Sorting out what happened in UNHCR and government talks on refugees important for credibility of both sides



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The government says its position has always been that none of those on Manus Island and Nauru would ever be allowed to come here.
Darren England/AAP

Michelle Grattan, University of Canberra

The fracas between the United Nations high commissioner for refugees (UNHCR) and the government over whether Australia agreed to settle a handful of the Manus Island/Nauru boat people with family here goes to questions of fact and humanity.

UNHCR claims it consented to facilitate the Australia-US resettlement deal, reached late last year, “on the clear understanding that vulnerable refugees with close family ties in Australia would ultimately be allowed to settle there”.

The government says its position has always been – as it has consistently said publicly – that none of those on Manus Island and Nauru would ever be allowed to come here.

It should be possible to get to the bottom of what was said in the multiple meetings the UNHCR had with the government. Presumably each side, and certainly the Australian bureaucrats, would have taken notes. These should be produced. Or perhaps information will be dragged out eventually in that very useful inquisitorial forum, Senate estimates.

Asked whether Immigration Minister Peter Dutton had given an assurance, Volker Turk, UNHCR’s assistant high commissioner for protection, told the ABC on Monday: “He didn’t give us assurances because we didn’t present cases yet. But he did agree that we would be able to present such cases.”

One can imagine how, anxious to get UNHCR involvement, Dutton and officials might have let the impression be left that cases would be considered – when they had no intention of looking favourably at any of them.

Maybe this is too Machiavellian – but the record should clarify. It is important for the credibility of both the UNHCR, which made the claim in a very tough statement, and the government that what happened be made clear.

Then there is the substantive question. We are talking about very few people – some 36 identified so far with a humanitarian claim and links to Australia, according to the UNHCR.

Whether the UNHCR or the government is right about the tenor of their conversations, surely in the cases of these people, it is not asking too much to expect Australia to take them in, regardless of the policy.

Dutton and colleagues default to the standard line, conjuring up the prospects of a fresh armada if any exceptions are ever made.

When the US deal was announced there was much tough talk from the government about strengthening the iron cordon of vessels patrolling around Australia in case there was a try-on from the people smugglers.

Does anyone seriously think that cordon isn’t up to the task of discouraging any fresh attempt if we let in three-dozen needy people with relatives here?

Remember that John Howard’s Pacific solution, which stopped the boats, saw some 705 of the 1,637 detained in Manus Island and Nauru between 2001 and 2008 resettled in Australia.

It’s hard to avoid the conclusion that the government exaggerates the threat for political purposes.

In case this be seen as just being “soft” on border protection, let me say that I believe the policy of turning back boats has been justified. Offshore processing had its place in that policy, but it is a step far too far to say now that we couldn’t keep the border secure if a few special cases were allowed to come to Australia.

One wonders if Dutton, Malcolm Turnbull or other ministers are ever troubled in their consciences, as they enjoy their own families, about what they are doing to the lives of children on Nauru or young men on Manus Island.

It’s as if the government buys its own propaganda, which subtly or not-so-subtly demonises these people – a majority of whom are found to be refugees – essentially suggesting they are criminals, as in Foreign Minister Julie Bishop’s comments on Tuesday.

“If people seek to arrive illegally, if they pay criminal smuggling networks, they will not be resettled in Australia,” she said. Bishop, of all people, knows that the story of seeking asylum is more complicated and involves the question of rights, with “unauthorised” arrivals being the appropriate term.

The row with the UNHCR sits uncomfortably with Australia’s campaign to win membership of the UN Human Rights Council, for which the vote is in October. The council’s remit is “the promotion and protection of all human rights around the globe”. But Bishop, who has been advocating for Australia’s candidature as she travels the world, on Tuesday was confident of success.

Leaving aside the contretemps with the UNHCR, some eight months after the announcement of the US deal none of the people from Manus Island or Nauru has moved to America.

We know that Donald Trump hates the Obama-era deal – under which the Americans agreed to take up to 1,250 refugees – though he has said he will honour it.

We know that the Americans are doing their own “extreme vetting” of the refugees.

We know that the US has already filled its refugee quota for the year ending September, so these people are pushed into the following quota, which starts October.

What we don’t know is how hard the Turnbull government is working to persuade the US administration to meet the agreement as soon as possible.

Turnbull makes much of he and Trump both being businessmen. Well, this can be thought of as a contract, and it is time the contract’s terms were met.

The ConversationWe have a special relationship with the US and that should be called upon. The people should be gone by Christmas, at the latest.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

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UN condemnation and a sports boycott: Australia again called on to end offshore detention



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EPA/Nyunt Win

Amy Maguire, University of Newcastle

On ABC TV’s The Drum on Monday, author Antony Loewenstein called for a sports boycott of Australia. Loewenstein’s argument was that such a move from other countries could force a change in approach to the offshore detention of asylum seekers who travel to Australia by boat.

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Sports boycotts have had a colourful history in the UN era. By far the most-well-known is the boycott of apartheid South Africa.

