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Cranston, Angela --- "Refugees in crisis" [2000] AltLawJl 45; (2000) 25(3) Alternative Law Journal 121

Refugees in Crisis

How committed is Australia to protecting the human rights of asylum seekers?

Angela Cranston[*]

Australia is fortunate in that it has never had an outpouring of its people, for any reason, let alone persecution. Accordingly, it is difficult for Australians to conceive what it must be like to be a refugee.

At the end of the cold war in 1989, there were expectations of peace and worldwide cooperation. Since then there has been an increase in the number of countries experiencing internal conflicts, border conflicts and ethnic cleansing. These include the former Yugoslavia, Rwanda, Somalia, Afghanistan and East Timor. In the United Nations Human Development Report, the United Nations Development Program counted only three wars between states from 1989-1992, but there were 79 instances of intra state conflict.[1]

In direct response to the horrors unearthed by the Second World War, Australia signed a tapestry of international human rights instruments, not the least of which is the Universal Declaration of Human Rights and the Convention on Refugees. Other instruments signed later include the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture.

The ideals espoused in these documents and Australia’s commitment to them crystallises our understanding of the principles of justice and human rights, the absence of which are fundamental causes of refugee outflows. In this regard, Australia has taken an international moral stance in world forums, promoting and advocating the ideals that Australia would have others follow.

However, recent events continue to challenge Australia’s commitment to human rights and human rights instruments.

According to the Catholic Commission for Justice, Development and Peace (the Catholic Commission) the arrival of unlawful asylum seekers in August, October and November 1999 from China and the Middle East engendered a change of sympathies, evidenced by the media and government reverting to a tough stance on refugees. This media attention assisted the government in its political battle to engage the support of the Labor and Democrat parties for further restricting rights for people arriving in Australia illegally.[2] At the time, attention was drawn to the significant costs involved in the upkeep and detention of refugees;[3] criminal elements making money from refugees,[4] forum shoppers and queue jumpers.[5]

All of this language obscures the primary cause of refugee flight and serves to alienate and stigmatise a group of people who, under Article 14(1) of the Universal Declaration of Human Rights, have the right to seek and enjoy asylum,[6] and who may in fact be refugees. Indeed, the recent arrivals have largely consisted of Iraqi and Afghan nationals, most of whom have been recognised as refugees.

These people, however, have been compared with those Iraqi and Afghan nationals ‘languishing in overseas camps’, although little has been done to educate Australians about the circumstances from which Iraqis and Afghans have fled or the tenuous situation that these people find themselves in when housed in overseas camps.[7] The fact is that many of those who have arrived by boat are the very people who have been ‘languishing overseas’.

It is often easier for the developed world to divide asylum seekers in this way. Australia’s own humanitarian program numerically links both the onshore and offshore programs so that any increase in the onshore program means that there will be a decrease in the offshore program. However, by doing this, attention is diverted from the fundamental issue. If the developed world accepts that there has been an increase in the number of internal conflicts, then the issue must be what the developed world is prepared to do about it.

The issues raised demand a sophisticated and uniform response at the international level. For example, it has been suggested that the solution may lie in redefining international efforts to deal with situations of mass influx and extending protection to people who face persecution but who have been unable to cross international borders. It has also been suggested that the United Nations High Commissioner for Refugees (UNHCR) should remain responsible for safe havens, but that the success or failure of their protection efforts should be monitored by an independent body.

But there also needs to be a response at the domestic level. In a press release from the Refugee Council of Australia (RCOA) dated 25 February 2000, RCOA advocates an increase in the intake. It states that as a responsible member of the international community, there will be times when Australia needs to ‘dig a little deeper’.

The Catholic Commission also suggests that Australia could improve its offshore assessment system by employing more staff in overseas posts who can more effectively manage resettlement applications.[8]

Equally important, however, is the need to educate Australians about the benefits of accepting refugees, and to attack the myths propagated against them.[9] The Department of Immigration has noted that of the 5.7 million people who have migrated to Australia since the end of the Second World War, almost 600,000 or just over 10% came as humanitarian entrants.[10] Among those people, there have been countless examples of remarkable refugees who have contributed to this nation. To name but two, Sir Gustav Nossal who was recently named Australian of the Year, came to Australia as a refugee from the encroaching Nazi regime in 1939 and Olympic wrestling hopeful in Sydney 2000, Mushtaq Abdullah, came to Melbourne six years ago as a refugee fleeing Iraq.

