URGENT PLEASE READ. OK I'm going to use the "F" word. This government has crossed the line into FASCISM. . The Asylum Legacy Bill goes before the Senate Committee tomorrow. Please write to Senators opposing this Bill. The key problems with the proposed amendments include:
• Removal of references to the Refugee Convention from the Migration
Act. Removing reference to the Refugees Convention from the Migration
Act (the cornerstone of our immigration system) essentially allows the
Government to turn its back on its protection obligations. It is never
acceptable for a signatory nation to simply rewrite a human rights
treaty for its own purposes. • Suspension of the rules of natural
justice – removing the possibility of High Court challenges: the rule of
law and the judiciary is fundamental in our democracy, ensuring
fairness, justice and transparency in decision-making. • Provides an
explicit power exempting certain vessels involved in maritime
enforcement operations from the inappropriate application of the Marine
Safety National Law, the Navigation Act 2012 and the Shipping
Registration Act 1981. This removes all responsibility from those
charged with turning boats around at sea. It also means that actions
such as stripping life boats or floatation devices from boats may be
permitted, as well as removing supplies such as food, water or
petrol/diesel. • Changes that would allow boats carrying people
seeking asylum to be towed anywhere beyond Australian territories. This
includes the open sea, and leaving them there without regard for the
safety of their passengers. • Fast track assessment process with no
access to the Refugee Review Tribunal (RRT) and very limited review
processes. Fast turnaround processing was ruled illegal in the United
Kingdom in July 2014 as it carried an “unacceptable risk of unfairness”
(see http://www.righttoremain.org.uk/blog/detained-fast-track-asylum-system-ruled-unlawful-byhigh-court/.
• Children born to asylum seekers who arrived by boat will not be
eligible for any visa, but would be classified as “transitory persons”,
creating a new group of stateless persons. If these changes go ahead,
some babies born in this country will be subject to mandatory detention
and mandatory removal to Nauru as soon as possible. • Safe Haven
Enterprise Visas - temporary visas for 3 to 5 years which would not
provide permanent protection visas even for those people assessed to be
refugees. There is no justification for leaving people found to be
refugees in limbo, with no prospect of resettlement in Australia.
Comment: Will the real Bill Shorten please stand up?
Opposition leader Bill Shorten during House of Representatives Question time in Canberra. (AAP)
Opposition leader Bill Shorten is missing a golden opportunity to make the most out of the government's recent blunders with Manus Island, writes Lilani Goonesena.
By
Lilani Goonesena
27 Feb 2014 - 10:04 AM UPDATED 27 Feb 2014 - 10:16 AM
At Monday’s Parliament question time, Bill Shorten was handed a golden moment. Scott Morrison was wriggling on the end of a hook following his admittance that the death of Reza Berati on Manus Island last week did occur inside the centre. The Greens had just called for his resignation. It was a “political gotcha” and everyone awaited Mr Shorten’s response. Unfortunately, it was … nonexistent. It is worrying that the Australian Opposition appears to be doing very little to stem the rapid unraveling of Australia’s human rights record on asylum seekers. Even when questioned directly, Bill Shorten seems unable to provide a definitive opinion. In an ABC interview on February 7th, he says, “In terms of the asylum seekers, our position is, what is the government doing? ... we would just like them to tell us what they’re doing.” As would we all. And we wouldn’t mind some clarity from you too, Mr Shorten. What are you doing? The recent violence on Manus Island is only one part of the Abbott government’s secretive and increasingly dangerous asylum seeker policy. In the last week, the Australian public has learnt three more disturbing facts. First, that at least one other boat has made it to Australian waters, despite Scott Morrison’s “guarantee” of ‘stopping the boats’. Second, that a former Sri Lankan military commander is currently heading operations at Manus Island, overseeing the safety of 30 Tamil asylum seekers who escaped that very regime. And, third, that the government has asked Cambodia, whose human rights record is one of the worst in Asia, to resettle some of Australia’s refugees. If this isn’t reason enough for the Opposition Leader to intervene, then Australia’s reputation as a decent and generous nation is going to sink faster than a leaky boat. Pun intended. The government has a duty of care to people seeking asylum from persecution. It’s written in the UN Declaration of Human Rights, to which Australia is a signatory. Yet they are blatantly disregarding that duty and people are dying. This is Bill Shorten’s moment to stand up and mark himself as a man of principles. And yet… he isn’t. What is even more remarkable is that Bill Shorten is ignoring the golden opportunity to make the most of the government’s recent misinformation blunders on Manus Island. Were the shoe on the other foot, Tony Abbott would never have kept silent. In fact, the harshest criticism Mr Shorten has made in relation to Mr Morrison’s gaffe is that “we need people who know what they’re doing.” Hmm, that’s telling ‘em.
