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Submission to the National Inquiry into Children in Immigration Detention from
the National Council of Churches in Australia
The National Program on Refugees and Displaced People
The National Program on Refugees and Displaced People operates under the Christian World Service Commission of the National Council of Churches in Australia, which has been assisting refugees to resettle in Australia since 1948.
Mission Statement
Responding to the teachings of Jesus Christ, the member churches of the National Council of Churches in Australia through the Commission for Christian World Service (come together) to break down the structures which create poverty, oppression, injustice and division.
Over the last three years, the focus of the National Program has been to Welcome the Stranger. The National Program challenged the member churches to proclaim the gospel by accompanying refugees and asylum seekers in their search for a safe and better life. Accompanying refugees and asylum seekers implies actively developing relationships, sharing in their hope and suffering, and welcoming them.
"Come, you that are blessed by my Father, inherit the kingdom prepared for you from the foundation of the world; for I was hungry and you gave me food, I was thirsty and you gave me something to drink, I was a stranger and you welcomed me, I was naked and you gave me clothing, I was sick and you took care of me, I was in prison and you visited me." (Matthew 25; 34 -36)
The National Program, in conjunction with the State Ecumenical Councils, responds to the plight, aspirations and needs of refugees and displaced people by helping refugees to settle, educating Australians, providing advocacy and policy analysis and supporting human rights.
Background
"Do not neglect to show hospitality to strangers, for by doing that some have entertained angels without knowing it" - Hebrews 13: 2
1. The National Council of Churches in Australia (NCCA)
The NCCA is comprised of fifteen major Christian Churches working together to strengthen relationships and understanding of each other and to fulfil common witness, mission and service.
The NCCA's National Program on Refugees and Displaced People operates under the Christian World Service Commission of the National Council of Churches in Australia, which has been assisting refugees to resettle in Australia since 1948. The National Program is concerned with policy relating to refugees, asylum, settlement, access and equity. It is also directly involved in awareness raising, education, community development and advocacy. This work is carried out in conjunction with the State Councils of Churches under partnership agreements. Each State Council has a Refugees and Displaced Peoples Program, which is responsible for maintaining close links with the community sector and involving member churches in providing direct services to refugees and asylum seekers. The National Program and the State Councils involve member Churches in issues relating to the legal and humanitarian aspects of the appeals process .
2. The History of the National Program on Refugees and Displaced People
The work of the National Program on Refugees and Displaced People dates back to 1948, when the National Program first began resettling refugees. Since then, it has become one of the largest refugee resettlement, advocacy and education organisations in Australia and virtually the only one that operates independently of government funding. The National Program is also unique in that it links through the NCCA and the World Council of Churches (WCC) to National Councils of Churches around the world, giving the National Program a strong international network.
The WCC and the NCCA have both resolved to support the UN treaty System. The National Program's work is based on biblical teachings and guided by international human rights instruments. These treaties include:
- the 1948 Universal Declaration on Human Rights (UDHR);
- the 1951 Convention on the Status of Refugees and its 1967 Protocol;
- the 1966 International Covenant on Civil and Political Rights (ICCPR).
- the 1989 Convention on the Rights of the Child (CRC).
Sharing the World's Burden
"When an alien resides with you in your land, you shall not oppress the alien. The alien who resides with you shall be to you as the citizen among you; you shall love the alien as yourself, for you were aliens in the land of Egypt".
- Leviticus 19:33
1. The Role of Australia's Humanitarian Program in the International Protection System
The National Program has a long history in participating in the annual Intake Submission. [1] Each year, it has recommended that there be an increase in the number of people who should come to Australia under the Humanitarian Program.
In its 2001-2002 Intake Submission, the NCCA endorsed the Australian Government's ongoing commitment to the Humanitarian Program, but strongly urged the Australian Government to fulfil its international obligation to "share the world's burden" by continuing to respond to the plight of refugees arriving onshore. It also recommends that when migration visas are not taken up, they be transferred to the Humanitarian Program.
2. The Size and Composition of the Humanitarian Program
In its 2001-2002 Intake Submission, the NCCA recommends a continued increase in visas for refugees from Sudan, Sierra Leone and other African countries, with greater recognition for the plight of refugees from Burma, Indonesia and Sri Lanka.