There has been debate regarding the impact of sporting boycotts in the past. In the South African case, sports boycotts were accompanied by wide-ranging political and economic sanctions. Apartheid was almost universally condemned as a violation of the international legal prohibition on racial discrimination.

No doubt a boycott of sports-loving Australia would be hugely controversial. However, a boycott seems highly unlikely to eventuate. Criticism of Australia’s refugee policies tends to come from or through UN humanitarian bodies and NGOs more so than from individual countries.

The major sporting codes in Australia are also largely domestic. So, boycotts of Australian rules football or rugby league would likely have a negligible effect. And a boycott would potentially risk the further entrenchment of negative attitudes toward asylum seekers travelling by boat.

Australia again criticised for offshore detention

Loewenstein’s argument was prompted by the latest in a long series of international critiques of Australia’s policy of mandatory offshore detention of people who seek asylum here by boat.

Specifically, the UN High Commission for Refugees (UNHCR) chief Filippo Grandi has accused Australia of misleading conduct.

The UNHCR describes as “exceptional” its decision to assist Australia in concluding a refugee transfer arrangement with the US. That arrangement has been mired in controversy. It was agreed in the final days of the Obama administration. Tensions arose early in the Trump administration over what the new president described as “the worst deal ever”.

The two countries now appear set to manage the transfer of a large number of those still in offshore detention on Nauru and Manus Island. The fate of those who do not pass US checks remains uncertain.

Yet, according to the UNHCR, Australia committed to resettling vulnerable affected refugees in Australia if they had family members already living in the community. However:

UNHCR has recently been informed by Australia that it refuses to accept even these refugees, and that they, along with the others on Nauru and Papua New Guinea, have been informed that their only option is to remain where they are or to be transferred to Cambodia or to the United States.

This means, for example, that some with serious medical conditions, or who have undergone traumatic experiences, including sexual violence, cannot receive the support of their close family members residing in Australia.

Human Rights Watch Australia regards the UNHCR’s statement as a stinging rebuke of Australia’s non-compliance with international legal obligations towards refugees and asylum seekers.

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The Human Rights Law Centre joined the call for an immediate end to offshore processing and the resettlement in Australia of the 2,000 people still on Nauru and Manus Island. Immigration Minister Peter Dutton has reiterated Australia’s commitment never to resettle refugees in Australia if they have been transferred to offshore detention.

Fruitless attempts to force compliance?

The perennial problem of international law – particularly troubling for students of the area – is the often overwhelming difficulty of requiring countries to comply. The international legal system lacks a court of compulsory jurisdiction, police force, or global parliament.

When compared with a robust domestic legal system like Australia’s, the international legal system appears weak on enforcement mechanisms. Famously, though:

Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.

Australia is – across a vast range of areas – an enthusiastic proponent of the international legal system. In the human rights context, Australia routinely comments on the performance of other countries and describes itself as a global leader in human rights.

However, as I wrote last week, there is a disjuncture between Australia’s policy and practice on asylum seekers and its bid for a seat on the UN Human Rights Council. Continued international critique of mandatory offshore immigration detention undermines Australia’s standing.

Political leaders of both major parties have maintained a longstanding commitment to punitive dealings with asylum seekers travelling by boat without visas. This is an area of Australian practice that seems unlikely to shift in response to international critique.

The ConversationInstead, the will to locate humanity within Australia’s refugee policy must come from within. While Loewenstein’s sports boycott proposal seems improbable, it was worth making to highlight Australia’s intransigence in this area.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle

This article was originally published on The Conversation. Read the original article.

UNHCR accuses government of breaching undertaking over refugee cases



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Filippo Grandi urged an immediate end to Australia’s offshore processing of refugees.
Martial Trezzini/EPA

Michelle Grattan, University of Canberra

The United Nations high commissioner for refugees (UNHCR), Filippo Grandi, has accused Australia of breaking its word by refusing to allow refugees on Manus Island and Nauru with family in Australia to settle here – a claim denied by Immigration Minister Peter Dutton.

In a strongly worded statement on Monday, Grandi said that last November the UNHCR “exceptionally” had agreed to help with the relocation of refugees to the US, when the Turnbull government struck a deal with the outgoing Obama administration.

“We agreed to do so on the clear understanding that vulnerable refugees with close family ties in Australia would ultimately be allowed to settle there,” Grandi said.

But “UNHCR has recently been informed by Australia that it refuses to accept even these refugees, and that they, along with the others on Nauru and Papua New Guinea, have been informed that their only option is to remain where they are or to be transferred to Cambodia or the United States,” Grandi said.

This meant some people with serious medical conditions or who had had traumatic experiences such as sexual violence could not receive the support of close family members who are living in Australia, he said.

“To avoid prolonging their ordeal, UNHCR has no other choice but to endorse the relocation of all refugees on Papua New Guinea and Nauru to the United States, even those with close family members in Australia.”