If it is accepted that Australian citizenship is an indicator of commitment to Australia,[11] then refugee populations continue to display a level of commitment to Australia which is not evident in other migrant populations.[12]

To put it succinctly, Australia as part of the developed world must more readily recognise the humanity of refugees. Only then can we hope for greater respect for the rights of asylum seekers and a greater willingness to treat asylum seekers in a manner that accords with international human rights standards.

The development of temporary protection in Australia

Until recently, the grant of refugee status in Australia usually led to permanent residence status and, if the refugee desired, to citizenship. Consequently, many of the controversies over refugees in the past arose in relation to the determination process as opposed to criticism of the end result.

However, the introduction of the three-year temporary protection visa on 20 October 1999 prompted debate about the inferior rights available for genuine refugees. The amendments provide for a new subclass of protection visa, the subclass 785 (temporary protection). If granted, the new subclass of visa will remain in effect until 36 months from the date of grant or the day on which an application by the holder for a permanent visa is finally determined. According to the criteria for a subclass 866 (permanent) protection visa, at the time of decision the applicant must have held a subclass 785 visa for a continuous period of 30 months or for a shorter period specified in writing by the Minister.

Compared with the permanent protection visa, the temporary protection visa provides no rights for refugees to bring their families into Australia, return if they leave Australia, access the settlement services provided to refugees who enter Australia by other means or access the social welfare system.

In addition, temporary protection visa holders cannot be granted any other type of visa. In contrast, people who arrive legally in Australia or who are immigration cleared and who successfully seek asylum immediately access permanent residence.

As early as 1993, The High Commissioner for Refugees warned developed countries about temporary refugee status and the possibility that refugees could be returned to the country they had sought asylum from (refoulement). She stated that:

While I am encouraged by the developments to provide temporary protection in situations of large-scale movements, I am also concerned by the fact that major reversals can be observed in the commitment to asylum. Those very States that support our international action most generously elsewhere are flouting the cardinal principle of non-refoulement in some parts of the world.[13]

Temporary protection was completely dismissed by all parties when One Nation launched its immigration policy. At the time it was reported:

Mr Kennett slammed Ms Hanson’s suggestion that refugees be returned to their home countries, once the dangers had passed there, as the height of naivety.[14]

The next time the notion of temporary protection reared its head in Australia was less than one year later, when after initially opposing the intake of Kosovar Albanian refugees, the government decided to accept 4000 refugees on a temporary basis, initially for three months. The initial period was extended following lobbying.

Again in September 1999, confronted with the need to evacuate about 1800 East Timorese, United Nations staff and refugees from the United Nations compound in Dili, the government offered the same facilities to them.

At the time, the Australian government and media presented both the aforementioned decisions as generous and humanitarian. Certainly, the eventual response was in keeping with the Australian public’s perception of what was humane. Little however, was said at the time about the legislation that was passed in the Senate which, in essence, meant that the safe haven visa holder was prevented from applying for the protection visa unless the Minister determined that it was in the public interest to do so. In particular, little was said about the fact that these people were unable to automatically access long-term protection if a short-term durable solution did not eventuate.

Amnesty International (Amnesty) was then concerned that the safe haven visa may have had the effect of ‘bypassing’ the Refugee Convention. Amnesty noted that the Refugee Convention itself provides for situations in which refugee status can end. Article 1C provides that refugee status can cease where the circumstances in connection with refugee status have ceased to exist, providing that there are no compelling reasons arising out of previous persecution for a person refusing to return home. The UNHCR has concluded that refugee status may only end when a change of circumstances in a country is of such a profound and enduring nature that refugees from that country no longer require international protection.[15]

At the time, Amnesty insisted that there must be an independent examination of the security and human rights situation in the country of origin before an assessment could be made of whether a change of circumstances that was of a profound and enduring nature existed. As events unfolded, whether or not this had in fact occurred in relation to Kosovars was a matter of debate. A press release from the Albanian Australian Association (NSW) Inc dated 31 March 2000 noted that:

Since May 1999 when almost 4000 Kosovars arrived in Australia, Minister Ruddock has repeatedly stated that the return of the Kosovars would be governed by the advice of UNHCR. Despite the UNHCR review not being released until 27 March, the Minister released a press release on 15 March 2000 stating that the Kosovars would have to leave Australia by 8 April or they would be removed by force.

Temporary protection may be a viable option for evacuating those people trapped within borders. However, as any conflict lengthens, and the period of refuge extends, it is increasingly difficult to justify any notion of temporary asylum. In addition, the safe haven visa provided a dangerous precedent in that it introduced the notion of a temporary visa which up until that point, had been universally dismissed. As Amnesty predicted, the notion of temporary protection was ‘extended’ to other situations and in particular, the arrival of unlawful asylum seekers towards the end of 1999. In October 1999 the temporary protection visa was used to replace the onshore permanent protection visa for all those who had arrived in Australia and who had been unable to obtain an Australian visa.

