U.S. Committee for Refugees World Refugee Survey 2002 - Australia

Australia hosted some 21,800 refugees and asylum seekers at the end of 2001. These included 7,992 refugees resettled during fiscal year 2000-2001 (which ended June 30); 5,495 persons granted protection visas during the year (of which 974 were permanent and 4,521 were temporary); 2,703 persons remaining on temporary visas granted in previous years; applicants in 5,385 pending asylum cases; and 180 persons with temporary safe haven visas.

Australia made international headlines in the late summer and fall with a dramatic policy change concerning the unauthorized arrival of asylum seekers by boat. Under the new policy, Australia refuses to allow such arrivals onto the Australian mainland and, in most cases, sends them to other countries in the Pacific, where their refugee claims are assessed. In November, the conservative government of Prime Minister John Howard won reelection largely on the strength of his new policy toward asylum seekers.

The U.S. Committee for Refugees (USCR) visited Australia in July to assess Australia's refugee and asylum policies. USCR's findings and recommendations were presented in an issue paper, Sea Change: Australia's New Approach to Asylum Seekers, published in February 2002.

Resettlement

Under its refugee and humanitarian program, Australia allocated 12,000 admission places for fiscal year 2000-2001. Unused admission places from the previous fiscal year and other adjustments brought the total number of places to 13,733.

The final allocation consisted of 7,992 "offshore" places for persons resettled from overseas and 5,741 "onshore" places for persons granted asylum in Australia. Although the overall allocation represents a cap, numbers can be moved between the asylum and resettlement components, according to need.

Of the 7,992 offshore places, 3,997 were for the refugee category (persons meeting the UN Refugee Convention definition). Another 3,116 were for the "special humanitarian program" (SHP) for people found to have suffered discrimination amounting to a gross violation of human rights, and who had strong support from an Australian citizen, resident, or community group. Finally, 879 offshore resettlement places were for the "special assistance category" (SAC), persons who had close links to Australia and who were particularly vulnerable but did not meet the criteria of the other categories. The government eliminated the SAC category at the end of the fiscal year.

In the previous fiscal year, Australia's immigration minister, Philip Ruddock, had ordered a temporary suspension of the granting of offshore refugee visas. The suspension was necessary, Ruddock said, because the number of unauthorized arrivals granted asylum had increased sharply and threatened to exhaust the combined ceiling for overseas admissions and asylum. Australia allowed unused offshore visas to carry over into the FY 2000-2001 program year, in anticipation of a large number of onshore visa grants to arrivals from Afghanistan and Iraq (who reportedly had more than a 90 percent approval rate).

In FY 2000-2001, 43 percent of offshore visas were for nationals of the countries of the former Yugoslavia. Twenty-seven percent were for persons from the Middle East and South-West Asia, including a significant number from Iraq and Iran. Twenty-five percent were for people from Africa, primarily Sudanese.

In partnership with other government and community agencies, the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) helped to receive and integrate refugees and other humanitarian entrants in Australia. Resettled persons had immediate access to income support, English-language instruction, and translation and interpretation services.

Unauthorized Boat Arrivals and the "Pacific Solution"

Australia significantly changed its asylum system in 2001 in response to events that began in late August.

In recent years, the Australian government has become increasingly concerned with the organized smuggling of migrants, particularly from the Middle East and South Asia, to Australia. Because most such migrants transit through Indonesia, Australia initiated what it calls "regional cooperation arrangements" with the Indonesian government, the UN High Commissioner for Refugees (UNHCR), and the International Organization for Migration (IOM). The arrangements, which have operated since early 2000, seek to prevent Australia-bound migrants – most of whom are asylum seekers – from leaving Indonesia, instead encouraging the asylum seekers to register their refugee claims with UNHCR in Indonesia.

At the time of USCR's site visit in July, Australian officials said it was still too soon to assess the impact of the Indonesia-based arrangements. Some officials, however, said anecdotal evidence – including indications that people-smugglers were moving their operations elsewhere – suggested that the arrangements were beginning to reduce the number of boat arrivals.