The NCCA recommends that DIMA maintain an up-to-date comparative database of international refugee determination systems of countries party to the relevant international conventions.
3. The Quota System for Humanitarian Entrants (Linking vs De-linking of the onshore and offshore programs)
In 2000-2001, the Minister for Immigration and Multicultural Affairs effectively cut Australia's offshore humanitarian intake from 10,000 back to 8,000 places. This was achieved through capping the overall Humanitarian Program at 12,000, and then taking away a position from the offshore program for every person that arrived onshore. In 1999-2000, for example, the offshore quota equalled 12,000 minus onshore arrivals, which totalled 4,174. This represented a 20% cut to the 2000-2001 offshore program. Prior to this, the offshore component of Australia's offshore Humanitarian Program had remained steady at around 10,000 per year since 1996, while the number of onshore arrivals fluctuated.
This cut came on top of another 20% cut to made to the humanitarian program between 1995-96 and 1997-98 (from 15,000 to 12,000). [2]
The NCCA has long opposed the numerical linking of the onshore and offshore programs. [3] The link confuses voluntary contribution and international obligation and creates tensions within ethnic communities, who are divided as to whether to support those onshore arrivals wrongly branded as 'queue jumpers'. The policy in practise also becomes divisive, as it creates tensions within ethnic communities feel loyalty to both groups
4. In its 2001-2002 Intake Submission, the NCCA recommended:
- the de-linking
of Australia's onshore and off-shore programs so that these groups do
not have to compete, but can be assessed on the merits of their case,
and;
- that the offshore component of the Humanitarian Program remain at 10,000, but the onshore component be in addition to those asylum seekers found to be refugees in accordance with the 1951 Convention.
Increased Emphasis on 'Push' rather than 'Pull' factors
Refugees have always experienced a sense of uprootedness and loss of all that is precious in identity and security. Psalm 137 describes the feelings of the Jews in exile- " By the rivers of Babylon - there we sat down and there we wept when we remembered Zion. For there our captors asked us for songs, and our tormentors asked for mirth, saying, sing us one of the songs of Zion".
1. Addressing the Root Causes of Uprooted People
Despite the fact that most asylum seekers are driven by 'push' factors (namely the real threat of persecution), the Federal Government has continued to emphasise 'pull' factors (the attractiveness of conditions in Australia) in order to justify its harsh measures to deter 'illegal immigrants'. Accordingly, there has been little attempt to address the root causes of refugees and displaced people.
2. In its 2001-2002 Intake Submission, the NCCA recommended:
- that the government focus more on resolving 'push' factors - rather than trying to deter new arrivals by removing so-called 'pull' factors - by putting more resources into addressing the root causes of refugees and displaced people.
- that Australia increase its funding to UNHCR and contribute more capacity-building and governance-focused aid in both countries of first asylum and countries of origin in order to improve international human rights practices and stem the flow of uprooted people. In May 2001, the NCCA Executive requested the government to increase its overseas aid.
3. Regarding Australia's Review of the UN treaty System, the NCCA:
- Argues that staying in the system could make it easier for Australia to retain its influence in international forums and to play a positive role in reshaping the international protection framework
- Believes that any withdrawal from the Convention could be seen as Australia rejecting international standards, and as pushing the asylum seeker burden on other countries.
- under the UN Treaty System and continue to fulfil its responsibilities to the UN's various Treaty Committees.
- Recommends that the Attorney-Generals Department, in conjunction with DIMA, incorporate the non-refoulement obligations of the Convention Against Torture and ICCPR into domestic law.
A Humane Alternative to Mandatory Detention
"The loss of liberty and personal freedom associated with detaining persons…is akin to the situation of prisoners held in prisons…However, unlike criminals…immigration detainees appear to have lesser rights" [4]
1. Australia's Mandatory Detention System [5]
Since its inception in 1992, successive Australian governments have endorsed a non-reviewable [6] mandatory detention policy for undocumented onshore arrivals, regardless of whether they are immigrants or refugees. Since that time, the NCCA has opposed mandatory detention. [7]
"The detention of refugees in Australia goes far beyond that which is necessary to protect national security, verify identity, or determine the elements upon which the claim to refugee status is based. The policy of detention is universal, factors such as a persons health, age, bona fides and previous experience of trauma or persecution are not considered. The mere fact of arrival without authorisation is sufficient alone to require detention. The universal detention of undocumented arrivals in these conditions clearly breaches...human rights provisions. "
- Submission to the Parliament of Australia Joint Standing Committee on Migration Inquiry into Detention Practices, Australian Council of Churches, 30 July 1993.