“Parliament has yet again missed the point. “A man has been killed while in our care. We should be debating why this happened and how we can stop it happening again, not wasting time in another Liberal/Labor tit-for-tat. “Where is Parliament’s moral compass? Today’s politicised theatre was a waste of everyone’s time.” Greens MP Adam Bandt
Far from a return to the badgering and heckling that Abbott was so famous for in Opposition, there are times when it is necessary for the Opposition to do its job and oppose policies that are in neither Australia’s best interests, nor the vulnerable people languishing in our offshore detention centres. And distasteful though it may be, heckling the government and prodding public outrage is what shapes the political views of many Australians. Yet Bill Shorten and company continue to stand silently by in the face of increasingly haphazard and disgraceful action that the UN labels “cruel, inhuman and degrading”. Labor remains welded alongside the government for a hardline approach to asylum seekers. How deeply disappointing that on the extremely rare occasion of such government unity it comes at the expense of thousands of vulnerable, suffering men, women and children who have put their lives at risk asking Australia for help. Yet, there may be some change afoot in the Labor Party, led by the ambitious young NSW Senator and powerbroker, Sam Dastyari. Mr Dastyari, who as a child came to Australia as an Iranian refugee, advocates a “compassionate” approach to the asylum seeker debate. It’s a welcome relief that at least one Labor MP is willing to stand up to mainstream opinion. Mr Shorten, if you haven’t figured out a definitive asylum seeker policy, why not take a more compassionate approach? Treat people as people. The number of refugees in the world is growing. No ‘guarantee’ to ‘stop the boats’ is going to make them disappear. As Malcolm Fraser wrote recently, “They are not fleeing for a sea change, but for their lives.” Compassion may not appeal to today’s popular hardline approach. But just as you give asylum seekers a chance, you give Australians a chance. A chance to understand the issues and reasons why people become refugees. And a chance to discard the fear-mongering and racist propaganda that has polluted this debate and attitudes to asylum seekers for so many years. You may need one heck of a marketing policy, Mr Shorten, but I reckon you could pull it off. Lilani Goonesena is a freelance writer based in Canberra.
The refugee resettlement deal with
Cambodia goes against our reputation as a responsible international
citizen and respecter of international norms, writes Tim Mayfield.
The
Abbott Government's prioritisation of asylum seeker policy over
Australia's role as a regional leader and human rights advocate is once
again on display via the soon-to-be consummated arrangement with
Cambodia to resettle refugees from Australia's offshore processing
centre in Nauru.
Indeed, this is just the most recent chapter in
the history of foreign policy misadventure that has occurred as a result
of Australia's narrow approach to border security since Kevin Rudd
announced his "regional resettlement arrangement" with Papua New Guinea
prior to the 2013 Federal Election.
The long line of missteps
since the election includes timidity in Sri Lanka, overzealousness in
India, and benign contempt for Indonesian sovereignty.
The latest deal,
in which asylum seekers who are found to be genuine refugees will be
voluntarily resettled in Cambodia no doubt in exchange for bucket-loads
of cash, is indicative of a repositioning of Australia's foreign policy
that is grounded in notions of realpolitik and a more narrowly defined
understanding of the national interest.
This is because such an
agreement will inevitably compromise Australia's ability to exert
pressure on the authoritarian rule of prime minister Hun Sen and
undermine Australia's aspirations to regional leadership.
To anyone who doubts this claim, consider this: on January 28 this year, Australia publically castigated Cambodia
at the United Nations for human rights abuses, "particularly the
disproportionate violence against protestors, including detention
without trial". Less than a month later, Julie Bishop was in Phnom Penh
proposing the plan that is about to come to fruition.
I seriously doubt the world will be hearing from Australia on Cambodia's deteriorating human rights record again anytime soon.
