The standard is set
In 1940 the Nazis invaded small neighbouring Denmark, a country then
with a population of about 4 million. In September 1943 the Nazi
administration decided to implement the Final Solution with regard to the
Danish Jewish population, numbering approximately 7,800 people. Word
leaked out of Gestapo Headquarters and on the Jewish New Year Holiday, the
Chief Rabbi of Denmark, Rabbi Melchior, made a stunning announcement to
the congregants. The service would be cancelled and people were advised to
flee Demark. Over the next few weeks, approximately 7,200 of the
population left on boats to cross the narrow waters to neutral Sweden.
They did this with the open and wholehearted support of the brave Danish
population, led by the Danish King and with the leadership of the Danish
Lutheran Church. About 500 of the Danish Jewish population was rounded up
and taken to the Thieresenstadt Concentration Camp. Danish humanitarism
did not end but over the next few years, until the end of the war, the
Danish King and the Danish Red Cross made constant representations to the
German authorities to ensure the well-being of the Danish Jews. None were
transported to Auschwitz for extermination and approximately 30 died of
"natural causes". On the liberation of the concentration camps,
the remainder were able to return to Demark. The moral courage of the
Danish people was recognised by the unique gesture of the Israeli
government of declaring the people of Denmark to be a nation of righteous
gentiles. Faced with the moral dilemma of obeying immoral laws pursued by
the government then in power, the people of Denmark made the appropriate
moral choice. When we think about this extraordinary story, 58 years on,
we can be nothing other than deeply moved and humbled. We must all ask how
we would each act in the same situation.
The background
In Australia, refugees are amongst the most vulnerable and,
unfortunately, sometimes the most maligned and vilified.
The continuum of history teaches the cyclic nature of human experience:
both its tragic moments and those moving experiences which rouse our
compassion and provide us with that further impetus to keep on trying to
achieve the goals which we all espouse.
Those of us who have both the fortune and misfortune to deal with the
plight of refugees experience these sentiments on a daily basis. We all
hold dear fundamental principles of the Rights of Man as expressed in the
Universal Declaration of Human Rights on which the United Nations is
founded, and the 50th Anniversary of which we celebrated in 1998, and
which is underpinned in the human rights Covenants which have been
ratified by that Body and endorsed by Australia. Let us never lose sight
of the fact that almost invariably refugees are victims of the failure of
governments both individually and collectively to uphold these principles
and the rule of law. We are fortunate in that in recent years Australia
has never been the cause of an outpouring of humanity. On the contrary, we
have in the past had a proud record of opening our collective arms to
those who have been in no other position than to seek our compassionate
support, particularly with regard to resettlement of refugees, our record
is second to none, with over 600,000 refugees and displaced people
resettled here since World War II. On the contrary, our record in dealing
with the other half of the refugee equation, those making or attempting to
make, onshore claims is not the cause for such pride, especially when
compared to our legal and moral obligations and the standard set by other
comparable countries. In this area, our fixation with border control has
been the cause of serious policy and legislative human rights breaches.
The issue of human rights and the problems of refugees are inextricably
linked. The vast majority of refugees are driven from their homes by human
rights abuses. Persecution, torture, killings and the reprehensible
practice of 'ethic cleansing' generate huge flows of refugees.
Safeguarding human rights is the best way to prevent conditions that
force people to become refugees. Respect for human rights is a key element
in the protection of refugees in their country of asylum. Improved
observance of human rights standard is often critical for the solution of
refugee problems, enabling refugees to return home safely.
Cambodia, Rwanda, Burundi, Bosnia and former Yugoslavia, Guatemala,
Chechnya, East Timor, Tibet, and now Afghanistan. Each of these distant
countries which almost none of us would have visited is now etched on our
brains by the tragic sights seen on television of their dispossessed
peoples. Formerly quiet backwaters, safe havens, they have become
nightmares for their inhabitants and yet another challenge to the humanity
of the international community. As we sit in our armchairs watching the
suffering which seems never-ending, we must always remember that each
refugee and displaced person from these and other countries is an
individual, a person like all of us who breathes, eats, has relationships,
feelings, and hopes for themselves and their offspring. We must resolve
never to succumb to that most odious of late twentieth century sentiments,
compassion fatigue. Let us always remember the remark of John Bradford on
watching people being let to their execution in the sixteenth century:
"there but for the grace of God go I".
There are now more refugees and internally displaced people in the
world than at any time in human history. The UNHCR estimates there are
over 22 million refugees and people of concern to it. In addition, there
are at least an equal number of internally displaced people.
We in Australia have a unique geographical location, so isolated from
the rest of the world and immune from its natural and man made disasters.
In Australia our press and our politicians regularly exaggerate the so
called "boat people threat". This is particularly the case in
the last 12 months. The reality is that since 1 November 1989, DIMA
records state that 13,489 people arrived by boat unvisaed in Australia. In
the 2000-2001 year, there has been a larger number of boat arrivals, it is
true. In this period, 4,141 have arrived in this way, the vast majority
from Afghanistan and Iraq. Not though the tens of thousands a year as the
prophets of doom and racial prejudice would have us believe. Compare this
to the 250,000 Burmese who flooded Bangladesh in the early 1990's, the 4
million Afghans in neighbouring countries, the millions in Africa and the
hundreds of thousands applying in Germany annually. Do we really have a
problem? This question should be repeated over and over.