Australia currently spends over $300 million a year on detention ($170 a day for each detainee). In the year ended 30 June 1999, approximately 97% of Iraqis and 92% of Afghans who applied onshore were found to meet the strict definition of refugee by either the Department of Immigration or the Refugee Review Tribunal. Spending such amounts on detaining refugees is thus both exorbitant and unjustified, when the money could easily be spent on settling refugees and making them productive members of Australian society.
In February 2001, there were 2,458 people being held in detention, including 371 women, 408 children and 48 unaccompanied children. [8] Many of these were not immigrants, but refugees whose only 'crime' was to flee persecution.
The conditions under which these asylum seekers are detained may be acceptable over the short term, but when detention is prolonged, they constitute a violation of Australia's human rights commitments. Education, welfare services, recreation facilities, provision for religious and cultural observance, and access to specialist medical services, for example, would not be required, or would not be required at a high standard, during short-term detention. However, when people are detained for more than a couple of weeks - or much longer, as is often the case - human rights law requires that an appropriate standard of services be provided.
The main concerns that the NCCA continues to raise with DIMA are:
- the length and indefinite nature of the period of detention and its effects on the detainee's physical and mental health
- people not being informed of their right to request access to legal advice when they are taken into detention
- inadequate legal assistance in preparing asylum applications
- people being held in isolation from both other parts of the immigration detention centre and the world outside
- the use of force to control disturbances and restrain people
- the poor conditions of detention, such as food, medical services, education, recreation facilities, the level of security, privacy, sleeping arrangements and accommodation of detainees of different religions. We do acknowledge that these conditions are slowly being addressed.
- frustrations from delays in processing;
The frustration and distress caused by these factors has led to self-harm, suicide attempts, violence, property damage and hunger strikes.
The NCCA believes that the mandatory detention of asylum seekers not only breaches Australia's international human rights obligations by constituting a form of punishment for undocumented onshore arrivals. It also views detention as unjustifiable, as more than 90% of Iraqi and Afghan asylum seekers (the top two countries of origin) are found by the Australian government to be refugees. [9] This is tantamount to goaling the innocent before proving them guilty. It also goes against Australia's traditional values of justice, fairness and equity.
While the NCCA understands that 'temporary' detention is necessary to establish identity and conduct basic health checks, prolonged detention cannot be justified unless the person poses a demonstrable threat to national security or public order; is likely to abscond, [10] or breaches release conditions without good reason. [11]
2. The NCCA continues to:
- oppose the mandatory detention of asylum seekers, believing that it not only breaches Australia's international human rights obligations by constituting a form of punishment for onshore arrivals, but is unnecessary, as the vast majority are genuine refugees and are unlikely to abscond;
- advocate for a humane alternative to indefinite mandatory detention;
- believe that there should be a nine-month limit on detention, which is more than enough time to establish a person's identity and whether or not they pose a health or security risk to Australia;
- believe that the Minister of Immigration and Multicultural Affairs should be under obligation to ensure that detained asylum seekers are informed of their rights and entitlements, particular as regards legal advice and assistance, and;
- believe that all detainees should have the right to religious worship and should have free and unhindered access to pastoral care.
Children in Detention
"Then little children were being brought to Jesus in order that he might lay his hands on them and pray. The disciples spoke sternly to those who brought them; but Jesus said, Let the little children come to me, and do not stop them; for it is such as these that the kingdom of heaven belongs".
- Matthew19: 13-14
1. Children in Australia's Detention Centres [12]
In February 2001, some 827 women and children were being held in Australian detention centres with around 1,631 men. This included 371 women, 408 children and 48 minors without parents, family or adult care. [13]
At present, all children entering Australia without proper documentation are subject to indefinite, non-reviewable [14] mandatory detention. The NCCA has criticised this practice for breaching Article 37 of the Convention on the Rights of the Child (CRC), which states that the detention of a child shall be used only as a measure of last resort and for the shortest period of time.
