COMMUNITY VIEWS ON ASYLUM POLICY

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1 AUSTRALIA S REFUGEE AND HUMANITARIAN PROGRAM Community views on current challenges and future directions COMMUNITY VIEWS ON ASYLUM POLICY We know it is too risky to go [to Australia] by boat. When a doctor asked me, Why you come by boat, you could [have] died?, I replied, Yes, but if I come by boat, I have a chance, I can get shelter in Australia but if I stay in my country, I could die... That is why I came by boat. In October and November 2011, the Refugee Council of Australia (RCOA) held national consultations with refugee and humanitarian entrants and service providers to canvass community views on issues and future directions for Australia s Refugee and Humanitarian Program. These consultations informed a submission to the Minister and Department of Immigration and Citizenship (DIAC) that can be found at The following provides a summary of issues raised in response to the consultation question regarding Australia s treatment of and policies regarding asylum seekers. Issues related to Australia s treatment of asylum seekers were raised at almost every consultation this year. Consultation participants expressed great disappointment and frustration with the Government s policies towards asylum seekers. Concerns about and issues related to the Government s asylum policies were particularly raised in the following areas: Key principles for the pursuit on onshore processing; Immigration detention; Community detention; Community-based asylum seekers; Statelessness; Other issues, including offshore processing and excision policy, provision of legal advice and the public discourse on asylum and refugee policy. RCOA welcomes the Government s announcements in October 1 and November 2 related to the issuing of bridging visas for asylum seekers arriving by boat. RCOA also recognises and commends the Department s active engagement with the sector in exploring the practicalities of these policy announcements. Key principles for Australia s onshore assessment of protection claims While many of RCOA s consultations took place after the Minister s announcement that onshore processing would be used for people arriving by boat, the details of the implementation of this policy were not yet known. Therefore, community views on the onshore assessment for people 1 See ABC News (2011) Government reverts to interim onshore processing, 13 October, 2 See Bowen, C. (2011) Bridging visas to be issued for boat arrivals [media release], 25 November Suite 4A6, 410 Elizabeth Street Surry Hills NSW 2010 Australia Phone: (02) Fax: (02) info@refugeecouncil.org.au Web: Incorporated in ACT ABN The Refugee Council of Australia represents non-government organisations and individuals working with and for refugees in Australia and around the world

2 arriving without a visa were based on principles that should be considered in the development of the Government s policy. In considering what a humane asylum policy should entail, ideas were put forward in relation to both the specific development of onshore assessments of protection claims as well as broader issues related to Australia s asylum policy. The key principles that came out of consultations were that Australia must: Ensure that its asylum policy is fair and does not discriminate based on a person s mode of arrival (with appropriate transition supports from the non-statutory assessments to the statutory determination process); Ensure the inherent dignity and safety of all people seeking Australia s protection throughout the entirety of their protection claims; Give access to work rights and orientation support so that people can support themselves throughout their determination process; Expand and streamline the support services available to asylum seekers to ensure that no asylum seeker is left destitute and to ensure the resolutions of all cases; In relation to immigration detention (noting that these principles closely reflect the Government s own key immigration detention values): o Detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of detention, including the appropriateness of both the accommodation and the services provided, should be subject to regular review; o Detention in immigration detention centres should only to be used as a last resort and for the shortest practicable time; and o People in detention must be treated fairly and within the law. Immigration detention Consultation participants in every State and Territory expressed horror and outrage over the treatment of asylum seekers in detention. It is important to note that the observations and concerns summarised below were made not only by people involved in visiting detention facilities but also former refugees now living in Australia as residents and citizens (both former detainees and former refugees who came through the offshore refugee program). At the consultations, the discussion of detention issues was often raised first by former refugees who did not have detention experiences in Australia but nevertheless felt compassion and empathy for their fellow refugees. Whilst there is increasing tension over the linking of the offshore and onshore numbers, there is still strong support among all refugee communities for one another. RCOA recognises that a number of inquiries, investigations and reviews of the immigration detention network have occurred or are still underway, so much of the information conveyed at consultations has been echoed within these processes. It is still prudent, however, for RCOA to report the views expressed at community consultations in relation to Australia s immigration detention regime. Many of the consultation participants expressed dismay over the Government s continued use of indefinite mandatory detention, when its use clearly had a detrimental effect on vulnerable people seeking Australia s protection, was extravagantly expensive and did not fulfil any of the policy s aims or objectives. A number of agencies proposed the abolition of non-reviewable, indefinite mandatory detention for all asylum seekers regardless of their individual circumstances, with a recommendation that there be an independent review mechanism to monitor and review decisions made to detain asylum seekers beyond the limited detention period that may be necessary for identity, security and health checks (30 days maximum was a suggested timeframe). There were also calls for the Government to acknowledge the lack of implementation of current policies and for them to enact legislation which gives effect to these policies, particularly by legislating the 2008 New Directions in Detention policy. Community views on asylum policy: Supplement to RCOA submission page 2

