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.

Drawings reveal the struggles and triumphs of child refugees in their first six months of high school



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Starting a new school can often feel overwhelming.
from http://www.shutterstock.com

Amanda Hiorth, University of Melbourne

Transitioning into high school can be overwhelming for any student, but for those coming from a refugee background, there are even more challenges. The Conversation

While we know a fair bit about the academic experience of child refugees starting school in a new country, we know little about how students feel in their new school environment – how they are coping, and if they are making friends.

Numbers of child refugees across Australia are rising. There are around 9,000 students enrolled in Victorian government schools, and around 8,000 in New South Wales – with 1,500 refugee students enrolling each year.

These young people have often faced many interruptions in their school lives – this might mean having to regularly change schools, or drop out for a period of time due to the uncertainty and turmoil that comes with being a refugee.

They also often have gaps in their knowledge within areas such as literacy and subject content. This can make learning about subjects such as science much more difficult, as they are doing so in a second language.

We know little about child refugee’s school experiences

The research I conducted gives some insight into this little-discussed area of how students are coping in their new school environment.

For one year, I analysed students’ experiences – through interviews, observations, work samples and reports – of the move from Victorian English language school (for which students receive six to 12 months of funding) into high school through the medium of pictures.

Pictures have been found to be a powerful data source for vulnerable young people, providing them with an alternative to express their voice and conceptualise their thoughts without the need for language.

Feeling alone

Moo Dar Eh feeling isolated at her new high school.
Student drawn picture

Moo Dar Eh was 12 years old, born and raised in a Karenni refugee camp in Thailand. Six months after transitioning into Year 8 at high school, she drew a picture reflecting on her experience.

She features herself alone in the foreground, with the new school in the background. Her face is glum and drawn with a frown. Her hands are splayed wide, her feet shoeless. Without any books or bags, she seems unprepared for what lies ahead.

She also features herself alone and without any clear pathway to the school. The building captures the essence of “school as institution” with the detail and intricacy used to outline the school. It seems large and looming above her, without a soul to welcome her.

Research has shown that initially, mainstream school can be an overwhelming, isolating and lonely experience for refugee students. Eager to belong, make friends and build warm connections with teachers, students struggle to find their place.

Although schools organise orientation days and other supports, such initiatives often only last the first few days. But transition, in reality, is a long-term process.

Daunting environment

Gay Paw smiling and crying at the prospect of high school.
Student drawn picture

Gay Paw, born and raised in a Thai refugee camp, was 15 years old when she started Year 9 at the beginning of term three in an Australian school.

Unlike Australian-born students who have continuous schooling and begin Year 7 in January, refugee students might start at any year level or term, depending on when they arrive in Australia. This is just one extra challenge these students must face.

Before her first day, Gay Paw admitted feeling a wide range of conflicting emotions: happiness, fear and excitement. In her picture, which she drew prior to starting high school, she notes how leaving the familiar English language school she had spent 12 months in provoked deep sadness. Confronting a new and daunting environment compelled her to draw tears on her face.

Her new school is drawn in the back corner of the page, devoid of details and lacking a pathway. She drew herself alone, marking her isolation and limited knowledge about how school works.

Feeling overwhelmed in transition is not an uncommon emotion for refugee-background students, who require explicit support to access education and advocate for their needs.

In spite of her anxiety, she still drew a smile on her face. In our interview six months after her transition, she explained that along with her fear, she also held hope and excitement for the new opportunities to come. She understood how valuable school could be in helping her make something of her future.

Determined to learn

Yo Shu’s strong resolve to the new school challenges.
Student drawn picture

For students who are on the cusp of being “too old” for high school, the most common options available are specialised work centres or adult English as a second language (ESL) courses at Technical and Further Education (TAFE) colleges.

Yo Shu, a 17-year-old boy born and raised in a Thai refugee camp, had little prior schooling and first language literacy due to a lifetime of hard labour.

Entering year 12 and successfully completing VCE would have been impossible, so he instead chose TAFE. Unlike the other students in this study who felt anxious and overwhelmed, Yo Shu felt only excitement.

In his picture drawn six months after his transition, he drew himself as larger than life. His body bulges with muscles, and his face wears a look of determination. He holds an enormous pencil and behind him is a full page of his notebook.

All around Yo Shu float the many ways in which he tries to better himself: writing, speaking, listening and reading English. The entire focus is a single-minded dedication to his studies, and the will to improve academically was a matter of complete and utter embodiment.

Yo Shu was something of an anomaly, as his experience in transition was filled only with optimism and success. This is likely due to a combination of his upbeat personality, his excitement as his first real opportunity to obtain an education, and that placement in TAFE catered perfectly to his level of English and learning skills.

For the other students in this study, and for many refugee-background learners entering high school mid-stream as is often the case, the challenges which include keeping up with subjects, passing assessments and making friends can sometimes be almost too difficult to overcome.

Students are at risk of disengaging and dropping out from school – consequences of which can lead to social isolation, welfare dependence, uptake of drug and alcohol use and greater levels of depression.