Although children with parents can apply to be released from detention on a bridging visa, children are rarely released in practise as there is no provision for the release of their parents, and it is usually considered in the best interests of the child not to be separated from their families and placed into foster care. This 'catch', which keeps children in detention, has been roundly criticised by the NCCA. [15]
The NCCA has also expressed a number of concerns about the treatment of children in detention. [16] These include;
- The question of whether ACM - a profit-driven subsidiary of an American Prison firm whose business is managing the detentions centres - is capable of providing adequate care for the health, educational and psychological needs of children
- Whether its staff have sufficient training and sensitivity required to meet the needs of children;
- The lack of qualified staff with early childhood experience;
- that ACM staff may fear contacting police due to fears of intimidation from ACM or being fired, and;
- that the procedures for handling complaints or suspicions of assault against children are inadequate, lack sufficient transparency, and are not subject to community consultation from childcare experts.
On 22 November 2000, the NCCA in conjunction with other non government organisations, community and church groups [17] wrote an open letter to the Minister for Immigration and Multicultural Affairs, expressing its concern about the allegations of sexual and physical abuse of young children in immigration detention. The letter condemned the practise of placing children in detention and called for a full and independent Parliamentary inquiry or Royal Commission into detention conditions as a whole and the effect of privatisation.
The letter also stated that:
"These prison-like detention centres have a detrimental impact on children's quality of life. For example, the physical environment, poor educational and recreational facilities, lack of trauma and torture support, poor nutrition and health care and the prolonged period in detention."
The NCCA also criticised the government for failing to live up to Article 37(c) of the CRC, which states that a child must be treated "in a manner which takes into account the needs of person of his or her age." Adequate and appropriate education, for instance, has been a factor sorely lacking for children in the detention centres; one that will have a lasting effect on each child.
In some cases, these children have experienced horrific torture and subsequent trauma. Others children have been made to witness the rape, torture and killings of their parents, brothers or sisters. These children are already extremely vulnerable, and the conditions under which they are placed can extenuate the trauma suffered by these children. Psychological studies have also shown that the experience of prolonged detention exacerbates trauma symptoms.
The common defence is that the conditions within Australia's detention centres are better than what these people would receive in their own countries. But the implicit assumption is that Australia should be satisfied to lower its benchmarks to a standard only just above the world's worst.
"Babies have been born into detention and children have grown up peering through barbed wire to the open spaces beyond the compound" - The Age, 28 May 1998
Another major problem has come from the boredom, frustration and social isolation experienced during prolonged periods of detention, as it has been a major contributor to outbreaks of domestic violence and generalised violence. The NCCA's concern is that when confined in mixed-sex detention facilities in this explosive atmosphere, women and children (particularly single females and children without parents, family or adult carers) are placed under considerable risk of abuse and exploitation. The NCCA thus believes that putting women and children at such high levels of risk is totally unacceptable, particularly given that Australian Correctional Management has neither been able to prevent or deal with such incidents of abuse, according to a recent government report. Similarly, single women are under a much higher risk of not receiving proper protection and care.
The NCCA has also called for an independent review panel:
"Concern for the welfare of children unites all Australians and it is in the public interest for an independent review/monitoring process to be established. This would reassure Australians that children in detention centres were being properly cared for and provide the Government with immediate feedback on any emerging problems. A review panel(s) is one approach. Such a panel(s) would include a representative from the local statutory child welfare authority; a person knowledgeable in child mental health; a person with the appropriate cultural knowledge; a representative from a respected children's agency such as UNICEF; a representative from a refugee advocacy body and an Immigration representative; that a designated representative be appointed to act for every child refugee claimant, accompanied or not, as occurs in Canada, to act in "loco parentis" in the absence of a traditional caregiver, bridging the gap between the substantive legal considerations and the child's care and well-being." [18]
The NCCA's letter has also expressed its concern over the lack of compassion Australia's political leaders have displayed for these children or sympathy for those forced to flee their homelands. After visiting a detention centre in Western Australia with Immigration Minister Phillip Ruddock, the Premier Richard Court chastised the asylum seekers for their "irresponsibility" in bringing children to Australia. He admitted that seeing the children, "sort of tugs on the heart strings", but he said that the detainees "should have had the decency not to subject their children to that illegal activity."
