Refugee rage

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Chris Bowen CompassionateMinister Bowen's announcement of 'tougher measures' for refugees in detention harks back to a time when the previous Government kept finding new ways of vilifying asylum seekers. He is proposing changes to the character test and a new 'temporary visa'. It is sad that within such a short time, the Labor Government has moved away from the promising rhetoric of former Minister Evans at ANU in July 2008.

Senator Evans stated: 'A person who poses no danger to the community will be able to remain in the community while their visa status is resolved ... The department will have to justify why a person should be detained. Once in detention, a detainee's case will be reviewed every three months to ensure that the further detention of the individual is justified.'

As more boats came, and the Opposition ramped up the rhetoric to shrill antediluvian levels, the policy reforms were eroded. People were left in detention for longer and longer periods. The changes proposed do not address some of the causes of frustration in the first place.

I have clients in detention who have been there for over a year. Some took that long to finally get approval as refugees, now they are waiting for security clearances. When I contact Immigration about the security delays I am told they know nothing, as the case is being processed by an 'another agency' — code for ASIO. Immigration cannot tell me how long this process will take.

I have no reason to doubt ASIO are doing what they should, but they are clearly under-resourced, because it is taking 9–12 months or even longer to get the security checks. This period is commonly longer for clients out of detention.

When I complain about these delays to the Inspector General of Intelligence and Security (IGIS) I am told in classic Yes Minister style:

'We will not provide any other feedback but will contact you if we require any further information about the case. I suggest you maintain contact with the Department of Immigration and Citizenship (DIAC) for information about the status of the visa application.'

In other words: Don't call us and we won't call you!

So DIAC tell me they are unable to tell me anything, and IGIS tell me to contact DIAC. As an immigration lawyer, I am frustrated by this circular process. What must it be like, then, to be locked in detention and told after a year 'You are a refugee, you will be released, but we do not know when ... be patient.' And, 'There is nothing further we can tell you.'

The inability of Immigration to move the cases along is a major cause of the frustration among detainees, which led to the riots.

There are a number of major reports from experienced psychologists about the significant adverse consequences of prolonged detention. Now the Minister wants to punish them further.

The character test is already strong enough. Every person must pass the test before they get a visa for Australia. Now refugees will have a higher hurdle than anyone else, despite being found to meet the refugee criteria. Furthermore, they will be punished by a temporary visa which precludes family reunion — one of the worst parts of the old TPV regime.

The Refugee Convention provides that someone should not be refused refugee status unless they have 'committed a serious non-political crime', been involved in 'war crimes, or crimes against humanity', or are a serious security risk. In my many years of practice, I have seen less than a handful of such cases, because they are rare.

Burning of property, and alleged assaults are serious and not to be condoned. However, they are not so serious as to warrant someone not getting the full benefit of refugee protection.

A similar change was introduced by the Howard Government in 2001, leaving a number of refugees delayed in the process due to minor offences. The criminal justice system can deal with these cases under existing laws. The character test is strong enough; an individual fails if they have received a prison sentence of 12 months. That is good enough for every other visa, why not for refugees?

The Minister needs to show leadership, let the criminal justice system deal with the cases, and not pander to the Opposition's 'race to the bottom' politics. There are changes needed, but they relate to the need to speed up processing of security checks to avoid having people in detention for so long.


 

Kerry MurphyKerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers. He is a student of Arabic, former Jesuit Refugee Service coordinator, teaches at ANU and was recognised by AFR best lawyers survey as one of Australia's top immigration lawyers. 

Topic tags: DIAC, IGIS, Villawood, asylum seekers, detention centres, refugees, temporary protection visas

 

 

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Existing comments

Kerry, thank you for this measured - but so sad - article. I have been writing to a young Sri Lankan refugee who was recognised as a refugee on arrival in Australia, but after 535 days in detention is still awaiting ASIO clearance. Arrest, torture and terror preceded his arrival. Now anxiety, frustration and incomprehension surround his days. A teacher in Sri Lanka, on his release he intends to work in the social welfare sector, helping other refugees. But he has no idea when that will happen and we are both bounced from DIAC to ASIO and back, receiving only 'form' letters.

We are all immigrants to Australia (except of course for our indigenous peoples). I cannot understand this relatively recent 'close the door' attitude, especially when we are excluding such admirable, brave and compassionate people. Keep up the good work Kerry!
alison corke | 28 April 2011


At a time when the old Xenophobic chain email makes its way around again stating that refugees accepted for residency are receiving $60,000 per annum in benefits, its an opportunity to stop it in its tracks with the truth.