The actual number of unauthorized arrivals by boat shifted slightly downward from 4,175 in fiscal year 1999-2000 to 4,137 in fiscal year 2000-2001. Then, in August, Australia experienced a sudden surge of arrivals, with more than 1,200 persons landing on Australia's island territories within 11 days.

With these arrivals, Australia followed its standard procedure for undocumented persons arriving by boat at Australian territory (including Christmas Island and Ashmore Reef, both of which are closer to Indonesia than to the Australian mainland). Australian officials warned them of the penalties for illegal arrival, allowed them to land, and then transferred them to detention facilities on the mainland. At that point, Australia permitted the migrants to apply for asylum.

On August 27, however, Australia changed its policy. It refused entry to a Norwegian freighter, the Tampa, carrying some 430 persons, most of whom claimed to be Afghans. The freighter had rescued the group from a sinking Indonesian ferry the previous day, and the migrants had demanded that the Tampa captain take them to Christmas Island. Australia, however, refused to allow the freighter to dock, saying that either Norway or Indonesia should take responsibility – neither of which did.

Howard maintained his tough stance despite a flood of international criticism, saying he hoped to send a clear message to unauthorized migrants. Australia intensified that message August 29, when the Tampa's captain took the boat into Australian waters and Australian troops prevented the ship from reaching land.

On September 1, a break in the stalemate occurred. The tiny Pacific nation of Nauru offered to house the asylum seekers while their refugee claims were being processed, and Howard agreed. New Zealand offered to take up to 150 of the asylum seekers from the Tampa .

New Zealand said it would assess the asylum claims of those brought to its territory. The Nauru government asked UNHCR to screen the asylum seekers taken to Nauru, and UNHCR eventually agreed. Australia provided Nauru with an aid package worth the equivalent of about $10 million ($20 million Australian) in return for hosting the asylum seekers.

Reacting to the developments, UNHCR said that Australia's actions could send a negative message to impoverished nations closer to conflict zones, which often take in hundreds of thousands of refugees.

The Tampa passengers arrived at Nauru on September 17, on the Australian naval ship Manoora. On its way, the Manoora had picked up an additional 234 asylum seekers, most of whom said they were Iraqi, from a wooden boat headed toward Ashmore Reef. Together with the Tampa passengers, the new group brought the total number arriving on Nauru to more than 600.

On September 19, the asylum seekers began disembarking on Nauru. The next day, however, more than 200 Iraqis and Palestinians refused to disembark, insisting they be taken to Australia. The standoff lasted nearly two weeks, ending only after Australian soldiers forcibly removed 12 persons from the ship.

Australia subsequently chartered planes and flew 131 Afghans from Nauru to New Zealand, which had agreed to count those it approved as refugees toward its annual resettlement "quota" of 750 persons.

On October 14, Australia disembarked an additional 260 migrants on Nauru, which had agreed to accept them. UNHCR, which had only reluctantly agreed to conduct refugee status determinations for the earlier groups of asylum seekers, said it would not screen the new group, noting that Australia's new policy of intercepting asylum seekers and taking them elsewhere "is inappropriate and inconsistent with the edifice of asylum that's been built up over years."

Australia sent its own immigration officials to interview the newer arrivals on Nauru. The asylum seekers, however, were to be screened under the minimal non-refoulement requirements of the UN Refugee Convention rather than under Australian asylum law.

By late September, Australia was permitting some unauthorized arrivals to land on its island territories. However, their arrival did not trigger Australia's procedures under its domestic asylum system. Earlier in the month, Australia had enacted legislation to "excise" Christmas Island, Ashmore Reef, the Cocos Islands, and other territories from its "migration zone," meaning that its immigration and asylum laws would no longer apply to unauthorized arrivals on those territories. While Australia's international obligations under the UN Refugee Convention remain, those obligations are not as extensive as its domestic asylum laws.

With the new legislation in hand, Australia initiated plans to build a detention center on Christmas Island. However, the government said that screening on the territories, even under the new law, would be a "last resort" because it "gives a green light to people-smugglers."