2. The NCCA:
- finds Australia's practice of arbitrarily detaining children for long periods of time abhorrent, believing that it breaches Article 37 of the CRC, which states that the detention of a child should only be used as a measure of last resort and for the shortest period of time (Article 37b), and that each child should be treated in a manner that takes into account the needs of person of his or her age (Article 37c);
- rejects the need to subject children and their parents to indefinite, non-reviewable mandatory detention, believing that the system needs to be more flexible and orientated toward fulfilling Australia's international obligations, particularly the International Covenant on Civil and Political Rights (ICCPR) and the CRC;
- believes that children and their parents should be released from detention into areas where they can access the support of their respective communities
- believes that unescorted minors should be released from detention into the care of church and welfare agencies close to their respective communities.
Transfers to State Prisons
1. Transferring and Holding Immigration Detainees in State & Territory Prisons
The Minister of Immigration and Multicultural Affairs currently holds the power to send immigration detainees to state prisons and hold them without charge. The Minister may also delegate that power. The major concern of the NCCA's State Ecumenical refugee workers is that this power could be used as a way of getting rid of 'troublemakers' and punishing badly behaved detainees.
Information obtained from DIMA by the Commonwealth Ombudsman indicates that 91 immigration detainees were transferred from immigration detention centres to state and territory prisons between July 1999 and June 2000. In addition, as of June 2000, there were 41 immigration detainees held in prisons pending criminal deportation or removal following the cancellation of their visas. As of June 2000, 41 out of the 89 detainees had been there for 9 months or more.
A number of complaints have been brought to the attention of the NCCA. These include:
- The holding of detainees in prison who may be victims of torture or trauma
- The uniform treatment and placement of immigration detainees in prison with no criminal charges or convictions with serious criminals, which breaches Article 10 of the ICCPR.
- The practice of transferring detainees between detention centres and to state prisons without proper explanation, documentation and sufficient openness, causing great distress to asylum seekers and their relatives and friends, who are often not informed of the transfer. Some detainees are not even given a Notice of Transfer.
- The lack of appropriate security classification for detainees, which affects their rights and entitlements and their treatment as detainees/criminals.
- The lack of clear guidelines on the degree and nature of disruptive behaviour that would warrant a transfer to prison
- The lack of strategies and practices developed between ACM and DIMA for the management of difficult behaviour and the lack of training given to custodial officers on managing difficult behaviour, resolving conflicts and managing frustrated, depressed or distressed people
Finally, there is the question of whether the transfer of a detainee to prison is likely to address the root causes of the types of behaviour that led to the transfer. The NCCA believes that the best solution would be to try and defuse the conflicts.
2. As a result of the complaints, the NCCA believes that:
- DIMA should develop
additional strategies to defuse and resolve conflicts before transferring
detainees to prison;
- it is improper
to detain asylum seekers in prisons when they have not been charged
or convicted of a serious criminal offence;
- separate facilities
need to be established for detainees whose behaviour cannot be managed
by mainstream immigration detention centres;
- reducing detention
periods (rather than transferring detainees to prison) is more likely
to reduce the types of behavioural problems that often lead to decisions
to transfer detainees to penal institutions;
- the transfers
between detention centres and to state prisons that occur without proper
explanation, documentation and sufficient openness, are distressing
to asylum seekers, relatives and friends, and make the provision of
legal advice and assistance difficult;
- DIMA should keep
the public informed about:
1) the number of asylum seekers in state prisons;
2) their names and countries of origin;
3) the reason for their transfer;
4) the state of their mental and physical wellbeing;
5) context specific services and rights accorded to them, and;
6) the body who provides funding for these detained asylum seekers; - a judicial or
parliamentary inquiry should be held into:
1) the alleged abuse of the power to transfer detainees to state prisons by Australian Correctional Management on the grounds of "disruptive behaviour", and
2) the capacity of state correctional facilities to provide care for victims of trauma and torture and people of diverse cultural backgrounds; - DIMA should provide detainees transferred to prison with a notice of transfer that clearly describes the events that led to the decision;
- there should be an appropriate security classification system so that detainees do not have their potential rights and entitlements infringed upon by arbitrary classification;
- DIMA must develop
clear guidelines as to the degree and nature of disruptive behaviour
that would warrant a transfer to prison, and develop strategies and
practices for the management of difficult behaviour within IDCs;
- the training of custodial officers should stress conflict resolution and the management of distressed people and difficult behaviour.
