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Further Out of Sight and Out of Mind – the New Regime for Asylum Seekers

David CurryDavid Curry is one of Webdiary's volunteer editors. This is his first published piece.

by David Curry

The Howard Government’s bizarre double standard on refugees – those processed offshore good, those processed onshore bad – is about to reach its policy climax. In a knee-jerk response to Indonesia’s criticism of Australia’s decision to grant asylum to 43 West Papuan refugees, the Howard Government has a plan to put all those pesky "unauthorised arrivals" permanently out of sight and out of mind.

The Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, due to be debated in the Senate this week, will see all asylum seekers who arrive in Australia "unlawfully" by boat, processed offshore - principally in Nauru (1). The Bill also deems people who travel most of the way to Australia by sea but travel the last leg by air, to have entered Australia by sea, and therefore subject to the new regime. Effectively, the whole of Australia has been excised from Australia’s migration zone for these people.

According to Immigration Minister Amanda Vanstone (2), the Bill aims to "send a strong message to people who want to risk their lives by travelling to Australia illegally". True to the Howard Government’s form, Vanstone frames the Bill as a "strong deterrent" to people smugglers, although, as with mandatory detention in Australia, it is the asylum seekers – the victims – who will really suffer. Australia’s tough approach to unauthorised arrivals, she adds, would "continue to reflect the Government’s strong commitment to its international protection obligations".

OK, so does it really matter for refugees whether their applications are processed in Australia or Nauru?

In theory, it doesn’t. According to Savitri Taylor, Senior Law Lecturer at La Trobe University and an expert in refugee law, the 1951 Convention relating to the Status of Refugees (the Refugee Convention) focuses more on outcomes than processing procedures. "They don’t have any procedural requirements within the Convention," she says. "It’s an obligation of result, and you may not be able to achieve the right result if you don’t have the right procedures." Therein lies the rub. The desired result – granting asylum to genuine refugees – is often not achieved in Nauru due to the incompetence of DIMA, coupled with a complete lack of independent review.

In Australia, when DIMA rejects a refugee application the applicant has access to independent review, first through the Refugee Review Tribunal (RRT) and then through the courts. Asylum seekers in Nauru, however, will have access to neither the RRT or to Australian courts (despite Senator George Brandis’s fumbling – and retracted – assurance to the contrary on SBS’s Insight (3) ). "It’s a purely administrative regime," Ms Taylor says of Nauru. "One person in the Department of Immigration makes the primary decision, [then] the person is able to make an appeal to another officer in the Department of Immigration - but that’s not independent review."

Ms Taylor says the lack of independent review for asylum seekers in Nauru is of grave concern, because when it comes to DIMA’s assessment of refugee claims, "they’re not very good at it". How bad are they? Between July 2004 and June 2005, the RRT overturned 1,000 DIMA decisions, and 158 decisions by the RRT were overturned by Australian Courts (4).

Think about what that means. That’s nearly 1200 genuine refugees who, without access to a decent review process, would have been forcibly returned – or, when faced with a lifetime in detention, persuaded to go back – to the places from which they fled in fear of their lives. This is a breach of perhaps the most fundamental obligation under the Refugees Convention, which is not to "expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened …" (Article 33) (5).

There is a second reason to be alarmed by the new legislation. Long term Webdiarists may remember with some pride their part in the victory (of sorts) that Petro Georgiou and three other Liberal backbenchers achieved last year over Howard’s indifference to the plight of asylum seekers. Georgiou got Howard to agree to a ‘softer’ approach to mandatory detention, which included:

  • holding of minors in detention as a last resort;
  • detention of families with children to take place in communities;
  • non-enforceable time limits of 90 days on processing applications for refugee protection visas and review by the RRT; and
  • a requirement for the Ombudsman to review the cases of those detained longer than two years, and thereafter every six months.(6)

None of these measures will apply in Nauru. "It was never understood at the time of the agreement that people in Nauru would be part of it," Howard said on the ABC’s Lateline (7). The Government argues that because women and children are let out of the Nauru ‘processing centre’ during the day the conditions are reasonable, but evidence shows that any form of detention is harmful, especially for children. In fact, the detention experience on Nauru is arguably worse than in Australia because of the isolation from friends, relatives and supporters in the Australian community (8). (Incidentally, the new regime would also put all asylum seekers beyond any real media scrutiny.)