What more can schools do to support students?

Transition is a key period for all students – and continues far beyond the first day of school.

Supports offered to refugee students need to consider the long-term aspects of transition, and that students with complex needs also require complex support.

One key finding from this research was how overwhelmed and isolated students felt during the initial period of transition. Feeling part of the school was central to their feelings about school as a whole. When connections were made with teachers and peers, they felt part of the community, their confidence was enhanced and students felt they had a safe space to ask for much-needed help. Research shows that this then enables students to engage and succeed in their education.

Schools can support the development of connections and sense of belonging for students in a number of ways, by:

  • creating formal and consistent bridging programmes that span the gap between English language school and high school

  • welcoming families and students with a celebratory lunch

  • holding information sessions for parents and guardians about the school

  • establishing peer-support programmes such as transition buddies to help guide the student around the school in their first few weeks and meet new friends

  • starting homework clubs

  • working together with language schools

  • sharing information about new students to school staff.

And how can teachers help?

Teachers can also support their students, by:

  • organising class activities to welcome new students, such as fun self introduction games and encouraging peers to include new students at recess and lunch

  • implementing sensitive seating plans to encourage friendships

  • taking the time inside and outside of class to get to know students and build rapport

  • making space for students to share their stories about their life before Australia, their family, what they love to do and what they’re good at

  • integrating lessons which incorporate and build on their strengths and skills.

Pseudonyms have been used for all the students mentioned in this piece.

Amanda Hiorth, PhD Candidate and Sessional Lecturer in Language and Literacies Education, University of Melbourne

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.

Tech companies fight Trump’s travel ban and may take their business elsewhere


David Glance, University of Western Australia

127, mostly tech, companies have signed a brief of support opposing US President Trump’s “Muslim travel ban”. The companies, that include Apple, Google, Microsoft, Facebook and Tesla have filed an “amicus brief” with the 9th US Circuit Court of Appeals in support of US District Judge James L. Robart who ordered a stay on Trump’s executive order to ban anyone from 7 countries from entering the US for between 90 and 120 days.

The tech companies have argued that immigration is a central factor in the history and makeup of the US and has helped fuel American innovation and economic growth. Immigrants, or their children, founded more than 200 companies that are amongst the top 500 companies in the US. Between 2006 and 2010, immigrants were responsible for opening 28% of call new businesses in the US. Thirty percent of US Nobel laureates in Chemistry, Medicine and Physics have been immigrants.

Mostly however, the brief focuses on the harm that its chaotic implementation will have on US companies. They allege:

“The Order makes it more difficult and expensive for U.S. companies to recruit, hire, and retain some of the world’s best employees. It disrupts ongoing business operations. And it threatens companies’ ability to attract talent, business, and investment to the United States.

The consequences of this action will be that US companies will lose business and ultimately

“Multinational companies will have strong incentives, including from their own employees, to base operations outside the United States or to move or hire employees and make investments abroad.”

This last is no idle threat. In 2015, it was estimated that US companies have US $2.1 trillion overseas that haven’t been repatriated because of the tax implications. Apple alone has over US $230 billion held outside the US.

The idea of using this money to set up development and further manufacturing capabilities outside the US makes a great deal of sense, even without the imperative of Trump’s actions. However, there is another move that Trump is threatening that may make the decision to move operations outside the US more attractive still.

Trump’s administration is planning to target the high-skilled worker’s H-1B visa. This offers mostly tech companies the ability to recruit up to 85,000 skill developers and other staff from around the world. According to the Republicans and Trump however, tech companies should be recruiting locally.

Companies like Microsoft, where I have first hand experience of recruitment experience, did actively try and recruit within the US. Recruiting from outside is generally more expensive and time consuming and so there is no real reason why tech companies would actively ignore domestic applicants or favour foreign ones. Tech companies seek to employ the best people for the job and if the pool is global, that is how they achieve that goal.

Having offices remotely distributed can be made to work although it makes communications across teams and different product areas more challenging than if they are all in a single location. However, it already happens in most tech companies with Google and Microsoft already having research and product development occurring out of countries like Australia, India and China.

As outlined in the amicus brief, Trump is sowing uncertainty and chaos with his desire to treat policy like tweets on Twitter. That is going to provide enough incentive for companies to brave the potential disapproval from Trump and use the significant investments held outside the US to expand their capabilities.

Trump may succeed, contrary to his intentions, in catalysing a new phase in globalisation in which companies shift their centres from the US to a more distributed model. Of course, companies may still run into problems if Trump’s brand of nationalism succeeds in taking hold in other countries like Australia or Europe.

The other side-effect of the US uncertainty is the fact that increasingly businesses based outside the US will have a competitive advantage and customers may decide that it is easier to avoid doing business with the US for at least the next four years. China is rapidly becoming the technological equal of the US in many ways and so its ascendancy may also benefit.

