Refugee Claimants - Myths and Facts

Myth: 'Australia is overrun by refugees.'
Fact: Australia accepts a very small number of refugees by global standards. Global figures demonstrate that by the new millenium the world's refugee population had reached over 22 million. Over 90% of all refugee places are provided within the two-thirds world. During 1998-1999, 7,274 applications for protection were completed by the Department of Immigration and Multicultural Affairs. Of these, 979 were granted protection visas and 6,160 were refused. The entire Australian Refugee Programme provides for a total of only 12,000 places annually.

Myth: 'They come here because they know Australia is a paradise.'
Fact: Refugee claimants face enormous bureaucratic hurdles in establishing refugee status.
Refugee claimants have fled intolerable, often life-threatening situations, due to volatile political or civil conflicts. They have left behind their family, friends, culture and often successful professional careers, fleeing only with what they can carry. Their primary focus is on 'getting out of', not on 'going to' somewhere else. When they arrive in Australia a plethora of bureaucratic demands add stress to the lives of already traumatised people. Strict application requirements, (such as the 45-day rule), lengthy review procedures, criteria based on proof of personal character/health, and application costs are some of the official hurdles they face. The difficulties continue with the need to secure work permits, organise appropriate accommodation, and overcome language differences, as well as limited access to legal advice, lack of family/social networks and health/counselling services.

Myth: 'Refugee Claimants are 'queue jumpers'
Fact: There is no queue! In many countries, especially those torn by civil war or strife, Australia has no diplomatic presence, therefore refugees cannot apply for a visa to enter Australia. Clearly, there is no Australian-organised queue for such people. In some cases, refugees may have fled to a nearby country and may later seek to enter Australia from there. However, for many refugee claimants it is either impractical or impossible to go first to a neighbouring country, and then seek resettlement from there. This can be because these countries are not signatories to the international laws that would ensure refugees protection within their borders. It could also be because they would not be safe in a neighbouring country, especially, if that country was sympathetic to the persecutory regime. In these cases, individuals may have to try to go directly to a country, such as Australia, where they can seek protection.

The Refugee Claimants Journey

Refugees come to Australia in one of two ways:

Most come under the Refugee and Special Humanitarian Program. These people are selected overseas, usually after referral from the United Nations High Commissioner for Refugees (UNHCR). They enter Australia with a visa that entitles them to permanent residency, and to apply for citizenship after the prescribed waiting period.

Other refugees apply for asylum once they are in Australia. They are referred to as refugee claimants or asylum seekers. Refugee claimants who come to Australia have usually entered with a visitors', student or other temporary visa. Some arrive with no documents or with false documents.

According to the Universal Declaration of Human Rights, Article 14, everyone has the right to seek and enjoy in other countries asylum from persecution. This right guarantees a refugee has protection from being sent back to their country of origin against their will, and access to employment, education, the legal system and civil rights in their chosen country of settlement. However, refugee claimants are not guaranteed these basic rights until their refugee status is officially recognised.

The Australian Government's official recognition of a person's refugee status does not make them a refugee, as the very act of seeking asylum from persecution immediately categorises them as a refugee. Therefore it is important that refugee claimants are treated as refugees, until proven otherwise. Failure to do so can mean that a country does not meet its legal obligations to genuine refugees. In applying for protection these people are exercising their right, under international law, to seek safety from persecution.

It can take up to three or more years for a refugee claimant to be officially recognised as a refugee. During that time they undergo a prolonged and complex process of application which can involve a number of reviews and appeals. If they lodge an application within 45 days of arriving in Australia (which many do not for legitimate reasons) they are given permission to work. However, if their case goes under review or is awaiting a decision on appeal then their work permission is denied. This means they no longer have a right to Medicare or to any government support through Centrelink, and therefore have no way of securing housing, education, food, clothing, transport, or any of the basic necessities while they await a decision.

These restrictions have had a devastating impact as they have caused severe hardship for many refugee claimants. Those affected by this rule describe a feeling of being persecuted by the restrictions in ways that are similar to the circumstances from which they fled. For example, one purpose of torture is to shame and humiliate the victim so that their identity and sense of self is destroyed. The effect of the restrictions often leads to the refugee claimant feeling a prolonged sense of shame, humiliation, and lack of identity in the country in which they have sought refuge. Added to this is the stress and uncertainty of the outcome of their application. The reality for many refugee claimants is that they may never be able to return to their country of origin, no matter what the circumstances. If they are returned forcibly by the Australian government they face persecution, or possibly death.

The Application Process

1. Primary Stage: Department of Immigration and Multicultural Affairs (DIMA)

A refugee claimant (asylum seeker) lodges an application for protection with the Department of Immigration and Multicultural Affairs. During this time they are given a 'Bridging Visa' that allows them to remain legally in the country while their application for refugee status is being considered. Their written application is assessed by a case officer of DIMA to determine whether the person's claims fit the criteria for refugee status. The time taken to make a decision on these applications can be anything from a month to three years. There are only two possible outcomes from the primary stage: the application is accepted and the refugee claimant is granted refugee status; or the application is rejected.

