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ACMRO
GPO Box 2720
Canberra ACT 2601
Telephone 02 6201 9848
Fascimile 02 6247 7466
Email: director@catholic.org.au
Australian Catholic Migrant and Refugee Office
The Secretary
Senate Legal and Constitutional
References Committee
Suite S1.108
Parliament House
Canberra ACT 2601
May 2000
Joint Standing Committee Inquiry
Australia's Refugee and Humanitarian Program
This is a joint submission from the Australian Catholic Migrant and
Refugee Office (ACMRO) and of the Australian Catholic Bishops' Conference Committees for
Migrants and Refugees and for the Family and for Life. It addresses a number of the terms
of reference for the Joint Standing Committee the operation of Australia's refugee and
humanitarian program.
The practices and principles outlined in the Bishops' submission reinforce the need for
the operation of Australia' Refugee and Humanitarian Program not only to be just and
humane but also to reflect within domestic legislation the human rights to which Australia
has subscribed in relevant international instruments.
The inquiry canvasses many of the issues raised in the National Population Council's
Refugee Review, July 1991. That Review, in addition to providing an excellent historical
overview of Australia's involvement with the displaced, the refugee and the asylum seeker,
also analyses central themes in the contemporary debate, as well as making findings and
recommendations for the 1990s and into the 21st Century. Of particular interest is the
initiative at international level in 1980 by Australia to establish in international law
the concept of temporary refuge (ie temporary haven).
Specifically ACMRO considers that asylum seekers should always be able to:
- Access adequate legal and welfare/health assistance provided by the Federal Government
(this should include regional access to legal service)
- Avoid forcible return, including deportation, to a country where they could face
torture, death, imprisonment or violation of their basic human rights
- Be informed automatically of their entitlements to legal advice and assistance with
asylum claims
- Have the right of appeal to the Courts against an adverse decision by a refugee
determining body, including an administrative or review tribunal.
The following are the thoughts of Pope John Paul II in his address to IV World Congress
on Pastoral Care of Migrants, October 1998. These comments were made in context to the
large number of countries being very restrictive on the entry of migrants and refugees:
"In the modern world, public opinion is often the chief rule that political
leaders and legislators prefer to follow". I wrote for World Migration Day 1996: 'It
is very important that public opinion be properly informed about the true situation in the
migrants' country of origin, about the tragedies involving them, and the possible risks of
returning'. The duty of information is therefore to help the citizen to form a true
picture of the situation, to understand and respect the basic rights of others and to
assume his share of responsibility in society and at the level of the international
community".
The following comments are made directly to the criteria as outlined in the terms of
reference.
Yours sincerely
Rev. John J Murphy
Director
Specific comments against the terms of reference:
a) the adequacy of legal assistance provided to asylum seekers under the
Federal Government's Immigration Advice and Application Assistance Scheme;
Adequate access to legal and welfare assistance should be provided by the Federal
Government, and should include regional access. The following point raised by the Centre
for Multicultural Pastoral Care (CMPC) Brisbane highlights the real problems due to
inadequate assistance under the Immigration Advice and Application Assistance Scheme
(IAAAS). Specifically the CMPC states that the IAAAS funding for the South Brisbane
Immigration and Community Legal Service (SBICLS) is insufficient for the number of
clients. The CMPC cites cases with merit which are refused and subsequently denied legal
assistance due to limited funding and resources. The result of insufficient funding under
the IAAAS means that many referring agencies must rely on sympathetic legal workers to
provide pro bono assistance.
Importantly, the consequence of such a process results in cases being considered on
migration principles rather than the right of the refugee. ACMRO believes services and
processes should reflect fundamental humanitarian practices in seeking asylum rather than
a focus on practical migration principles along with various obstacles that serve to
confuse the determination process for the claimant.
Asylum seekers should be informed automatically of their entitlements to legal advice and
assistance with asylum claims. Often this does not happen.
Overall, access to legal advice and service, together with the limited funding for the
IAAAS, is disproportionate to the number of asylum seekers who require legal assistance.
The National Council of Churches in their submission of 21 January 1999 to the Department
of Immigration and Multicultural Affairs on the IAAAS, suggest that "at least 75% of
the available free legal advice for refugee claims ....has disappeared".
