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Poor fellow my country

Three particular reasons heighten my delight at being in the Brisbane City Hall for the launch of Tampering with Asylum. First, Brisbane is the place of my birth, childhood and initial education. Launching a book on refugees, it is good to return to a place that will always be home. Second, the Queensland Government and the Brisbane City Council have done much to make up the shortfall in our welcome to those who have been proved to be refugees fleeing two of the most dreadful regimes in modern history. Third, this is the home of the Tiger XI soccer team, a group of young Hazara men from Afghanistan who fled the Taliban and who now face the review process for their temporary protection visas (TPVs). These young men put a human face on the desperate journeys these people have made to every corner of the earth—journeys that cannot reasonably be classified as queue-jumping searches for migration outcomes or as secondary movement entailing the voluntary surrender of effective protection.

I have five pleas. Could our government stop tampering with the truth? Could our government offer us a coherent rationale for the detention of children? Could our government take a sensible, decent humanitarian approach to the return of those whose TPVs have expired and to the permanent resettlement of those refugees still deserving our protection after three years living in our community? Could our government stop invoking the Christian scriptures in support of such an un-Christian policy? And could we all go and do something about it? It is up  to us to stop our government tampering with asylum.

Truth and consistency of policy are elusive with our developing policy of tampering with asylum. When the Minasa Bone was being towed out onto the high seas in November 2003, lawyers sought the intervention of the Supreme Court of the Northern Territory to ensure that the 14 Turkish Kurds could obtain assistance and pursue their asylum claims if they had any, which of course was highly likely.

The Commonwealth saw fit to inform the court by affidavit: ‘On 6 November 2003 the AFP/DIMIA (Australian Federal Police and the Department of Immigration and Multicultural and Indigenous Affairs) team boarded the vessel and conducted interviews with the crew and passengers to elicit intelligence information regarding possible people smuggling.’ Why did the Commonwealth not see fit to inform the court of the interviews conducted or about the information received about asylum claims? The government now admits that asylum claims were made across the Turkish-English language barrier without translation services being made available.

During the hearing of the case on 7 November 2003, the judge asked the Commonwealth’s key witness, Mr John Charles Eyers, Assistant Secretary, Legal Services and Litigation Branch, DIMIA: ‘Do you know whether or not any of the persons who arrived on the vessel asked for assistance?’ He answered, ‘Not to my knowledge, Your Honour.’ He clarified this answer saying, ‘I don’t know whether they did or not.’ When the judge delivered his written reasons two weeks later, he said:

Mr Eyers (was not) able to advise whether or not any interpreters in either Turkish or Indonesian had been employed at any time either by the Navy or by the Australian Federal Police/DIMIA team. Mr Eyers was asked specifically why Ms Cox’s [Director of the Northern Territory Legal Aid Commission] request to seek access to those on board the vessel was not acceded to. He replied that it was normal procedure that unless a person requested legal assistance it is not provided. He said that he did not know whether any of the persons concerned had asked for legal assistance or not and did not know whether any of them had asked for asylum. Even allowing for the urgency under which this affidavit was sworn I found it incredible that the (Commonwealth’s) principal witness could not answer these questions.

Next day, Mr Stewart Foster, the Director of DIMIA’s Public Affairs section in Canberra, issued a statement saying that ‘a number of comments made by Justice Mildren in his judgment on the Minasa Bone case need to be clarified’. Mr Foster wanted the public to understand, as Justice Mildren had not, that one reason for the government pronouncement of a ‘temporary air exclusion zone’ around the boat was ‘to protect the privacy of those on board the Minasa Bone’. Justice Mildren had the temerity to observe, ‘Behaviour of this kind usually implies there is something to hide.’