In 1997, in a bid to reduce non-genuine applications for refugee status, statutory rule 109 or the 45-Day Rule was brought in. It removed work rights and access to health care for refugee claimants who did not apply for protection within 45 days of their arrival in Australia. It was assumed that by virtue of their late application, people who lodge a Protection Visa application after they have been 45 days in Australia are non-genuine applicants.
However, genuine refugee claimants very often lodge their applications well after the 45 day period.
There are a number of legitimate reasons for this which include:

• Fear (an instinctive response to fear is to try to keep a low profile)
• Unfamiliarity with the new environment/system
• Language difficulties
• Mental health issues (eg. Post Traumatic Stress Disorder)
• Fear of authorities and government institutions (due to traumatic experiences in their country of origin)
• Lack of knowledge of the Protection Visa system and how to make a Protection Visa application
• Misinformation from well-meaning family or community members
• The need to seek asylum arise after they have already been in Australia for some time (particularly those on a student visa)
• Many applicants lodge an application as a last resort after waiting as long as they can for the situation to improve in their own country
  

2. Review Stage: Refugee Review Tribunal (RRT)

If a claim is rejected at the primary stage, the refugee claimant then has the option to lodge an application for a review of this decision. They have 28 days to do this, after which time they are deemed to be illegally in the country. The body responsible for reviewing applications is the Refugee Review Tribunal (RRT). It is the RRT member's task to review the DIMA primary decision using exactly the same criteria: the person's status as a refugee in accordance with the United Nation's definition. In most cases applicants receive an oral hearing.

There are two possible outcomes from the review stage: the RRT overturns the original decision and grants refugee status - this happens in approximately 10% of cases; or the RRT upholds the decision and the applicant is again rejected. If an application is rejected by the RRT, in accordance with regulation 7.6 of statutory rule 210, it is mandatory for those awaiting decisions on appeals to the Minister for Immigration or the Court to also be denied permission to work.

3. Last Review Stage: Ministerial or High Court Appeal

The Minister of Immigration and Multicultural Affairs has the power to intervene if the RRT has rejected a review application and it is believed to be in the public interest.
Also the Federal Court has the power to either uphold a refusal or to direct that the applicant be reassessed.
Many of those seeking the Minister's intervention in their cases on humanitarian grounds are amongst the most vulnerable of refugee claimants; living in difficult circumstances due to having lost work permission and having endured a prolonged application process. Some are survivors of torture but for one reason or another their cases did not fit the exacting definition of a refugee - despite them having very strong humanitarian reasons for not returning to their country of origin.

The Universal Declaration of Human Rights

(The following list does not comprise the complete Universal Declaration of Human Rights. Included are 18 of the 30 articles which compile the Declaration. The articles selected are those which cover a majority of the breaches of human rights suffered by refugee claimants both in their country of origin and in Australia.)

Article 1:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in the spirit of brotherhood.

Article 2:
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth and or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3:
Everyone has the right to life, liberty and security of person.

Article 4:
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5:
No one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment.

Article 6:
Everyone has the right to recognition everywhere as a person before the law.

Article 7:
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8:
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution of law.

Article 9:
No one shall be subjected to arbitrary arrest, detention or exile.

Article 12:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 14:
(1) Everyone has the right to seek and enjoy in other countries asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15:
(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his/her nationality.

Article 18:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private to manifest his religion or belief in teaching, practice, worship and observance.

Article 19:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 22:
Everyone, as a member of society, has the right to social security and is entitled to realisation, through national effort and international co-operation and in accordance with the organisation and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23:
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

(2) Everyone, without any discrimination, has the right to equal pay for equal work.

(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity and supplemented, if necessary, by other means of social protection.

(4) Everyone has the right to form and to join trade unions for the protection of his interests.

Article 25:
(1) Everyone has the right to a standard of living adequate for the health and well-being of him/herself and of his/her family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 29:
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.

Glossary of Terms

• Refugee: A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his/her nationality and is unable or owing to such fear, is unwilling to avail himself/herself of the protection of their home country.
• Refugee Claimant/Asylum Seeker: A person who has entered Australia and has applied or is in the process of applying for protection and who is awaiting a determination of their status as refugee. If a refugee Claimants application for a protection visa is successful they are recognised as a refugee and are granted permanent residence.
• Temporary Protection Visa Holder: is a person who enters Australia without a valid visa or passport in order to claim protection and status as a refugee. These people are often referred to in the media as 'illegal immigrants' or 'boat people'. They are often detained on arrival (for the duration of the determination process) in one of the five immigration detention centres in Sydney, Melbourne, Perth, Woomera and Port Headland. Many of these people are granted a Temporary Protection Visa which entitles them to live within the community for three years with limited entitlements relating to employment, education, family reunions, assistance with translations etc. After three years they are able to apply for permanent residency.
• Bridging Visas: A visa given to a person who arrives in Australia with legal documents and applies for asylum. This visa entitles them to remain legally in the country while their application for refugee status is being considered. If their application is not made within 45 days of arriving in Australia (known as the 45 Day Rule ) they are denied access to a work permit.
• The 45 Day Rule: A statutory rule introduced in 1997 in a bid to reduce non-genuine applications for refugee status. It removed work rights and access to health care for refugee claimants who did not apply for protection within 45 days of their arrival in Australia.
• DIMA: The Department of Immigration and Multicultural Affairs - A Federal Government department dealing with Australia's immigration issues.
• RRT: Refugee Review Tribunal - An independent body, whose members are appointed by the Governor General and who are responsible for reviewing applications.
• The Refugee Claimants Support Centre (RCSC): An independent non-profit community organisation, auspiced by the South Brisbane Immigration and Community Legal Service and funded by the Good Shepherd Sisters. It has limited resources and relies on donations to assist its clients with:
  - Information & referral
  - English Classes
  - Employment Assistance
  - Emergency Relief
  - Emotional Support
• QPASTT: Queensland Programme of Assistance to Survivors of Torture and Trauma - A community organisation which provides services that address the range of physical, psychological and social needs of refugee survivors of torture and trauma.
• SBICLS: South Brisbane Immigration and Community Legal Service - A small community organisation which provides legal assistance and advice on Immigration issues.