REFUGEE COUNCIL OF AUSTRALIA INCORPORATED IS A.C.T) ^ 69-71 PARRAMATTA ROAD CAMPERDOWN NSW2050 LOCKED BAG 15, CAMPERDOWN P.O. NSW 2050 i Q, TELEPHONE: (02) 565 9111 FAX: (02) 550 4509 ' inny v ^U^ REFUGEE COUNCIL OF AUSTRALIA BRIEFING PAPER ON THE BOAT PEOPLE May 1992. This briefing paper contains information about the current situation with respect to the Cambodian, Vietnamese and Chinese asylum seekers who arrived by boat and outlines RCOA 's involvement and position.1 Contents: 1. Description of Events 2. Status of the Detainees 3. Current Legal Responsibilities 4. Position on the Detainees This document is a supplement to RCOA's Position Paper with respect to Asylum Seekers and the Refugee Determination Procedure (May 1992). 302838459% RCOA represents over 50 non-government organisations working with and for refugees in Australia and around the world.
1. DESCRIPTION OF EVENTS : The following is a brief summary of major events in relation to the boat people : November 1989 - First boat arrived. March 1990 - (see 2.1). December 1991 - Eight other boat arrivals 1990 - August 1991 - Detainees kept in Darwin, Sydney, Melbourne and small numbers elsewhere. In many cases primary applications were submitted without legal advice. Intervention enabled volunteer lawyers to by lawyers and support groups assist clients. Progress was slow because the lawyers had to work in their own time and under considerable logistical difficulties such as a lack of interpreters and the distance of the camp from Darwin. The lawyers in Darwin were also advised by the Department of Immigration (DILGEA ) that there was no need to rush the applications because DILGEA did not have the administrative capacity to process the applications due to delays caused by the introduction of the new procedures. May 1991 - A group of Cambodians were moved from Sydney to Darwin under high security, attracting considerable media attention. August 1991 - The move of the Cambodians from Melbourne to Sydney resulted in the first agreement being made with DILGEA for the funding of independent legal advice by the Refugee Advice and Casework Service (RACS ) Victoria. October 1991 - With the exception of the asylum seekers from the Beagle Boat (see 2.1), all boat arrivals sent to Port Hedland. Negotiations took place between DILGEA and RCOA for the provision of legal advice for these people. A team of advisers was sent to Port Hedland for four weeks to assist with the completion of outstanding Primary Applications. January 1992 - Following eventual payment for Phase I at Port Hedland, negotiations began between DILGEA and RCOA for the provision of a long term legal advice service at Port Hedland. A team of legal advisers and interpreters commenced work on 3rd February, 1992.
February 1992 - The Human Rights and Equal Opportunities Commission sent a draft report to DILGEA which examined the conditions of detention of the asylum seekers and listed a significant number of perceived abuses of national laws and international instruments to which Australia is a signatory. New procedures for the processing of asylum seekers were announced. These have significant implications for border claimants in that they severely limit the time in which an applicant can prepare a claim for refugee status (the first interview being scheduled within 2-3 days of arrival ). RCOA was approached by DILGEA to provide a legal advice service for the 56 recently arrived Chinese who were to be the first processed under the new regulations. RCOA 's contention that the time frame was too restrictive resulted in DILGEA engaging the services of Australian Lawyers for Refugees, Inc (ALRI ). March 1992 - Visits to Port Hedland Detention Centre by delegation from the Australian Council of Churches and the Executive Director of the Refugee Council. General agreement on major deficiencies in the facility, in particular in relation to failure to adequately cater for the following needs : interpreters education recreation medical care (in particular specialised torture and trauma counselling ) religious support cultural support There were also a number of procedural problems identified such as the difficulty of obtaining community access, inadequate training of security staff, unnecessary use of force, poor communication between DILGEA camp staff and the detainees etc. April 1992 - DILGEA issued final rejection notices to 37 Cambodian asylum seekers and arrangements for their deportation were commenced. Minister Hand issued a press release (8/4/92) which said in part : "It is my firm view that the proper process of refugee determination has been followed throughout.. The people concerned have been given every opportunity to present their cases, with natural justice provisions scrupulously observed at every step ". On the basis of perceived irregularities in the processing of the claims, groups of lawyers in Darwin and Melbourne volunteered their services to challenge the decision in the federal court.