Our countries' benefit however carries important responsibilities. We
are a nation of small population, a nation of wealth, and a nation rooted
in a commitment to democratic principles. We must use these assets not
only for the well being of those fortunate enough to have been born or
allowed entry permanently to this country, but also for the benefit of our
fellow human beings. We must not retreat into a fortress of selfishness.
Non Indigenous Australia is a country of immigrants, a large number of
whom came as refugees. Most of us here today are either immigrants or
children of immigrants. Those lucky enough to be born here and more sadly
those who have migrated often forget the problems of their forefathers.
Remember the words of Leviticus 19: 33 and 34:
- 33 And if a stranger sojourn with thee in your
land, ye shall not vex him.
- 34 But the stranger that dwelleth with you shall
be unto you as one born among you, and thou shalt love him as thyself;
for ye were strangers in the land of Egypt: I am the Lord your God.
Similar words appear in at least 3 other chapters of the Old Testament.
How significant is this biblical injunction!
Whilst we should not dwell on our history, nor live in the past, we
must learn from the experience of our history to assist others in need who
now share the problems that we as a community have experienced in the
past. In a speech entitled: "Seven Lessons from Hobart"
delivered on 28 June 1997 his Honour Justice Michael Kirby mused on
lessons to be learnt from the battle fought by a few to achieve homosexual
law reform in Tasmania. His Honour noted:
- The fifth lesson is that those who have been involved in this
reform process should keep their minds alert to new challenges to human
rights. It is often disappointing to see the insularity of people
committed to a particular cause. Women concerned only with gender
discrimination. Indigenous people and their supporters attentive only to
discrimination on the ground of race. Homosexuals concerned only with
gay law reform. It is important always to see these and other grounds of
discrimination in a larger context: disadvantaging people upon
preconceived notions without regard to their individual qualities.
Refugees from the past and those of today share so many common
experiences. Let us all be enriched in our endeavours by remembering these
similarities and building on them for the common good. To quote now from
the present High Commissioner, former Dutch Prime Minister Ruud Lubbers in
a recent article:
- "I am concerned about the tone of the political debate in a
number of industrialized countries - rich nations that can afford to be
more generous to refugees. ...
- Asylum-seekers have become a campaign issue, with Governments and
opposition parties vying to appear toughest on the "bogus"
asylum-seekers flooding into their countries. ...
- Statistics are frequently manipulated, facts are taken out of
context, and the character of asylum-seekers as a group is often
distorted to present them as a threat their detractors can then pledge
to crush. ...
- It becomes a numbers game: reduce arrivals at all costs.
Asylum-seekers make a perfect target for people who want to invoke the
age-old prejudice against foreigners. Asylum-seekers can't answer back.
...
- But distortion, exaggeration and hyperbole are no way to approach
an issue that is not simply about numbers - real or distorted - but
about saving human lives.
- Genuine refugees should not become victims yet again. Surely there
are other ways to win elections."
The International Regime
Especially given the political climate of Australia today there are
massive misconceptions in relation to refugees. Permit me another brief
historical and personal diversion.
Arising from the persecution by the Nazis of the Jews and others in
particular in Europe, as well as their political opponents, in 1945,
Europe was left with tens of millions of people who were displaced, who
had their families and their lives completely destroyed. I have relatives
and friends whose parents were interned in the concentration camps of the
Second World War, who suffered those horrors purely because of their
religion or race. When the allied forces opened the doors to the camps in
1945, they saw sights which reduced grown military men hardened to battle
to tears. They could not believe the scope of horrors that they saw;
horrors which had been carried out in an organised scientific way by
Germans who until then were considered the most refined, genteel, cultured
people. Lessons had to be learned, and a legal regime had to be put in
place to protect the persecuted.
It was the world's response to the horrors of the Second World War and
the displacement of people there, which led the world community to develop
the 1951 Convention on the Status of Refugees. That Convention had a
fairly narrow limitation in that it was intended to cover Europeans who
had fled or were the victims of persecution up until that date. This year
is significant as it marks the 50th anniversary of the Convention.
In 1967, the international community extended the Refugee Convention
through the Protocol so that it became much more universal in application.
Countries are encouraged to ratify the Convention and the Protocol, and
now in excess of 136 countries have ratified both international
instruments.
There are also regional conventions which extend the regime, but none
regrettably yet in the Asia-Pacific region.
Australia as a signatory to the Convention on the Status of Refugees
has accepted the legal obligation not to refoule (involuntarily return)
persons who are found following our very strict selection processes to be
refugees as defined. The Convention obligations on countries must not be
viewed within the immigration context.
In international law, under the Convention, a refugee is essentially a
person who has a well founded fear of persecution arising from their race,
religion, nationality, political opinion, or membership of a particular
social group, and who is outside their country of habitual residence and
nationality and has a fear to return to that country.
The media often wrongly portrays people as refugees who are not
refugees under this definition that I have just enunciated. People who for
a variety of reasons may justify our compassion include people who are
internally displaced; people who are fleeing natural disasters; people who
have other humanitarian grounds for flight; people fearing torture or
trauma back home, but for a non convention reason, or people who seek
relocation because of substantial economic problems in their country of
origin. Those people are not considered to be refugees under the
internationally accepted definition of a refugee and it is very important
at all times to bear this in mind. Under international law these people
are not refugees.