Attention should be focused on the special needs of asylum seekers making claims. Many are
victims of war who are suffering from torture, trauma experiences, who have language
problems and little or no comprehension of the Australian legal, democratic and
administrative systems. In recognition of these special needs, accredited interpreter and
translation services and legal advisers should be provided who meet the requirements of
the Migration Agents Code of Conduct.
The Catholic Church believes that the Refugee and Humanitarian Program should reflect
within domestic legislation the human rights to which Australia has subscribed in relevant
international instruments. The consideration of asylum should not be portrayed as a
negative aspect of Australia's migration program. The generosity of the Australian
(including Catholic) community in the current environment clearly highlights a caring
response by Australians for the needs of those seeking refuge and aid both within and
outside Australia.
b) the adequacy of a non-compellable, non-reviewable ministerial discretion to
ensure that no person is forcibly returned to a country where they face torture;
A formal process should exist to advise when an applicant's case has been referred by
the Department of Immigration and Multicultural Affairs (DIMA) to the Minister for review
under Section 417. The present lack of such a process creates problems in submitting
additional supporting information especially as there is no indication of a required
timeframe, particularly if additional documents have to be obtained from the country of
origin and may take some time. Additionally, asylum seekers do not know whether they can
seek an extension of their work permit if they do not know when/if their case has been
referred to the Minister. They therefore often rely on non-government agencies, already
extended beyond their resources, to provide financial and material support.
If the concept of mutual obligation is implied in the delivery of programs then
responsibility and accountability must be transparent to ensure the public sector manages
programs according to the requirements, in this case of humanitarian obligations.
c) whether Australia's treaty commitments to, and obligations under, the
1951 Convention relating to the Status of Refugees, the 1984 United Nations (UN)
Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment,
and the 1966 International Covenant on Civil and Political Rights are capable of being met
given that the fundamental principle of non-return to face torture or death is not present
in domestic law nor subject to the rule of law;
Australia may be contravening its obligations as a signatory to the 1951 Convention in
terms of responsibility to international law. We now have domestic laws that restrict
access to judicial review and work rights for asylum seekers, many of whom have been
detained for long periods of time without legal advice or representation and held
incommunicado. This raises questions concerning Australia's attitude to human rights. The
Universal Declaration on Human Rights includes the principle that all persons have basic
rights, including basic living needs and work rights.
In addition, the management and practices of Australia's detention methods were found to
be in contravention of international instruments as reported by The Human Rights and Equal
Opportunity Commission (HREORC) report entitled "Those who've come across the seas:
Detention of unauthorised arrivals". The report found that human rights are being
violated due to the conditions of detention; restricted access to services; the practice
and effects of long-term detention and restricted access to judicial review of detention.
Furthermore, current legislation restricts work rights for those asylum seekers who fail
to lodge their protection visa application within 45 days of arriving in Australia
apparently in contravention of international obligations. Restriction of judicial review
could result in the return of an asylum seeker to a territory where his or her life or
freedom would be threatened. Australia therefore is at risk of breaching the principle of
non-refoulement as it relates to article 33 of the 1951 Convention Relating to
the Status of Refugees. We urge the Government to approach such laws with a
general and humane concern. Legislation should be amended to ensure the avoidance of
forcible return, including deportation, to a country where asylum seekers could face
torture, death, imprisonment or violation of their basic human rights.
d) the adequacy of current refugee determination procedures having regard
to the role and function of the Refugee Review Tribunal in investigating asylum claims;
sylum seekers should have the right of appeal to the Courts against adverse decisions
by a refugee determining body, including an administrative or review tribunal, and should
share in common with other citizens the right to equal access to the law. There is a
perception in the community that the independence of the Refugee Review Tribunal (RRT) has
been compromised and is assuming an adversarial rather than inquisitorial role.
We oppose on principle the imposition of the $1000 fee for cases rejected by the RRT as it
places a fine on the process.
