concern about
the allegations of sexual and physical abuse of young children in immigration
detention. The letter condemned the practise of placing children in detention
and called for a full and independent Parliamentary inquiry or Royal Commission
into detention conditions as a whole and the effect of privatisation.
The letter also stated
that:
"These prison-like
detention centres have a detrimental impact on children's quality of
life. For example, the physical environment, poor educational and recreational
facilities, lack of trauma and torture support, poor nutrition and health
care and the prolonged period in detention."
The NCCA also criticised
the government for failing to live up to Article 37(c) of the CRC, which
states that a child must be treated "in a manner which takes into
account the needs of person of his or her age." Adequate and appropriate
education, for instance, has been a factor sorely lacking for children
in the detention centres; one that will have a lasting effect on each
child.
In some cases, these
children have experienced horrific torture and subsequent trauma. Others
children have been made to witness the rape, torture and killings of their
parents, brothers or sisters. These children are already extremely vulnerable,
and the conditions under which they are placed can extenuate the trauma
suffered by these children. Psychological studies have also shown that
the experience of prolonged detention exacerbates trauma symptoms.
The common defence
is that the conditions within Australia's detention centres are better
than what these people would receive in their own countries. But the implicit
assumption is that Australia should be satisfied to lower its benchmarks
to a standard only just above the world's worst.
"Babies have
been born into detention and children have grown up peering through
barbed wire to the open spaces beyond the compound" - The Age,
28 May 1998
Another major problem
has come from the boredom, frustration and social isolation experienced
during prolonged periods of detention, as it has been a major contributor
to outbreaks of domestic violence and generalised violence. The NCCA's
concern is that when confined in mixed-sex detention facilities in this
explosive atmosphere, women and children (particularly single females
and children without parents, family or adult carers) are placed under
considerable risk of abuse and exploitation. The NCCA thus believes that
putting women and children at such high levels of risk is totally unacceptable,
particularly given that Australian Correctional Management has neither
been able to prevent or deal with such incidents of abuse, according to
a recent government report. Similarly, single women are under a much higher
risk of not receiving proper protection and care.
The NCCA has also
called for an independent review panel:
"Concern for
the welfare of children unites all Australians and it is in the public
interest for an independent review/monitoring process to be established.
This would reassure Australians that children in detention centres were
being properly cared for and provide the Government with immediate feedback
on any emerging problems. A review panel(s) is one approach. Such a
panel(s) would include a representative from the local statutory child
welfare authority; a person knowledgeable in child mental health; a
person with the appropriate cultural knowledge; a representative from
a respected children's agency such as UNICEF; a representative from
a refugee advocacy body and an Immigration representative; that a designated
representative be appointed to act for every child refugee claimant,
accompanied or not, as occurs in Canada, to act in "loco parentis"
in the absence of a traditional caregiver, bridging the gap between
the substantive legal considerations and the child's care and well-being."
The NCCA's letter
has also expressed its concern over the lack of compassion Australia's
political leaders have displayed for these children or sympathy for those
forced to flee their homelands. After visiting a detention centre in Western
Australia with Immigration Minister Phillip Ruddock, the Premier Richard
Court chastised the asylum seekers for their "irresponsibility"
in bringing children to Australia. He admitted that seeing the children,
"sort of tugs on the heart strings", but he said that the detainees
"should have had the decency not to subject their children to that
illegal activity."
2. The NCCA:
- finds Australia's
practice of arbitrarily detaining children for long periods of time
abhorrent, believing that it breaches Article 37 of the CRC, which states
that the detention of a child should only be used as a measure of last
resort and for the shortest period of time (Article 37b), and that each
child should be treated in a manner that takes into account the needs
of person of his or her age (Article 37c);
- rejects the need
to subject children and their parents to indefinite, non-reviewable
mandatory detention, believing that the system needs to be more flexible
and orientated toward fulfilling Australia's international obligations,
particularly the International Covenant on Civil and Political Rights
(ICCPR) and the CRC;
- believes that
children and their parents should be released from detention into areas
where they can access the support of their respective communities
- believes that
unescorted minors should be released from detention into the care of
church and welfare agencies close to their respective communities.
