While Immigration Minister Scott Morrison sits with Sri Lankan President Mahinda Rajapaksa and hands over customs vessels to the Sri Lankan Government for use in preventing people escaping Sri Lanka, the High Court is deciding whether a group of 158 Sri Lankans can be returned to the Sri Lankan Government. How did we get to the stage where we are supplying the alleged persecutors with the means of stopping people from escaping and seeking our protection?
The fundamentalist approach to enforcing the slogan ‘stop the boats’ avoids addressing what are some of the key humanitarian issues – protection of refugees and treating asylum seekers with dignity. You can save lives at sea and not set up a system that punishes those you have just saved, the two issues are only connected because of the Government has so demonised asylum seekers arriving by boat, that punishing them seems acceptable to the public.
The militarisation of the process allows secrecy to prevail and a complete lack of accountability. It is only because of the High Court that we have any idea what is happening to those intercepted at sea. Labor introduced the flawed enhanced screening process, which was undertaken onshore. Thanks to the Coalition we have the new simplified version, which can be done at sea, all trying to avoid the risk that the asylum seekers might actually somehow get some advice about their rights and have a chance to better present their claims. Even the UNHCR has criticised the process, of enhanced screening at sea.
Since the High Court ruled invalid the declaration by the Minister limiting the number of visas to be granted, the Minister responded by stating he would apply the ‘national interest’ test in the regulations. This regulation has existed for a long time, but is rarely used. I have not heard of a single case in 17 years of practice. There is little if any law on it, and even fewer policy guidelines.
Asylum seekers will be invited to argue why their receiving a permanent visa is in the national interest. Given that the Minister has consistently said that no-one arriving by boat would ever get a permanent visa, how genuine and unbiased is the process?
Meanwhile applicants are in a limbo, where no visas are being issued, some are kept in detention to move them to Nauru or Manus, others exist in a subsistence way in the community without permission to work and without having their cases processed.
Serious mental health concerns are clearly noticed by those working with the asylum seekers. Levels of stress and anxiety are very high, and even worse in detention. In January 2010, the newly announced Australian of the year, Professor Patrick McGorry, mental health specialist stated: "Detention centres ... you could almost describe them as factories for producing mental illness and mental disorder ... it's an absolute disaster,". That was four years ago before Manus and Nauru were re-opened. Now the situation is much worse.
Now a leaked report from SERCO, the company managing the detention centres reports a six-fold increase in incidents of self-harm in detention from July 2013 to January 2014. When it was reported that several women from countries like Syria and Iraq even spoke of extreme self-harm to save their children, the Prime Minister retorts that we will not be held to moral blackmail. This is not moral blackmail, people are being forced to extremes because the pressure on them is so intense and their only way of protest is self harm. Our response is to punish them and vilify them further.
How did we get this far? The obsession with the stop the boats chant ignores the complexity of the situation of people fleeing and claiming asylum. The Refugee Convention does not protect everyone in fear of persecution or ill-harm, just a limited class of people, which is still more than 15 million internationally. An estimated further 35 million may be ‘persons of concern’ but not strictly within the narrow definition.
Australia is not being asked to deal with all of these people, just a small number are seeking our protection. Our obsession with people arriving by boats means we are blinded to the genuine human rights and humanitarian issues. In our bid to ‘stop the boats’ we have a punishment model that is breaking people.
Kerry 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, an IARC ambassador, and was recognised by AFR best lawyers survey as one of Australia's top immigration lawyers.