- DILGEA conceded that they were unable to defend the court action and revoked the final decisions. The court ordered that a new decision maker be appointed, that reports from the Department of Foreign Affairs be made available within two weeks 2 and that DILGEA pay all court costs. The rejections provoked a flood of public sympathy / with expressions of support for the asylum seekers coming from a wide cross section of the community. Further federal court action was taken on behalf of the 37 rejected applicants. This was intended to challenge their continued detention while their claims for refugee status were being re-examined. In preparation for the federal court hearing, lawyers had gathered a significant number of affidavits from church and community groups and individuals guaranteeing that in the event of the release of the asylum seekers / all their material needs would be provided at no cost to the taxpayer. While the fate of the 37 Cambodians (plus the other 400 boat people ) remained in the balance / Paul Keating confirmed the Chinese in Australia at the time of the Tienanmen Square Massacre and their dependents (an estimated 34,000 people ) would not be returned to China against their will. May 1992 - Two days before the legality of the prolonged detention of 37 asylum seekers (and others ) was to be examined in the federal court, the government rushed through legislation that prevented the court from ordering their release. The Human Rights Commission issued a statement saying that the new legislation is in contravention of the International Covenant on Civil and Political Rights, one of the most important human rights treaties against which the performance of governments around the world is measured. The federal court sat on 7th May, with costs being awarded against the government and the case adjourned. The high court will consider the legality of the legislation on a date to be set. Ten Chinese asylum seekers (from the Isabella boat ) were taken to Roebourne Prison. Seven had left the camp for a walk, the other three done little to single themselves out for this treatment. Contrary to what is contained in the Ministerial press release of 4/5/92, they were unable to access a lawyer for several weeks and 4 As of late May, these reports had still not been made available.
the only interpreters available are via the Telephone Interpreter Service. An additional 2 Chinese were subsequently moved to Roebourne Prison. An additional 10 Chinese asylum seekers arrived in Australia on 10th May. (more detailed chronologies of the involvement of the legal advisers exist. for those who have a particular -interest -in this area). 2. STATUS OF THE DETAINEES 2. 1. Boat Arrivals Between 28th November, 1989 and 10th May, 1992, ten unauthorised boats arrived in Australia: Boat No Persons Nationality Arrival Current On Board Date Location of Majority Fender Bay 26 Cambodian 28 Nov 89 Port Hedland Beagle 119 Cambodian 31 Mar 90 Sydney Collie 79 Cambodian 1 Jun 90 Port Hedland Dalmatian 33 18 Chinese 4 Mar 91 Port Hedland 14 Macauans repatriated Hong Kong resident repatriated Echo 35 Cambodian 6 Mar 91 Port Hedland Foxtrot 3 2 Indonesians repatriated Bangladeshi repatriated George 77 Cambodian 26 Apr 91 Port Hedland Vietnamese PRC Nationals Harry 10 Vietnamese 9 May 91 Port Hedland Isabella 56 PRC Nationals 31 Dec 91 Port Hedland Roebourne Jeremiah 10 PRC Nationals 10 May 92 Darwin
2.2. Current Status 2 cases (6 people ) have been granted refugee status. 3 people (2 females, 1 male ) have been released to join spouses in Australia, HZ and USA. 4 people (2 adults, one youth and one infant) returned voluntarily to Cambodia earlier this year. The 18 people from Macau, Hong Kong, Bangladesh and Indonesia did not apply for refugee status and thus were repatriated. 37 (from the Fender Bay and Beagle boats ) received their final rejection notice on 6th April. Following the Federal Court challenge this was revoked and the applications are being reviewed by a new decision maker. The remainder still in detention have their claims in the primary and appeal stages of the application process. 24 people have escaped during their long detention while in Melbourne or Sydney and are still at large. The others returned voluntarily. There have been no "escapes " from Port Hedland (just instances of "temporary leave of absence "). 12 Chinese from the Isabella boat were moved from Port Hedland to Roebourne Prison in early May. 3. CURRENT LEGAL RESPONSIBILITIES: Legal responsibilities for the asylum seekers currently in detention are as follows : 3.1. Primary Applications and Appeals: RCOA has a team of 5 lawyers, together with support staff, who have been working in Port Hedland with some 180 Cambodians, 25 Vietnamese and 20 Chinese since 3rd February 1992. With the exception of the brief period in late 1991, these people previously
had been represented by volunteer lawyers.3 RACS Victoria is providing legal advice (with DILGEA funding since their move from Melbourne ) to almost all the Cambodians detained in Sydney. RACS NSW is working with one client transferred from Port Hedland on medical grounds, and a small number have independent lawyers (funded by legal aid ). Australian Lawyers for Refugees, Inc (ALRI ) have been engaged by DILGEA to represent the 56 Chinese detained in the Kimberleys early this year and the 10 Chinese who arrived in May. 3.2. Federal Court Challenge : 26 Primary Applicants (37 people, all Cambodians ) received their final rejection on 6th April, 1992. Concern over the procedural fairness of their assessment and the continuation of their detention prompted two groups of lawyers to initiate action on their behalf : For the 23 Cambodians in Port Hedland : a group of barristers from Darwin volunteered their services. They had worked with these people on a voluntary basis when they were held in Darwin and had closely followed their progress since. The group contains several senior barristers, including QCs. Funding was obtained from the Northern Territory Legal Aid Commission and an anonymous donor to cover the costs involved in preparing for the case. In both actions, however, costs were awarded against the government. For the Cambodians in Villawood ; a group of lawyers from Melbourne offered their assistance. These are principally barristers and solicitors associated with RACS Victoria through their support network. Funding has been sought from Legal Aid and from a Melbourne Law Firm, though much of the legal work is being done voluntarily. It is significant to note that it was not until the asylum seekers were moved away from their volunteer legal advisers that the Department of Immigration provided the funds necessary for the continuation of the legal advice.