The new visa has never been promoted on the basis that those from the Middle East would be provided with temporary protection pending the possibility of fundamental, durable and stable change. Rather, it was claimed that by ‘jumping the queue’, these people had sought to gain benefits from those who were more vulnerable.[16] As previously mentioned, pitting refugees in overseas camps against those who arrive in Australia is difficult to sustain, given the global lack of effective processes to assess refugees. To illustrate this point, the Catholic Commission states:

Recent talk of queue jumping implies that some of the regions which house displaced people have orderly operations that resemble a queue. Non government organisations report that the reality is far from this. Australia has very few overseas posts in areas and regions from which displaced people, and amongst them refugees and asylum seekers, come …
The situation in Islamabad is a similar story: too few staff, bribes and an overburdened office. The difficulties for poor women in the Women at Risk Program in gaining access to the queues and having their visas recommended by the UNHCR is also fraught as they cannot find the money to bribe their way beyond the front gate office. It is understood that recently a busy post in Damascus was simply closed and files were transferred to Beirut and Lebanon affecting many Iraqi refugees.[17]

The new temporary visa will only increase the suffering of genuine refugees. They have already suffered physically, psychologically and emotionally and have been traumatised by years spent in countries such as Afghanistan and Iraq and in their journeys of escape. The new temporary visa means that they will simply be left in limbo with no security and no chance to rebuild their lives. This has an undeniable psychological effect on individuals whose length of stay will remain uncertain. In a study undertaken by the New South Wales School of Psychiatry entitled the Mental Health and Well-Being of On-Shore Asylum Seekers in Australia, 1998, when asylum seekers were asked what were the special post arrival stresses they faced, over 50% said they experienced major stress related to fears of being sent home and being unable to return home in an emergency. The new temporary visa means that the psychological effects will continue well into the refugees’ foreseeable future. But there is also another impact. The majority of those refugees granted the new temporary visa so far have been male heads of households who had left their wives and children behind. Their inability to sponsor them means that their time and energy will be spent worrying about them. RCOA has stated that this is going to be a very cruel and painful torment.

The Border Protection Legislation Amendment Bill 1999

Little has been written about the changes that were introduced by the recent passage of the Border Protection Legislation Amendment Bill 1999. At the time, the government noted that the purpose of the amendment was to prevent the misuse of Australia’s asylum processes by ‘forum shoppers’. The Bill actually used highly emotive language and included references to ‘amendments to prevent forum shopping’. The government stated that the amendments would ensure that people who were nationals of more than one country, or who have a right to enter and reside in another country where they would be protected, had an obligation to avail themselves of the protection of that country.

The legislation has two components. First, protection visa applications that have been lodged can be refused on the basis that there are no protection obligations where an applicant has a right of entry and residence to another country and all possible steps have not been taken to access that right. A country will be excluded from consideration if:

• a person has a well-founded fear of persecution for a convention reason in relation to that country; or

• a person has a well-founded fear that the country will directly or indirectly return the person to another country where the person will be persecuted for a Refugee Convention related reason.

These asylum seekers will still retain a right of appeal to the Refugee Review Tribunal.

Second, the legislation provides that if a non-citizen has a right to re-enter and reside in a gazetted country and has resided in that country for a continuous period of at least seven days, they will be unable to apply for a protection visa unless the Minister personally exercises his discretion.

Pursuant to s.91N(3) of the Act, the Minister may gazette a specified country which:

Provides access for persons seeking asylum, to effective procedures for assessing their need for protection; and
Provides protection to persons to whom that country owes protection obligations; and
Meets relevant human rights standards for persons to whom that country owes protection obligations.

This legislation is a direct attempt to prevent asylum seekers from gaining access to asylum procedures. It remains to be seen how the legislation will be implemented but it is of obvious concern that people who have travelled through gazetted countries and who are deemed to be able to return will be liable to immediate removal from Australia without any right of appeal.

The Department of Immigration and Multicultural Affairs has not released any information about which countries the Minister is considering under the gazettal power. However, the Minister recently visited a number of countries in Asia and the Middle East including Indonesia, Syria, Pakistan, Jordan, Iran and Turkey and has publicly spoken to their respective governments about combating the smuggling of innocent people into Australia.[18] Of the countries mentioned, Syria, Pakistan and Jordan have not ratified the United Nations Convention on Refugees, Turkey is not a signatory to the 1967 Protocol which means that non-European asylum seekers are disqualified, and Iran routinely deports people back to countries of probable persecution, including Iraq.[19]


Australia’s treatment of refugees and its commitment to international human rights treaties has recently attracted international criticism. The most prominent examples include the recent comments by members of the Committee on the Elimination of Racial Discrimination that not only focused attention on indigenous Australians, but also expressed concern over Australia’s treatment of asylum seekers.[20] In January 2000, the Minister for Immigration was criticised for deporting a failed asylum seeker despite a request from the United Nations Committee against Torture not to do so.