On October 11, Australia announced that it had signed a memorandum of understanding with Papua New Guinea, under which Australia would provide that country with an initial aid package worth the equivalent of $500,000 ($1 million Australian) in return for building a refugee processing center. Papua New Guinea chose its remote island of Manus as the location for the center. Australia flew some 220 mainly Iraqi asylum seekers from Christmas Island to Manus on October 21 and 22. When UNHCR refused to screen the group, Australia sent its immigration officials to conduct refugee status determinations.

With Papua New Guinea joining Nauru as a refugee screening site for Australia-bound asylum seekers, Australia's so-called "Pacific Solution" was in place. Australia also held discussions with governments of other Pacific nations about establishing refugee screening centers. By the end of 2001, however, no other country had agreed.

Despite Australia's new policy, boats continued to attempt to reach Australian territory. With each, Australia took a case-by-case approach with one common theme: at no time would asylum seekers be taken to the Australian mainland.

On October 18, Australia pushed back into international waters an Indonesian-registered boat carrying about 200 persons that had arrived near Ashmore Reef a week earlier. Australian navy troops boarded the boat, provided the passengers with food and water, and then "escorted" the boat back into the high seas. Howard said the incident marked the first victory in the campaign begun two months earlier to stem the flow of asylum seekers arriving via Indonesia. Less than two weeks later, Australia forced back a second boat carrying 224 persons.

At year's end, 800 asylum seekers remained on Nauru (with more than 300 others scheduled to be transferred to Nauru from Christmas Island soon after the New Year) and 216 in Papua New Guinea under the "Pacific Solution." UNHCR was screening 529 of those on Nauru (and none in Papua New Guinea), with DIMIA officials screening the rest. Neither UNHCR nor DIMIA had announced results.

Another 520 asylum seekers were on the "excised" Australian territories – 389 on Christmas Island and 131 on the Cocos Islands – at year's end.

New Protection Visa System

The package of legislation enacted by Australia in September, which removed the island territories from Australia's "migration zone," made other significant changes to Australia's refugee-protection system. Among these were amendments to the protection visa system.

Since 1999, protection visas have been divided into two subclasses: permanent visas and temporary visas. Successful asylum applicants who enter Australia legally may receive permanent visas. "Unauthorized" arrivals who seek asylum upon arrival may, if found to be refugees, be granted only temporary protection visas (TPVs). TPV holders are eligible to work and to receive certain benefits – including Australia's Medicare program – but are excluded from other services. TPV holders are unable to petition for their relatives to join them unless they are granted permanent visas.

When introduced in 1999, TPVs were valid for three years. After 30 months, the holder could be granted a permanent protection visa if he or she were again able to prove a well-founded fear of persecution if returned home. In the September 2001 legislation, Australia introduced a new visa regime, based in part on existing provisions to prevent "forum shopping."

Under the new law, asylum applicants will not meet the criteria for permanent protection visas if they resided for at least seven continuous days in a country (such as Indonesia) in which they "could have sought and obtained effective protection" either from that country or from the local UNHCR office. The immigration minister may waive these requirements in the public interest. This provision applies to all visa applications filed on or after September 27, 2001, including applications for permanent visas filed by TPV holders.

Persons who attempt to enter Australia via an "excised" territory, such as Christmas Island, cannot apply for any class of visa. However, such persons will be "guaranteed access to asylum determination processes," such as on Nauru or Papua New Guinea. Asylum applicants found to be refugees may be permitted to reside in Australia, if the minister is satisfied that it is in the public interest. If, however, applicants do not meet the new criteria for permanent protection visas (the seven-day requirement), they will be eligible only for temporary protection visas, valid for three years. Australia may grant them successive three-year visas if the need for protection continues. However, they will never be eligible for permanent residence (unless the minister waives the seven-day requirement), and will never be able to bring their families to Australia. If they leave Australia, they will not be allowed to return. They also will not receive the full range of settlement services provided to refugees who arrive lawfully and are granted permanent protection visas.