The Cambodian announcement follows on in the same spirit as the last major immigration controversy, in which 157 Tamil asylum seekers were moved to offshore detention in Nauru after being held at sea for almost two months.
That move followed Scott Morrison's dubious
request to the Indian government that it accept the repatriation of all
those aboard the ship on the basis that their boat embarked from India.
Unsurprisingly, the appeal was rebuffed by New Delhi in all cases
except where the individuals were proven to be Indian citizens.
One
can only imagine what the Indian government (and the rest of the region
for that matter) made of Australia's overtures given their own
substantial refugee flows.
The above episodes demonstrate the
incongruity between the external manifestations of Australia's 'stop the
boats' policy and our reputation as a responsible international citizen
and respecter of international norms.
Not only are Government
delegations such as the one that made its way to India increasingly
futile and counter-productive, they also represent an increasing
preference by the Abbott Government for unilateral action and
narrowly-focused bilateral negotiations over multilateral engagement in
the region.
Nowhere has this shift been more evident than in
Australia's burgeoning relationship with Sri Lanka. Right from the
beginning of his tenure as PM, Tony Abbott's approach to this bilateral
relationship has been problematic.
For example, his failure to even raise the question of human rights at the 2013 edition of CHOGM held in Colombo (while
his Canadian counterpart Stephen Harper boycotted the meeting and UK PM
David Cameron toured the war-torn north of the country), undermined Australia's reputation as a nation committed to speaking out on abuses wherever they occur.
This
was followed by Immigration Minister Scott Morrison's trip to Sri Lanka
for the commissioning of two patrol vessels donated by Australia to
assist with local anti-people smuggling efforts. In making this gift,
Australia has provided material support to a regime tainted by its
brutal response to the Tamil separatist movement while countries such as
the US and UK are working with the UN Human Rights Council to establish
an international inquiry into the conflict.
While treating Sri
Lanka as a pariah state is no way to bring it back into the
international fold after its bloody civil war with the Tamil Tigers,
neither is the opposite action of uncritically pandering to the
government of president Mahinda Rajapaksa on the basis that any
criticism might reduce Sri Lanka's cooperation in reducing refugee
flows.
While our actions in Cambodia, India and Sri Lanka may be
justifiable in the pursuit of short-term tactical victories over people
smugglers, they represent a potentially damaging shift away from
Australia's traditional emphasis on multilateral organisations such as
APEC and the ASEAN Regional Forum.
Australia will no doubt
continue to participate enthusiastically in these gatherings and
advocate the merits of regional consensus on matters such as trade and
security. However, our partners in the Asia-Pacific will be taking note
of the disparity between our words and actions.
The message here
is that Australia's domestic interests, including the maintenance of
secure borders, can be achieved without unnecessarily championing
cynical bilateral relationships over multilateral engagement. Cutting a
deal with Cambodia, one of the poorest nations in our neighbourhood,
only serves to damage our reputation abroad.
Tim Mayfield is
the executive officer to the Chancellor of the ANU. He previously worked
for the Department of Foreign Affairs and Trade and Department of
Defence. View his full profile here.
Families in the Nauru detention centre protest against Australia’s new deal to resettle refugees in Cambodia. Photograph: Supplied
The Australian immigration minister, Scott Morrison, has signed a
memorandum of understanding in Phnom Penh that cements a plan for
refugees who sought Australia’s protection to be ultimately resettled in
Cambodia instead.
But refugees on Nauru have staged protests saying they will all
refuse to move to Cambodia in what they describe as a “cruel deal” that
will keep them in detention forever.
In an opulent function room under a blazing chandelier, Morrison and
Cambodia’s interior minister, Sar Kheng, signed the necessary documents
without saying a word, the silence interrupted only by the sound of
smashing glass – as a waiter tripped over – and questions shouted out
from a phalanx of journalists gathered behind a gold rope.
Scott Morrison signs the refugee resettlement deal with Cambodia on Friday. Photograph: Lauren Crothers/The Guardian
A joint statement released after Morrison sped off in a car said:
“Under this MOU, Australia will use its expertise and experience to
assist Cambodia to strengthen settlement support provided to refugees in
Cambodia.