3 While a number of advisory bodies have publically highlighted the detrimental impact of restricted detention on people, many consultation participants believed that the mental health consequences had not been fully acknowledged by the Government. As one service provider put it, From an economic point of view, detention does not make sense because of the mental health costs that it incurs. The cost of the policy should also factor in the shame it causes the broader Australian community. Many consultation participants sadly noted that not enough was done to build on the strengths and resources of people in detention. Instead, people are worn and damaged by their time in detention. It was suggested that the period of time people were detained could be used to build their capacity offering such things as English and other educational classes, counselling and even trade and skills-building sessions. This kind of learning and activity would not only assist to occupy detainees time while in detention but also build their skills and capacity to settle in Australia (if granted a visa) or to be able to return home (if they do not trigger Australia s protection obligations). As a former refugee noted: Even if some [people] don t end up getting a visa, it s not a waste of resources. It is still an investment in a human being. We should build their skills and capacity. Many participants remarked how the current detention system was counterproductive, encouraging dependence rather than fostering autonomy. It was suggested that programs and activities within the detention environment needed to be more forward looking, caring for the mental health of those in detention so that, once they have a final outcome (be it a visa or the need to return home), they will be well enough to either return home or become functioning members of community. As one former detainee and now resident expressed it: I need to keep busy to settle in Australia, to stop the mental health pain. I spent 18 months in detention and almost lost all hope. I watched people hurt themselves, attempt suicide. I escaped my country it was so dangerous, and then [came] to Australia. We are fenced in everywhere, doors locked, I felt so scared, depressed, without hope. We need courses, activities to help keep [the] mind busy. Any kind of course would help: mechanic, woodworking. The religious and pastoral needs of asylum seekers in immigration detention centres were also areas of ongoing concern for a number of agencies. Given that asylum seekers currently in detention come from cultures with very strong faith traditions, it was felt that the Government should engage more with faith and community organisations to provide appropriate religious and pastoral care. Organisations also called for the detention service contractors to be more proactive in fulfilling their contractual obligation to provide for or auspice religious and pastoral care. An overwhelming willingness to assist and provide support for asylum seekers in detention was expressed by refugee community members. They called on the Government to work with refugee communities and organisations to identify where the groups could have a positive impact in assisting asylum seekers to live in the community instead of in detention. Other issues raised in relation to detention were concerns about: the use of remote detention centres; the movement of people through the detention network; inadequate health care in detention facilities (both physical and mental health care); and the lack of torture and trauma counselling for detainees (including many detainees held for over 12 months who had not yet had torture and trauma assessments). The quality of interpreting was also raised as an issue in detention centres, with concern expressed about interpreters with inadequate English being involved in complex discussions relating to the development of initial claims for asylum, with the risk that this could be undermining asylum seekers cases and resulting in people spending longer periods in detention. The onerous job of interpreting people s traumas and persecution was also raised as a risk to the interpreters, with indications that the turnover of interpreters is high partly as a result of burnout. There was also concern expressed about interpreters who had been refugees themselves and faced re-traumatisation because of what they were observing in detention. Community views on asylum policy: Supplement to RCOA submission page 3