A spokesperson for Dutton responded to Grandi’s statement by saying the government’s position “has been clear and consistent” – people transferred to regional processing centres “will never settle in Australia”.

On the ABC’s 7.30, Volker Turk, the UNHCR’s assistant high commissioner for protection, elaborated on the claim.

He said the UNHCR went into its facilitation role “after long discussions with Australian government officials”.

“We had a lot of meetings with the government, including myself with the minister of immigration in November,” he said.

“There was no doubt in our mind – and this is what we put forward to the minister at the time – that we would present to him cases that are compelling humanitarian, with close family links to Australia. We were hoping that, indeed, Australia would consider them favourably within the discretion that the minister has at his disposal.”

Pressed on whether Dutton gave any assurance that he would actually allow those people to resettle in Australia, Turk said: “He didn’t give us assurances because we didn’t present cases yet. But he did agree that we would be able to present such cases.”

“Of course we went into this agreement on the understanding that, indeed, Australia would be part of the solution for a handful of compelling humanitarian cases with strong family links in Australia.”

Only 36 people had so far been identified with such links, he said.

On the basis of the understanding that it had the UNHCR “presented these compelling cases”, Turk said.

Grandi said these vulnerable people who had already had four years in “punishing conditions” should be reunited with their families in Australia. This would be the “humane and reasonable” course.

“The Australian government’s decision to deny them this possibility is contrary to the fundamental principles of family unity and refugee protection, and to common decency,” he said.

Grandi said Australia’s offshore processing policy “has caused extensive, avoidable suffering for far too long”.

“Four years on, more than 2,000 people are still languishing in unacceptable circumstances. Families have been separated and many have suffered physical and psychological harm,” he said.

The UNHCR has referred more than 1,000 refugees to the US over the past eight months. A further 500 people are waiting for the outcome of their refugee claims, being processed by authorities in PNG and Nauru. The American deal provided for the US to take up to 1,250.

US President Donald Trump made it clear in his much-publicised phone conversation with Malcolm Turnbull that he hated the deal, though he has said he will honour it.

But so far no-one has been settled. The US, which is doing its own assessments, has been slow, and now America has filled its much-reduced refugee program for the year ending September. This has stalled any prospect of departures until the new year starts in October.

Meanwhile the Manus centre is due to close on October 31, and authorities there are trying to push people out of it.

Asked on Sky on Sunday whether there was any circumstance under which the government would allow some people to come to Australia, Dutton said: “People will not be coming to Australia … the government has said it consistently”.

He said this consistent position had been part of the reason for the success in stopping the boats. “We’ve taken the people-smuggling model away from the people smugglers. People don’t believe that they can get to Australia by paying their money and if that fails then we will see a recommencement of boats.”

Pointing to the earlier 1,200 drownings at sea, Dutton said that under the Coalition’s “Operation Sovereign Borders we’ve not seen a single death at sea”.

Grandi said the UNHCR fully endorsed the need to save lives and prevent exploitation by people smugglers.

“But the practice of offshore processing has had a hugely detrimental impact. There is a fundamental contradiction in saving people at sea, only to mistreat and neglect them on land.”

He urged an immediate end to Australia’s offshore processing and for it to offer solutions to its victims “for whom it retains full responsibility”.

Independent MP Andrew Wilkie tweeted:

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The ConversationLabor called on the government to release the details of the US-Australia resettlement agreement, including any side deal made with the UNHCR.

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Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

For $70m, government gets off lightly, but settlement still highlights responsibility for Manus



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$70 million is tiny sum in the scheme of the federal government’s expenditure to manage asylum seekers who arrive by sea.
AAP/Eoin Blackwell

Alex Reilly, University of Adelaide

The federal government on Wednesday reached a settlement with 1,905 detainees on Manus Island for A$70 million. The settlement was agreed immediately before a trial was due to begin in Victoria’s Supreme Court. The case alleged the Commonwealth and its detention centre contractors, G4S and Transfield, had breached a duty of care owed to the plaintiffs in relation to their detention, and falsely imprisoned them between November 2012 and May 2016.

The decision to reach a settlement can be read in several ways.

It would first seem to be a stunning admission by the Commonwealth that it did owe a duty of care to the detainees, and that it breached this duty through its detention practices.

Alternatively, it may be read as a strategic decision by the Commonwealth to reduce the political damage it believed would be caused through a protracted trial (predicted to be six months). This damage was likely to be exacerbated by the court’s decision to allow proceedings to be streamed live.

A small price to pay?

Compared to the federal government’s expenditure to manage unauthorised maritime arrivals – $1.078 billion in the 2015-16 financial year, and more than $800 million in 2016-17 – $70 million is a tiny sum.

And $70 million – an average of about $36,000 per detainee – might seem a small price for the Commonwealth to pay for the litany of allegations of mistreatment detailed against it in the statement of claim. These included:

  • failure to provide adequate toilet facilities;

  • contaminated meals;

  • inadequate and delayed medical treatment; and

  • illegal detention.