After
Australia’s immigration minister, Scott Morrison, signed the deal with
Cambodia in silence the waiting media was handed this statement. Photograph: Lauren Crothers/The Guardian
“As part of this commitment, Australia will bear the direct costs of
the arrangement, including initial support to refugees, and relevant
capacity building for Cambodia to ensure it has the appropriate
resources to receive and integrate the refugees successfully.” It said
the deal did not breach the refugee convention.
Over the course of the past few days news of the mostly secretive
agreement – which was proposed by the foreign minister, Julie Bishop, in
February – and which Cambodian foreign ministry officials this week
confirmed would be signed on Friday – has been met with condemnation and
dismay from human rights and refugee advocacy groups.
The statement released after the signing said the two countries would
work with the UN high commissioner for refugees (UNHCR) to implement
the deal. But the UNHCR condemned the deal, expressing deep concern at
the precedent it sets. António Guterres said he hoped Australia would
reconsider.
“We are seeing record forced displacement globally, with 87% of
refugees now being hosted in developing countries,” Guterres said. “It’s
crucial that countries do not shift their refugee responsibilities
elsewhere.
“Refugees are persons who are fleeing persecution or the
life-threatening effects of armed conflict. They are entitled to better
treatment than being shipped from one country to the next.”
UNHCR press officer Vivian Tan later clarified that they were not
involved in the deal. “Our position remains unchanged – we do not have a
role in this bilateral agreement.”
Morrison has said Australia plans to give a further $40m to Cambodia
over the next four years, but insists that this is for development
projects and is not in exchange for the refugees.
The protesters argued that Cambodia – where gleaming Range Rovers
co-exist alongside scenes of grinding poverty – is simply ill-equipped
to accept refugees, particularly when its own human rights record has
been so heavily scrutinised, its public health service is substandard
and its courts are mired in corruption.
Misha Coleman, who heads up the Australian churches refugee
taskforce, said: “Hun Sen and his ministers in the Cambodia government
are rich beyond belief – and they didn’t accumulate this wealth on
government salaries. They siphon money from every imaginable source:
commercial contracts, aid projects, you name it.”
In a statement, the Australian Council for International Development referred to the MOU as an “unnecessarily cruel” policy.
“Refugees being sent to Cambodia are being set up to fail in a poor
country,” it quoted the executive director, Marc Purcell, as saying.
“Our aid money should not be used to sweeten the deal with one of our
poorest neighbours. The government’s stated objectives for international
aid are economic development and human development and this just looks
like an inducement to take refugees off Australia’s hands,” he added.
Refugees on Nauru say they will not accept the offer of resettlement in Cambodia. Photograph: Supplied
Refugees on Nauru say they will all refuse to move to Cambodia and
have staged protests against what they say is a “cruel deal” that will
keep them in detention forever.
A refugee in a Nauru camp told the Guardian on Friday all those found
to be refugees were united in their opposition to being sent to
Cambodia.
“No one will go. People will refuse. We don’t want special treatment,
we only want justice, we only want to be treated fairly. To be thrown
away like rubbish, this is not fair, this is not what Australia should
do.”
He said refugees and asylum seekers felt trapped on the Pacific
island. “This is a cruel deal. Where can we go? We are not safe in our
home countries, we cannot go to Cambodia, we are just abandoned here.”
Protests began on the island Thursday night after refugees and asylum
seekers were shown a video – featuring Morrison – telling them the
reintroduction of temporary protection visas would not apply to them.
“If you are currently on … Nauru, you will not be transferred to
Australia,” Morrison said. “You will remain there until you either
choose to return [home] or are resettled somewhere else other than
Australia.”
The refugees on Nauru have been found by Australia to have a
‘well-founded fear’ of persecution if they are sent home. It is illegal
for Australia to forcibly send them back to their country of origin.
Refugees said the protests were peaceful, but that some had demanded
the locked gates be opened so they could protest outside. Police
arrested several demonstrators. It is unclear how many.
The protests continued on Friday in the children and family camp. Men
held a banner saying “what’s the difference between asylum seekers in
Nauru with those on Christmas Island?” Children carried signs that read
“it’s cruel”, and “it’s not fair.” Officials from the immigration
department who visited camps were shouted at and told to leave.
“People are so angry, they are so distressed,” the refugee told
Guardian Australia. “People don’t know what to do, they are suicidal.
They say ‘this is not fair’, everybody else gets to go to Australia
except us.”