The third reason to be alarmed about the legislation is that, even when refugee status is granted, the ordeal for detainees won’t be over. According to Vanstone, "The Government’s intention is that people found to be refugees will remain offshore for resettlement to a third country" (9). In other words, the Government will try to find other countries to take in the refugees that Australia, as the country in which they sought asylum, has responsibility for. Perhaps we could ask Pakistan, which hosts almost a million refugees (10), to accept the refugees Australia doesn’t have the will to take.

For the refugees themselves, it will mean even longer in purgatory. Ms Taylor worries that "we might get back into a situation like all those people who are taken to Nauru and PNG in 2001, where it took about three or four years to basically find somewhere, even if they’ve been recognised as refugees. They’re sitting there in limbo."

The proposed new regime for asylum seekers threatens to undermine the UN Refugees Convention. If every first world country adopted Australia’s approach the protection of refugees under the Convention would collapse. As UNHCR put it, the Howard Government’s new measures "would be an unfortunate precedent, being for the first time … that a country with a fully functioning and credible asylum system, in the absence of anything approximating a mass influx, decides to transfer elsewhere the responsibility to handle claims made actually on the territory of the state" (11).

It’s not too late to do something about this. If you care about Australia’s moral duty and legal obligations under the UN Refugees Convention, email, phone, or write to MPs and Senators, in particular Senators Judith Troeth, Steve Fielding, and Barnaby Joyce.

Troeth has expressed misgivings about the legislation, but she will be under enormous pressure to pass it. Let her know she’s not alone.


  1. Offshore Processing Strategy – Nauru. Budget 2006/2007 Fact Sheet.
  2. Minister Seeks to Strengthen Border Measures, 11 May 2006.
  3. Insight, 6 June 2006
  4. Amnesty International submission to the Inquiry into the provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (pdf)
  5. Convention relating to the Status of Refugees
  6. Refugee Action Committee submission to the Inquiry etc. (pdf)
  7. Lateline, 15 May 2006.
  8. Refugee Action Committee submission to the Inquiry p.5
  9. Minister Seeks to Strengthen Border Measures, 11 May 2006.
  10. UNHCR. Basic Facts.
  11. UN News Centre.
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Further comment from Judi Moylan

Folks, Ms Moylan sent me this today:

Following my correspondence updating you on progress of changes to the Migration Bill, many have expressed concern about the removal of people to Nauru or the Pacific Solution.

I share your concerns for a number of reasons including lack of visibility, inability of individuals, non government organisations and churches to easily access and support refugees and the possible lack of the full protection of Australian domestic law and international law.

A further concern we have is the length of time it takes to place those assessed as refugees to be placed in a third country.  In our negotiations we have asked the government to consider a time limit for placement in a third country.  In the event that a third country could not be found within the agreed time, then refugees would be re-settled in Australia.  To date the Minister has not agreed to this change.

Those of us in the House of Representatives, who are opposed to the Migrtion Act Amendment Bill in its current form, do not have the support of enough colleagues to prevent the passage of the Bill.  This willl depend on the Senate.  If there are insufficient numbers in the Senate to prevent the passage of the Bill then the Pacific solution will be enshrined in legislation.

Should the Bill gain passage through both Houses of Parliament, we must therefore, do the best we can under these circumstances to protect the rights of refugees placed in these facilities.

I hope that this helps you to more fully understand the difficult task we are currently confronted with and appreciate your continuing support.