4 The growing group of people who are stateless 3 and remain in indefinite immigration detention was a major concern for consultation participants, as was the time taken for security clearances. Deep concern was also expressed about the indefinite detention of people found to be refugees but given adverse security assessments (with no legal recourse or remedy). Community detention Now I am human -- before I was animal, Hazara man, standing outside his flat five days after his transfer into community detention from an immigration detention centre. 4 Consultation participants welcomed the expansion of community detention since October 2010, noting that community detention is a profound improvement from the previous arrangements. Service providers communicated that clients were very appreciative of the support they received in community detention, even without getting a visa. While heartened by the expansion, participants made a number of recommendations to improve the current program. As community detention had been used so rarely prior to the Minister s announcement in October 2010, the expansion of community detention occurred rapidly. As one participant noted, an entire sector was built in just a few months. A number of agencies sub-contacted to work with specific groups (unaccompanied minors, for instance) had expertise in some areas but often did not have experience working with asylum seekers or refugees. While it was recognised that training was happening for these agencies, a major gap identified was that neither national standards of care nor a national framework for services exists. It was strongly recommended that a national set of standards be developed and implemented for all agencies working with community detention clients. There was also a call for more clarity regarding the community detention program. Some providers felt that the process of engaging organisations to participate in community detention was confusing and lacked clarity. Settlement agencies felt that they were not informed about the goals and processes involved in community detention, and many were being approached by community detention service providers for information on particular cultural groups or for access to activities. There were calls at many of the consultations for the community detention program to be expanded to all vulnerable groups, with the further call that all children and young people be moved from restricted detention facilities. A number of people also recommended that the community system foster autonomy and selfsufficiency among detainees in order to ease the transition to a visa grant. Service providers spoke of the need to consider a transitional approach or exit strategy for clients leaving community detention and settling as residents in Australia. Providers advised that clients, particularly young people, often felt fearful when they realised the difficulties that they may face (as the support structures in settlement were less intensive than in community detention). It was recognised that the balance of appropriate supports in community detention coupled with preparation for life outside of the program (be that in Australia or elsewhere) would be the best approach. Like those people in closed detention, the provision of English language learning and skills training would be beneficial no matter the final outcome of the refugee status determination process. Social isolation and a lack of connection with people aside from others in community detention were identified as serious risks for people in the program. Agencies working with these people called for more effort to be able to connect clients with the mainstream community and for them to get involved in different activities. An orientation program was also identified as vital to connecting children, young people and adults to their surrounding communities. This need for orientation and connection was particularly vital for young people in community detention. Access to education for older adolescents in community detention was raised as an 3 The definition of stateless here means both de jure stateless and de facto stateless, as well as those self-identifying as stateless. Currently, Australia has neither a statelessness status determination process nor any expressed policy for providing substantive visas to people found to be stateless (and thus, no state to be returned to) but not owed Australia s protection. 4 This comment was relayed by a community detention service provider at a RCOA consultation. Community views on asylum policy: Supplement to RCOA submission page 4

5 issue, as many of these young people found it difficult to learn in English language classes with much younger children or older adults. When classes were held on properties where young people were living, the attendance and participation was much better. The extension of some English language classes (e.g. Young Adult Migrant Education Course, YAMEC, in Victoria) to asylum seekers has been positive. It was recommended that vocational training be extended to these young people (and others) as a means of assisting return if they are not found to be owed Australia s protection. This training would help make returns more viable, as people would have skills to use to reintegrate. While it was agreed that all asylum seekers would be better off in the community than in an immigration detention centre, there were concerns expressed for groups of adult males with histories of mental illness or self-harm issues being placed together in properties without any support staff near or on location. Concerned participants were interested in having this aspect of community detention monitored and flexibly managed to ensure the wellbeing of the men as well as mitigating potential risks that could impact on broader community support for the program. It was suggested that after-hours response mechanisms would be required for the model to be effective. Community-based asylum seekers and onshore processing issues The Refugee Council welcomes the Minister s announcement on 25 November 2011 that Bridging Visas will be issued to people arriving by boat and seeking protection in Australia. This longawaited development is a significant first step towards implementing the Government s policy of New Directions in Detention. The Government s move to have one system of refugee determination is practical and effective. Having separate processes for assessing claims based on where asylum seekers first arrived in Australia was both unfair and administratively burdensome. RCOA welcomes this just improvement. Given these new approaches, it is worthwhile exploring the issues raised by consultation participants in relation to community-based asylum seekers. Without significant intervention and prevention from DIAC, these issues will be experienced by the people being released on Bridging Visas and the agencies supporting them. A brief outline of these issues is set out below, as well as ideas to improve the current system. Agencies working with asylum seekers living in the community raised concern that DIAC did not have a collaborative and consultative relationship with the asylum seeker support sector. This lack of connection has led to sometimes hostile and unproductive interactions, a disturbing development, given that both the organisations and the Department have similar objectives of upholding Australia s protection obligations and seeking the best possible outcome for all clients. There is a need for a rejuvenation of the relationship between the Department and the sector. Participants also expressed great concern at the absence of adequate resources to support asylum seekers in the community. A number of agencies named this lack of support as a failure in the Government s duty of care towards those who come to Australia seeking protection. The lack of appropriate funding and resourcing for support of asylum seekers in the community came at a cost not only for the asylum seekers but also for the community as a whole. As one agency put it: It represents a failure of Australia s international obligations, as well as a failure by Australia to acknowledge that when asylum seekers have access to adequate resources such as housing, work and income, society is enhanced through increased social, human and economic capital, exposure to diverse skills and increased tolerance and understanding of the circumstances of other people. There was a call for a properly-resourced model of care that includes a comprehensive suite of services to ensure that asylum seekers can live safely and with dignity in the community while their protection claims are assessed. This approach would take into consideration (and be set up to not repeat) the issues currently faced by asylum seekers in the community, namely: Community views on asylum policy: Supplement to RCOA submission page 5