According to Mr Foster, ‘The government’s key witness was never asked if those on board the Minasa Bone had made a claim for asylum.’ But hang on. The key witness had told the court that interviews were conducted ‘to elicit intelligence information regarding possible people smuggling’ and he did not know whether anyone on the boat had asked for assistance of any sort. What is DIMIA suggesting? If Mr Eyers had been asked directly about any request for assistance with asylum, would he not have answered, consistent with his more general answers, ‘I do not know’. Or is DIMIA now intimating that if asked directly, Mr Eyers would have told the court that he did know? That he did know what? Would he have asserted that no claim of asylum was made? Remember that two days after Mr Eyers gave his evidence, Ministers Downer and Vanstone told us formally in a joint press release, ‘The passengers of the Minasa Bone did not claim asylum in Australia’. We now know that was false. At the time Downer and Vanstone made this statement, there were public servants who knew this to be false. Is DIMIA now intimating that, if asked, Mr Eyers would have told us correctly that asylum claims had been made? Either he knew or he didn’t. The judge thought it incredible that he did not know. If that requires clarification, then presumably Mr Eyers did know or else there must be some credible reason for the most senior public servant responsible for immigration litigation not knowing. If he did know, did he know the truth or did he know only the lie being peddled around Canberra at the time by his fellow public servants: that there had been no asylum claims made?

Isn’t it time for DIMIA to wear the rap? Whether it be deceit, reckless incompetence or wilful institutional miscommunication born of the ‘Children Overboard’ mindset in Canberra, public servants have caused senior ministers to misstate the facts and have withheld from a court relevant information in a way the judge finds ‘incredible’. Having heard from the government’s key witness that he did not know whether any of those on board had asked for assistance of any sort, the judge was justified in finding it ‘incredible’ that the key witness did not know whether any person on the boat had asked for asylum. It is even more incredible that public servants use the taxpayer-funded website to further obfuscate the truth, implying that the judge hasn’t quite got it right. Unlike Downer and Vanstone, Justice Mildren was not led into error by the public servants. But neither was he assisted by them. Sadly, in this high policy area the Commonwealth is no longer a model litigant.

It is time to put a stop to the government’s word games.

Why do we continue to detain unauthorised arrivals, including children, once we know they are not a health or security risk and once we know they are no more likely to abscond than other asylum seekers living in the community?

On 14 November 2003, Prime Minister Howard told ABC Radio: ‘The point of our policy is to deter people from arriving here illegally. That’s the starting point. That’s what people have got to understand. Our policy is to say to the world “We will take 12,000 humanitarian refugees a year”, we’ll have that policy, we’ll run a non-discriminatory immigration policy, but we will not have people arriving here illegally and we will act to deter that occurring.’

Has the Prime Minister now given us the true explanation? We have a panoply of measures in place, including the long-term detention of children, hoping to deter others from coming here to seek asylum. Mr Ruddock knew there was only one problem with this simple prime ministerial explanation. The High Court has said detention for such a purpose is unconstitutional unless authorised and supervised by a court.

Mr Ruddock always said it was a matter of regret that we had no option but to detain children during the processing of their refugee claims. His argument ran thus. Usually it is best that children remain with their parents. If we release parents with their children from detention, we will set up a magnet effect, providing an incentive for boat people to bring their children with them. So we must keep them all in detention.

Once identity, health and security issues have been addressed, is there any reason to keep everyone in detention? Or should we only detain those who are a risk to the community? Mr Ruddock offered two reasons for ongoing detention: ease of processing and availability for removal.

Those in detention are six times more likely to succeed in an appeal to the Refugee Review Tribunal. So it is hard to argue that detention helps with processing. Ninety per cent of the last wave of boat people were proved to be refugees and therefore not in need of removal. Though we remove more than 10,000 people from Australia every year, on average only 222 of them are boat people. The search for a coherent rationale for universal mandatory detention of unauthorised arrivals including children is ongoing. So is the traumatic effect on the detainees. Such detention may be popular with the electorate. That does not make it right. That just proves that fear of the ‘other’ is so deep in Australia that we are prepared to lock up kids for no good reason.

