Immigration amendments rejection a win for human rights

By Phil Glendenning (complete text, written for Eureka Street 22/8/06)

The decision by the Government to withdraw its amendments to the Immigration Act marks an important stage in the rehabilitation of Australia's record and international reputation on human rights. This has been a remarkable battle that has crossed the partisan lines of politics. Members of both major parties have lobbied from within, working with a significant people's movement that has mobilised to change broader public opinion. Given the political climate in the 2001 federal election, the turn around is truly remarkable.

However, it is important to realise that this latest victory simply maintains the status quo. Asylum seekers remain on Nauru, indeed eight more people have been sent to the island nation for processing in the past week. The withdrawal of the latest Bill ensures the gains won by dissident backbenchers last year remain in place. However, the Pacific Solution (or Pacific Strategy as the Government calls it), the system of processing asylum seekers who do not reach the mainland on other counties, remains in place.

This system is not sustainable, nor defensible. Findings released last week by the Edmund Rice Centre demonstrate the very grave problems associated with the Pacific Solution, and the need for Australia to take a more proactive role in monitoring the fate of those asylum seekers we turn away.

The Centre's research has identified nine asylum seekers and three children of asylum seekers who have been killed on their return to Afghanistan. While visiting Afghanistan we were able to speak directly to two of the families of asylum seekers who have since been killed, and to two other asylum seekers whose children had been killed in attacks on their homes.

One afternoon in Kabul we met with the fathers who had been returned from Nauru whose children were killed. Abdul spent 16 months on Nauru and was the son of a Minister in the Najibullah Government. He was initially accepted as a refugee on Christmas Island only to have that offer rescinded after the arrival of the Tampa. He told authorities on Nauru that he was regarded as a communist in Afghanistan and that he had made a love marriage across religious lines. He said if he went back he and his family would be targeted. He was nevertheless returned and three months later a bomb was placed under his house. His nine year old daughter Yolanda was killed and his mother permanently brain damaged. Six weeks later his other child Rona, aged 6, also died as a result of the bombing. Newspaper reports verify the bombing.

Abdul was accompanied to our meeting by Mohammed whose 6 year old son, his only child, and his mother were killed when their house was bombed.

In explaining his situation Abdul said that he understood politics as his family had always been in politics. He said that what happened to those who ended up on Nauru was that they got caught up in domestic Australian politics. He finally realized, he said, that his children had died so that John Howard could win an election.

In addition to interviewing asylum seekers and their families about their experiences, our team also did background document research. We identified newspaper reports of attacks on those killed. We also did other background checks to verify that the stories we were being told were credible. We met with NGO's, international agencies and church and health professionals with over 30 years experience on the ground.

Our findings are overseen by an eminent group of professional consultants from around the world to assure we meet ethical academic standards, and our findings meet the criteria as specified by a university's ethics committee. Moreover, the lead researcher on this project for the ERC was awarded an Order of Australia by the Government in 2004 for her service to the nation in the field of research.

Before any finding is published our research must be corroborated in three ways. Firstly, we conduct a range of interviews to identify any common trends that may emerge. Secondly, information obtained in interviews is tested against information provided by other research, international reports and expert advice. Thirdly, we record our own observations on the ground to consider whether what has been identified in interviews and corroborated from other sources is consistent with our experiences on the ground. We have now visited 18 countries, met with over 200 people and formally interviewed 85. We strongly stand by the accuracy of our findings.

Sadly, we continue to be shocked by what our findings reveal. They demonstrate a profound failure of our systems for assessing asylum claims. The people who were killed on their return to Afghanistan were sent back from Nauru. They returned after spending months or years in detention on that island. The Government claims these people went back voluntarily, with a cash payment of $2,000. The stories detailed by asylum seekers in Afghanistan, and those from Nauru who were later found to be refugees and allowed to stay in Australia, are very different.

Those we spoke to tell a consistent story. Asylum seekers on Nauru were told they could not stay. They were told that if they did not go back now they would face being forcibly removed later. They were told if they stayed they would rot in detention for years, never see their families and never be allowed to stay in Australia. Besides, they were also told, if you go back now things have changed. Kabul is now safe. It wasn't then and it isn't now. This story came from people speaking different languages, in different parts of the country who did not know each other.

Even more disturbing, for those that did not give in to the pressure to return, and did stay in the camps, most were eventually found to be refugees, after having been rejected two or three times. We now also know that many of those sent back, went back to the very persecution they had feared. What this demonstrates is that the process for determining asylum claims on Nauru does not work. It runs the risk of sending genuine refugees back to the very situations they fled and for which they claimed asylum.

Nauru does not work because it is outside the system of checks and balances that ordinarily make the system work. While the Government claims that asylum seekers abuse the right to legal appeals, the evidence suggests that the high rate of appeals is a direct result of initial determinations being systematically flawed. Time after time, cases coming before the Refugee Review Tribunal and the courts turn up instances of injustice. One might even speculate that there is a culture of initially refusing virtually all claims, and a lack of understanding of the complexity of the political contexts people are fleeing from.

Moreover, why don't we get New Zealand to process our asylum seekers. After all, it's closer and the costs of travel are far less. It's a country in the Pacific with far more resources than Nauru to deal with the asylum seekers needs. Simply, New Zealand as a sovereign independent state would not stand for being a dumping ground to meet Australia's international obligations. We ask Nauru to do this because it is a impoverished Third World country that can be manipulated unfairly. If every other nation faced with processing asylum seekers asked another country to do what Australia has asked Nauru to do, the result would be chaos.

The cases identified by the Edmund Rice Centre demonstrate a need to monitor those we return. We need to be able to check that we are not sending people back to persecution. In a recent review, the Ombudsman recommended that the Government monitor the safety of an asylum seeker being sent back to China because of the fear that the person might be subject to the death penalty. This same oversight needs to be extended to other cases where the Government is not certain that the claims of persecution being made by asylum seekers are not credible.

The Centre has passed on its findings to the Department of Immigration and Multicultural Affairs, and is in the process of continuing to do so. We have handed our names, details of attacks and other background material for those people who permit us to do so. The only information we have retained has been the names of those people we spoke to who have requested we not pass on their details to the Government for fears to themselves or their family. Put simply, if you are the widow with five children whose husband was killed because of his political activity, the public identification of your husband's identity may not be in the best interests of yours and your children's safety. Ethically, legally and morally we are bound, and so we should be, to protect and enhance the safety and security of returned asylum seekers. The Department now has ample evidence to make its own investigations, and it is imperative that it does. Moreover, the work that ERC has done would not have been possible without the input of good people of conscience from within the Department of Immigration, who have met with us on a number of occasions and suggested places of concern to them that we should visit. Foremost among these was the situation of the Hazara people from Afghanistan.

Now that the parliament has shown that it is no longer willing to play politics with these people's lives there is an opportunity for a genuine and mature debate. The policy of off shore processing, where Australia places people outside its legal system, beyond the reach of our courts, cannot continue. Those who fled from the Taliban are not, and were not, the Taliban. The absurdity of the Government's position was to deliberately suggest that those fleeing from terror were suspected terrorists. This has been proven to be untrue. It has led to people with genuine fears being sent back, and it has seen those very fears realized. This is a life or death issue. A debate that treats the issue with the maturity and gravity it deserves is long overdue.