Kerry, I would welcome a comment here to clarify something else which might illuminate discussion on the detainee question. Are you in a position to give an indication of just how many of these people in detention arrive in Australia with any kind of credible and traceable documentation? The Tabloid media keep telling the Australian public that the 'Snakeheads' pressure 'boat people' for example to dispose of IDs before arrival. If this is true, can we assume that a lot of the frustration arises from the fact that Immigration and ASIO have little if anything in the way of documentary proof of identity. I think your feed back would be welcome and enlightening.Few news services thrive on truth!

David Timbs | 28 April 2011


"Burning of property, and alleged assaults are serious and not to be condoned. However, they are not so serious as to warrant someone not getting the full benefit of refugee protection." Is Kerry Murphy joking or did he lose his marbles?

We live in a country prone to bush fires and the last people we want is more fire bugs. The law should be changed and made that all non Australian are sent back if they commit a major crime. Switzerland just introduced such laws recently and Australia should follow.

Beat Odermatt | 28 April 2011


I have sympathy for the detainees. I wish all who are legitimate be granted refugee status as quickly as possible and enjoy the gifts our country may offer. However I am often challenged by those who say these people are queue jumpers who are being unfair to those who have come via the normal refugee path, what ever that may be. How could I respond ?
grebo | 28 April 2011


Keep up the good work Kerry.
Jim Jones | 28 April 2011


ASIO under resourced? For the past ten years they have had substantial increases in funding - whether the people they have recruited are competent is perhaps another question. I suspect that there is also a culture of caution in the decision-making process.
Doug | 28 April 2011


There is a major problem with this article, the kind of thing that allows the shock jocks and the Murdoch press to rant as they do.

Have you spotted it?

First three words of the fourth para: I HAVE CLIENTS ...
Frank | 28 April 2011


Kerry's article has so much logic in it but becomes a "rant " when he dismisses the burning of property and the endangering of the lives of other citizens as not serious enough to be a failure of the character test for Australian citizenship.

No wonder we can never get a sensible discussion going on this most serious issue when all involved take sides like kids in a school yard calling each other names .
john crew | 28 April 2011


Grebo, the notion of a queue for refugee entry is a myth- there are no queues for asylum seekers to join.

Refugee resettlement is an arbitrary process; most refugees languish for years in limbo in refugee camps in non-signatory countries, often in unsafe circumstances, with little hope of a real future- no rights to work, no access to education, no opportunity for a stable future. The question is, what would you do in their shoes?
Kate | 28 April 2011


Put the illegals and those that transgress against authority in the most secure prison in the country, arriving in America without papers you are either jailed or if unlucky shot. Keep the potential terrorists (oddly all Muslims) that are a threat to our society out of this country.
Trevor J Bates | 28 April 2011


Why not have refugees waiting on the mainland in far away places living a pioneer's life until they are free to choose where to live. After the WW2 we had schemes for the Balts cane cutting in North Qld. Very successful. Do away with Christmas Island. IT WAS HOWARD'S SHAME! It's not "australia"
Jack Kennedy | 28 April 2011


There is no use stating what the minister should be doing. Look at his face; it shows that he is impervious to any plea for compassion. The only political party supporting asylum seekers is the Greens and Pell doesn't want Catholics to vote for that party.
Maureen Strazzari | 28 April 2011


Beat's quote and conclusion that Kerry is either 'joking or [has lost] his marbles' ignores Kerry's later comment that 'the criminal justice system can deal with these cases under existing laws' and that 'an individual fails [the character test] if they have received a prison sentence of 12 months'. There are already laws in place that enable non-citizens to be deported or refused re-entry if they have a serious criminal record. Many of the problems we experience with people held in indefinite immigration detention arise because successive governments have tried to manage the process outside the normal legal and judicial process. We don't need special laws that apply only to particular classes of people. Murder is murder, arson is arson, fraud is fraud, and alleged offenders should be charged and dealt with by the courts in the standard way without regard to their citizenship, nationality, gender, religion, race, wealth or whatever. That's what the 'rule of law' and equality before the law' is all about. And as for ASIO, one can only shake one's head and wonder who actually runs this country. Why do we need a secret and effectively unaccountable service doing security checks against unspecified criteria to unspecified levels of confidence when the AFP could do the job just as easily and in a more accountable and transparent way?
Ginger Meggs | 28 April 2011


Even our indigenous people came to Gondwanaland by boat.
Joyce | 28 April 2011


The ASIO checks amount to doing nothing. They can't ask the persecutors, they don't interview most of the people, they read the files and that is all they do. The fact is it is the DIC's holding things up by denying 50% of the people who then win on their appeal. I absolutely condone burning the huts and tents to the ground, I advocate bulldozing the concentration camps all at once and always have done. The idea that we have to agree that burning down the illegal tent is bad drives me crazy.
Marilyn Shepherd | 29 April 2011