Transfers
to State Prisons
1. Transferring
and Holding Immigration Detainees in State & Territory Prisons
The Minister of
Immigration and Multicultural Affairs currently holds the power to send
immigration detainees to state prisons and hold them without charge.
The Minister may also delegate that power. The major concern of the
NCCA's State Ecumenical refugee workers is that this power could be
used as a way of getting rid of 'troublemakers' and punishing badly
behaved detainees.
Information obtained
from DIMA by the Commonwealth Ombudsman indicates that 91 immigration
detainees were transferred from immigration detention centres to state
and territory prisons between July 1999 and June 2000. In addition,
as of June 2000, there were 41 immigration detainees held in prisons
pending criminal deportation or removal following the cancellation of
their visas. As of June 2000, 41 out of the 89 detainees had been there
for 9 months or more.
A number of complaints
have been brought to the attention of the NCCA. These include:
- The holding of
detainees in prison who may be victims of torture or trauma
- The uniform treatment
and placement of immigration detainees in prison with no criminal charges
or convictions with serious criminals, which breaches Article 10 of
the ICCPR.
- The practice of
transferring detainees between detention centres and to state prisons
without proper explanation, documentation and sufficient openness, causing
great distress to asylum seekers and their relatives and friends, who
are often not informed of the transfer. Some detainees are not even
given a Notice of Transfer.
- The lack of appropriate
security classification for detainees, which affects their rights and
entitlements and their treatment as detainees/criminals.
- The lack of clear
guidelines on the degree and nature of disruptive behaviour that would
warrant a transfer to prison
- The lack of strategies
and practices developed between ACM and DIMA for the management of difficult
behaviour and the lack of training given to custodial officers on managing
difficult behaviour, resolving conflicts and managing frustrated, depressed
or distressed people
Finally, there is
the question of whether the transfer of a detainee to prison is likely
to address the root causes of the types of behaviour that led to the transfer.
The NCCA believes that the best solution would be to try and defuse the
conflicts.
2. As a result
of the complaints, the NCCA believes that:
- DIMA should develop
additional strategies to defuse and resolve conflicts before transferring
detainees to prison;
- it is improper
to detain asylum seekers in prisons when they have not been charged
or convicted of a serious criminal offence;
- separate facilities
need to be established for detainees whose behaviour cannot be managed
by mainstream immigration detention centres;
- reducing detention
periods (rather than transferring detainees to prison) is more likely
to reduce the types of behavioural problems that often lead to decisions
to transfer detainees to penal institutions;
- the transfers
between detention centres and to state prisons that occur without proper
explanation, documentation and sufficient openness, are distressing
to asylum seekers, relatives and friends, and make the provision of
legal advice and assistance difficult;
- DIMA should keep
the public informed about:
1) the number
of asylum seekers in state prisons;
2) their names and countries of origin;
3) the reason for their transfer;
4) the state of their mental and physical wellbeing;
5) context specific services and rights accorded to them, and;
6) the body who provides funding for these detained asylum seekers;
- a judicial or
parliamentary inquiry should be held into:
1) the alleged
abuse of the power to transfer detainees to state prisons by Australian
Correctional Management on the grounds of "disruptive behaviour",
and
2) the capacity of state correctional facilities to provide care
for victims of trauma and torture and people of diverse cultural
backgrounds;
- DIMA should provide
detainees transferred to prison with a notice of transfer that clearly
describes the events that led to the decision;
- there should
be an appropriate security classification system so that detainees do
not have their potential rights and entitlements infringed upon by arbitrary
classification;
- DIMA must develop
clear guidelines as to the degree and nature of disruptive behaviour
that would warrant a transfer to prison, and develop strategies and
practices for the management of difficult behaviour within IDCs;
- the training
of custodial officers should stress conflict resolution and the management
of distressed people and difficult behaviour.
Respect
for the Human Rights of Refugees and Displaced People
All human beings
are born "free and equal" in dignity and rights. (Article
1) Everyone has the right to life, liberty and security of person. (Article
3) Everyone has the right to seek and to enjoy in other countries asylum
from persecution. (Article 14) - Universal Declaration for Human Rights.
1 Australia's
Review of the UN treaty System
On 29 August 2000,
the Minister for Foreign Affairs Alexander Downer, Attorney-General Daryl
Williams and Minister for Immigration and Multicultural Affairs Philip
Ruddock announced that the Federal Government would undertake a comprehensive
review of Australia's participation in the UN Treaty System and its Committees.