6 The haphazard application of existing community-based support programs (Asylum Seeker Assistance Scheme and the Community Assistance and Support Program), with issues of continuity of care and inequities in access to the programs identified as major gaps. The lack of available orientation, education and training opportunities. While asylum seekers often face the same difficulties as refugees, they have no access to orientation training or support. Asylum seekers rarely have access to employment support programs like other jobseekers and also struggle to participate in vocational training. Asylum seekers face multiple barriers to accessing effective and appropriate mental health care in the community even though they often present with complex social, psychological and psychiatric support needs. Asylum seekers have limited access to basic needs such as food, travel and material aid. The provision of services and support related to these needs most often falls on to the asylum support sector, a group of organisations which are significantly under resourced. A better approach to the community-based support programs would be to streamline the programs and properly resource each to ensure income support and case management support was available to asylum seekers who have no access to these services. Statelessness A number of consultation participants raised concerns about the lack of progress in the area of statelessness policy and the significant number of stateless persons currently in immigration detention. RCOA notes that the Australian Government has made a commitment to establish a Statelessness Status Determination procedure. 5 The need for this process is necessary not only with respect to Australia s obligations under the 1954 Convention relating to the Status of Stateless Persons but also in relation to the number of stateless people currently held in immigration detention awaiting an outcome on their protection requests (see Table 1). As stateless persons, they have no country of origin to return to, so they are at high risk of being detained for prolonged and even indefinite periods of time. Table 1: Asylum applications from stateless persons by year, to Financial Year Asylum applications from stateless persons Visa grants At the recent UNHCR-facilitated ministerial meeting in Geneva in December 2011, states were invited to make pledges to identify protection issues and to promote realistic responses to these challenges. Australia s pledge was a diluted vow to do a better job of identifying stateless persons. This pledge did not, however, extend to offering meaningful or substantive outcomes to those identified as stateless, and in the meantime, hundreds of stateless persons still languish in detention centres in Australia. While the detail is still to be released, DIAC s proposed stateless status determination process will not be enshrined in law and will not include a distinct visa for stateless persons. The procedure will include a toolkit for assessing statelessness and will be used as part of determining the removal options for a person, rather than as part of a single, streamlined and efficient model assessing claims against refugee criteria, then against the complementary protection grounds, and finally if neither a refugee nor a beneficiary of complementary protection against the statelessness 5 Australian Government pledged to UNHCR that it will take steps implement such a procedure in domestic law, in order to respect its obligations under the 1954 Convention relating to the Status of Stateless Persons. The Government also foreshadowed such a procedure when it introduced the Migration Amendment (Complementary Protection) Bill 2009 into Parliament. Community views on asylum policy: Supplement to RCOA submission page 6

7 provision. Australia s approach is disappointing, particularly given the pledges made by other States dealing with much larger numbers of stateless persons. In the absence of legislated change, the principles of a procedure that is streamlined, efficient and a workable means of assessing whether a person is stateless; is subject to independent merits and judicial review; and does not require continued detention while the process is undertaken are still applicable. The Refugee Council calls on the Government to honour these principles in its determination process and to ensure that substantive visa options are made available to people who are found to be stateless. Other asylum policy issues Other issues raised at the consultations related to Australia s asylum policy included: clear condemnation of both excision policy and the continued push from the major political parties for offshore processing; the need for quality legal advice for all asylum seekers in the preparation of the claims and representation at all levels of review; and the continued toxic debate about asylum seekers and refugees. It was reiterated again and again that on refugee and asylum policy, Australia s politicians were not leading. Rather, they were playing on the sentiment of a certain section of the population. RCOA s past two intake submissions ( and ) have dedicated chapters outlining the issues related to the public discourse on Australia s refugee policies. It is worth noting, however, that consultation participants again raised many of those issues during this year s consultations, expressing dismay at the toxic rhetoric used by politicians and repeated through various media outlets. December 2011 Community views on asylum policy: Supplement to RCOA submission page 7