The United Nations High Commissioner for Refugees (UNHCR) is tasked
with the overall supervision and responsibility for the care of refugees,
and to resolve refugee problems. It is a huge international bureaucracy
with offices around the world. Trouble shooters go to different regions
where people are in flight and the UNHCR provides assistance and service
to people who have problems.
The UNHCR operates with the assistance of national governments and
every September/October there is a major gathering in Geneva of countries
who are represented and elected to the Executive Committee, or as it's
called Excom, which acts as an advisory body to the UNHCR. The UNHCR is
responsible for the administration, if you like, of the Convention and the
Protocol and has responsibility for ensuring compliance with resolutions
which come out of these annual Excom meetings. Whilst those resolutions
don't have the binding force of law internationally they have the legal
weight of internationally accepted and agreed resolutions so that
countries are requested to adhere to these resolutions in the manner in
which they deal with the issues.
Excom resolutions cover a variety of aspects from such things as piracy
against asylum seekers; the responsibilities of countries of first asylum,
the rights of refugees once determined as refugees and the duties of
Convention countries to refugees who have had their status determined.
There is an important distinction between a refugee and a person who is
applying for refugee status or an asylum seeker. At international law, the
Convention benefits and duties basically attach to refugees, in other
words those who have been determined following application or other
process, to be refugees. With regards to asylum seekers (those who are
applying for refugee status), the Convention provides a facility for the
determination of refugee status, and an obligation on signatory
governments to ensure that people can make that application. Applications
can be individually processed or they can be processed by group
determination.
In Australia until recently, the procedure has been almost consistently
one of individual determination. An example of a group determination
includes the approach taken to some Indo-Chinese refugees who have sought
asylum in other countries of South East Asia (the Comprehensive Plan of
Action). It is important to note that Convention countries accept the
principle of non refoulement - that except in limited situations, refugees
cannot be repatriated against their will to the country from which they
have sought asylum.
Some years ago, Australia introduced the safe haven visa concept to
enable temporary protection to be offered to specific groups. People from
Kosovo and East Timor have been brought here on this visa with UNHCR
involvement. On 13 October 1999, in what many saw as a very contentious
decision, the Minister announced the Government's intention to extend this
concept to people arriving unvisaed who apply for and are granted
protection visas in Australia: the introduction of the temporary
protection visa regime (it should be noted a similar regime was put in
place and abandoned because of the problems involved in the early 1990s).
There are three basic solutions applied to the huge international
refugee crisis. These are by the means of voluntary repatriation, local
integration, and third country resettlement - the three durable solutions.
Voluntary repatriation occurs where people who had fled a country agree
to return to the country from which they have fled voluntarily, usually
monitored by the UNHCR. Local integration occurs where people who have
been displaced in time are incorporated into the host country, in which
they have temporary refuge. Third country resettlement involves the
relocation of people who in are temporary camps to other countries for
permanent resettlement.
The UNHCR plays a major role in coordinating all of those three
activities as well as looking after the needs of those who are in camps.
At present, tens of millions of people live under the care of UNHCR. The
largest group of refugees from an individual country are Afghans who have
sought asylum and shelter in Pakistan and Iran: in the order of four
million people. In Africa there are multi millions of people in refugee
camps. Countries as diverse as Burma Liberia, Rwanda, Mozambique and
Angola have caused outpourings of millions of people who have the need for
temporary refuge and assistance.
Historically, apart from the displaced people after the Second World
War, there have been millions of people displaced in Latin America and in
the Middle East. It is a little known fact that over 750,000 Jews were
expelled from the Arab countries in the immediate years after the creation
of the state of Israel in 1948 who had to flee and seek sanctuary in
Israel the only country to accept them, where they were allowed to stay
and given asylum. In fact, Israel continues to accept annually thousands
of refugees from countries as diverse as the former Soviet states,
Ethiopia and India. It is a sad commentary on contemporary history that
the wealthy Arab states were not so magnanimous to Palestinians who left
Israel, and many of whom, over 50 years later, remain enclosed in refugee
camps in the region. There are a small number of countries which take
refugees for permanent resettlement (principally Australia, Canada,
Denmark, Finland, Netherlands, New Zealand, Norway, Sweden and the USA) .
In fact, Australia, and I can say this with some degree of pride, on a per
capita percentage basis, has taken more people as refugees than any other
country for permanent resettlement. This statistic, however, should not be
taken out of context or given exaggerated significance, because many other
countries allow residence to substantially more onshore refugees and
humanitarian entrants than does Australia. Radio commentator Peter Mares
has made an interesting and insightful analysis of this recently.
Nevertheless, the Australian Government's approach involves
"burden sharing". Burden sharing is the responsibility of the
international community to care for the needs of refugees. Burden sharing
can be done in a variety of ways. It can be done by way of financial
assistance to the UNHCR, by provisions of goods and services to the UNHCR,
or volunteers to the UNHCR, by provision of aid to refugees, as part of
the permanent resettlement program, or in the nature of aid to countries
which provide temporary asylum to refugees.
I conclude my global overview to refer to the particular needs of
vulnerable groups of refugees. The international community through the
UNHCR recognises that there are some particular groups who have special
needs. In particular, there are women and children, and there are people
who suffer from disabilities, intellectual or physical or are medically at
risk. More controversially, there are those who are otherwise isolated
from the mainstream community, like homosexuals and lesbians, persons
persecuted on the basis of their sexual orientation. All of these groups
are particularly vulnerable in the context of international refugee
movements. The international community, through for example Excom, has
been attempting to grapple with the needs of these vulnerable groups.