The review of Australia's interaction with the UN treaty system, was commissioned
by the Government, and considered by Cabinet. The treaty review recommended
a complete overhaul of the UN human rights treaty bodies.
Since that time,
human rights advocates have been concerned that this may weaken international
human rights instruments and the UN Committee System.
2 The NCCA believes
that:
- by upholding
its obligations under the UN Treaty System and working to strengthen
that system, Australia could expand its influence in international forums
and play a greater role in reshaping the international protection framework;
- any withdrawal
from the Convention could be portrayed as Australia rejecting international
standards and as pushing the asylum seeker burden on other countries.
- the Federal Government
should continue to fulfil Australia's international legal obligations
under the UN treaty system and continue to cooperate with UN treaty
committees.
- the Federal Government
should amend Australian law to incorporate the non-refoulement
obligations of the Convention Against Torture and ICCPR into domestic
law.
At the moment there
is thus great scope for improving Australia's response to these 'push'
factors by increasingly gearing Australia's aid to have a positive impact
on international human rights practices, providing more assistance to
countries of first asylum and giving greater to support to UNHCR.
Extend
IHSS and Family Reunion Rights to TPV holders [19]
"Speak
out for those who cannot speak, for the rights of all the destitute.
Speak out, judge righteously, defend the rights of the poor and needy".
Proverbs 31: 8 -9.
1 Temporary Protection
Visas (TPVs) [20]
In November 1999,
the Australian Government introduced the Migration Amendment Regulations
1999 (No.12), backdated to October 1999. This amendment removed the
entitlement of undocumented asylum-seekers to gain Permanent Protection
Visas (PPV) if they were later recognised as refugees. Instead, it allowed
only for the grant of Temporary Protection Visa (TPV). Effectively,
this created two classes of refugees.
The 1951 Refugees
Convention states that contracting states (eg Australia) shall: "not
impose penalties, on account of their illegal entry, on refugees coming
directly from a territory where their life or freedom was threatened"
(Article 31); "accord to refugees lawfully staying in their territory
the same treatment with respect to public relief and assistance as is
accorded to their nationals" (Article 23), and; issue to refugees
lawfully staying in their territory travel documents for the purpose
of travel outside their territory"(Article 28).
As currently constituted,
temporary protection visas breach all of these articles. Unlike those
with permanent visas, TPV holders are unable to:
- bring their families
into Australia;
- return if they
leave Australia;
- access the settlement
services provided to refugees who enter Australia under the off-shore
program;
- or access mainstream
social welfare payments (they are given a Special Benefit, which can
be paid at substantially reduced rates).
It is no accident
that many of those fearing persecution are forced to arrive in Australia
on false documents, as governments often refuse to give them a travel
documents. The 1951 Refugee Convention (to which Australia is a signatory)
explicitly acknowledges this fact in prohibiting signatory states from
imposing penalties based on the asylum seeker's mode of arrival or lack
of documentation (Article 31). [21]
Article 34 of the
Convention notes that any system which keeps a Convention refugee's status
in limbo is irreconcilable with the spirit of the Convention and is irreconcilable
with the permanent status granted to all other Convention refugees in
Australia.
The NCCA thus argues
that the use of TPVs constitutes a form of discrimination under of the
Refugee Convention as well as offending Article 34 of that Convention,
in addition to Articles 2(3)(a) and 26 of the ICCPR, as it is based solely
on the mode of arrival in Australia and their lack of documentation. Moreover,
because it relates to inappropriate aims, namely deterrence.
In a letter to All
Delegates of the ALP National Conference in Hobart, Tasmania on 31 July
2000, Michael Brown Associate General Secretary and Director, Christian
World Service said:
"The NCCA
would submit that TPVs are wrong in law and will not meet the stated
policy objective of deterrence. The Federal Government justifies its
treatment of these people as second class refugees on the basis of their
mode of arrival by boat or any other way, instead of through our off-shore
program. According to Minister Ruddock's Media Release of 13 October
1999, the measures are aimed at those trying to exploit Australia's
'generous' arrangements for refugees. The argument that mode of arrival
of these refugees by boat should determine government support deserves
to be rejected. The claims of these refugees should be assessed on their
merits and should not impact on access to settlement services. Many
people who arrive by boat do so not because they are trying to avoid
some assessment process but because they are in imminent danger and
because the assessment locations are often under-staffed, have huge
backlogs of applications and are located in cities that are remote from
where these people need help."