The UN refugee agency said that as at 31 August there was a total of
1,084 people on Manus Island and 1,233 people in Nauru. Cambodia
currently hosts 70 refugees and 20 asylum-seekers.
Souri,* a 15-year-old Iranian teenager travelled 10,623
kilometres over the Persian gulf, through Java and across the Timor sea
to seek asylum in Australia.
Last month she became the latest attempted suicide victim in Australian detention centres.
From her hospital room in Darwin, Souri told Fairfax Media she did it because of the emotional turmoil of living in detention.
"I did it because I was scared, scared about everything,
scared about the future," she said over the phone. "One year in
detention and there is nothing to do."
She and her group of friends were prepared to commit the act together , Souri said.
"There are 30 teenagers living here in this centre, we are very frustrated, we can't do anything, we all want to get out."
A source at the detention centre, who asked not to be named,
said security firm Serco has a group of teenagers under suicide watch.
Louise Newman, professor of psychiatry at Monash University,
said teenagers were particularly at risk of self-harm in detention.
"A person's mental health deteriorates through the lack of certainty over their future," Professor Newman said.
"Teenagers in detention are well aware that their future is
pretty bleak which creates an increasing sense of hopelessness and
despair."
It could have been worse for Souri – a witness said that two
other detainees managed to catch her as she was falling. Her pelvis took
the majority of the impact.
She is currently being treated for a broken pelvis and an injured leg and hand.
The Department of Immigration said it does not comment on reports of self-harm.
The incident is the latest in a spike of self-harm incidents at Australian detention centres.
Since Souri's incident, a Serco officer has been stationed outside her hospital room 24 hours a day.
"My friends and I are so tired, we are followed everywhere by [Serco] officers," she said.
"The officers come with us to school and everyone looks at you very badly."
As she spoke with Fairfax Media, a Serco officer entered the room.
"Who are you speaking with?" he said, "My parents," Souri replied.
Her parents, sister and two brothers are currently being held
at the detention centre. Souri said she is only allowed limited contact
with them.
Fairfax Media has been unable to contact them directly.
Serco, which is responsible for the security of detainees
after hours, has declined to comment. The company referred Fairfax Media
to the Department of Immigration.
The event was witnessed by a group of bystanders, including children, who screamed and cried all night, a witness said.
A source at the detention centre, who asked not to be named, informed Fairfax Media of the incident.
They said it showed the level of neglect from Australian authorities and the depression resulting from long-term detention.
"Since the majority of the clients in Darwin have already
spent at least a year in detention with little or no progress in the
processing of their claims, the breaking point seems to be imminent,"
the source said.
Professor Newman said that self-harm has become predictable in detention centres.
"Mandatory detention itself is the issue, there is no
psychological cure and medical health services can not function in these
environments."
In July, Dr Peter Young, chief psychiatrist responsible for
the treatment of asylum seekers, resigned. He described the conditions
as deliberately harsh.
Darwin Asylum Seeker and Support Advocacy Network spokesman,
Peter Robson, said, "The Darwin detention centre is so crowded that some
people prefer the island detention centres [Nauru and Christmas
Island]."
The Darwin detention centre has an operating capacity of 1050
detainees, making it one of the largest detention centres in the
department's network.
"[The detainees] line up for hours to get access to
medication and treatment, it's a model designed to create depression,"
said Mr Robson.
A spokesman for the Department of Immigration said all people
in detention could be sent to hospital for further treatment after
receiving care from qualified medical practitioners inside the detention
centre.
Greens Senator Sarah Hanson-Young said she was concerned
about the conditions inside the Wickham Point facility and called for
the release of all children in detention centres.
"The fact that a young girl has been driven to this extreme action is heartbreaking," she said.
With Sarah Whyte
Lifeline: 131 114
*Not her real name - Fairfax Media has chosen not to name the asylum seeker in order to protect her identity.
ia’s plan to send refugees to Cambodia might not come to fruition, as the Cambodian government is dragging its feet.
After his self-congratulatory address to the National Press
Club in Canberra on Wednesday, Immigration Minister Scott Morrison
finally admitted what has been relatively common knowledge in Cambodian
and regional diplomatic circles, and the NGO community for some time:
that finalising the Australian government’s deal to resettle refugees in
Cambodia has become “frustrating”.
