Short, medium and long term approaches to assist in the development of an effective and sustainable approach to asylum seekers

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1 19 July 2012 Expert Panel on Asylum Seekers PO Box 6500 Canberra ACT 2600 By to: Dear Expert Panel, Short, medium and long term approaches to assist in the development of an effective and sustainable approach to asylum seekers The Law Institute of Victoria (LIV) is pleased to make this submission in support of the Law Council of Australia s submission to the Expert Panel on Asylum Seekers, to which we contributed. The LIV is the peak body for lawyers in Victoria and represents over 15,000 members. The LIV has been a strong advocate for refugees and asylum seekers. LIV advocacy is informed by the LIV Refugee/Asylum Seeker Policy of 31 October 2005 (copy attached) and by input from the Refugee Law Reform Committee. The Refugee Law Reform Committee consists of practitioners who work regularly with refugees and asylum seekers or in the field of migration law generally, whether in a paid or voluntary capacity, and who have a shared interest in promoting and protecting the rights of refugees in accordance with the rule of law. LIV advocacy is therefore informed by our members experience with the operation and impact of migration law in Australia. Minimum requirements for an effective and sustainable approach to asylum seekers In accordance with the LIV Refugee/Asylum Seeker Policy, we agree with the Law Council that any policy option or legislative option recommended by the Expert Panel should, at a minimum: comply with international human rights standards; comply with relevant High Court decisions; integrate with the Bali Process Regional Cooperation Framework; align with the New Directions in Detention policy; address key recommendation of recent parliamentary inquiries; include specific legal safeguards and protections; include minimum standards for immigration detention facilities that adhere to human rights standards; and include provision of adequate legal assistance. Adherence to these minimum requirements is imperative to ensure that Australia meets its international and domestic legal obligations and that all approaches have a sound legal and policy basis. We refer you to the Law Council s submission, which provides further detail on the content of these minimum requirements. Further, an effective and sustainable approach to asylum seekers must be based on respect for human dignity and not on political expediency. Any policy options which seek to de-humanise asylum seekers or which effectively punish individual asylum seekers with the aim of general deterrence must be rejected. Consistent with the Law Council s minimum requirements, and with respect for human dignity, the LIV provides the following suggested approaches to an effective and sustainable approach to asylum seekers for consideration by the Expert Panel.

2 Short to medium term approaches We understand that the aim of short to medium term policies will be focussed on how best to prevent asylum seekers risking their lives by travelling to Australia by boat, while a long term regional solution is found. Offshore processing arrangements, as established under the Migration Legislation Amendment (Transitional Movement) Act 2002 (Cth) (through establishing processing centres in Nauru and Manus Island and later, on Christmas Island), do not prevent people risking their lives by boat because transfer to an offshore processing centre is only triggered when a boat is intercepted. Some short to medium term policy options to prevent asylum seekers risking their lives by travelling to Australia by boat could include: 1. Providing access to temporary visas to travel to Australia The Migration Act 1958 (Cth) currently provides a range of visa options which enable people to enter Australia, including short term visas, with or without conditions regarding no further stay. 1 The Expert Panel could consider amendments to the criteria for some of those visas 2 and/or the removal of restrictions on applying for certain visas in certain countries, 3 to enable persons with protection claims to travel to, enter and remain in Australia for the limited purpose of making protection claims. Facilitating the travel to and entry into Australia through the grant of pre-existing visa subclasses would provide for a regular process of entry that is currently not available to people who are currently attempting to travel to Australia by boat. Reforms implemented using the existing framework of the Migration Act, rather than establishing a new framework, would reduce the risk of challenge in the High Court. 4 We would be happy to provide further input to the Expert Panel on details of which visa subclasses could be used and what amendments would be necessary. 2. Increasing resettlement numbers under the offshore Refugee and Humanitarian program Many in the non-government sector, including the Refugee Council of Australia, 5 advocate that offshore resettlement numbers should be increased under the Refugee and Humanitarian Visa subclasses, in particular the Refugee (Subclass 200). At present, the majority of applicants who are considered under this category are identified by the United Nations High Commissioner for Refugees (UNHCR) and referred to the Australian government by the UNHCR. 6 The Australian government could work closely with UNHCR to provide resettlement in Australia for people registered with UNHCR in so called transit countries in the region (including Indonesia and Malaysia). This option would require an increase in Australian resources to the UNHCR as a priority, to ensure that protection claims are processed fairly and within a reasonable time frame. 3. Decoupling the link between the offshore Refugee and Humanitarian program and onshore protection programs The current link between the offshore Refugee and Humanitarian program and onshore protection programs has resulted in a decreasing number of visa places for refugee and humanitarian entrants to reunite with family members. Departmental projections in late 2011 suggested that in the financial year, there could be as few as 750 places available for split family humanitarian entrants. 7 The 1 E.g Tourist visa (Subclass 676); Sponsored Family Visitor visas (Subclass 679). 2 E.g. the genuine visitor criterion in Migration Regulations 1994, Sch 2, cl Arising under Public Interest Criterion 4011, Migration Regulations, Sch 4, cl Such as the decisions in Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor [2011] HCA 32 and M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 5 See eg Refugee Council of Australia, Australia s Refugee and Humanitarian Program Community views on current challenges and future directions, January 2012 available at ( Annual Intake Submission ). 6 According to the Department of Immigration and Citizenship website at 7 Department of Immigration and Citizenship, Australia s Humanitarian Program and beyond, Information Paper, December