Yours sincerely


How do the Senators line up?

How do the Senators line up on this one at present David? Any news on which way Senators Judith Troeth, Steve Fielding, and Barnaby Joyce will go?

Judy Moylan on the Migration Act

For anyone interested, I got this reply from Judy Moylan on her position on the Migration Act changes:

Thank you for expressing your views in regard to proposed changes to the Migration Act.
For some time a small group of government Members and Senators have been urging the Government to modify the proposed amendments to ensure that:

· Families with children will not be kept in detention facilities.
· All people lodging claims for refugee status in off-shore processing centres will be afforded the checks and balances of those being processed in Australia.

· That there will be time limits set for the initial processing of an application for asylum and for the length of time a person can stay in offshore processing centres.

· Reasonable access arrangements for third parties to visit asylum seekers in offshore processing centres will be provided.

· The Ombudsman’s powers, as negotiated last year, will be extended to offshore processing centres.

During discussions with the Minister, some changes have been agreed to and these include housing for families with children in a cluster of houses that will be fenced and guarded and which are not yet ready for occupation, limited powers for the Ombudsman, a time limit of 90 days on the initial determination and a review of the initial determination by a non statutory review tribunal.

I remain committed to ensuring that the substance of last year’s amendments to the Migration Act are adhered to and that offshore processing is carried out humanely, fairly and speedily whilst adhering to the domestic and international legal principals afforded asylum applicants processed in Australia.

Once again, I thank you for your expressions of concern.
Yours sincerely

Morris Gleitzmann,Aussie hero reminding us of universal values

It is always a little reassuring to see not all the Liberals have been joined at the hip in Lock step. Some still have principles. I notice that little creep didn't knock off from preselection one of the best in the house the Libs have. Judy Moylen ,another. 

All the same, principles they may have but domestic and internatinal rights I am not so sure of. it is truly inspiring to see those of the Aussie community showing solidarity with the suffering and humanity of these refugees and one making a deliberate attempt to wake up the community and challenge stereotypes is the famous author Morris Gleitzmann. He has written two books, Boy Overboard and Girl Underground,that I recommend all school kids read ,to gain an understanding and to parry the attempts at dehumanising and racism that goes on. I have huge admiration for Mr Gleitzmann!

Telling the stories and showing them in movies is how we make contact with people we never have met and learn to wish for their happiness too, realising we are far more similar than we are different.


Nauru accedes to the Geneva Conventions

Many of us will be overjoyed by the glad tidings in a joint press release from the Attorney-General and Minister for Foreign Affairs. Nauru has acceded to the Geneva Conventions and two additional protocols.

This welcome development will help ensure the highest standard of humanitarian conduct should the Nauru armed forces undertake, say, a military intervention in ... er ... the neighbouring coral atoll.

At least, this will be so once Nauru actually has an armed forces. Currently Nauru has no armed forces, her defence being the responsibility of Australia under an informal agreement.

The Australian Government’s trumpetting of Nauru's groundbreaking leap into modern human rights law might be cynically interpreted as an attempt to mollify opposition to our Government's immigration bill, currently stalled in the Parliament, which will mandate offshore processing on Nauru of all unauthorised arrivals on our shores.

Nauru’s accession to the Geneva Conventions, however, will probably not assuage critics of the bill who will point to the fact that Nauru has not signed the Refugee Convention.

Vanstone Sick Statement on Refugees and Resettlement

The Immigration Minister was asked by AM today about legitimate refugee claims and subsequent resettlement in Australia and she lied/obsfucated, saying that a 'medical emergency' could be one way.

CATHERINE MCGRATH: 'Will you consider allowing any legitimate claims - people who have legitimate claims - to be settled in Australia?"
AMANDA VANSTONE: No. "I have always said, and others have said that there may be circumstances and we'd look at it. Now, the circumstances might be, for example, medical circumstances. Obviously, you don't know what medical emergencies are going to come up and what the timing is of flights and whether you would need someone to come here. And another circumstance that we can envisage might be appropriate, would be where someone had most of their family here."