If there is no practical reason for the ongoing detention of children related to their processing or removal, then we have to admit that we are using these children and the deprivation of their liberty as a means to an end. We detain them to deter others. There are not only legal and constitutional problems with this approach. It is morally flawed. Government should not use children as a means to an end. Government should not abuse the liberty of children to send a message to others. Using their detention as a deterrent signal might be incidentally defensible if there were some other compelling reason for the detention. It is time to distinguish detention at the initial screening phase and at the final removal phase. There is a coherent rationale for detention at those times. There is no coherent rationale for universal, mandatory, judicially unreviewable detention during the processing phase. Asylum seekers who come without a visa are entitled to the same freedom during the processing of their claims as are other asylum seekers once they are proved not to be a health or security risk.

The detention of children without a coherent rationale is institutional child abuse.

I have some sympathy for a government policy of granting temporary protection to people who flee situations of persecution or civil war. If governments were always required to grant permanent residence, they would be less likely to permit people to stay in the first place. And there are some humanitarian disasters in the world that can be put right in a few years, making it safe for people to return home. But there must be limits to the extent that we ask people to put their lives on hold and to the extent that we demand that people return to humanitarian disaster situations once we satisfy ourselves that they face no greater risk of persecution than anyone else in the situation of humanitarian disaster.

The Afghan TPV holders are a case in point. Yes, the Taliban has been removed as the government of Afghanistan. Those who fled fearing systematic persecution by the Taliban are now not likely to be in any worse position than others who fled Afghanistan at the time. The Australian public is now regularly told that the Australian government ‘sees no reason why people no longer in need of Australia’s protection should not return to Afghanistan’. After all, 2.3 million refugees have returned home since March 2002, most returning from camps in Pakistan and Iran.

Afghan TPV holders are presently receiving the first letters of rejection now that their three years’ protection is over. Even if someone is found no longer to suffer a special threat of persecution from the Taliban, we are still asking them to return to an untenable situation. So why the need for indecent haste?

If we are committed to a TPV regime, why can’t we permit the TPV holder to remain in Australia with work rights but without the right of family reunion until it is safe for the person to return to their home country?
Our decision makers now admit that some applicants would face acute risks if they return to their home villages outside Kabul. They overcome this glitch by pressing the word processor entry that says, ‘On the information available I am satisfied that the applicant would not be at risk of Convention-based harm if he elected to relocate to Kabul’. Pray tell, how many people are we expecting to relocate to Kabul so that we can simply clear our books? There is little consolation in the decision maker’s cute observation, ‘While I accept that the applicant has no family or community links in Kabul, the resourcefulness and survival skills that he has demonstrated in establishing himself in Australia, lead me to conclude that the applicant could relocate to Kabul and “could reasonably be expected to do so”.’

Why do we insist on going through the bureaucratic hoops for refugee reassessment including the payment of a $1400 fee for an appeal to the Refugee Review Tribunal when it is inevitable that forcible return at this time would be a humanitarian obscenity? Why not simply put the processing on hold until it is safe for these people to return? If on reassessment they are found still to engage our protection obligations, they should be permitted permanent residence in Australia. I imagine that most of those who are rejected at this time will have the decision makers adding this sort of conclusion to their finding:

While the applicant’s claims do not bring him within the Convention definition, I recognise that his reluctance to return to Afghanistan stems in part from concerns over the general security situation in the country, and particularly in his home province, where the security situation remains highly unstable and volatile.

Regular and constant reports of random violence, banditry, looting, property disputes, and other civil unrest involving warlords attempting to assert their control in particular areas have been well documented. Furthermore UNHCR reports of Afghan returnees have noted difficulties in resettlement due to lack of available housing, job opportunities and the widespread poverty in the country.

That these difficulties represent major obstacles to the successful and sustainable reintegration of returnees is undeniable. Hence the main concerns being expressed now by UNHCR and international welfare agencies focus on the provision of adequate infrastructure to support returning Afghans.
In light of the current country information it appears that there may be humanitarian considerations which need to be considered in relation to the return of this applicant.

The humanitarian answer is as plain as the nose on your face. So why does the government department whose officers know all this as much as we do continue to post on their website political cant such as ‘The Government sees no reason why people no longer in need of Australia’s protection should not return to Afghanistan’.

We are back to the struggle for truth and justice in the face of politics and populism.