It is a matter of great concern that women in refugee camps have been
the subject of particular harassment, usually sexual, by strong men in the
camps, or by the military officers guarding the camps from the countries
from which they have fled, or others, and they are particularly vulnerable
because in most situations the women are not literate, they don't have the
strength and support of their home community and they have particular
needs. Children of course are vulnerable to all sorts of exploitation for
similar reasons, and arising from their separation from the community with
which they are familiar.
The Australian Response
In Australia the legislation which primarily governs Australia's
treatment of refugees and Australia's response to the refugee crisis is
the Migration Act 1958 (as amended). That legislation of course covers all
aspects of migration to Australia, not only the refugee system.
Persons seeking entry to Australia apply for a visa of a particular
class and are approved if they meet all the prescribed criteria. There are
a wide variety of visa classes providing for the offshore and onshore
entry and stay temporarily or permanently of refugees and others with
humanitarian claims.
Our Migration Act is one of the most complex of laws in Australia.
Judges of the Federal Court regularly refer to it as being as complex as
the tax or the company laws of Australia.
Behind the Act and Regulations made thereunder is government policy.
Every year the government makes a determination on how many people will be
allowed to come to Australia under the various different programs of
migration. There are currently three major programs: the independent and
skilled migration program, the family preferential migration program and
the humanitarian/refugee program.
Australia takes and has taken over the last few years about 12,000
persons per year for resettlement under the refugee/humanitarian program.
This program comprises an offshore and an onshore component. The larger
offshore component includes persons who are displaced (i.e. have
humanitarian needs) and who have been determined to be refugees overseas
who need to be resettled and usually who have some family connections with
Australia. In the late 1980s and early 1990s, the largest group of
refugees taken under the offshore program by Australia were Indo Chinese,
Vietnamese, Laotians and Cambodians. In recent years, most refugees come
from former Yugoslavia and Iraq. We also have had specific programs for
people from a huge diversity of countries including the former Soviet
Union, East Timorese living in Portugal, Sudanese and Ahmadis from
Pakistan.
The onshore component comprises people who are in Australia who have
sought refugee status because of their fear of persecution for a
Convention reason. Places are provided notionally for onshore approvals.
Controversially, if the number of onshore grants exceeds the annual quota,
places are deducted from the offshore program. Australia applies very
strictly the international definition as part of the determination
process. The procedure to determine refugee status in Australia is not
simple and can be quite lengthy.
In the last few years the Government has introduced steps to try to
expedite the processing of such applications which have caused concerns
amongst advocates (as to which see below). Two classes of people seek
refugee status in Australia: those who are lawfully in Australia at the
time of application and those who are unlawfully in Australia at the time
of application. With regard to the second group there are two
subcategories: those who had arrived legally and those who have arrived
without prior visa authorisation.
A person seeking to apply for refugee status (a Protection visa as it
is technically termed) must make an application to the immigration
authorities. In support of the application the applicant has to prove that
he/she has a well founded fear of persecution. The onus is on the
applicant. The High Court of Australia in 1988 handed down a decision in Chan
Yee Kin v MIEA (1989) 169 CLR 379 which forms the basis of the modern
interpretation of the law of refugee determination in Australia. The seven
judges of the High Court in typical fashion unanimously but separately
gave their views on the procedures by which the determination should be
made and their understanding of the requirements of the definition.
The High Court consensus view is that well-founded fear is one where
there is a real chance that the applicant would suffer the persecution
that the applicant fears. As Justice McHugh said, a real chance would
exist even if it is only a 10% chance that the applicant would suffer
persecution. If so, that fear is well founded. There must be persecution
which is the concept whereby a person finds himself or herself deprived of
rights. Professor Hathaway in his seminal work, the Law of Refugee Status,
refers to the gradings of rights between economic, social, cultural, civil
and political rights insofar as they relate to the issue of persecution.
He hypothesises various categories of persecution based on the
International Conventions and looks at whether acts in breach would
justify the grant of refugee status. Thus, for example, if a person fears
death or torture, it is pretty easy to say that this amounts to
persecution which would justify the grant of refugee status. But what
about a situation where a person fears forced marriage against his/her
will or is deprived of the rights of education, housing, or to adequate
food. Do those deprivations amount to persecution within the context of
the definition? Effectively, there must be a degree of seriousness from
the extreme situations of death and torture, to the areas of deprivation
of liberties which clearly would not justify persecution such as the
denial of the right to watch television on a Sunday, if you are in a
fundamentalist Christian country.
As noted above, there are five grounds of persecution within the
definition. The persecution must arise because of the applicant's race,
nationality, religion, political opinion, or membership of a particular
social group. The last, membership of a particular social group, has
brought much case law problems in Australia. There have been some very
interesting developments on what constitutes a social group. The decision
of the Supreme Court of Canada in A.G. of Canada and Ward (1993)
103 DLR (4th) is important. There the applicant was a member of the IRA
who had sought refugee status in Canada because of that, and Ward's Case
gave a definitive Canadian pronouncement on what constitutes membership of
a social group for the purposes of the definition.