This mistreatment was connected to the death of three detainees, and the serious injury of many more.

The class action brought the issues to a conclusion in a more timely fashion than individual actions could have done. But given the extent of the harm to each individual, the settlement amount for each person is likely to be significantly lower than they might have received in an individual claim.

The action was only peripherally about the money, though. The case provided a platform to lay bare the ugly reality of conditions in detention and the role of the Commonwealth and its contractors in producing and sustaining those conditions over many years.

A new way to hold government to account

In this case, private litigation was able to play a significant role in holding the government to account in an environment in which traditional accountability mechanisms fail to cut through. There are several reasons for this.

First, the case was able to produce new information about conditions on Manus Island. Once the class action was on foot, it provided a platform for expert witnesses and detainees to testify to conditions in detention free from the constraints of other types of investigation. It provided access to sensitive documents, such as the detail of government contracts with detention centre operators.

In contrast, the Australian Human Rights Commission only investigates detention abuses on Australian territory. And it is difficult for NGOs to investigate conditions in the detention centres. They need permission from governments to visit centres, and findings in their reports are easily denied by governments.

As a result, the best information on conditions in detention is through reports of those working in the centres, or through leaked documents.

As Slater and Gordon lawyer Andrew Baker said following the settlement, the case provided a strong reminder of the role the legal system can play in:

… holding governments and corporations accountable.

The case may herald the beginning of a period in which the Commonwealth will be forced to account for its offshore detention policy through protracted legal action.

What remains unclear is how many Manus Island detainees opted out of the action, and are thus free to bring individual claims. In light of the government’s decision to settle the claim, detainees outside the class action – and detainees on Nauru – may look to bring individual actions for negligence and false imprisonment against the Commonwealth.

If the treatment of these people was particularly bad, and they manage to reap a significant compensation settlement, this may open alternative pathways to settle in Australia. They might, for example, be able to apply for an investor visa, which requires a $1.5 million investment in a state or territory upon nomination.

There are no doubt many obstacles to such an application. This includes the ability to meet the health requirements for the visa – which might be compromised due to the applicants’ treatment in detention – or understanding Australian values, which may well seem very confusing to those subjected to offshore detention.

The ConversationHowever, that such an application could even be contemplated highlights the perversity of Australia’s treatment of asylum seekers. It brings into shocking relief the distinction drawn between the same person as an asylum seeker and as a migrant with the means to invest in Australia’s economy.

Alex Reilly, Deputy Dean and Director of the Public Law and Policy Research Unit, Adelaide Law School, University of Adelaide

This article was originally published on The Conversation. Read the original article.

How we can help refugee kids to thrive in Australia


Karen Zwi, UNSW

When we think about refugee children’s health, we tend to assume bad news. But refugee children are highly resilient. This means they can thrive, mature and develop despite poor circumstances, and can adapt despite severe and long-term hardship.

Our newly published research is the first of its kind to track the long-term health of newly arrived refugee children in Australia.

We showed which children tend to do well in the community, and the factors that predict this. We also give evidence for what Australia can do to help all refugee children thrive in the longer term.

Who are these refugee children and their families?

Between May 2009 and April 2013, a total of 228 refugee children under 15 years, who were granted refugee status under Australia’s humanitarian program, arrived in our study area. We followed 61 of these children for three years. None of them had been detained for any length of time, as they had been granted refugee status overseas and flown to Australia.

The children were on average six years old, with equal numbers of boys and girls. They came from south-east Asia (46%), Africa (33%) and the eastern Mediterranean (21%) regions (as defined by the World Health Organisation).

When they arrived, 30% of children were living in a family with one parent absent (almost always the father).

Many parents had high levels of education (20% had university or trade qualifications) and had been employed before coming to Australia; only 6% had no education and 20% reported unemployment in their home countries.

What physical and mental health issues did we see?

We checked the children’s physical health when they arrived and their development and social-emotional well-being over the next two and three years after settling in Australia.

Refugee children have well known physical, mental and developmental health issues, and our research supported this.

Iron and vitamin D deficiency were the most common conditions we saw. Only a few children had infectious conditions needing treatment.

After two and three years in Australia, most parents said their child had good access to primary health care and visited their GP every one to four months. About half the children had visited a dentist.

About a quarter of young children had developmental delay (mostly delayed speech and language) at the start, but all had caught up by their third year in Australia.

However, children’s social and emotional wellbeing was most strikingly affected by their refugee experiences. After two years of being in Australia, over 20% of children were experiencing emotional symptoms (such as sadness or fear) and/or peer problems (like difficulties making friends).

But by year three, these problems had decreased to below 10%, no different to the general Australian population, illustrating their resilience.

Which children do well and not so well?

Many studies have highlighted factors that make it more likely for refugee children to have poor health and well-being. These include economic and social conditions related to where people come from and where they settle.

