Lives on hold: Refugees and asylum seekers in the 'Legacy caseload' (2019)

Commissioner’s foreword

Between 2009 and 2013, over 50,000 people arrived in Australia by boat to seek asylum. While unexceptional in the context of record global displacement, this represented an unprecedented increase in movement by sea towards Australia. Hundreds of people lost their lives on these perilous voyages.

In response, successive Labor and Coalition Australian Governments implemented a series of measures aimed at deterring people smuggling operations by preventing the arrival of asylum seekers by boat. These measures included third country processing and boat turnbacks.

Ultimately, the majority of asylum seekers who arrived during this period were permitted to remain in Australia in order to have their refugee claims assessed. While some had the opportunity to apply for substantive visas soon after their arrival, thousands more faced prolonged delays in the processing of their claims.

This latter group numbers approximately 30,000 people, and has come to be known as the ‘Legacy Caseload’. This report examines the human rights implications of policies affecting these refugees and asylum seekers.

In addition to processing delays, people in the Legacy Caseload have faced a range of challenges during their time in Australia. While most have been released from closed detention, they have limited access to support services while living in the Australian community. If found to be refugees, they are not eligible for permanent residency in Australia. Due to restrictions on family reunion opportunities, they face the prospect of indefinite separation from their family members.

These challenges have led to financial hardship, deteriorating mental health and poorer settlement outcomes. In the words of one of the people interviewed by the Commission during the development of this report, people in the Legacy Caseload ‘are living in the shadows’.

They also face a heightened risk of refoulement due to changes in Australia’s processes for assessing refugee claims, including the removal of access to comprehensive merits review.

This report identifies a range of ongoing concerns faced by people in the Legacy Caseload. In particular:

• the lack of access to a fair and thorough process for determining their refugee claims
• uncertainty about their visa status and ongoing entitlement to protection for a prolonged period of time
• whether there is sufficient support for asylum seekers to maintain an adequate standard of living in the community
• the impact of restrictions on access to family reunion opportunities
• the ongoing risk of arbitrary detention.

Each of these concerns raises issues regarding Australia’s compliance with its international human rights obligations.

The recommendations in this report can help guide Australia towards a policy approach that reflects not only our international human rights obligations, but also our hard-earned reputation as a successful multicultural nation and safe haven for people fleeing persecution.

Edward Santow

Human Rights Commissioner

July 2019