Refugees do not need papers, most cannot get papers, if they had papers they could be forced home by the non-signatory countries they have to pass through to get to safety. This deluded obsession with papers is deranged. If the house is bombed to the ground how do you get papers?
Marilyn Shepherd | 29 April 2011


I work in a nursing home. I spent the whole day yesterday trying to contact the dept of immigration just so one of the residents- 93 years old, English, has lived in Australia 9 years, has permanent status- could upgrade her Medicare card so she can have surgery on a facial skin cancer. She and I are experiencing a millionth of the frustration faced by asylum seekers, but the experience (by the way, we got nowhere) left us shattered. And this is a "respectable" English-speaking little old lady!!! Between the dept of Immigration and Medicare, we were shunted and obstructed at every turn. I have long believed the problem was mainly a moral/ethical one...now I also see that inefficiancy also plays an enormous part in the sufferings of asylum seekers. I just wish Australia would grow up. I hate the cutsey Aussie Aussie Aussie oy oy oy sentimentalism that masks Australian ignorance and brutality. It doesn't work any more. It's time we stood up to be counted as a mature country, with the ability to self-reflect. All the flag-wearing, rascist, self-congratulatory ockerism disgusts me.
Philomena van Rijswijk | 29 April 2011


Well said Philomena!
Ginger Meggs | 29 April 2011


Dear Philomena, I'm told that our politicians structuree their platform, articulate their ideals, but that the Executive, the bureaucrats, translate and implement those ideals, and never the twain shall meet if the bureucrats have it their way.
Joyce | 29 April 2011


Three cheers for Philomena.
Jim Jones | 29 April 2011


When will we ever get it right! Refugees are NOT criminals they
ARE people who are trying to get a better go at life. I just don't have anymore to say as it has all been said before. I will however, light a candle for all those advocates who never give up with trying to humanise the whole process.
rhonda | 29 April 2011


The standard excuse that detention of asylum seekers must continue until they get their character clearance from ASIO is a shameful red herring. On 4 March 2011, crikey.com cited an ASIO report which stated that of the 38,438 visa Security Assessments completed by ASIO only 19 received adverse mentions on the ground of counter-terrorism; all others related to espionage or foreign interference, ie lesser charges. ASIO has grown over recent years but we don’t know how much because they refuse to release figures relating to their growth (they snubbed the Senate Estimates Committee that wanted to ask questions.

ASIO’s processing times for character checks have grown to 66 days, one month longer than in 2009. Given the low level of risk among asylum seekers it is unbelievable that we should continue to detain asylum seekers whose claims have been accepted for so long, just to indulge the fears that ASIO likes to cultivate to preserve their empire.
Eveline Goy | 30 April 2011


As always sane and to the point. Most especially Kerry tells it from his privileged point of view, that of the asylum seeker. It was sad to read today in a small inside column of the Sun Herald that the last of the detainees had come down from the roof.
steve sinn | 01 May 2011


Marilyn Shepherd

surely you Jest when you say this:
<i>If the house is bombed to the ground how do you get papers?</i>
because it occurs to me that if every claimant was blighted by having all of their worldly goods destroyed as you suggest then just how would they be able to afford to pay a people smuggler for their passage?
Iain Hall | 05 May 2011


Keep in mind that some nations do not keep paperwork like we do. Displacement due to terror and war in villages of Sudan and Afghanistan often occur in small rural areas where birth certificates and passports are not used routinely. Its a myth that people deliberately come to Australia.

When the militia has chopped off your children's arms with a machete, you grab what you can and run - get me out of here. This may include last remaining cash to pay your passage. Finally, Afghanistan is occupied by Australia and despite their good intentions, you cant expect war to run in an orderly fashion. No consular offices in these countries too. Let them in - lets get them cooking and enjoy their food, just like we now enjoy Greek, Italian and Vietnamese! Australia is so boganned-up on this issue it make me gag.
Moodiboy | 24 May 2011


Here in Perth IDC we had a young Iraqi man who received his rejection letter. Reason given: it is now safe for you to go back to Sri Lanka.
No grounds to appeal as it is an error of fact.
He was punished for getting angry (who wouldn't).
Just yesterday I was told that advocates MUST NOT contact IHMS direcly when an asylum seekers informs us they intend on taking their life. We must call the center and inform a SERCO clerk who answers the phone, who will then decide if it merits response. Given that many of us advocates have a mental health background the absurdity of pleading with a security officer who has none to intervene on behalf of a suicidal person strikes me as absurd in the extreme. But little surprises me any more. Not since a Serco officer leaking info to us let us know they handcuff suicidal persons up at Curtin to avoid a repeat of when M threw himself through a plate glass window in "management" cell.
victoria martin-iverson | 08 June 2011


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