In the foreseeable future, there is no evidence that the outpourings of human suffering will end. However, in order to continue to speak out against human rights violations, Australia must remain credible. Australia’s own human rights record will thus continue to remain under the international spotlight.


[*] Angela Cranston is Co-ordinator, Refugee Advice and Casework Service, New South Wales.


[1] Catholic Commission for Justice, Development and Peace (CCJDP), ‘Hordes or Human Beings, A Discussion of Some of the Problems Surrounding Australia’s Response to Asylum Seekers and Possible Solutions to Those Problems’, Discussion Paper, 8 Mar ch 2000.

[2] CCJDP, above, footnote 1, p.16.

[3] For example, see ‘Illegals Force Refugee Freeze’, Australian, 15 February 2000. The Australian reported in the article regarding the ‘freeze’ in the processing of overseas refugee cases that ‘the minister … ruled out lifting the refugee quota from 12,000 because an additional 1000 would cost tax payers $23 million dollars per year’.

[4] For example see ‘Ruddock to Target Illegal Refugees’, Canberra Times, 14 October 1999. The newspaper stated that ‘Most of those were from Iraq, Turkey and Afghanistan and many had been outside their countries for decades. It is clear that most of these people are being trafficked to Australia by criminal elements’.

[5] See ‘Australian Government: Ruddock announces tough new initiatives’, M2 Presswire, 14 October 1999. The Minister is quoted as saying, ‘In a growing trend that has become known as “forum shopping”, these people are trying to exploit Australia’s generous arrangements for refugees to gain residence in their country of preference’.

[6] Article 14(1) of the Universal Declaration of Human Rights states that everyone has the right to seek and to enjoy in other countries asylum from persecution.

[7] See ‘Australian Government: Ruddock Announces Tough New Initiatives’, M2 Presswire, 14 October 1999. The Minister is paraphrased as saying ‘Mr Ruddock said the proposed legislation would put an end to this abuse that undermines the refugee process and takes places from genuine applicants who are languishing in refugee camps around the world’.

[8] CCJDP, above, p.22.

[9] For example, see ‘WA — Illegal Immigrants “selfish” — MP’, Australian Associated Press, 16 February 2000. Senator Ross Lightfoot is quoted as saying ‘Illegal immigrants were selfish, ungrateful and “possibly unsavoury” and should be fined’.

[10] Department of Immigration and Multicultural Affairs, ‘Consultations on the 2000–2001 Migration and Humanitarian Programs’, Discussion Paper, December 1999–March 2000.

[11] See Department of Immigration and Multicultural Affairs, ‘Australia Day brings 6000 into the Family, Press Release, 26 January 2000. The Minister for Immigration, Philip Ruddock in his Australia Day address stated that ‘Australian citizenship has a special meaning, the commitment of new citizens is special and it makes a special statement to become an Australian on Australia Day’.

[12] See Department of Immigration and Multicultural Affairs, Australian Citizenship, 1996 Census, Statistical Report No 26. It was noted that people born in the Middle East and North Africa had the highest rate of Australian citizenship (93.1%) of all regional groups.

[13] Fitzpatrick, J., ‘Flight from Asylum: Trends Toward Temporary Refuge and Local Responses to Forced Migrations’, (1994) 35 Virgina Journal of International Law 13.

[14] See ‘All Sides Give Intake Plan a Net Zero’, Sydney Morning Herald, 2 July 1998.

[15] See Amnesty International, ‘Submission to the Senate Legal and Constitutional Legislation Committee Concerning Australia’s Refugee Determination System’, June 1999.

[16] For example, see ‘Australians all for Govt’s Hard Line on Illegals’, The Straits Times, 27 January 2000. It was noted that Mr Ruddock had pointed out that queue jumpers prejudiced the chances of those whose applications had been filed legally.

[17] CCJDP, above.

[18] ‘Australian Minister Seeks Pakistan Cooperation in Combating Human Smuggling’, Pakistan Press International, 21 January 2000.

[19] See ‘Iranian Leader Khamene’i Reportedly Eases Measures Against Iraqis in Iran’, BBC Monitoring Service, 4 September 1999.

[20] See for example ‘Minister’s Likely to Snub UN Committee’, Age, 2 April 2000, p.4.

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