We cannot change certain factors before children arrive, like pre-migration violence. But we can change factors once they’re here. In fact, research suggests post-arrival factors have a bigger impact than pre-arrival factors on refugee well-being.

Post-arrival factors that lead to poor outcomes include: time in immigration detention, exposure to violence post-migration, family separation, poor mental health of carers, negative school and peer experiences, perceived discrimination, parental unemployment, fall in socio-economic status and financial stress.

The most common stressful life events children and families experienced in our study were changes in the child’s school and home, parental unemployment, marital separation and financial stress.

For instance, single parent families became more common (38%) three years after settlement, largely due to marital breakdown; almost all families were receiving government financial benefits and living in rented accommodation two and three years after settling; half of the families had a weekly income under A$800, about 30% below the average weekly income in Australia; and unemployment was high (by year three, only 12% of parents were employed, mainly in semi-skilled and unskilled jobs).

Refugee children with stable accommodation tend to do better than those forced to move home multiple times.
from shutterstock,com

Researchers have also identified factors linked with better outcomes and resilience, and that increase the chance of good health and well-being.

These include living close to the family’s own ethnic community and having external support from the general community.

In our study, most families (more than 80%) knew someone in Australia before immigrating and felt supported by either their own ethnic (more than 73%) or the general community (more than 63%). Most parents said Australians displayed tolerance towards people of other religions, cultures and nationalities (more than 78%), although several volunteered anecdotes of their perception of discrimination related to property rental.

What can we do to make a lasting difference?

By addressing the factors that predict poor health and enhancing those that predict a good outcome, we can make a significant difference to refugee children’s lives.

Our research and others’ shows what policymakers and governments can do to help refugee children thrive in Australia. We need to:

  • integrate children and families into host communities
  • support families to stay intact
  • provide stable settlement with minimal relocations
  • support children’s education
  • support parents’ employment
  • ensure access to health, social and economic resources
  • reduce post-migration exposure to violence and threat, including detention, racism and bullying.

The ConversationIf these recommendations are implemented, it is very likely refugee children can realise the resilience they bring with them to Australia.

Karen Zwi, Paediatrician and Associate Professor, UNSW

This article was originally published on The Conversation. Read the original article.

‘Fake refugees’: Dutton adopts an alternative fact to justify our latest human rights violation



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Peter Dutton’s condemnation of those he terms ‘fake refugees’ is prejudicial.
AAP/Mick Tsikas

Amy Maguire, University of Newcastle

The federal government has set an October 1 deadline for 7,500 people who arrived in Australia by boat between 2008 and 2013 – but who have not yet lodged claims for refugee protection – to apply for a visa or face deportation. The Conversation

Immigration Minister Peter Dutton declared “the game is up” for “fake refugees”.

‘Illegal maritime arrivals’

The first sentence of Dutton’s media release reads:

The Turnbull government has today set a deadline for thousands of Illegal Maritime Arrivals (IMAs) who flooded into Australia under the previous Labor government to prove they are genuine refugees and owed protection by Australia.

This statement reinforces prejudicial tropes that successive governments have used to demonise people seeking asylum in Australia. The subjects of the government’s announcement are not “people”, “individuals”, “human beings” – or even “asylum seekers”. Instead, they are “illegal maritime arrivals”.

These seemingly non-people did not “travel to” or “arrive in” Australia. Instead, they “flooded into Australia”.

They are the latest group to suffer from the shameful practice of setting human beings apart from others in the community: they are another class threatening peril and menace.

Fake refugees?

Dutton’s condemnation of “fake refugees” is prejudicial. It suggests those people now subject to his deadline must not have genuine protection claims – or they would have been lodged already.

Yet Department of Immigration statistics show people who travel to Australia by boat without a valid visa, seeking asylum, are more likely to be genuine refugees than people who travel by air with a visa and seek asylum on arrival. Over the years, between 70% and 100% of people arriving by boat have been assessed as eligible for refugee protection.

For example, people from Afghanistan have been the most likely to seek asylum in Australia by boat for many years. In this group, between 2008 and 2013, upwards of 95% were found to be refugees and granted protection visas.

The experience of lodging an application for protection

The people subject to Dutton’s announcement are part of a group known as the “legacy caseload”. These are people who have been living for some time in the Australian community in a state of legal limbo.

This state of limbo was imposed when the then-Labor government stopped processing protection visa applications for people who had arrived by boat. This bar on applications operated from 2012 until the Coalition government began to permit some members of the group to initiate applications from 2015. However, the bar on applications was not fully lifted until late 2016.

Dutton’s assertion that the 7,500 people now faced with a very short deadline for application have “failed or refused” to apply for protection unfairly suggests that sufficient time has already been afforded.

The prejudicial effect of this claim is worsened by Dutton’s parallel statement that the people in question are a drain on the public purse:

Many are residing in Australia on government funded support which last year cost the Australian taxpayer approximately $250 million in income support alone.

