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Asylum seekers punished more every year

asylum seekers
Photo: DIBP images

By Azadeh Dastyari

The human rights of asylum seekers and refugees, in particular those who arrive in Australia by boat, continue to be gravely compromised. Australia has instigated a military response to ‘unauthorised maritime arrivals' titled Operation Sovereign Borders, led by a three-star General. We are concerned that the emphasis on denying asylum seekers access to Australian territory is compromising the safety and well-being of vulnerable people. Much of Australia's response to asylum seekers has become shrouded in secrecy with the government refusing to answer questions about ‘on-water operational matters'.  We believe that this lack of transparency diminishes the government's accountability to the Australian people and makes it difficult to monitor Australia's compliance with its international obligations.

Due process of asylum claims

We are concerned that some refugees may be returned to persecution in violation of Australia's obligation under the Refugee Convention. First, the new government has intercepted boats carrying asylum seekers before they reach Australian waters, forcing them to return to Indonesia.  As Indonesia is not a signatory to the Refugee Convention, Australia cannot be certain that it will not return refugees to harm.

Second, Australia has also conducted ‘enhanced screening' of certain asylum seekers, in particular Sri Lankans. These are brief interviews where asylum seekers are not told of their rights and are denied legal assistance. They are ‘screened out' and deported if immigration officials determine their claims to be remote, unfounded or insufficient. Asylum seekers are not provided with a written record of the reasons for their rejection and cannot request an independent review of their assessment. This process increases the risk that mistakes may result in refugees being returned to persecution.

Third, asylum seekers are now denied access to government funded advice or assistance.  Immigration advice enables asylum seekers to better articulate their claims. The removal of funding increases the likelihood of inaccuracies in decision making and may result in the return of refugees to harm. 

Mandatory detention

This year marks the 22nd year of mandatory, indefinite detention of asylum seekers who make it to Australia. Furthermore, this cruel system has now been ‘exported' to Nauru and Papua New Guinea (PNG).  Since July 2013, all asylum seekers arriving by boat are detained in a Regional Processing Centre (RPC) in Nauru or PNG where they are processed under local law to determine if they are refugees. It is Australian policy that all refugees will be resettled in Nauru, PNG or a third country and will only be brought to Australia as a last resort.

As an added injustice, asylum seekers cannot have their detention reviewed by the courts of Nauru or PNG. Such a system clearly violates the prohibition against arbitrary detention and the right to be brought before a court. On the available evidence, it appears that the unacceptable conditions in the RPCs breach the ban on cruel, inhuman or degrading treatment or punishment and possibly also the ban on torture.

The death of young Iranian asylum seeker, Reza Barati, on 17 February 2014 in the PNG detention centre highlights the lack of safety afforded to detainees there and places both Australia and PNG in violation of their obligations to protect the right to life. Other disturbances in the RPCs have included fires lit by detainees in protest against their indefinite detention in July 2013 and reports of suicide attempts in both RPCs.

We believe that Australia would best meet its international obligations by processing all asylum seekers in Australia. We are particularly alarmed by the detention of children on Nauru in violation of Australia's obligations under the Convention on the Rights of the Child to ensure that the best interests of the child are a primary consideration 'in all actions concerning children'. 

Harsh and unnecessary visa rules

Asylum seekers who arrived on the Australian mainland by boat after 13 August 2012 are subject to a ‘no advantage test' which effectively means their claims are on hold indefinitely. If released from detention, they are given a Bridging Visa which prohibits them from working, gives only limited welfare assistance and denies them right to leave Australia or to sponsor their families to join them while their claims are being assessed.   

Further, the Coalition attempted to re-introduce Temporary Protection Visas in October 2013 for people who arrive by boat and are granted refugee status. The Senate disallowed them, however the government has vowed to use other existing temporary visas instead. The temporary visas will separate families indefinitely because they do not permit sponsorship of family members and deny refugees the right of return should they leave Australia for any reason including to visit family in a third country.

The denial of family reunion for asylum seekers and refugees is needlessly cruel and a clear violation of Australia's international obligations to protect the family. Furthermore, the denial of work rights and the provision of a lower rate of welfare assistance to refugees on Bridging Visas compared to Australian nationals (89% of the full rate) violates the right to work and possibly the right to an adequate standard of living.

Conclusion  

These extraordinary measures relate only to refugees arriving by boat. As a large percentage of asylum seekers arriving in Australia by boat are in fact refugees (89.6 percent in 2010-11), Australia is in violation of its obligation to refrain from punishing refugees for their mode of arrival, and it seems determined to punish them more harshly with every passing year.

Further reading

‘Factsheets on Asylum Law and Policy', Andrew & Renata Kaldor Centre for International Refugee Law http://www.kaldorcentre.unsw.edu.au/node/121

‘This is Breaking People: Human Rights Violations at Australia's Asylum Seeker Processing Centre on Manus Island, Papua New Guinea', Amnesty International Australia http://www.amnesty.org.au/images/uploads/about/Amnesty_International_Manus_Island_report.pdf

‘UNHCR monitoring visit to the Republic of Nauru 7 to 9 October 2013' UNHCR http://unhcr.org.au/unhcr/images/2013-11-26%20Report%20of%20UNHCR%20Visit%20to%20Nauru%20of%207-9%20October%202013.pdf

 ‘Tell me about Enhanced Screening Procedures', Australian Human Rights Commission, http://www.humanrights.gov.au/sites/default/files/document/publication/enhanced-screening.pdf

‘Human Rights, Refugees and Asylum Seekers', Australian Human Rights Commission, Australia https://www.humanrights.gov.au/news/opinions/australia-human-rights-refugees-and-asylum-seekers

‘No Advantage' is Maximum Disadvantage for Boat Arrivals', Refugee Council of Australia, http://www.refugeecouncil.org.au/n/mr/121121_noadvantage.pdf

 ‘Asylum Seekers and Refugees What are the Facts', Parliamentary Library http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2012-2013/AsylumFacts#_Toc348096470

‘Fact Sheet 65 - Bridging Visas for Illegal Maritime Arrivals', Department of Immigration and Border Protection' http://www.immi.gov.au/media/fact-sheets/65onshore-processing-illegal-maritime-arrivals.htm

 ‘What we Found on Nauru', Amnesty International http://www.amnesty.org.au/refugees/comments/30726/

Dr Azadeh Dastyari is a Lecturer in the Monash Law Faculty and an Associate of the Castan Centre.

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