When speaking to church audiences over the last couple of years I have been fond of giving a modern Australian variant on the story of Dives and Lazarus and on the parable of the Good Samaritan.

If seeking to implement a Christian response to refugees and asylum seekers on our doorstep, we might contemplate the present Australian version of the parable of Dives and Lazarus (Lk 16:19-26 with a contemporary Australian gloss):

There was once a rich man, who dressed in purple and the finest linen, and feasted in great magnificence every day. At his gate, covered with sores, lay a poor man named Lazarus, who would have been glad to satisfy his hunger with the scraps from the rich man’s table. Even the dogs used to come and lick his sores. One day the poor man died and was carried away by the angels to be with Abraham. The rich man also died and was buried, and in Hades, where he was in torment, he looked up; and there, far away was Abraham with Lazarus beside him. ‘Abraham, my father,’ he called out, ‘take pity on me! Send Lazarus to dip the tip of his finger in water to cool my tongue, for I am in agony in this fire. And remember that I overlooked Lazarus at my door only because there were many other people on the other side of the world who were in even greater need. I wanted to dispense charity and justice in an orderly way, not rewarding queue jumpers like Lazarus who is now with you.’ But Abraham said, ‘Remember, my child, that all the good things fell to you while you were alive, and all the bad to Lazarus; now he has his consolation here and it is you who are in agony. But that is not all: there is a great chasm fixed between us; no-one from our side who wants to reach you can cross it, and none may pass from your side to us.’

My adaptation of the parable of the Good Samaritan has run along these lines: unlike the priest and the Levite, the Good Samaritan takes pity on the man by the roadside but then says to himself, ‘There are many other people on the other side of the world who are in greater need than this man. If I help him, I will only attract others to come here and I will not have the resources to help those on the other side of the world. It is best that I do nothing.’

In a November edition of the Good Weekend magazine, Mr Ruddock offered his interpretation of the parable of The Good Samaritan. Mr Ruddock distinguishes Christ’s situation from ours. Christ was describing what one should do if one stumbles across a single person in need of our help. ‘What Christ wasn’t describing was how you deal with a situation if 200 people lay down beside the highway, all claiming they need assistance, one genuinely in need of assistance and others saying wouldn’t it be nice to get it.’ But let us not forget that 90 per cent of the last wave of boat people to Australia were proved to be refugees deserving our protection. Maybe it would be a different situation if it were one in 200, rather than 180 in 200 who made a legitimate claim on our care and protection.

Not unreasonably Mr Ruddock suggested that Jesus might have set up a triage system for dealing with those most in need. Invoking another gospel story, he asked, ‘Would He, as He did with the money changers in the temple, have said to those who were fabricating their claims that they didn’t deserve his attention?’ But what would he have said to those fleeing the Taliban and Saddam Hussein and who were not fabricating their claims? Even if we cannot collectively emulate the Good Samaritan, could we not at least emulate the United States in this one regard: admitting a generous quota of offshore refugees each year and granting asylum to onshore asylum seekers without pretending that each successful onshore applicant takes the place of a more needy offshore refugee? The last thing the Good Samaritan would have done was to abuse the needy person in his street in the name of helping the more needy elsewhere, then do nothing further to help those elsewhere. We take only 4000 offshore refugees a year which is less than the annual average since the end of World War II. Our foreign aid budget is only 0.24 per cent of our gross domestic product while the UN’s recommended level is 0.7 per cent. Let’s not invoke the gospel as an excuse for doing less at home when we might in the future merely consider doing more abroad.

As Australians we need to find our way back to the truth, to a way of treating children decently, to treating in a humanitarian way those whose visas have expired but whose countries are still disaster zones, and to a way of applying the great Christian parables of care for the other to the complexities of our present situation. Let’s maintain hope that decency and democracy are not antithetical to each other even in an age of terror and uncertainty.     

Frank Brennan sj ao is the Associate Director of Uniya, the Jesuit Social Justice Centre. His most recent book, Tampering with Asylum, is published by University of Queensland Press, 2003.



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