RCOA position in relation to the provision of legal advice to asylum seekers: Direct involvement of RCOA in the provision of legal advice to asylum seekers should terminate at the end of the administrative processing. Any judicial action deemed necessary should normally be the responsibility of lawyers working and funded independently. 4. POSITION ON THE DETAINEES: 4.1. Some Views on the Cambodian Asylum Seekers and the Peace Process: Suggesting that the Cambodian asylum seekers remain in Australia in no way contradicts RCOA 's support of the Peace Process in Cambodia and the repatriation of the border population. The following facts should be considered : The Cambodian asylum seekers left Cambodia before the Peace Accord was signed and at a time when it appeared unlikely that it ever would be. While Mr Hand may claim that they are "queue jumpers ", there was no queue for them to jump. There was no legal way for them to leave Cambodia. The Department of Immigration, in dismissing their claims for refugee status, acknowledges that many faced persecution at the time of their departure but claim that substantial and material changes have taken /will take place in Cambodia. They base this assertion largely on confidential documents from the Department of Foreign Affairs which cannot be checked and dismiss a substantial amount of contradictory information, particularly that relating to treatment of ethnic groups (many of the applicants are ethnic Chinese ) and people perceived to be dissidents. The return of the border population is part of the political settlement. Even their return is uncertain because of difficulties obtaining funds, delays in mine clearance and the possibilities of cease -fire violations. 8
RCOA position on the Cambodian Peace Process! a) While recognising the current peace process in Cambodia is fraught with danger and uncertainties, RCOA supports : 1. The objectives of the peace process. 2. The role of the Australian Government in supporting the peace process. 3. The voluntary, and closely monitored, return of the border population. b ) RCOA contends that its support for the peace process is not contradictory to its support for the granting of protection to the Cambodians currently seeking asylum in Australia until after the scheduled elections. 4.2. Some views on the Vietnamese and Chinese Asylum Seekers: Thus far, much of the media attention and discussion has focussed on the Cambodians. It is important that we do not lose sight of the fact that there are some 45 Vietnamese and Chinese who have been in Australia for a year or so in addition to the further groups of Chinese who arrived in late 1991 and mid 1992. The majority are at the appeal stage. Some primary applications are outstanding. It is clear from discussions with the lawyers that many of these people have claims of substance eg : Vietnamese Male : Formerly KCO in South Vietnamese Navy ; spent 90% of the last 15 years in prison and reeducation camps, including 9 years for attempting to leave Vietnam ; during imprisonment held in darkened cell for 7 months / beaten etc resulting in damage to eyesight. Also : initially denied access to lawyer by DILGEA and there was no interpreter at his DORS interview. Family group (6 people ): born Vietnam, ethnic Chinese expelled to China in 1979. In China denied citizenship, employment, freedom to practice religion. Woman arrested and returned because of pregnancy. Family member escaped to Vietnam, arrested and returned to China.