Dutton’s announcement also fails to mention that the Department of Immigration is unable to process the volume of asylum claims currently lodged, or that an arbitrary deadline for applications from people in the legacy caseload group will force many to apply without proper legal assistance.

Community legal centres around Australia have thousands of clients on their books awaiting assistance with protection claims. The complex process requires the completion of 184 questions and a detailed written statement, and many applicants will require translation. All ought to receive legal advice.

The latest development imposes undue stress on an already extremely vulnerable community. Only three months ago, some members of this group received letters from the Department of Immigration, threatening the withdrawal of Medicare and work rights if they failed to lodge applications within a tight deadline.

That many – if not all – of this group were on waiting lists for legal assistance is seemingly no longer sufficient to explain why they have not yet lodged protection applications.

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Is Australia committed to human rights or not?

Late last week, Foreign Minister Julie Bishop officially launched Australia’s bid for a 2018-20 seat on the UN Human Rights Council. Bishop described Australia as the standout candidate for this position because:

… we are arguably the most successful, the most diverse, multicultural society on Earth.

We have long embraced those fleeing conflict and persecution, and those in need of humanitarian support.

If elected to serve on the council, Australia intends to work collaboratively with all of our international partners towards fulfilling the goals set out in the UN Declaration of Human Rights – we will listen to your concerns. We will work with you.

It is impossible to determine the genuine extent of Australia’s commitment to human rights by juxtaposing Bishop’s claims with Dutton’s announcement. Article 14 of the Universal Declaration of Human Rights requires Australia to protect the rights of all people seeking asylum:

Everyone has the right to seek and to enjoy in other countries asylum from persecution.

Article 33 of the UN Refugee Convention prohibits the return of a refugee to a risk of persecution:

No contracting state shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Yet the imposition of the October 1 deadline for applications from those in the legacy caseload group imposes an arbitrary limit on the time available to seek protection. It suggests the government is willing to violate its international legal option not to deport people who may have genuine claims for refugee status.

Refugee advocates will feel compelled to challenge the deadline in the courts, if the government seeks to deport people who have not had adequate opportunity or support to complete protection applications. This would open yet another front of government spending to support a policy and practice that violates Australia’s human rights obligations.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle

This article was originally published on The Conversation. Read the original article.

English language bar for citizenship likely to further disadvantage refugees



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Prime Minister Malcolm Turnbull has proposed tougher language requirements for new citizenship applicants.
Lukas Coch/AAP

Sally Baker, University of Newcastle and Rachel Burke, University of Newcastle

Citizenship applicants will need to demonstrate a higher level of English proficiency if the government’s proposed changes to the Australian citizenship test go ahead. The Conversation

Applicants will be required to reach the equivalent of Band 6 proficiency of the International English Language Testing System (IELTS).

To achieve Band 6, applicants must correctly answer 30 out of 40 questions in the reading paper, 23 out of 40 in the listening paper, and the writing paper rewards language used “accurately and appropriately”. If a candidate’s writing has “frequent” inaccuracies in grammar and spelling, they cannot achieve Band 6

Success in IELTS requires proficiency in both the English language, and also understanding how to take – and pass – a test. The proposed changes will then make it harder for people with fragmented educational backgrounds to become citizens, such as many refugees.

How do the tests currently work?

The current citizenship test consists of 20 multiple-choice questions in English concerning Australia’s political system, history, and citizen responsibilities.

While the test does not require demonstration of English proficiency per se, it acts as an indirect assessment of language.

For example, the question: “Which official symbol of Australia identifies Commonwealth property?” demonstrates the level of linguistic complexity required.

The IELTS test is commonly taken for immigration purposes as a requirement for certain visa categories; however, the designer of IELTS argues that IELTS was never designed for this purpose. Researchers have argued that the growing strength of English as the language of politics and economics has resulted in its widespread use for immigration purposes.

Impact of proposed changes

English is undoubtedly important for participation in society, but deciding citizenship based on a high-stakes language test could further marginalise community members, such as people with refugee backgrounds who have the greatest need for citizenship, yet lack the formal educational background to navigate such tests.

The Refugee Council of Australia argues that adults with refugee backgrounds will be hardest hit by the proposed language test.

Data shows that refugees are both more likely to apply for citizenship, and twice as likely as other migrant groups to have to retake the test.

Mismatched proficiency expectations

The Adult Migrant English Program (AMEP), where many adult refugees access English learning upon arrival, expects only a “functional” level of language proficiency.

For many adult refugees – who have minimal first language literacy, fragmented educational experiences, and limited opportunities to gain feedback on their written English – “competency” may be prohibitive to gaining citizenship. This is also more likely to impact refugee women, who are less likely to have had formal schooling and more likely to assume caring duties.

Bar too high?

The challenges faced in re/settlement contexts, such as pressures of work and financial responsibilities to extended family, often combine to make learning a language difficult, and by extension,
prevent refugees from completing the citizenship test.

Similar patterns are evident with IELTS. Nearly half of Arabic speakers who took the IELTS in 2015 scored lower than Band 6.

