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Labor and the Coalition's cruel credentials

Kerry Murphy |  19 August 2013

Hands in chainsThe Government and Coalition asylum seekers policies are brutal. Labor is subcontracting our international obligations to poor neighbours who do not have the resources to resettle refugees who may well have trauma issues. Not to be outdone in the cruelty stakes, the Coalition has four proposals, each of which has serious flaws.

First, we have the old Temporary Protection Visa (TPV). The TPV was introduced in 1999 and shortly afterwards there was a serious spike in arrivals by boat, often with women and children who could not be sponsored by the men already here. The TPV is punitive, yet has no deterrent effect. I have never met anyone who thought the TPV was a deterrent to them coming to Australia.

Assuming the Coalition mean the first version of the TPV from 1999, this means no sponsorship of spouses and dependent children until the refugee is granted permanent residence. Previously it was taking five or more years before permanent residence decisions were made. Given the processing times for partners, this could mean six or more years separation from spouses. A number of psychologists reported on the deleterious effects on people's mental health of being forced to separate for such long times with the future uncertain.

Then you had to reapply for another protection visa, and endure more processing costs and delays while this was assessed. By 2004 it was clear that the policy was too harsh, and refugees were then allowed to apply for other visas such as skilled visas, student visas or partner visas for those who had married or partnered onshore since they were granted protection.

We do not require those resettled from offshore, or those who arrive with a visa and then make a successful claim, to reprove their refugee status after three years. Some psychologists have commented on the detrimental effect the actual process has on people who have to recount their traumatic experiences again and again.

The second proposal is to simply remove the review process. The logic here seems to be not that the Refugee Review Tribunal (RRT) is performing poorly, but that it is approving too many cases. This proposal shows the inherent bias in the Coalition against people coming by boat; a bias shared at least by Labor Senator Carr, reflected in his uninformed comments on Iranian asylum seekers.

The Coalition states that they will use a system similar to that used by UNHCR — single case officer, internal review only. This system is designed for use in countries without established administrative legal processes, and in refugee camps to deal with massive population movements. Why should a developed industrial liberal democracy use an inadequate legal system just for asylum seekers?

Removing the review mechanism means the only review option is the courts. This is an inefficient and costly way to run an administrative process.

An independent review mechanism is the standard process for review of nearly every administrative decision in federal and state bureaucracies. A review process means there will be more careful decision making, not less. It is possible to foresee political pressure on case officers to turn around cases quickly, rather than carefully. While there are flaws in the current process, the solution is not to remove it altogether. The system is about selecting those who are in need of international protection, which is a serious and onerous task.

The third proposal is to use s91W to draw adverse inferences against an asylum seeker's nationality for someone who destroys their documents and is unable to adequately explain why.

This provision was inserted back in 2001 but has hardly ever been used because it is impractical. If someone says they are from Afghanistan, and have no documents, where can they be sent? Assume that an adverse inference is drawn about nationality, and they are assessed as not being Afghan because they do not have any documents; but then Immigration approaches the Afghan government for documents to send them back because there is no other realistic option — how is this a proper assessment of someone's case?

The final item is to adopt the fast track system of the UK. This system, as well as other parts of the UK system, have been strongly criticised by groups such as Amnesty International, Human Right Watch, Asylum Aid UK, and UNHCR among others. A common criticism relates to poor quality decision making at the initial level. Amnesty notes that this includes:

  • The use of speculative arguments or unreasonable plausibility findings
  • Not properly considering the available evidence
  • Using a small number of inconsistencies to dismiss the application, and
  • Not making proper use of country of origin information.

Anyone familiar with the Australian system would tick those four items as common errors in our system, yet the Coalition seem to want to copy a flawed system, add some cruelty with the TPV, and abolish the review mechanism which should reduce the flaws.

Neither major party has a policy that respects relevant human rights issues, or an administrative system designed to ensure the correct decisions are reached. And neither policy respects the dignity of the people involved.


Kerry Murphy headshotKerry 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.



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Submitted comments

Neither has a policy that has even a vague whiff of legality about it. What happened to the right to protection?

Marilyn 19 August 2013

We have to face the fact that both major parties are led by teams who have not learnt from the history of the holocaust, and don't know that that history has important lessons.

Jim Jones 20 August 2013

"To what can I compare this generation? They are like children sitting in the marketplaces and calling out to others: 17 " 'We played the flute for you, and you did not dance; we sang a dirge, and you did not mourn. http://www.youtube.com/watch?v=5H7BTKTOwLE But wisdom is proved right by her actions." Matthew

Game Theory 20 August 2013

Sounds more like you are defending the human rights of people smugglers & the human rights of people on boats to drown. Where is the dignity in that?

Angela 20 August 2013

Thank you, Kerry, for another great piece. I have to say that I've been feeling very shocked by these recent policy announcements - and they just keep coming, don't they? ... each one worse than the preceding one! Just picking up on two of your excellent points: First, recently I was at a seminar at the Curtin University Centre for Human Rights Education, here in Perth, and a psychologist spoke about her work with asylum seekers and refugees in detention here in Australia. She maintained that it is the conditions of detention, and the stress caused by the uncertainty under which they are forced to live, which causes most psychological harm (and, I would argue, stress that will be further exacerbated by the reintroduction of the TPV). Amazingly, this detention/uncertainty-induced trauma seems to eclipse the horrors from which they have fled. Second, as a migration agent who does a lot of family visas, I am simply gobsmacked by the punishment of (mostly) women and children inherent in the despicable and bizarre policy of preventing family reunion. I hear that under the old TPV, refugees were not even permitted to visit their family in a third country. I'm sure you have seen people do this sort of visiting to e.g. Pakistan, Kerry, as I have too. But apparently, the TPV gave no rights to re-entry to Australia. The revival of all this will only punish the poor families left languishing in places like Afghanistan, and force them to take their chances with irregular migration processes. I assisted a refugee father a few months ago, who has a wife and four children in Kabul. I shuddered as I told him that it might take years for their application for family reunion to be approved, and for his family to come here. The look on his face was despairing. But it really punishes the children: if only they could be here sooner, they could be safe and they could go to school, have a better life, learn English and make friends etc etc. Cruelty aside, there is absolutely nothing to be gained by delaying or preventing family reunion. In fact, it should be expedited!

Lydia 20 August 2013

Labor and Coalition refugee policies are the main reason why i will probably refuse to vote. I can't in conscience vote for either, and since there is no other possible winner, a vote has to be a vote for one of them.

Gavan Breen 20 August 2013

Angela, there's no evidence to suggest that stopping asylum seekers getting on boats to Australia will stop them getting on boats elsewhere. I suppose it's OK if they drown somewhere else and we don't have to feel guilty about it. Both major parties want to turn this into an issue about 'people smugglers' - if we can paint them as the villains, it lets us off the hook. This is about desperate people and it's a world-wide epidemic. Turning our backs won't fix the problem.

JF 20 August 2013

Thank you Kerry - your comments are always informed, considered and rational. You contribute a caring, knowledgeable voice in these uncertain times that are so terrible for such vulnerable, fragile people. I wish Messrs Rudd, Abbott, Carr &co would take the time to read and learn from your wise words.

Ali Corke 20 August 2013

Some time back I wrote to Eureka Street voicing my disappointment that these vile policies stem from leaders that have had a Jesuitical education, as do I. What's more disturbing is the fact that it has taken some present pupils, not their educators, to point out the terrible wrongs of these policies. Maybe its time that the various faiths actually stood up for what they believe and publicly condemn our treatment of asylum seekers.

Tom Mitchell 22 August 2013

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