No kidding. Morrison’s office confirmed yesterday that
discussions were ongoing, but the Cambodian government had been pushing
back on the deal. Now the regional office of the United Nations High
Commissioner for Refugees has joined other refugee and rights groups
publicly slamming a deal in which it wants no part.
“We are deeply concerned about the precedent being set by
this type of arrangement that in the first instance, transfers asylum
seekers who have sought Australia’s protection to Nauru, in conditions
that have previously been described as harmful, then re-locates refugees
recognised in Nauru to Cambodia,” UNHCR regional spokesperson Vivian
Tan said from Bangkok, in response to questions from Crikey.
“Asylum seekers should ordinarily be processed and benefit
from protection in the territory of the state where they arrive, or
which otherwise has jurisdiction over them.”
Tan says that in a time of massive displacement in places
like Iraq, Syria and South Sudan, the “global refugee system is
undermined when states deny access to territory for certain categories
of asylum seekers and refugees, including those who arrived by boat”.
She ads that the UNHCR is concerned by any practice that
goes against “the spirit of international protection of refugees by
relocating refugees to another country where they may not be able to
access fundamental rights”, or that may allow a state that has signed
onto the Refugee Convention — e.g. Australia — to divest itself of its
responsibility under the Refugee Convention.
But even as Australia thumbs its nose at the Refugee
Convention and tries to snuggle up to the despotic regime in Cambodia,
it’s now unclear whether the deal will ever happen — although each week
gossip circulates that Morrison is about to fly to Phnom Penh for the
second time this year to ink the deal. So who knows?
The UNHCR and concern from other refugee agencies such as the Jesuit Refugee Service
aside — and the Abbott government appears to not give one hoot about
their opinion — the main fly in the ointment so far has proven to be the
Cambodian government. The government initially appeared so eager to do a
refugee-for-money swap with Australia (the figure that has been bandied
about is $40 million) that its minister announced the deal in front of a
visibly stunned Julie Bishop during her visit to begin talks on the
deal in February. But now it seems the deal has stalled.
“Cambodia
is the second-poorest country in south-east Asia after Myanmar; it is
riddled with corruption … the country has a shocking track record with
refugees…”
Son Chhay, a member of Cambodian Parliament in the
opposition Cambodian National Rescue Party, and who was once a refugee
in Australia, says the Cambodian government seems to have soured on the
deal. Chhay, who graduated from Adelaide’s Flinders University, was
quoted in The Cambodian Daily:
“I always wondered from the beginning why the [Cambodian]
government was interested in taking refugees. But the government is
reluctant now to make any agreement. It’s quite clear the government has
no interest.”
Chhay also suggested that the government was holding out for
a better deal — and it’s rumoured that it wants to start the program
with a much smaller number of refugees than Australia wants to
send. “Maybe it’s too little money,” he said. “Perhaps the deal is not
benefiting the officials involved.”
Morrison should take heed, because that is exactly how
Cambodia works. Cambodia is the second-poorest country in south-east
Asia after Myanmar; it is riddled with corruption. Audits conducted by
NGOs have proven that money meant for aid is siphoned off by officials,
though Morrison denies this. The country has a shocking track record
with refugees, returning at least 20 Chinese ethnic Muslim Uighurs to
certain imprisonment and perhaps death in 2009.
Cambodia relies on foreign aid for about half its budget, so
it will be desperate for extra millions to make up for any shortfall
after Australia slashed its foreign aid program. However, it seems even
the authoritarian Hun Sen regime may have its limits, even though
Australia has provided Cambodia with $329 million in aid over the past
four years.
The UNHCR said it is trying to help improve things in the
country’s limited refugee infrastructure — Cambodia is currently
processing 12 asylum seekers and has 68 refugees, and it has insisted
that any people coming from Nauru do so voluntarily. Yet the question of
what measures Australia is taking to educate them about such a
momentous decision is likely to remain unanswered.
Last month Morrison sent senior Immigration Department
bureaucrat Greg Kelly — whose most recent expertise has been in refugee
detention, aid workers said — to head a 10-person visit to Phnom Penh to
try to get the deal over the line. So far he has been scouting for
locations for the detention centre far from the Cambodian capital, where
there are few schools, hospitals or other essential services, according
to The Phnom Penh Post.