There are a number of questions to clarify regarding the proposed language proficiency test:

  • Will those dealing with trauma-related experiences gain exemption from a high-stakes, time-pressured examination?

  • What support mechanisms will be provided to assist applicants to study for the test?

  • Will financially-disadvantaged members of the community be expected to pay for classes/ materials in order to prepare for the citizenship test?

  • The IELTS test costs A$330, with no subsidies available. Will the IELTS-based citizenship/ language test attract similar fees?

There are also questions about the fairness of requiring applicants to demonstrate a specific type and level of English under examination conditions that is not required of all citizens. Those born in Australia are not required to pass an academic test of language in order to retain their citizenship.

Recognising diversity of experiences

There are a few things the government should consider before introducing a language test:

1) Community consultation is essential. Input from community/ migrant groups, educators, and language assessment specialists will ensure the test functions as a valid evaluation of progression towards English language proficiency. The government is currently calling for submissions related to the new citizenship test.

2) Design the test to value different forms and varieties of English that demonstrate progression in learning rather than adherence to prescriptive standards.

3) Provide educational opportunities that build on existing linguistic strengths that help people to prepare for the test.

Equating a particular type of language proficiency with a commitment to Australian citizenship is a complex and ideologically-loaded notion. The government must engage in careful consideration before potentially further disadvantaging those most in need of citizenship.

Sally Baker, Research Associate, Centre of Excellence for Equity in Higher Education, University of Newcastle and Rachel Burke, Lecturer, University of Newcastle

This article was originally published on The Conversation. Read the original article.

Explainer: how Australia decides who is a genuine refugee


Mary Anne Kenny, Murdoch University

Every year, Australia provides protection to thousands of refugees under its humanitarian program. In 2015-16, the government issued 15,552 visas to people in need of humanitarian assistance overseas. These included people determined to be refugees by the United Nations High Commissioner for Refugees (UNHCR) in camps outside Australia. The Conversation

A further 2,003 people received “onshore” permanent protection visas after being found to be refugees by the Australian government.

The term “genuine refugee” is thrown around often, yet many take for granted the complicated process of how someone is deemed to be one. So, what is a refugee? And how does the Australian government make the decision?

Who is a refugee?

Australia has signed and ratified the United Nations Convention Relating to the Status of Refugees and several other human rights treaties. These set the definition of a refugee and create a legal obligation not to return a person to a country where they will face persecution or serious harm.

Australia resettles refugees from camps outside the country as part of the government’s humanitarian program, not out of legal obligation. In choosing these refugees, Australia works with the UNHCR to resettle those considered most vulnerable.

We do have a legal obligation to determine whether those who seek asylum when already in Australia need protection. This is regardless of whether they arrive by boat or plane.

A refugee is defined as someone who does not want to return to their country of origin owing to a “well-founded fear of persecution” on the grounds of race, religion, nationality, membership of a particular social group or political opinion.

The person can also receive complementary protection if there are “substantial grounds for believing that there is a real risk he or she will suffer significant harm”.

What is the refugee determination process?

The Refugee Convention does not set out the procedures that must be followed to determine whether a person is a refugee. But, to comply with its international obligations, Australia must have a procedure to identify accurately the people to whom it owes protection.

The onshore refugee determination process begins when a person applies for a protection visa. The Department of Immigration and Border Protection assesses their claim. The purpose of this assessment is to decide whether the person engages Australia’s protection obligations as set out in the Migration Act.

Essentially, the decision-maker must decide whether the person faces a “real chance” or “real risk” of serious harm if they return home. The ultimate objective of refugee determination is humanitarian, so the refugee status isn’t based on a standard of “beyond reasonable doubt” or “balance of probablities” as it would be in other areas of law.

In Australian law, “real chance” means the fear of persecution is “likely” and not remote or far-fetched.

How is ‘real chance’ determined?

The Immigration Department considers the applicant’s personal account along with independent information about their country of origin. The department will interview the person about their claim. Interpreters are present if needed, and the person may have a migration agent in the interview.

For example, a woman may claim she cannot return to Afghanistan because she fears violent attacks from other community members due to her work as a human rights activist. The department would need to assess if her fear is well-founded by considering evidence that may corroborate her story. This may be independent information from government sources, NGOs and the UNCHR about the treatment of female human rights defenders in Afghanistan.

If the department decides she fits the definition of refugee, they will grant a permanent protection visa. The applicant will have to satisfy other health, character and security requirements.

People who have their initial application for protection refused can apply for an independent merits review. A tribunal member will have a hearing with the asylum seeker and consider the case again. They will take into account any new or additional evidence, such as country information that might have changed since the original decision was made.

The member may find the person to be a refugee and return the case to the Immigration Department for reconsideration. Or the original decision may be upheld.

What about those who come by boat?

In 2014, the government introduced a different determination process for those who arrived in Australia by boat after August 2012. Under the fast-track assessment process, timeframes for the provision and assessment of claims are truncated.