In Australia there have also been many cases, where the concept has
been examined. Applicant A v MIMA (1997) 142 ALR 331 concerned a
woman who had claimed that because she already had one child, if she was
sent back to P.R.C., under China's "One Child Policy" she felt
that she would either be forcibly sterilised or if she did become pregnant
that the authorities would force an abortion on her. The High Court by
majority held that she was not a member of a distinct social group, and
thus could not be granted refugee status. This decision caused a political
crisis in Australia, which I will come back to briefly later.
Many thousands of cases have been considered by our Federal Court and
there are other significant High Court cases. All of these decisions as
well as many of those of the RRT can be accessed through the Internet.
There are other examples of social groups which have been accepted in
Australia. An Iranian woman who did not accept and wish to be subjected to
the strictures of Shariat law with regard to treatment of women because of
her free thinking attitudes was recognised as a refugee. Such decisions
have been very controversial. Indeed, the Minister has appealed to the
Federal Court cases involving women fearing domestic violence.
Another group of people who have been accepted as forming a social
group, are people who are HIV positive provided that the country from
which the HIV positive person comes from persecutes people who are HIV
positive. There have been several successful applicants in Australia on
this ground, including one from China and one from Burma. Other social
groups comprise homosexuals coming from countries (often Islamic countries
or some Latin American countries) where there is persecution of
homosexuals; or victims of clan or caste persecution.
Refugee claims have nothing to do with economic grounds, or natural
disasters, and it has nothing to do with a person wanting to seek a better
life. Whilst all of those are clearly understandable reasons why people
would seek to relocate, they don't justify the grant of refugee status in
Australia.
Where a refugee application is made onshore, the application is
considered by a single officer of the Department of Immigration
administratively. That officer treats in total confidence the claims made
by the applicant but the chances are that the application will be
rejected. If rejected, the applicant may appeal to the Refugee Review
Tribunal, which is an administrative, technically independent, and in
theory an inquisitorial not a judicial tribunal, with a single member who
has the power to make a decision which replaces the decision of the
departmental decision maker.
The success rate before the RRT which applies the same legal principles
is higher than the success rate at first instance.
If the RRT rejects an application, until a few weeks ago an applicant
could appeal to the Federal Court but only on questions of law as narrowly
permitted under the recently repealed section 476 of the Migration Act.
The Federal Court does not have the power to review the merits of the case
and can not consider commonly understood "natural justice"
grounds in the appeal. Alternatively, and since the recent law change
solely, applicants can appeal to the High Court in its original
administrative law constitutional jurisdiction. The final avenue of appeal
is the discretionary power of the Minister to approve the grant of refugee
status if the application has been denied by the tribunal or the court
under section 417 of the Act. The Minister exercises that power rarely and
his discretion is non compellable and non appellable. For practical
purposes most applications to the Minister are unsuccessful.
Under the Migration Act, applicants for refugee status can only have
"one bite at the refugee cherry". Once they have been rejected
they cannot make a second application unless they can establish that it is
in the public interest to be allowed to do so (ie, there has been a change
of circumstance such that there are new circumstances prevailing which
would entitle them to be granted refugee status) - Section 48A and B.
Previously people obtained indefinite stay in Australia by lodging repeat
applications, often without basis in fact. The government is very anxious
to prevent people from doing this and does not wish Australia to be seen
as a "soft touch" for on shore asylum seekers. The Migration Act
has progressively been more and more refined to make it very difficult for
people who come to Australia to be granted refugee status on shore.
Ministerial statements (from both sides of politics) reflect this concern
repeatedly and are the cause of the major debate at present in Australia
amongst those concerned about rule of law and refugee issues generally.
The Refugee Council of Australia
The Refugee Council of Australia was established in 1981 and now has
over 120 organisational and individual members. It has the primary aim of
promoting the adoption of flexible humane and constructive policies
towards refugees, asylum seekers and displaced persons by the Australian
and other governments and their communities. Some of the organisational
members of the Council include Australian Catholic Migrant and Refugee
Office, Australian Council of Trade Unions, Australian Jewish Welfare
Society, Australian Lutheran World Service, Australian Red Cross, National
Council of Churches in Australia, Overseas Service Bureau, Jesuit Refugee
Service, International Commission of Jurists - Australian Section, Ethnic
Affairs Commission of New South Wales, Salvation Army, Society of St
Vincent de Paul, United Nations Association of Australia, Save the
Children Fund Australia, and the Young Women's' Christian Association of
Australia. Many of our other organisational members also represent ethnic
communities comprising large numbers of former refugees.
To achieve our aims, the Council pursues objectives listed in Annexure
4 and engages in a number of activities including research, policy
development, advocacy and community education. The Council provides advice
for member agencies and others working in the area. Our website: www.refugeecouncil.org.au
provides a useful resource base and is part of our strategy to increase
our profile.
It plays an important role liaising with government and internationally
with agencies in other countries as well as with the UNHCR and has lobbied
extensively on a wide range of issues relating for example to the
government's detention policy, refugee status determination procedures,
and very importantly settlement services which are available to refugees.
It has worked recently on the publication of working papers which cover a
whole series of refugee settlement issues. Topics include the philosophy
of refugee resettlement, the wider impact of refugee resettlement, human
rights and refugee resettlement, immigration issues relating to refugee
resettlement, refugee women resettlement needs, refugee children
resettlement needs, the needs of older refugees, the problems of ethnic
minorities, counselling problems, health issues (and this covers the
particular problem of refugees who have been the victim of torture and
trauma and who need particular service because of that), the need for
English language provision for refugees, the role of income support,
housing issues, employment and training issues, and general information
services for refugees, and the role of the community and other NGOs in
assisting in refugee resettlement.