Now it seems that the UNHCR, in addressing its concerns to
both governments in writing and in meetings, has rebuffed efforts to get
the organisation to give its imprimatur to a deal that no one much
likes.
Last week, the High Court handed down a landmark decision for a stateless refugee held in detention for over two years.
The decision sets parameters around when detention is lawful and has
rendered the use of Temporary Safe Haven Visas and Temporary
Humanitarian Concerns Visas as invalid when they are used as a way to
prevent permanent resettlement of a refugee.
The case raises a number of complex questions and the full extent of
its impact and how it might be applied in other cases is yet to be
determined.
In the meantime, here are a couple of key points from the case and what they may mean for asylum seekers more generally:
1.
The High Court has defined some parameters around when detention is lawful and when it is not.
According to its decision, an asylum seeker that enters without a visa can only be detained for the purpose of:
•removing them from the country; or
•assessing whether to grant them a permanent visa to live in Australia; or
•assessing whether to allow them to apply for a visa to live in Australia (often called ‘lifting the bar’)
In each of these situations the Minister must either remove the
person or make the assessment as soon as possible. Any departure from
this may be unlawful.
What this means:
It raises questions about whether the Minister has the power to
detain people for unreasonable periods of time without finalising his
assessment of their claims for protection.
This has potential implications for thousands of asylum seekers who
have been left in detention for unreasonable periods of time.
2.
The High Court ruled that the use of Temporary Humanitarian Concern
and Temporary Safe Haven visas in this case was invalid. Both of these
visas deny people the right to apply for permanent protection
What this means:
While it’s still not clear whether this will have broader
application, it potentially means that the Minister will not be able to
force Temporary Humanitarian Concern and Temporary Safe Haven Visas on
asylum seekers currently in detention who have been found to be
refugees.
Until now, the Minister had been trying to circumvent the Senate’s
decision to disallow Temporary Protection Visas by misusing Temporary
Humanitarian Concern and Temporary Safe Haven Visas in order to deny
people permanent protection.
Last week’s High Court decision means he will be trying harder than
ever to get the new Senate to allow Temporary Protection Visas (TPVs) as
a way to deny permanent protection to refugees.
We must continue to fight against Scott Morrison’s efforts to get
TPVs through the Senate and demand that he uphold refugees’ rights to
permanent protection and the chance to settle properly in our community.
You can help stop TPVs by writing to a Senator from your State today
and letting them know why TPVs are bad for refugees and bad for the
community: http://www.asrc.org.au/news/latest-campaigns/stop-temporary-protection-visas
Unrecognisable: Hamid Khazaei was already in an allegedly critical condition before he was transferred from Manus Island.
When Iranian asylum seeker Hamid Kehazaei was medically
evacuated to Brisbane from Port Moresby, he was unconscious, his body
almost unrecognisable due to his swollen state, it has been alleged.
The 24-year-old man, who was treated at Brisbane's Mater
Hospital, was pronounced dead a week later by Immigration Minister Scott
Morrison. But new details have emerged, suggesting the young man's
condition was already critical by the time he reached Papua New Guinea's
capital on August 26 from Manus Island.
Mr Kehazaei was known as an "all right bloke" by security
guards on Manus Island. He died from severe septicaemia, a bacterial
disease that had entered his blood stream after he cut his foot at the
offshore processing centre.
An expatriate contractor, who has asked to remain anonymous,
described the 24 hours on August 26 in Port Moresby as being "panicked"
and "critical" to saving Mr Kehazaei's life.
"From when he arrived, he needed oxygen," the worker said.
The man then had five cardiac arrests, the worker said.
Medical staff told the worker they would have to amputate Mr Kehazaei's
leg, due to the spreading of septicaemia, but his condition worsened.
A leaked report obtained by Fairfax Media shows that the mood
in the detention centre continues to be low and Iranian asylum seekers
are blaming medical provider the International Health and Medical
Service for Mr Kehazaei's death.
Mr Kehazaei is the second Iranian asylum seeker on Manus Island to die this year. Reza Barati died during violence in February.
The report by a service provider on the island says: "It is
likely some Iranian transferee will spread malicious rumours about
GDD059's death to further their own personal agendas, as well as to
exploit unrest to further their own agendas and standings amongst their
countrymen."
It also says that "low-level animosity and reproach will be directed towards IHMS" by the asylum seekers.