Respect for the Human Rights of Refugees and Displaced People
All human beings are born "free and equal" in dignity and rights. (Article 1) Everyone has the right to life, liberty and security of person. (Article 3) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (Article 14) - Universal Declaration for Human Rights.
1 Australia's Review of the UN treaty System
On 29 August 2000, the Minister for Foreign Affairs Alexander Downer, Attorney-General Daryl Williams and Minister for Immigration and Multicultural Affairs Philip Ruddock announced that the Federal Government would undertake a comprehensive review of Australia's participation in the UN Treaty System and its Committees. The review of Australia's interaction with the UN treaty system, was commissioned by the Government, and considered by Cabinet. The treaty review recommended a complete overhaul of the UN human rights treaty bodies.
Since that time, human rights advocates have been concerned that this may weaken international human rights instruments and the UN Committee System.
2 The NCCA believes that:
- by upholding its obligations under the UN Treaty System and working to strengthen that system, Australia could expand its influence in international forums and play a greater role in reshaping the international protection framework;
- any withdrawal from the Convention could be portrayed as Australia rejecting international standards and as pushing the asylum seeker burden on other countries.
- the Federal Government should continue to fulfil Australia's international legal obligations under the UN treaty system and continue to cooperate with UN treaty committees.
- the Federal Government should amend Australian law to incorporate the non-refoulement obligations of the Convention Against Torture and ICCPR into domestic law.
At the moment there is thus great scope for improving Australia's response to these 'push' factors by increasingly gearing Australia's aid to have a positive impact on international human rights practices, providing more assistance to countries of first asylum and giving greater to support to UNHCR.
Extend IHSS and Family Reunion Rights to TPV holders [19]
"Speak out for those who cannot speak, for the rights of all the destitute. Speak out, judge righteously, defend the rights of the poor and needy". Proverbs 31: 8 -9.
1 Temporary Protection Visas (TPVs) [20]
In November 1999, the Australian Government introduced the Migration Amendment Regulations 1999 (No.12), backdated to October 1999. This amendment removed the entitlement of undocumented asylum-seekers to gain Permanent Protection Visas (PPV) if they were later recognised as refugees. Instead, it allowed only for the grant of Temporary Protection Visa (TPV). Effectively, this created two classes of refugees.
The 1951 Refugees Convention states that contracting states (eg Australia) shall: "not impose penalties, on account of their illegal entry, on refugees coming directly from a territory where their life or freedom was threatened" (Article 31); "accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals" (Article 23), and; issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory"(Article 28).
As currently constituted, temporary protection visas breach all of these articles. Unlike those with permanent visas, TPV holders are unable to:
- bring their families into Australia;
- return if they leave Australia;
- access the settlement services provided to refugees who enter Australia under the off-shore program;
- or access mainstream social welfare payments (they are given a Special Benefit, which can be paid at substantially reduced rates).
It is no accident that many of those fearing persecution are forced to arrive in Australia on false documents, as governments often refuse to give them a travel documents. The 1951 Refugee Convention (to which Australia is a signatory) explicitly acknowledges this fact in prohibiting signatory states from imposing penalties based on the asylum seeker's mode of arrival or lack of documentation (Article 31). [21]
Article 34 of the Convention notes that any system which keeps a Convention refugee's status in limbo is irreconcilable with the spirit of the Convention and is irreconcilable with the permanent status granted to all other Convention refugees in Australia.
The NCCA thus argues that the use of TPVs constitutes a form of discrimination under of the Refugee Convention as well as offending Article 34 of that Convention, in addition to Articles 2(3)(a) and 26 of the ICCPR, as it is based solely on the mode of arrival in Australia and their lack of documentation. Moreover, because it relates to inappropriate aims, namely deterrence.
