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
However, it is important to realise
that this latest victory simply maintains the status quo. Asylum seekers remain
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
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
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that offer rescinded after the arrival of the Tampa.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
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
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
Those we spoke to tell a consistent story. Asylum seekers on
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.
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
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
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.