But the worker claims two nurses from IHMS in Port Morseby
worked tirelessly to save the man, claiming Mr Kehazaei had fallen ill
"very quickly" on Manus Island.
"They tried to do everything they could for him but the word was he was finished," he said.
The worker said Mr Kehazaei's body was swollen,
unrecognisable and then completely covered up when medically evacuated
by charter plane to Brisbane.
Mr Morrison has since ordered a medical investigation into the death and the care he received while on Manus Island.
"The matter is currently before the coroner and the minister
has asked the department's chief medical officer to conduct an in-depth
clinical review on the background to the transferee's medical condition
and care while at Manus OPC," a spokesman for Mr Morrison said.
High court verdict spells the end for Australian immigration detention as we know it
Today’s
landmark hearing clearly set out the constitutional limits on detaining
non-citizens. The federal government will now have to release or
process thousands of asylum seekers
‘The policy of locking people up indefinitely... is unlawful under Australian law.’ Photograph: AAP
Today’s high court verdict, which dealt another blow
to the federal government’s plans to give asylum seekers temporary
protection visas, set significant new limits on Australia’s policy of
mandatory detention. It will throw into doubt the legality of detention
of thousands of people in Australia, potentially spelling the end for
Australia’s mandatory detention regime as we know it.
In the unanimous decision
handed down today, the court threw out the federal government’s
strategy of granting temporary visas to asylum seekers through a legal
loophole. Unable to get temporary protection visas through parliament,
the federal government had been granting other temporary visas which
blocked asylum seekers from applying for permanent visas, but today’s
case ruled against that practice.
More importantly, and for the first time, the court clearly set out
the constitutional limits on immigration detention. It was previously
unclear for what purposes the government could detain non-citizens. The
court has now clearly stated that the government can only lawfully
detain someone in three circumstances: to consider whether or not to let
someone apply for a visa; to consider an application for a visa; or to
remove someone.
Detention is only lawful if these purposes are being “pursued and
carried into effect as soon as reasonably practicable”, the court held.
The length of detention must be assessed by what is “necessary and
incidental” to execute and fulfil those purposes. These limits on
detention are constitutional. In other words, Parliament cannot override
them by introducing new legislation.
Today’s decision has profound implications for asylum seekers and
refugees in Australia. The detention of thousands of people who arrived
irregularly before July 2013 is now potentially unlawful and the
government will now have to either release these people or at least
resume processing. Prolonged cases of detention can be challenged before
the courts. The policy of locking people up indefinitely, without
carefully considering whether it is justified in the individual case, is
unlawful under Australian law.
The court’s decision finally provides clarity about the limits of
mandatory detention. Since 1992, the court has heard a series of cases
dealing with aspects of the issue. That year, in the case of Chu Kheng Lim,
the court held there were two limits on detention. First, it had to be
for a “legitimate purpose” – to enable a visa application to be
considered, or to remove a person from Australia. Second, detention had
to be “reasonably capable of being seen as necessary” for that purpose.
In other words, if it were not possible to remove someone, then the
detention could no longer be justified. The court said that detention
that did not meet these conditions would be unconstitutional, because it
would infringe on the exclusive power of judges to detain people.
Since then, however, the high court has tended to question or
overlook these limits. Most famously in 2004, in the much criticised
case of Al-Kateb v Godwin,
the court effectively authorised mandatory and indefinite immigration
detention in Australia. The majority in that case held that the
Migration Act required a person to be detained even if there was no
reasonable prospect of removal. The court held that this was
constitutional.
Since Al-Kateb, lawyers have challenged Australia’s detention laws in
a variety of ways – generally without success. However, in recent years
the high court has become increasingly receptive to such challenges. In
part, this is probably because in practice detention has become longer,
more routine and more extensive.
Since September 2013, the average time spent in detention facilities
in Australia has risen from 100 to 350 days, and there are currently
nearly 4,000 asylum seekers in detention facilities. These numbers don’t
include asylum seekers living in detention in the community.
Today’s case sets clear limits to the government’s power to detain
asylum seekers indefinitely, without review or consideration of
individual cases. In doing so, the high court has reaffirmed the role of
judges in reinforcing the rule of law in Australia.
Opposition leader Bill Shorten during House of Representatives Question time in Canberra. (AAP)