3 Refugee Council of Australia reports on the negative impacts of family separation, including people exploring ways to support family members to make dangerous journeys to Australia by boat. 8 If the link between the offshore Refugee and Humanitarian program and onshore protection programs is decoupled, the government will need to consider how best to budget for settlement services provided to visa holders within these streams. 4. Reform the family migration program Family migration visa options could be reviewed and expanded to allow refugees living in Australia to sponsor their family members as migrants, and release burden from the Offshore Humanitarian Program. Reform options include: Providing new, timely visa pathways to sponsor siblings; Review capping in family migration visas to meet the already high demand for places and reduce waiting times; 9 and Reduce or remove visa processing fees for the Partner Visa categories where sponsors are currently eligible to propose immediate family under the Special Humanitarian Program. 10 Long term The LIV supports efforts to develop a regional approach to refugee protection. In light of the complex political and diplomatic contexts affecting the pursuit of a regional approach to asylum seekers, including which countries will be involved and what their roles will be, this policy option can be pursued only as a long term solution. We are concerned to ensure that a regional protection framework focuses on the rights and needs of refugees and does not deflect Australia s responsibilities to neighbouring countries. A comprehensive regional protection framework must be a multilateral protection regime that ensures the processing of asylum claims meets international standards, that asylum seekers can live in dignity while their claims are determined and that timely resettlement options are available. We refer to the list of questions in the Law Council s submission (at p24), which might assist the Expert Panel when considering minimum standards for any offshore processing that takes place under a regional protection framework. One policy option for regional processing could be to allow protection visa applications at Australian embassies in designated locations throughout the region. This option should not, however, overshadow the need to work towards a regional protection framework that addresses in country protection in the region, in addition to resettlement to Australia. Please contact Laura Helm, Lawyer for the Administrative Law and Human Rights Section, at lhelm@liv.asn.au in connection with this matter. Yours sincerely, Michael Holcroft President Law Institute of Victoria 8 Refugee Council of Australia, Annual Intake Submission, above n5, at p6. 9 Capping is currently in place for Aged Dependent Relative (subclasses 114 and 838) visas, Remaining Relative (subclasses 115 and 835) visas and Carer (subclasses 116 and 836) visas an all Parent (subclasses 103, 143, 173, 804, 864 and 884). 10 To propose an immediate family member under the split family provisions, the proposer must have been granted one of the following visas within the last five years: Special Humanitarian Program visa (subclass 202), Protection visa (subclass 866), or Resolution of Status (subclass 851) visa. 3

4 L a w I n s t i t u t e o f Vi c t o r i a R e f u g e e s / A s y l u m S e e k e r P o l i c y Consistent with the approach adopted by the Human Rights and Equal Opportunity Commission and other like minded organisations, the Law Institute of Victoria supports the following principles in relation to refugees and asylum seekers: 1. In dealing with refugees and asylum seekers, Australia will respect and observe the rights of refugees and asylum seekers under relevant international law, including rights under the following instruments: Refugee Convention and the Protocol relating to the Status of Refugees, International Covenant on Civil and Political Rights, International Convention on Economic and Social and Cultural Rights, Convention on the Rights of the Child, the Convention Against Torture, Convention on the Elimination of all Forms of Racial Discrimination, Convention on the Elimination of Discrimination Against Women, and Universal Declaration of Human Rights. 2. Australia is entitled to protect its borders and its territorial integrity provided this is consistent with its international legal obligations, including its human rights obligations, and recognising that the liberty of the person is a fundamental human right. 3. All parts of Australia s territories and territorial waters are subject to international law and should be considered to be part of Australia s migration zone. 4. Australia will not forcibly reject, turn-around or divert to a third country any asylum seeker prior to determining that person's claim for protection in accordance with international law. 5. Australia will not encourage or require other countries to intercept refugees and asylum seekers on the way to Australia or to accept refugees and asylum seekers from Australia for detention or processing. 6. Refugees and asylum seekers will not be detained arbitrarily. 7. Refugees and asylum seekers will not be detained indefinitely. 8. Recognising the potential need for initial health and identity checks, no refugee or asylum seeker will be detained except as a measure of last resort and then for the shortest possible period of time. 9. No refugee or asylum seeker child will be detained except as a last resort and then for the shortest possible period of time. In accordance with Australia s international law obligations, in all decisions affecting a child, the best interests of the individual child will be of paramount consideration. Children are entitled to have their views heard and taken into account, according to their age and maturity, in all decisions affecting them. 10. Any asylum seeker who is detained may seek judicial review of the decision to detain them. 11. Any asylum seeker who is detained will be provided with access to independent legal advice an representation. 12. Asylum seekers released into the community pending the outcome of their application for asylum will have the same entitlements as Australian permanent residents to work and to receive social security, health care and housing, and associated benefits.

5 13. Any asylum seeker who is subject to detention will not bear any costs arising from their detention. 14. Asylum seekers who are accepted as refugees within the meaning of the Refugee Convention are entitled to family reunion. 15. Asylum seekers accepted as refugees will be accepted for permanent re-settlement. They will be entitled to all the benefits to which permanent residents are entitled. 31 October