An inconsistency exists within the present process for those claimants who wish to remain
in Australia for humanitarian reasons as opposed to those cases which fall strictly within
the definition of persecution based on the UN Convention relating to the Status of
Refugees. A claimant must firstly put their case to the RRT before they can pursue the
option to seek the Minister to use his discretion under Section 417 of the Migration Act.
e) the importance of maintaining full judicial oversight of any
administrative process that directly affects Australia's compliance with its international
legal obligations;
A concern shared by ACMRO, other agencies and bodies is that full judicial oversight
must be maintained of any administrative process as well as a ministerial decision that
directly affects Australia's compliance with its international legal obligations.
f) the potential implications for the future operation of Australia's
refugee policy and program following the enactment of the principle of providing temporary
haven;
Agreeing to take 4,000 Kosovar refugees was welcomed as a humanitarian response to
those in need and we would hope others in need receive a similar response in particular
should that develop for East Timorese.
Temporary haven is a good measure as a direct response to global emergency and crisis
situations, indeed it is inherent and longstanding in the practice and policy of countries
of first asylum in Europe, the Americas, Africa and Asia. Furthermore the durable solution
of voluntary (not forced) repatriation actively pursed by the UNHCR includes the concept
of temporary haven and the obligations attached thereto.
The recent passing of legislation restricting those refugees from Kosovo from applying for
permanent residence on humanitarian grounds does not take into consideration the rights of
this group as refugees. It does not consider that circumstances may change where links
will naturally be formed thus reducing the desire to return home. The Bosnian experience
in the UK showed that the longer the stay the less likely the desire to be repatriated at
the end of the conflict. It appears to be unreasonable to offer safe haven and then impose
restrictions to apply for permanent residence given that circumstances change.
The Kosovo experience questioned the appropriateness of the process, unsatisfactory
management and lack of proper planning. Traditionally Australia has always been a country
of permanent settlement and as displacement of people and the reasons and need to migrate
will continue to increase, Australia must ensure in the planning process a component
within the migration program to cater for temporary settlement. We could be confronted
with an inflow of refugees at any time and therefore we must provide for this possibility
in the formulation of policy and programs.
g) the recent case of the Chinese woman allegedly deported to China,
despite pleas for protection, to face a forced abortion when 8 1/2 months pregnant;
Full judicial oversight should be maintained over any administrative process that
directly affects Australia's compliance with its international legal obligations,
including Ministerial decisions. To omit this oversight would be a disservice not only to
a recipient but also to a dispenser.
h) the responsibility of Australia under international law for the very
serious human rights violation of forced abortion which is claimed in this case;
The response articulated in the joint submission made on behalf of the Australian
Bishops Conference by the Committees for Migrants and Refugees and for the Family and for
Life, at point 1 on page 7 under the heading Refugees - Principles of Justice
adequately responds to this point.
k) the accessibility of judicial review for impecunious asylum seekers,
particularly since 1 July 1998 when the Commonwealth Legal Aid guidelines were amended to
remove grants for aid for asylum seekers except in extremely limited circumstances;
As described at a) because IAAAS does not fund Federal or Hight Court challenges, the
only avenues for funding a court case are legal aid or those practitioners prepared to
undertake cases on a speculative (ie no win - no fee) or on a pro bono basis. The
availability of legal aid is very restricted even for cases which have reasonable
prospects for success.
l) the role and involvement of private contractors in removal processes;
and
We raise a concern with the operational practices of certain private contractors in the
removal process of asylum seekers especially with reference to alleged incidences of
sedation of detainees prior to boarding the return plane.
m) the processes which are in place for monitoring deportation cases once
they have been returned to their country of origin.
We would hope that there are in place monitoring processes for those unsuccessful
claimants who may face forcible return, including deportation to a country where an asylum
seeker could face torture, death, imprisonment or violation of their basic human rights.
Conclusion
The Catholic Church has always had a proud history of involvement with refugees and
migrants in Australia. The issues raised in this submission highlight specific concern for
the effects of the stringent measures imposed on asylum seekers. On examination, these
measures appear to be somewhat disproportionate to the number seeking asylum and raise the
question of the level and confusion associated with administrative process, which serves
to distract community perception from the real and positive aspects of migration as
recently experienced with the Kosovo response.
Indeed it might well be useful and relevant for the committee to comment upon in its
report how transparent and clear are the language in the Migration Act and Regulations
affecting in particular refugees and asylum seekers. Would therefore a simplified Act and
attendant Regulations help both the dispenser and the receiver and in particular reduce
litigation and cost.
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