Advocates of justice for asylum-seekers and refugees were justifiably relieved when the Government was forced to withdraw its proposed amendments to the Migration Act – amendments that would have seen any asylum-seeker arriving by boat in Australia being deported to Nauru to be processed. However, few people realise that the win was only partial. The 'Pacific Strategy‘ remains largely intact, with many of Australia's northern islands still excised from our migration zone, forcing asylum-seekers who land there to be sent straight to Nauru instead of the Australian mainland.
At the same time as the government decided to withdraw its proposed amendments, eight Burmese asylum-seekers arrived on Ashmore Island. While parliamentarians from all parties condemned the processing of refugee claims offshore, the Burmese men were transferred to Nauru.
The fate awaiting these men is uncertain. However, it is increasingly clear that this inherently flawed system in a country that is not a signatory to the Refugee Convention can lead to particularly horrific consequences for those people caught up in Australia's politicisation of refugee protection applications.
In 2000, the then Human Rights Commissioner, Chris Sidoti, called on the Federal Government to investigate the fate of any asylum-seekers deported from Australia. He argued that unless the Government monitored these cases, we would never know if the decisions made by our refugee processing system were correct.
Since those concerns were raised, the Government has introduced wide-ranging changes to the system of processing protection applications which further restrict the rights of asylum-seekers and refugees.
The Refugee Review Tribunal recently released a report on its caseload for the financial year 2005-2006. During that time, a staggering 30 percent of cases considered by the RRT resulted in the overturning of decisions made by Department of Immigration and Multicultural Affairs to not offer asylum-seekers protection. In other words, DIMA made a clearly incorrect decision in almost one in three cases. For people from Iraq, DIMA got it wrong in 97 percent of cases. For people from Afghanistan, DIMA mistakenly refused protection in 94 percent of cases.
Further, the RRT notes that from 2002-2005 there were 473 refugees who had their claims rejected by both DIMA and the RRT but were subsequently recognised as refugees by the courts. In 2004-2005 alone, 245 refugees (11% of all protection applications) were saved from the threat of being returned to persecution only because these people had access to judicial review.
Because of the changes to refugee law and the demonstrable failures of the system, the Edmund Rice Centre decided to coordinate its own investigation of those deported from our shores. In 2003 the Centre released its initial report, Deported to Danger. It revealed that the Government had issued inappropriate documentation to returned asylum-seekers, effectively leaving them stateless within a few months. Time and again the Edmund Rice Centre found asylum-seekers living in dangerous situations, outside the law, and unable to gain the protection of any government.
Since publishing this report, little has changed. The Edmund Rice Centre has just released the second part of its research, Deported to Danger II, which examines the cases of 41 asylum-seekers deported from Nauru to Afghanistan. Thirty nine remain in danger, with two having found a safe haven in New Zealand.
The findings of this report are deeply disturbing for three reasons. Firstly, these asylum-seekers were not returned voluntarily under any sensible definition. They were told they had no choice. If they stayed in Nauru they would never be let out of detention. They would never see their families again and they were likely to be transferred to remote locations on the mainland where they would be left behind razor wire. Some were told that if they did not agree to leave, they would be forcibly removed. These stories were consistent across a range of people who were in Nauru at different times, who are now living in different countries, and who speak different languages.
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Secondly, those asylum-seekers being deported were promised help they never received. They were told that Afghanistan was safe. They were told they would receive assistance with housing and employment. Yet, when they returned, they were left to fend for themselves within a few days.
And finally, these people were deported to extremely dangerous situations. Thirty nine of the 41 people interviewed were clearly living in peril, moving between towns often without appropriate documentation. Some have since been killed. In two cases asylum-seekers lost children in bomb attacks on their homes.
This was not just the result of the general level of violence in Afghanistan. These people were targeted by the resurgent Taliban. They were targeted for precisely the reasons that had led them to seek asylum in Australia in the first place. One had married for love across religious lines. The other was associated with the pre-Taliban government. But their claims were not believed by Australian officials and so they were sent home. Now their children are dead.
Asylum-seekers on the mainland of Australia have access — albeit of a limited variety — to legal assistance to draft appropriate protection applications, mental health and welfare support to help ensure that they are capable of effectively making an application, and the opportunity to petition the RRT and the courts to correct decisions by DIMA.
However, under the government's Pacific Strategy, asylum-seekers such as those interviewed by the Edmund Rice Centre, who land on an excised island or are intercepted by the Australian Navy in our territorial waters, are routinely transferred to Nauru to have their protection applications assessed.
While on Nauru, asylum-seekers have little to no legal support and very poor mental health care. Most importantly, there is no comprehensive, independent review system for checking that the processing officials have made the right decision about their protection applications. Detention and deportation of asylum-seekers occurs far away from the scrutiny of the Australian public and the Commonwealth Ombudsman.
Such shortcomings in the refugee detention and processing system in Nauru were recognised by a cross-party report of a Senate Committee Inquiry into the government's plans to make processing on Nauru the norm and to cut mainland Australia out altogether for all asylum-seekers arriving by boat.
Immigration Minister Senator Amanda Vanstone criticised those who did not support the proposals for wishing to embed an inconsistency in Australian law that treats asylum-seekers on the mainland differently from those who arrive on an excised island.
Deported to Danger II demonstrates that Senator Vanstone is right to be critical of this double-standard. Given the serious problems associated with refugee processing on Nauru, including the increased risk of refugees being returned to countries where they or their families will be persecuted, it is simply criminal to punish asylum-seekers because of the mode of their arrival in Australia by forcing them to go to Nauru. It is cruel to make these vulnerable people 'examples' in the hope that it will deter other refugees from making similarly difficult journeys to escape persecution.
Deported to Danger II provides yet more evidence that the injustice of offshore processing of Australia's refugees in Nauru must end immediately. The consequences of a policy that routinely fails refugees are far more serious than violations of international law. The ‘Pacific Strategy' has clearly relegated numerous asylum-seekers to lives of persistent insecurity, danger and death; consequences that could have easily been prevented had their protection applications been processed in Australia. Any government professing a commitment to compassion, fairness and respect for human rights cannot, in all conscience, justify the continuation of such a policy.