"The Minister's
Media Release of 13 October identifies Iraq, Afghanistan and Turkey
as the source of unauthorised arrivals who are trying to exploit Australia's
arrangements for refugees. Statistical analysis does not support the
view that asylum seekers from these countries are trying to exploit
the system, as approximately 97% of Iraqi, and 93% of Afghani asylum
seekers were granted refugee status in the 1998/9 financial year. The
vast majority of such arrivals are therefore recognised as Convention
refugees, and come to Australia with a well-founded fear of persecution,
seeking protection."
"Moreover,
many community groups and churches have expressed concern about the
inadequacy of support and the lack of coordination of services by the
Government beyond the dropping off point. Detainees from Port Hedland,
Woomera and Curtin are bussed straight to Perth, Adelaide, Brisbane
and now Melbourne with only enough money for one night's accommodation
- a practice becoming known as "dumping". Church and community
groups have been obliged to provide temporary housing, clothes, blankets,
food, volunteer interpreters and English lessons. The NGO and church
community cannot be expected to resource something, indefinitely, which
is a government obligation."
"Many of those
granted refugee status have been tortured or greatly traumatised by
the horrifying experiences they have suffered. From many groups' experience
of working with refugees, granting temporary protection as opposed to
permanent residence will only intensify these problems. Recent research
undertaken by the School of Psychiatry, UNSW, supports this view. The
practice of "dumping" is particularly stressful for many refugees
after a bewildering time in detention. To be released with little money
and no government-coordinated services is extremely disorientating."
3. As a response
to the introduction of Temporary Protection Visas, the NCCA:
- Recommends that
DIMA extend IHSS services and Family Reunion Rights to TPV holders;
- Believes that
TPV regulations constitute discrimination under of the Refugee Convention
as well as offending Article 34 of that Convention, in addition to Articles
2(3)(a) and 26 ICCPR, as they are rely solely on the basis of the mode
of arrival in the country, and because the difference in treatment is
premised on the individual's undocumented arrival and also relates to
inappropriate aims - such as deterrence, and;
- Recommends that
the Federal Government remove the burden placed on state governments
and the Churches by extending equal services to TPV holders. Asylum
Seekers in the Community (non-detained)
4. The
45-Day Rule
While most asylum
seekers face mandatory detention in Australia, as they lack the proper
documentation to enter the country, asylum seekers that are cleared
by immigration are allowed to live in the community. But if they do
not lodge their application for asylum within 45 days of arrival, the
Federal Government removes their entitlement to a work permit and Medicare
assistance.
This is in addition
to the fact that government services to asylum seekers in the community
are already scarce. Limited assistance with meeting costs for food,
accommodation and limited health care is provided through the Asylum
Seeker Assistance Scheme (ASAS), while the Department considers their
application for refugee status. But this is only available to eligible
asylum seekers who have waited six months for a decision. If their application
is rejected, or if they subsequently appeal to the Refugee Review Tribunal
or the High Court, they are considered no longer eligible for support.
Without these services
or the right to work, these asylum seekers are at the mercy of welfare
agencies, charities and church groups. Through its network of refugee
workers, the NCCA has observed that the combination of these policies
has led to an impoverished class of asylum seeker that can neither work
nor seek government support.
5. Regarding Asylum
Seekers, the NCCA:
- believes that
it is unfair to deny asylum seekers the right to work if they do not
apply for asylum within 45 days of arriving in Australia;
- believes that
the 45-day rule constitutes discrimination under Article 34 of the 1951
Refugee Convention, as it is based solely on the time of application;
- believes there
should be greater allowances for exemptions on keeping work rights and
Medicare coverage for asylum seekers, particularly in cases of extreme
hardship and families, and;
- Believes that
the easing of exemptions on the continuation of ASAS benefits after
an RRT decision, especially for single mothers who cannot work and therefore
have no means of support.
Last
Updated 30 June 2003.