The Council does not presently contain a service provision arm.
However, the Council was instrumental in the establishment in the late
1980s of the Refugee Advice and Casework Service (RACS) which it operated
for approximately 7 years. RACS now functions independently. It is the
most important community legal centre providing assistance to asylum
seekers and now survives on government funding. In the early 1990s the
Council auspiced a legal team which gave advice to asylum seekers in the
Port Hedland Detention Centre in Western Australia, where most unvisaed
asylum seekers are detained. Through the Council was also created the
Australian National Council on Refugee Women (ANCORW) which is also now an
independent body, which operates a project which facilitates the obtaining
of employment by refugee women. The RCOA has also been instrumental in the
creation throughout Australia of specialist services to provide assistance
to survivors of torture and trauma.
Members of the Council elect a Board of which I have the honour to be
President. We have an Executive Director, Margaret Piper who may be known
to many here present. Project staff are employed in accordance with
various grants that the Council receives to undertake specific projects.
The Council has enjoyed a special relationship with Austcare, Australia's
peak refugee support agency and national coordinator of Refugee Week.
Austcare has been the principal non-government funding provider to the
Council. The tasks undertaken by the Council are frankly enormous and
constantly stretch our resources to the extreme. Our achievements depend
on the inexhaustible energy of our Executive Director and the assistance
of our supporters. Principal activities of the Council in the annual
calendar are:
- Compilation of a major intake submission in February prepared after
consultation with a large number of community organisations and
individuals which is presented to the government as part of the annual
intake consultation. The Council's recommendations are usually given
serious weight by the government in planning for the size and
composition of the annual refugee and humanitarian program.
- In October each year the United Nations High Commission for Refugees
holds its annual Executive Committee meeting in Geneva bringing together
governments and NGOs from around the world. The Council plays an active
role in this process and now also coordinates NGO submissions
preparatory to the meeting.
- Throughout the year there are regular consultations with government
(DFAT, A-Gs and DIMA), NGOs and international agencies, notably the
UNHCR, on refugee issues which the Council attends.
- Specific reports have been undertaken in recent years on particular
issues. Important works have been prepared on the refugee crisis in
Bosnia, and problems associated with the Chinese take over of Hong Kong
and the situation in the Federal Republic of Yugoslavia.
- The Council is regularly called upon to provide advice to government
and has organised and participated in training programs of DIMA staff.
- Given the frequency of legislative change and parliamentary
inquiries, the Council is regularly making and presenting submission to
such inquiries.
Australia holds annually a Refugee Week, to highlight and publicise
refugee issues. In 1997 the theme of Refugee Week was: "More than
half the world's refugees are children". The Council has been
involved in highlighting the problems of refugee children and their
special needs in refugee determination process and with regard to
settlement issues generally. In 1998, the Refugee Week theme was: "Clearing
a Safe Path" (referring particularly to our concerns about land
mines).
In April 1998, the Council hosted a very successful national conference
for and about refugee women: "The Journey Continues". A
further major conference is being planned at the University of NSW for
December 2001, to commemorate the fiftieth anniversary of the Convention,
which the Council is co-sponsoring.
The Australian Government policy of mandatory detention of unvisaed
asylum seekers has caused the Council great concern. In consultation with
other interested community groups an Alternative Detention Model has been
prepared and presented to government. The Council has played an active
role in urging government to move away from the mandatory detention
regime, and has convened the successful public meetings in Sydney and
Melbourne, designed to highlight community concern about the issue. In
June 2001, members of a Parliamentary Committee published a significant
report after visiting detention centers on this issue.
In 1998 the Australian Human Rights Commissioner published his report: "Those
who've come across the seas: Detention of unauthorised arrivals".
In Australia, the Human Rights and Equal Opportunity Commission has a
statutory mandate, as well as a moral duty, to amongst others, inquire
into acts or practices of Australian governments which may be inconsistent
with or contrary to human rights and to recommend changes to laws and
practices which offend against these principles and in particular the
principle that every person is free and equal in dignity and rights. Given
the absence of a constitutional or legal Bill of Rights in Australia, the
Commission's mandate as a watchdog is fundamental. Its role as a safeguard
protecting us from the tyranny of government is fundamental. The
recommendations in the Commission's report to ensure that those who are
detained, are kept in conditions which respect the human dignity of those
detained and comply with internationally acceptable standards are clearly
uncontroversial and most were adopted by the Government. The RCOA called
on the government to action those of the recommendations which had not yet
been implemented. We specifically called on the government forthwith to
end the arbitrary and mandatory detention for extended periods of unlawful
non-citizens claiming asylum which practice the Inquiry found breached
numerous Australian human rights obligations. In considering the
Commission's report we must recall that Australia is not about to be
subjected to the unauthorised arrival of uncontrollable hordes from around
the world. The clearest example that Australia does not have a problem is
exhibited by the total absence of unauthorised arrivals in the last year
from Indonesia notwithstanding the chaos that we have witnessed in that
country. What clearer evidence can there be? Where is the problem we ask
repeatedly, but no-one in authority seems to be listening.
Regrettably, in attempting to understand the issue, the xenophobia of
the comfortable masses must loom large as a justification. If so, the
moral issue is clear.