The amicus curiae brief is the start of a long legal campaign which will aim to keep the worst of Trump’s plans in check. Depending on the outcomes, the world outside the US may actually benefit from Trump if companies are forced to look outside the walls, real and virtual, he is seeking to create.

The Conversation

David Glance, Director of UWA Centre for Software Practice, University of Western Australia

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

Grattan on Friday: Malcolm Turnbull should walk away from the refugee deal


Michelle Grattan, University of Canberra

It’s the last thing Malcolm Turnbull would want to do, or will do. But what he should do is walk away from the deal he struck with the Obama administration for the US to take refugees from Nauru and Manus Island.

He should then persuade his cabinet to grant a one-off amnesty, and let these people settle in Australia.

It would be a drastic and, for many in the government, a deeply unpalatable course. But the road Turnbull now has Australia travelling – that of the supplicant – is against our national interest. It’s one that sees the unpredictable Donald Trump treating the US’s close ally with near contempt, one that makes the Australian prime minister hostage to the US president’s capricious behaviour.

At the weekend, in their now much-canvassed telephone conversation, Trump told Turnbull it was his “intention” to honour the refugee agreement while, as revealed by the Washington Post’s detailed report, describing it to Turnbull as the “worst deal ever”.

According to the Post, Trump said Australia was seeking to export the “next Boston bombers”; he also told Turnbull “this was the worst call by far” in his round of five phone calls to world leaders that day, which included one with Russia’s Vladimir Putin.

Trump terminated the conversation after 25 minutes – it was expected to run for longer – although Turnbull insists Trump did not hang up on him, but rather “the call ended courteously”.

By Thursday (Australian time), after days of mixed messages from the US administration, Trump was publicly dissing the deal in the strongest terms, tweeting:

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No-one can predict where this imbroglio will now go. As one senior Australian source put it: “We are like a cork bobbing on the sea”.

Logic would suggest that Trump would want to ditch “this dumb deal”, which sits at odds with his suspension of the US refugee intake and must look inconsistent to his rusted-on supporters. But equally, he could go the other way and decide there were pluses – in terms of sway over Australia – in keeping it.

If he does proceed with it, the deal could be scuttled in practice by the US “extreme vetting” process excluding most of the refugees. That would leave Australia, after having endured the diplomatic agony, still with responsibility for the people.

What is clear is that the deal has become a big and damaging issue in the Australian-American partnership.

Turnbull has already come under attack for refusing to criticise Trump’s provocative temporary bans on refugees (indefinite for those from Syria) and entrants from seven majority-Muslim countries, which have been widely condemned internationally. Even if he had other motives, his desire to preserve the refugee agreement was obviously one in Turnbull’s approach.

There could be serious longer-term implications if Trump did go ahead with the deal.

Trump is the ultimate transactional politician. If he does something for Australia, reciprocity will likely be demanded at a later stage – with Trump, whose approach is to bully, having no compunction in putting his foot on Australia’s neck. It could be over anything – such as a further commitment to the Middle East or an involvement if the US escalates pressure on China in the South China Sea.

If Turnbull had received a favour, it would be harder for Australia to resist US pressure to do what it might not want to do. Even if the government were comfortable on policy grounds to go along with some US request there would be the suspicion in the public’s mind that this was a quid pro quo.

Apart from those concerns, it is extremely unfortunate to have this issue, with the fractiousness surrounding it, dominate the start of the Turnbull government’s relationship with the new administration. Trump is known for his vindictiveness. If he keeps the deal but angrily and resentfully, that won’t stand Australia in good stead.

Early sourness could limit the extent to which Australia will be in a position to exert any influence on other matters that are of importance to it, such as trade policy – where there are substantial differences between the two countries – and, in particular, America’s future role in the Asia-Pacific region.

Regional countries will be watching closely how the Australian-US relationship unfolds; much of our clout with them derives from the perceived closeness we have with the Americans.

Critics will claim that if Australia cut its losses, dumped the deal and took in the refugees, all manner of disaster would follow.

In particular, they would say, the people-smugglers would start their trade again.

Turnbull on Thursday reiterated that “the only option that isn’t available” to the refugees “is bringing them to Australia for the obvious reasons that that would provide a signal to the people-smugglers to get back into business”.

Yet they didn’t restart their business when the US agreement was first announced, despite suggestions that this could send them an encouraging message.

The government fortified the border further, and the so-called ring of steel around our north would surely be enough to keep boats at bay if it had to take another step. If not, there is something very wrong with our military and coastguard forces.

Politically, there is no question the amnesty course would be extremely difficult for Turnbull, after all the government has said and done.

How difficult? Well, Labor could hardly score real hits against it.

Turnbull would have much more to fear from the conservative ranks in his own party and the right-wing commentariat – and he doesn’t have a lot of gumption when it comes to standing up to these people.

But it would be better to do so, even with the undoubted political risks that it would involve for him, than allow himself and Australia to be subject to the current and future whims of a US president who is raising a great deal of alarm in many places.

The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

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