Involved in pro-democracy movement, detained for 6 months following Tienanmen Square Massacre. Claim based on persecution for reasons of race, religion, nationality, political opinion AND membership of a social group. There is evidence that DILGEA is giving little credence to the claims these people are making as none have yet been accepted for refugee status. In rejecting their claims the Department has used some extraordinary tactics including the misquoting shown below: Extract from Delegate's letter of reiection: "In this respect, I consider that the objective situation, as evidenced by material available to me, indicates that the Vietnamese government attitude to and treatment of those who have illegally departed and now returned to Vietnam, has altered considerably since 1981. I refer firstly to the "Country Reports on Human Rights Practices for 1991" by the US State Department, published in February 1992, which states in the chapter on Vietnam that: "Vietnamese who emigrate are generally free to return. The Vietnamese Government regards overseas Vietnamese both as a valuable source of foreign exchange and expertise...thus, the government generally granted visas to overseas Vietnamese and encouraged them to visit Vietnam whether they emigrated legally or had been granted permanent resettlement after illegal departures from Vietnam"." The full text4 of the paragraph quoted above: "Vietnamese who emigrate are generally free to return. The Vietnamese Government regards overseas Vietnamese both as a valuable potential source of foreign exchange and expertise and as a potential security threat. Thus, the Government generally granted visas to overseas Vietnamese and encouraged them to visit Vietnam whether they emigrated legally or had been granted permanent resettlement after illegal departures from Vietnam. At the same time the public Security Police keep an eye on them, especially those who come under suspicion as a result of their actions or associations. During the year some Overseas Vietnamese were arrested, detained, and deported for activities deemed to be subversive as described in section i.d. above." RCOA Resolution: In any discussion of the detained boat people, attention should focus on the Vietnamese and Chinese as well as the Cambodians. They too have been denied the opportunity for their possible humanitarian claims to be considered and they have been subjected to the same treatment is Australia as the Cambodians. This raises the additional issue of the absolute necessity of making available to all parties documents used in the determination of a claim. 10
4.3. The Humanitarian Issue; While in Australia the asylum seekers have been treated badly. They have been detained (some for almost two and half years ) and have been denied many fundamental rights. According to the Human Rights Commission, their treatment has involved multiple breaches of several international instruments - to which Australia is a signatory including the Universal Declaration of Human Rights / the Declaration on the Rights of the Child and the UN Convention Relating to the Status of Refugees. The Commission / in their draft report, also raised the issue of adherence to the Human Rights and Equal Opportunity Act 1986 and the Racial Discrimination Act 1975. KGOs have been slow to respond on this issue, the Refugee Council being no exception. Failure to act in the past is, however, no excuse for not taking a firm line on this issue now. RCOA Resolutio n : RCOA both directly and through REFPAC, should analyse the report of the Human Rights and Equal Opportunity Commission when released and monitor the Government 's response, formulating a position accordingly. Future action may take the form of representation to the UN Commission for Human Rights and /or UNHCR ExComm..4 Why Have the Boatpeople Been Detained? Until the new legislation was introduced on 5th May, 1992 the reason for the detention of the boatpeople rested solely on their method of arrival. Those who arrived by boat or aeroplane and were detained by immigration officials before having technically entered Australia, were deemed not to have entered the country and were classified as Prohibited Non -entrants. They were covered by Sections 88 and 89 of the Migration Act which was interpreted as allowing for their detention for the duration of the determination process. People like the 56 ambulatory Chinese who were apprehended in Australia after having entered without completing the necessary formalities, were classified as Illegal Entrants and came under Section 92 of the Migration Act. Those detained under this section of the Act had to have their cases reviewed by a magistrate every 7 days or as directed. 11
People who come to Australia on a visitor or student visa and then apply for refugee status, even if their entry permit has lapsed, are permitted to remain at liberty in the community (with occasional exceptions, eg if the person has real or suspected criminal record). One significant issue in the case of the detainees (those held under Sections 88, 89 and 92) is that unlike the situation for "legal " entrants, the RSRC does not have the discretionary power to recommend these people to the Minister for humanitarian protection (see also 4.3). According to the lawyers who are working with the claimants, all of the people would have very strong humanitarian claims. Furthermore, it appears that some of the boat arrivals actually spent time on Australia soil before being apprehended. This is of particular significance because had they been held under Section 92 not 88, they would have had access to humanitarian status (the cut off date for this was July 1991). Their detention would also have been illegal (as they have not been brought before a magistrate on a weekly basis ). The new legislation introduced in early May, however, changes things significantly. It allows for the detention of all "designated persons " ie non-citizens who arrive or have arrived in Australia by boat without a visa between 19th November 1989 and 1st December 1992 thereby removing grounds to challenge detention. 4.5. The Use of Port Hedland for a Detention Facility: It is the Refugee Council 's belief that the Port Hedland Reception and Processing Centre, located in NW Western Australia may well be a suitable facility for the limited duration detention of people caught fishing in Australia 's territorial waters but it is entirely unsuitable for the long term detention of asylum seekers. Port Hedland is an unsuitable location because it is too isolated from services considered essential for asylum seekers, namely : Legal advisers with demonstrated experience in assisting with asylum claims. Interpreters accredited in the language of the applicants. Counsellors with specific expertise in dealing with victims of torture and trauma. 12
* Medical and dental practitioners skilled in cross - cultural communication. Religious leaders from the applicant 's community who provide both religious and cultural support. Contact with family members and other nationals. Furthermore, after 9 months of operation, the Port Hedland Centre is still deficient in areas unrelated to its location -, in particular : The provision of education in all curriculum areas for school-aged children. Training for adults in vocational skills. Culturally appropriate recreational activities, especially for women and children. Provision for contact with community support groups. RCOA position on the use of Port Hedland Receptio n and Processing Centre : RCOA opposes the use of the Port Hedland Centre for the detention of asylum seekers. RCOA believes that If asylum seekers are to de detained. It should be In facilities specifically Intended for this purpose and located In either Sydney or Melbourne so that essential services can be accessed. RCOA's Position on the issue of Detention can be found in RCOA's Position Paper (May, 1992).