DETERRENCE BY PUNISHMENT: A CRITICAL OVERVIEW OF POLICIES TOWARDS ASYLUM SEEKERS IN THE 'LEGACY CASELOAD'

Nishadh Rego

Over the last five years successive Australian governments have made it increasingly difficult for some asylum seekers in Australia to enter the refugee status determination (RSD) process and live sustainably in our communities.

The approximately 30,000 children, women, and men who came to Australia by boat between August 2012 and December 2013 have faced particularly harsh treatment. Having arrived at a time when the Australian Labor Party (ALP) government was facing relentless criticism for failing to ‘protect our borders’ this group became the guinea pigs for a new bipartisan asylum policy regime based on projecting total deterrence and control.

This article provides a critical overview of how this regime has evolved and highlights some of its key impacts on the people affected. It is based on available evidence and years working with individuals in these circumstances.

No advantage

In late 2012, the ALP government subjected these asylum seekers to a ‘No Advantage’ policy, with the rationale that new arrivals should not have the benefit of protection over those awaiting resettlement in other countries. This policy subscribed to a logic that pitted the impatient, subversive boat-person demanding a visa against the compliant camp-refugee willing to wait for it. We “must ensure that everyone is subject to a consistent, fair, assessment process…and that arriving by boat does not give anybody an advantage in the likelihood that they would end up settling in Australia,” said Julia Gillard at the time.

To this end the policy barred these children, women, and men in Australia from applying for protection or seeking employment, whilst also opening up the possibility of transfer to a regional processing centre in Nauru or Papua New Guinea. In lieu of being allowed to work, the government provided welfare payments valued at $288 per adult per week or 89% of the lowest weekly Newstart allowance payment rate – well below the nationally accepted poverty line of $344 per week (as of December 2014). The payments were expected to cover rent and utilities, food, and public transport costs. No Advantage helped create an underclass of welfare-dependent non-citizens across Australia.

Desperate material circumstances drove some people into unscrupulous cash-in-hand work arrangements. Others, fearful of breaching visa conditions and the government’s ‘Code of Behaviour’ by working illegally were resigned to poverty, homelessness and a purposeless whiling away of time, often associated with life in detention.

These circumstances along with the pain of separation from family and community and the scars of past persecution precipitated high rates of mental illness among this populace. Studies show that a large proportion of asylum seekers currently in the community experience major depressive disorders, anxiety, and PTSD, often extending well beyond their release from detention and grant of a protection visa. Medical scholars have coined specific terms – ‘lethal hopelessness’ and ‘protracted asylum seeker syndrome’- to denote unique socio-political circumstances associated with the high prevalence of these symptoms.

The fast-track process  

Alongside its own obsession with stopping the boats, Liberal-National Party (LNP) coalition government was concerned with how to ‘clear Labor’s backlog of 30,000 illegal boat arrivals.’

In December 2014, the government passed the Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth.). The bill made the ‘legacy caseload’ eligible to apply for Bridging Visas with work rights, but mandated that applicants would have to go through a time-bound Fast-Track process with a limited merits review mechanism called the Immigration Assessment Authority (IAA). The IAA was designed to conduct merits review ‘on the papers’, which means they assess the person’s claims based solely on testimony and documentation provided in primary application, except in vaguely defined extraordinary circumstances. Whole groups including those from designated ‘safe third countries’ or with ‘manifestly unfounded’ claims were excluded from the review process. How these exclusion provisions have been applied in practice remains unclear however their existence along with expanded powers to detain and transfer people on the high seas, and stronger powers to remove rejected asylum seekers from Australia, points to the policy’s raison d’etre.

At the same time, the government cut approximately 90 per cent of public funding for legal services to support protection applications. The cuts meant that only a small number of non-government legal providers could assist applicants to navigate the forms and submission process. In 2017, the government invited greater numbers to apply, introduced strict application deadlines, and spelt out punitive consequences for missing them. Waiting lists at organisations such as Refugee Legal, the Refugee Advice and Casework Service (RACS), and the Asylum Seeker Resource Centre (ASRC) cumulatively crept into the thousands. In May 2017 the Law Institute of Victoria (LIV) issued a clarion call for assistance from the legal community to help asylum seekers submit valid and complete applications by the government’s final deadline on 1 October 2017. Many firms and individuals obliged and remarkably, all but 71 people applied by that date.

There are valid questions over the Fast-Track process’ ability to bring swift and fair resolution to legacy caseload protection claims. For example, there is no doubt that trauma, mental illness, memory difficulties, and past experiences that have led to distrust of authority make it challenging for an applicant to disclose the nature and detail of their persecution in an interview with the Department of Immigration Border Protection (DIBP). These barriers often create gaps or inconsistencies in the narrative that lead DIBP decision makers to question the applicant’s credibility, and hand down a negative decision on this basis. Given the IAA’s limited merits review function that does not allow applicants to respond to adverse findings, many applicants are likely to end up applying for judicial review in the court system. Whilst the numbers of people who have already applied for judicial review is unknown, Federal Circuit Court hearing dates are already being pushed back as far as 2019.

As a new kind of backlog emerges, rejected Fast-Track applicants will continue to live precarious lives, facing even greater restrictions than under No Advantage. In practice, the Department of Immigration and Border Protection (DIBP) exercises discretion over whether these individuals are granted bridging visas, work rights, and Medicare access. Many rely exclusively on increasingly stretched homelessness services, pro-bono medical and mental health providers, and charitable donations to survive. Without valid bridging visas, rejected asylum seekers are also at risk of being detained and forcibly removed from Australia. Predictably, some people will disappear underground, joining a growing cohort of undocumented migrants in Australia.

Temporary protection  

The Legacy Caseload bill also introduced two forms of temporary protection, the Temporary Protection Visa (TPV) and the Safe Haven Enterprise Visa (SHEV), meaning that unlike other humanitarian entrants in Australia, the legacy caseload – and all other people arriving by boat with outstanding applications - would not have access to permanent protection in this country.

TPV holders, for example, receive three-year visas, after which their claims are reassessed against current circumstances in countries of origin. In a global context in which the majority of people flee chronically fragile states and fluid security environments, asking proven refugees to repeatedly restate their underlying claims is somewhat redundant. The ongoing lack of uncertainty it fosters inhibits refugees’ ability to build relationships, commit to education, or invest in long-term professional or business opportunities in Australia. 

These forms of temporary protection further entrench an existing underclass by preventing access to services and opportunities afforded to other humanitarian visa holders. TPV holders, for example, cannot apply for federal government tertiary education subsidies, public housing, or the National Disability Insurance Scheme (NDIS). Separation from family also continues. TPV holders cannot sponsor family members to join them in Australia, despite the likely that they may be facing persecution or harm back home. For individuals accustomed to reality of deliberate marginalisation dating back to No Advantage, these restrictions reinforce perceptions that nothing has changed despite the grant of a protection visa.

Restrictive policies aimed at preventing future ‘boat arrivals’ manifest in different ways. Offshore processing and boat-turn back policies rightly receive widespread attention across the media, but it is important to remember that Australia’s absolutist deterrence regime continues to punish people in our communities too.   

Nishadh Rego is Policy and Advocacy Coordinator at Jesuit Refugee Service (JRS) Australia. The views expressed in this article are entirely his own.