Community education is fundamental to provide support for refugees and
their plight and to balance the negative rhetoric that emanates from
members of the community who regrettably do not understand the issues or
propagate the misconceptions. Addressing this problem, the Council has
published a set of Fact Sheets which I have also brought here to show.
These plain English and reproducible fact sheets cover issues such as "Who
are refugees?", "Australia's response to refugees",
"Refugee status determination", and significantly "Myths
about refugees". The Council also publishes Updates to explain
issues and to suggest possible action by our members. Topics covered
include the Federal Budget, the 13 June 1997 announcement of a new
temporary visa class, and the importance of independent merits review for
refugee applicants. The Council also publishes a regular newsletter which
is circulated widely in Australia and overseas which compliments the more
elaborate and externally funded newsletter which has been published by the
National Network of Refugee Women. The Executive Director and members of
the Board are involved in projects designed to influence community
attitudes through the media and the school education system. In May 1998,
a very successful Radioathon was run on SBS radio which raised over
$600,000 - on behalf of the RCOA and Austcare. The Council is supported in
its activities by the Australian Refugee Foundation.
All of the above and a lot more with a staff of 2 1/2 and an annual
expenditure budget of less than $150,000!
The Difficult Issues
Public debate on issues affecting refugees is rarely far from the media
headlines. In recent years and months the following, amongst others, have
been significant issues in Australia:
- Perceived abuse of the onshore program - we believe that the term
"queue jumper" should never apply to refugees. Nevertheless,
there certainly has been abuse in Australia of the onshore refugee
program. In part this flows from the absence of an onshore humanitarian
and compassionate visa class which had been abolished in December 1989.
As a consequence of a significant rise in the number of manifestly
unfounded claims for refugee status, administrative and regulatory
change was introduced progressively from late 1996. These changes
include the expeditious processing of applications at primary
departmental stage, the denial of work permits and other benefits to
claimants who have been in Australia for more than 45 days, and a post
hearing fee of $1,000 for unsuccessful applicants to the Refugee Review
Tribunal. Informed public debate has expressed concern at what is seen
to be bureaucratic overkill by these measures.
- Inadequate determination process - at primary stage there have been
expressed increasingly loud public concerns at the inadequacy of the
determination process. The use of standard replies reflecting a cynical
approach to claims, the failure to interview applicants except in rare
cases and a failure to accord meaningful natural justice to applicants
are some of the frequently expressed problems. In December 1998, in an
unprecedented move, the Law Council of Australia, Amnesty International
and the Australian Section of the International Commission of Jurists
called for a public and parliamentary review of the determination
process.
- Executive control of the RRT - although in theory independent,
Tribunal members are appointed for relatively short terms and the
present Minister for Immigration has publicly expressed on a number of
occasions the point that tribunal members who do not properly apply the
Convention (based on whose interpretation one queries) face non
reappointment when their terms expire. Statistics are always difficult
to interpret but observers remarked that in the few months prior to the
reappointment of all tribunal members by the present government the
success rate (for applicants) in the Tribunal dramatically declined.
Further, increasingly, the minister has appealed to the Federal Court
against unfavourable (in his view) determinations by the Tribunal.
- Judicial review - the public debate in this area in Australia has
descended to an alarmingly low level. Judges have been accused of
"embarking on legal frolics" and have been attacked for having
the temerity to "interpret the law". The nadir was the recent
passing by the Federal Parliament of a law to effectively exclude from
meaningful judicial review decisions of the Refugee Review Tribunal, by
the mechanism of a "privative clause", an attempt to remove
the constitutionally guaranteed protections to appeal to the High Court
against abusive Executive actions, and the repeal of the jurisdiction of
the Federal Court in most immigration areas. This draconian legislation
.must be condemned by all people concerned with public administration.
It was a classic case of legislative overkill to a perceived problem. We
must continue to oppose it.
- Confusion of onshore and offshore programs - The present
administration deducts from the offshore refugee intake numbers where
those granted refugee status in Australia exceeds the projected figure
of 2,000 places. This policy effectively confirms the existence of the
refugee queue and unfortunately pits community against community.
Internal divisions within the Afghan community in Australia are an
example.
- Inadequacies in the offshore grant process - The Refugee Council and
communities regularly bemoan the inadequacies of the offshore
application and determination process, the length of time it takes to
process applications and the apparent lack of consistency in decision
making. Calls are made regularly for reviews in this area.
- Mandatory detention regime - I have mentioned this issue above but it
is one of the most significant areas of human rights abuse in Australia.
To our international shame, the Australian government rejected the view
of the Human Rights Committee charged with overseeing the International
Covenant on Civil and Political Rights which condemned Australia's
mandatory detention regime as a breach of international law. See A v
Australia, Communication No 560/1993, dated 3 April 1997. We even
detain indefinitely and arbitrarily children, including significantly
unaccompanied minors. Continuing calls for a review of the policy fall
on deaf ears. Labor has however committed itself to a post-election
judicial review of aspects of this policy, if it wins the November
election. The amount of money being spent on detention, both within
Australia and, very recently in Nauru, is extraordinarily high. If only
the government were to give this money, or a substantial portion of it
to the UNHCR to assist in the construction of proper refugee camps for
refugees in countries of first asylum like Pakistan, it may well be that
the mass outflows which have caused the Australian and other likeminded
governments so much concern, could be stayed.
