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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.

Last

Updated 30 June 2003.