In a letter to All Delegates of the ALP National Conference in Hobart, Tasmania on 31 July 2000, Michael Brown Associate General Secretary and Director, Christian World Service said:
"The NCCA would submit that TPVs are wrong in law and will not meet the stated policy objective of deterrence. The Federal Government justifies its treatment of these people as second class refugees on the basis of their mode of arrival by boat or any other way, instead of through our off-shore program. According to Minister Ruddock's Media Release of 13 October 1999, the measures are aimed at those trying to exploit Australia's 'generous' arrangements for refugees. The argument that mode of arrival of these refugees by boat should determine government support deserves to be rejected. The claims of these refugees should be assessed on their merits and should not impact on access to settlement services. Many people who arrive by boat do so not because they are trying to avoid some assessment process but because they are in imminent danger and because the assessment locations are often under-staffed, have huge backlogs of applications and are located in cities that are remote from where these people need help."
"The Minister's Media Release of 13 October identifies Iraq, Afghanistan and Turkey as the source of unauthorised arrivals who are trying to exploit Australia's arrangements for refugees. Statistical analysis does not support the view that asylum seekers from these countries are trying to exploit the system, as approximately 97% of Iraqi, and 93% of Afghani asylum seekers were granted refugee status in the 1998/9 financial year. The vast majority of such arrivals are therefore recognised as Convention refugees, and come to Australia with a well-founded fear of persecution, seeking protection."
"Moreover, many community groups and churches have expressed concern about the inadequacy of support and the lack of coordination of services by the Government beyond the dropping off point. Detainees from Port Hedland, Woomera and Curtin are bussed straight to Perth, Adelaide, Brisbane and now Melbourne with only enough money for one night's accommodation - a practice becoming known as "dumping". Church and community groups have been obliged to provide temporary housing, clothes, blankets, food, volunteer interpreters and English lessons. The NGO and church community cannot be expected to resource something, indefinitely, which is a government obligation."
"Many of those granted refugee status have been tortured or greatly traumatised by the horrifying experiences they have suffered. From many groups' experience of working with refugees, granting temporary protection as opposed to permanent residence will only intensify these problems. Recent research undertaken by the School of Psychiatry, UNSW, supports this view. The practice of "dumping" is particularly stressful for many refugees after a bewildering time in detention. To be released with little money and no government-coordinated services is extremely disorientating."
3. As a response to the introduction of Temporary Protection Visas, the NCCA:
- Recommends that DIMA extend IHSS services and Family Reunion Rights to TPV holders;
- Believes that TPV regulations constitute discrimination under of the Refugee Convention as well as offending Article 34 of that Convention, in addition to Articles 2(3)(a) and 26 ICCPR, as they are rely solely on the basis of the mode of arrival in the country, and because the difference in treatment is premised on the individual's undocumented arrival and also relates to inappropriate aims - such as deterrence, and;
- Recommends that the Federal Government remove the burden placed on state governments and the Churches by extending equal services to TPV holders. Asylum Seekers in the Community (non-detained)
4. The 45-Day Rule
While most asylum seekers face mandatory detention in Australia, as they lack the proper documentation to enter the country, asylum seekers that are cleared by immigration are allowed to live in the community. But if they do not lodge their application for asylum within 45 days of arrival, the Federal Government removes their entitlement to a work permit and Medicare assistance.
This is in addition to the fact that government services to asylum seekers in the community are already scarce. Limited assistance with meeting costs for food, accommodation and limited health care is provided through the Asylum Seeker Assistance Scheme (ASAS), while the Department considers their application for refugee status. But this is only available to eligible asylum seekers who have waited six months for a decision. If their application is rejected, or if they subsequently appeal to the Refugee Review Tribunal or the High Court, they are considered no longer eligible for support. [22]
Without these services or the right to work, these asylum seekers are at the mercy of welfare agencies, charities and church groups. Through its network of refugee workers, the NCCA has observed that the combination of these policies has led to an impoverished class of asylum seeker that can neither work nor seek government support.
5. Regarding Asylum Seekers, the NCCA:
- believes that it is unfair to deny asylum seekers the right to work if they do not apply for asylum within 45 days of arriving in Australia;
- believes that the 45-day rule constitutes discrimination under Article 34 of the 1951 Refugee Convention, as it is based solely on the time of application;
- believes there should be greater allowances for exemptions on keeping work rights and Medicare coverage for asylum seekers, particularly in cases of extreme hardship and families, and;
- Believes that the easing of exemptions on the continuation of ASAS benefits after an RRT decision, especially for single mothers who cannot work and therefore have no means of support.
