Asylum seeker policy experienced a rush of activity in the lead-up to the election. Behind the Abbott government’s bold promise to “stop the boats” in its first term of government is a series of specific proposals - some adopted from Labor, and some of the Coalition’s own creation.
The new immigration minister, Scott Morrison, inherits a portfolio that is in disarray. There are tens of thousands of asylum seekers already in Australia who have made an application for a Protection Visa, but who have not had their claim considered at first instance by the Department of Immigration and Citizenship (DIAC). They are in various forms of detention or in the community on bridging visas with no rights to work.
The government has promised to fast-track the resolution of these claims by removing the opportunity to have initial decisions reviewed in Refugee Review Tribunal (RRT), and removing judicial review to the Federal Court. Instead there will be a second departmental review, after which unsuccessful applicants will be removed from Australia. The government has also promised to stop funding immigration advice for asylum seekers, meaning fewer asylum seekers are likely to be represented when presenting their case to migration officers.
The removal of these legal and administrative rights has been the subject of considerable criticism in legal circles. If these rights are in fact removed, more cases are likely to end up in the High Court. This is a poor policy outcome. Despite its pre-election position, we are likely to see a continuation of judicial review in the Federal Court, if not access to merits review in the RRT.
In the last few years, the overturn rate of initial decisions in the RRT for asylum seekers arriving by boat has been about 80%. There is an ongoing debate about whether initial decisions are too harsh, or the tribunal is too soft. However, there can be no doubt that many, if not the majority, of the decisions overturned will have been wrongly decided at first instance. Removing the opportunity to seek review in the RRT means that the rate of acceptance of claims is likely to drop dramatically.
The positive side of the new application process is that the government should be able to work through the backlog of claims more quickly, and those who are granted a protection visa will get out of detention or off bridging visas more quickly. The negative side is that more genuine refugees will have their claims rejected, and will be returned to a country where their lives are in danger.
Return to TPVs
Those who are successful in their claims will only be eligible for a Temporary Protection Visa (TPV). These visas last for three years, after which refugees have to apply for a further TPV on the basis that they continue to fear persecution in their country of origin.
TPVs have been heavily criticised on a range of grounds. TPVs come with work rights, but it is harder to find work when a TPV holder can only guarantee their availability to work for 3 years. TPVs do not allow refugees to sponsor their family to join them, or to leave the country to visit family without losing their visa. This encourages those family members themselves to seek to get to Australia by boat.
Research shows that refugees who receive a TPV demonstrate increased anxiety, depression and overall distress as they try to cope with their isolated state of legal limbo. If TPVs are introduced we are likely to see an ongoing debate about their cruelty.
The Coalition inherits the PNG arrangement from Labor. This policy is highly unstable. There is a legal challenge in the High Court to the validity of the arrangement. If the arrangement survives this, it is still unclear how many asylum seekers the PNG government will be willing or able to resettle in PNG should they be found to be refugees on Manus Island. It is also unclear what rights refugees will have in PNG, and what assistance (if any) the Australian government will provide to assist with the housing, education and employment of these refugees.
The Coalition also inherits the other part of the Pacific solution - detention and processing of asylum seekers on Nauru. Prior to the election, the Coalition promised to build a “tent city” for up to 5000 refugees to live on Nauru on modest welfare payments until a permanent solution can be found for them.
The Nauru and PNG arrangements constitute an ambitious legal, social and cultural experiment that sounded decisive in the heat of an election campaign, but will prove difficult to implement in practice. As criticism from the international community mounts and stories of poor conditions in detention and psychological trauma of detainees increase, these arrangements could unravel quickly.
Stopping the boats
The part of asylum seeker policy in which the Coalition differs most markedly from Labor is its determination to take direct action to stop the boats. This includes allocating A$420 million to pay Indonesian villagers for information, to buy unseaworthy boats, to boost the number of AFP officers working overseas, and to provide more funds for Australia’s border protection fleet.
The idea is to stop boats leaving Indonesia in the first place. For boats that do leave, the Coalition has promised that it will turn them back where it is feasible, and if it is not, the people on the boats will be transferred to Nauru or Manus Island for processing of their refugee claims.
These “buy back” and “push back” policies are the most politically sensitive of the government’s asylum seeker policies. They will result in illegal migrants remaining in or being returned to Indonesia purely to advance Australia’s national self-interest. One of the reasons the Indonesian governments has tolerated illegal entry of asylum seekers is that they make onward journeys to Australia.
For the Indonesian government to accept the push back policies, there will need to be some considerable payback, whether it be through offering more places in Australia’s resettlement program for refugees in Malaysia and Indonesia, or through contributing financial resources to finding other durable solutions for this refugee population.
If this analysis is correct, the new government’s preference for reducing the annual humanitarian intake to 13,000 from its current level of 20,000 seems misguided. In order to “stop the boats”, the government would be well advised to significantly increase the numbers in the humanitarian program and direct many of those extra places to resettlement of refugees in Malaysia and Indonesia. Expect there to be a debate about numbers in the humanitarian program early in the Coalition’s first term.
A concerning aspect of the government’s policy is its declaration that it will no longer release the numbers of boat arrivals, as this is considered “an operational decision, as part of Operation Sovereign Borders, for the three-star military officer”. This seems a surprising policy decision given that the government has staked its reputation on stopping the boats, and the best measure of success is the number of boats arriving. It is to be hoped that the decision not to freely release information on boat arrivals is not an attempt to avoid public scrutiny of its handling of asylum seeker policy, and in particular, the engagement of the navy in turning back boats.
The role of the media and concerned voices in parliament will be crucial to keeping the asylum seeker policy in the public eye where it can remain part of democratic deliberation.