- Visa control - concerns are repeatedly expressed that Australia's
mandatory visa control system effectively precludes many persons from
being able to seek protection of the Australian authorities. Clearly, if
a person applies for a visitor visa with the expressed intention of
applying for refugee status on arrival, the visitor visa will be denied.
- Airport turnarounds - There has been an increase in the number of
people arriving at airports in Australia without visas. Concerns have
been expressed that the current procedures adopted by immigration
officers at airports does not adequately facilitate genuine asylum
seekers from making claims. Last year, there were several well-
publicised cases of Sri Lankans who had sought to make refugee claims on
arrival, which applications were denied. Subsequently, Federal Court
injunctive relief was obtained, as a result of which applications were
then lodged and processed successfully.
- Access to benefits and rights of T.P.V. holders - The Red Cross in
Australia arranges for the distribution of government funded benefits to
certain asylum seekers who have no other means of support. However, the
criteria for eligibility are very strict. Coupled with the limitations
on access to work rights, many asylum seekers and their families have
literally found themselves "in the streets" dependent on
support of Australian charities whose resources are stretched to the
limit. Two years ago an Indonesian asylum seeker found his way to the
Refugee Council office and as he had no assets or means of support and
was not eligible for any government benefits and as all emergency
accommodation in Sydney was full, the only place that could be found for
him to sleep was the local police station. The limited rights of
temporary protection visa holders is a matter of real concern. They are
denied the right to government funded English language and only have the
right to limited Social Security benefits. Given the traumatised
background that most refugees who hold TPV's come from and the fact that
most are not literate in English, their ability to find employment is
small. Compounding their psychological trauma, the law prevents them
from sponsoring their dependent relatives during the period temporary
protection visa holders and also precludes them from traveling overseas.
One can only but imagine the trauma they must experience worrying about
the welfare of their loved ones, many of whom may be living precariously
in appalling conditions in refugee camps overseas.
- Access to legal advice and professional assistance for asylum seekers
- Government cutbacks in funding legal aid have depleted the resources
of professional services available to provide assistance to asylum
seekers in properly presenting their claims. There is currently a Bill
being considered by the Federal Parliament which will also have the
effect of preventing the Commonwealth Human Rights Commission from
making contact with asylum seekers on arrival to inform them of their
legal rights.
- Demonising of asylum seekers - In the last few years, the political
rhetoric demonising vilifying and criminalising asylum seekers who are
pursuing their legitimate and lawful entitlements has reached new
levels. The political motivation for this publicly created hysteria is
clearly obvious. The ramifications on the asylum seekers themselves,
those who are granted refugee status and the harmony within the
Australian community are very serious. It will take many years of public
education to overcome the wrong perception which the rhetoric has
engendered. Equally significantly, the abuse of statistics and
misinformation which has been propagated will take years to be
rectified.
Conclusion
Clearly the agenda is full but unfortunately much remains still to be
done. For this there is a continuing urgent need for the support of all
those sympathetic to the plight of refugees. Refugees almost by definition
are amongst the most vulnerable in the community and because of their
particular circumstances need the support of mainstream advocacy groups
within the community.
In protecting the interests of asylum seekers, let our political
leaders act as statesmen and forget the politics of division which
unfortunately have resurfaced in Australia in recent years. A truly great
government is one which governs righteously not only in the interests of
the majority, but also in the interests of minorities legislating in a
manner which reflects fundamental moral standards and gives them
protection from the abuse of the majority.
Most importantly, there is a moral reason why we should support the
refugee cause. We must maintain understanding and support for the most
vulnerable in our community and support for principles of justice and
human rights, the absence of which in society are the fundamental root
cause of refugee outflows . These principles demand our support, if not
eternal vigilance.
If history teaches us anything it is that it is cyclic. We can and must
empathise with refugees from whatever background. If we don't lead by
example who will?
"First they came for the Jews and I did not speak out-
because I was not a Jew.
Then they came for the communists and I did not speak out -
because I was not a communist.
Then they came for the trade unionists and I did not speak out -
because I was not a trade unionist.
Then they came for me - and there was no one left to speak out for
me."
Attributed to Pastor Martin Niemoller
(victim of the Nazis).
It is not a question of self interest. Rather it is an issue of doing
the correct thing because it is correct to do so.
Given my previous comments I hesitate to raise this as a justification,
but none of us must ever be complacent in our apathy. The Hanson
phenomenon in Australia is not unique, and highlights the vulnerability of
the fragile Australian multicultural society. Who will be targeted next?
We who live permanently in Australia are largely fortunate to be
happily assimilated into our countries. We have learnt from our past
traumas and we have a responsibility to assist those persons and
communities who are now undergoing traumas and who arrive dispossessed and
homeless, powerless and vulnerable. They deserve our help and support, not
contempt or hostility.
Community education is of course fundamental and we must all play a
role in the education of our community, participating in broader cross
community activities. Only with our support will the evils which cause the
refugee outpourings be removed.
I conclude by acknowledging the commitment of Waverly Council to this
humanitarian cause, and thank them for facilitating this event.
A Poem
By Edward Yashinsky
Fear Not Your Enemies
For they can only
Kill you
Fear Not your Friends
For they can only
Betray you
Fear Only
The Indifferent
Who Permit the
Killers
And
Betrayers to walk
Safely
on Earth
(From Genocide Forum)
|