The UN Convention and importantly the proposed legislation makes no provision for medical emergencies to satisfy refugee claims or enable resettlement..

The proposed legislation makes provision for the entry into Australia for people who are sick to be designated as 'transitory' (see below) and that provision has absolutely no bearing on resettlement of refugees in Australia

(4C) For the purposes of paragraph (g) of the definition of transitory person in subsection (1) of this section, a person is taken not to have left a country if:
(a) the person has:
(i) departed the country to travel to one or more other countries; and
(ii) been refused entry by each of those other countries; and
(iii) returned to the first-mentioned country as a result of the refusal or refusals; or
(b) the person has:
(i) departed the country for medical treatment in one or more other countries; and
(ii) returned to the first-mentioned country after receiving medical treatment.


CATHERINE MCGRATH: Will you consider allowing any legitimate claims - people who have legitimate claims - to be settled in Australia?

AMANDA VANSTONE: Well, you know, there's a bit of a furphy going around here that we've said absolutely no one will ever come here.

CATHERINE MCGRATH: Well, you've talked about a third country? You've talked about a third country, and that's what they're concerned about.

AMANDA VANSTONE: What we've said is, it's our very strong preference that people be offered protection in another place.

CATHERINE MCGRATH: So you're opening the door to them being settled here?

AMANDA VANSTONE: No. I have always said, and others have said that there may be circumstances and we'd look at it. Now, the circumstances might be, for example, medical circumstances.

Weasel words a Government Specialty

Kaye, hi, Vanstone must be giving herself an ulcer trying to dance around this one.  Boy, did she draw the short straw on portfolios - but you've got to hand it to her, she tries hard not to blink.  All the practice, I guess.  It just seems pathetic to me the way the Government is trying to disguise what is basically a total abrogation of our moral, if not to-the-letter legal, obligations under the Refugees Convention. 

It’s fantastic to see some Liberal backbenchers standing up for their principles.  They are, after all, the only effective opposition when Howard has control over both houses of parliament.  Howard’s not afraid of public opinion, and he’s definitely not afraid of the Opposition, but his backbenchers – whew, they’re scary. 

It’s been amusing watching the Government tying itself up in knots trying to rationalise the ‘border protection’ measures as anything but a craven cave-in to Indonesian criticism. 

On the SBS’s Insight, George Brandis tried to characterise the policy as ‘fixing an anomaly’.  He referred to the ‘anomaly’ whereby those asylum seekers who land on offshore islands get processed in Nauru, while those who make it to the mainland go to Baxter.  He neglected to mention it’s an anomaly the Government created by excising the our northern islands from the migration zone (in a knee-jerk response to some earlier refugees), and Brandis ignores the more blatant anomaly: if you arrive by plane, all the way from the country you flee, you’re a ‘good asylum seekers/refugee’ and don’t even go into detention! 

And it was coincidence, of course, that a representative from the Indonesian embassy was also on Insight. 

Howard has denied any links between the legislation change and Indonesia, while kowtowing desperately to the Indonesian delegation and making promises to them he’s no longer sure he can keep. 

And then Amanda Vanstone on Lateline: "It is indisputable that we have taken into account the concerns of Indonesia." 

Jeez guys, at least try to get your story straight. 

What did you think of Tony Burke's performance on Lateline last night?  I was pretty impressed, although after Martin Ferguson anybody would look good.  I like that he brought the issue back to the people who will actually be caught up in the middle of this:

"I've got to say if you're a child that's dumped in Nauru and lives - you go there when you are two and by the time you're eight years of age, after six years if detention before they find a country that will take you, I think it would be a bit rich to tell that child, "Look, we might have wrecked your childhood, but we sent a signal. " People will be hurt by these laws."

Of course, Labor introduced mandatory detention, but still ...

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