If the department rejects the claim, it may be referred to the Independent Assessment Authority. Reviews by the authority are on the basis of the original information provided by the asylum seeker. Only in “exceptional circumstances” will the authority accept new information or interview the applicant.

If found to be owed protection, boat arrivals will be eligible only for a three-year Temporary Protection Visa or a five-year Safe Haven Enterprise Visa.

People who arrived in Australia by boat after July 2013, and who have been transferred to Manus Island or Nauru, undergo refugee status determination in those countries. Papua New Guinea and Nauru are both signatories to the Refugee Convention and have their own refugee determination procedures.

Is the process fair?

Asylum seekers rarely have documentary evidence that strongly supports their claim for protection. They may also have difficulty presenting a comprehensive account of their claims due to literacy, language, culture, shame, problems with memory and difficulty in recounting traumatic experiences.

Determinations may also vary depending on the decision-maker. Some studies have identified a “culture of disbelief” in certain areas of decision-making, including claims based on sexual orientation. Some decision-makers who hear many cases may consciously or unconsciously form predetermined views on certain types of claims.

In 2014, the government made cuts that severely limited access to vital legal assistance for asylum seekers. Research conducted in the UK and Ireland shows legal assistance increases the confidence of asylum seekers and improves the quality of decisions.

The UNHCR and other human rights organisations have raised concerns that accelerated assessments of protection claims may lead to vulnerable people being returned to places where they are at risk of serious harm.

It is unclear whether Australia’s fast-tracking process allows the possibility to arrive at a fair and true decision.

Mary Anne Kenny, Associate Professor, School of Law, Murdoch University

This article was originally published on The Conversation. Read the original article.

Dutton blows Turnbull’s credibility – for now and perhaps for later


Michelle Grattan, University of Canberra

Immigration Minister Peter Dutton’s explicit linking of the arrangements to send Australia’s offshore refugees to the US and to accept some from Costa Rica presents not just an immediate credibility problem for Malcolm Turnbull but, potentially, a more serious longer-term one. The Conversation

It contradicts the prime minister’s flat – if unconvincing – denial of such a link. It also raises the question, why would people believe Turnbull on anything remotely related to this issue in the future?

And that could be important if the Trump administration were to ask Australia to boost its military commitment in the Middle East.

Turnbull says any such request would be considered on its merits.

If there was a request and Australia were to agree, he would deny that the acquiescence had anything to do with his managing to twist Donald Trump’s arm to accept the deal Australia did with the Obama administration to take people from Nauru and Manus Island.

But that denial – always likely to be questioned – would be an even harder sell now.

In September, after the Costa Rica arrangement was announced, Turnbull was asked whether it had any material impact on the government’s ability to find homes for people on Nauru and Manus Island.

“It is not linked to any other resettlement discussions,” he said. “The announcement today is not connected to any other arrangements.”

This became the mantra, including after the deal about Nauru and Manus Island was announced following the presidential election. Dutton said on November 14: “The Costa Rica arrangement had nothing to do with this deal and it’s not a people swap.”

On Tuesday’s Bolt program on Sky, Dutton predicted the first offshore refugees would move in the next couple of months. Asked then when the first people from Costa Rica would arrive, Dutton said: “Well, we wouldn’t take anyone until we had assurances that people were going to go off Nauru and Manus … We want an outcome in relation to Nauru and Manus.”

“One of the lessons we’ve learnt from past arrangements, say the Malaysian deal for example that Julia Gillard entered into, we accepted all the people from Malaysia, not one person went from Australia. So we’re not going to be sucked into that sort of silly outcome.”

It should be said this is more than a bit rich. The people didn’t go because the Coalition opposition blocked the “swap”.

Bolt pressed Dutton on the arrangements with the US. “So it was a deal? It was, we’ll take yours if you take ours.”

Dutton said it wasn’t a “people-swap deal” but added: “I don’t have any problem with that characterisation if people want to put that”.

It’s always defied common sense to think there was no link between the Costa Rica and Nauru/Manus Island deals, and the government was taking the public for mugs to try to argue that. Now it is paying the price.

It remains unclear what the Americans honouring the deal will amount to, given it is up to them how many of the people they finally accept after Trump’s “extreme vetting” process.

Dutton’s proposition that the refugees from Costa Rica can’t come until he’s sure some of the offshore people are going suggests he feels the need to take out insurance.

Fairfax’s Michael Gordon has suggested Dutton could have handed Trump an excuse to junk the Manus/Nauru deal if he was so minded.

Foreign Minister Julie Bishop, in Washington for wide-ranging talks with the Trump administration, said on Wednesday: “The agreement is progressing and our officials are working together with United States officials to vet the applicants for settlement in the United States.” She wouldn’t be drawn on detail.

Asked whether she would characterise it as a swap deal, Bishop said: “That’s not the way I would categorise it.”

The government continues to fall victim of its own spin.

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Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.