Persons who apply for visas to enter and remain in Australia from the "second safe country they enter" (a country other than the country of first asylum) may be granted five-year, temporary protection visas that enable them to obtain permanent protection visas after four-and-a-half years if there is a continuing need for protection. Their families will only be able to join them if and when they obtain permanent visas. This provision will affect, for example, persons recognized as refugees by UNHCR in Indonesia whom Australia accepts for resettlement under its "offshore" program.

Only persons who are assessed by UNHCR while in the first safe country they reach – and who are then selected by Australia for resettlement – will receive a permanent protection visa in the first instance. Their families will be able to join them in Australia.

The system, therefore, sets up a tiered approach under which, for example, Afghans in Pakistan who are accepted for resettlement in Australia would have immediate access to permanent visas, while Afghans accepted from Indonesia would have access only to temporary visas with the possibility of permanent visas after four-and-a-half years. Afghans who arrive unlawfully at Christmas Island would, if found to be refugees, have access only to successive three-year temporary protection visas, unless the minister provided otherwise.

Another provision of the new legislation provides that the UN Refugee Convention does not apply in relation to persecution unless a Convention reason is the essential and significant reason for the persecution; the persecution involves serious harm to the person; and the persecution involves systematic and discriminatory conduct (emphasis added). The Australian government has attempted to remove some discretion from the courts, which government officials have viewed as too liberal in interpreting the Convention. UNHCR expressed concern that the new definition could limit the flexibility of the Convention's application, particularly since "persecution comprises human rights abuses or serious harm, but not always with a systematic or repetitive element."

In October, USCR and Human Rights Watch wrote to the Australian government urging it to amend its new legislation, or, at a minimum, to implement it in a manner that fully upholds fundamental norms of international human rights and refugee law.

Onshore Asylum

For asylum seekers who arrived before the policy shift of late August, as well as those who arrived by air or with valid visas, the existing onshore asylum adjudication procedure remained the same.

DIMIA officers decide initial asylum applications. When applicants are denied either a temporary or permanent protection visa, they have 28 days to seek a merits review of that decision either by the Refugee Review Tribunal (RRT) or the Administrative Appeals Tribunal (AAT), depending on the basis for refusal. When the RRT rejects an appeal, the applicant must pay a fee of about $500 ($1,000 Australian).

Protection visa applicants rejected by the RRT have 28 days to leave the country voluntarily. The immigration minister has the power to intervene if the RRT has rejected the application and if, in the minister's view, a more favorable decision is in the public interest.

During the fiscal year, Australia received 13,100 applications for protection visas, an increase of 387 over the previous year. The major countries of origin for new asylum seekers were Afghanistan, Iraq, China, Indonesia, Fiji, and Iran. DIMIA officers decided 13,242 asylum claims at the primary stage, granting 4,642 (35 percent) and denying 8,600. Of those granted, 538 were issued permanent protection visas and 4,104 temporary protection visas. At year's end, 5,385 claims were pending at the primary stage.

The largest numbers of protection visas granted in the first instance went to persons from Iraq, Afghanistan, and Iran.

On appeal, the RRT decided 6,684 claims, finding in the applicant's favor in 962 cases (14 percent) and remanding them to DIMIA for health and character assessments. Of 853 visas granted after appeal, 436 were permanent and 417 temporary. The RRT had 8,275 appeals pending at year's end.

Of the total permanent protection visas granted, 80 were granted by the immigration minister under his public interest powers.

The government funds asylum application assistance for all asylum seekers in detention and for many of those not in detention who are unable to afford representation. Certain asylum applicants who cannot meet their basic subsistence needs are eligible for financial assistance.

Detention

Under Australia's Migration Act, all noncitizens who unlawfully enter Australia, including those seeking asylum, are placed in detention. In rare circumstances, they may be released from detention if they meet certain criteria, such as old age, ill health, or having suffered torture or other trauma. However, the majority of asylum seekers are detained for the duration of the asylum adjudication process, which often takes months or even years.

Refugee advocates continued to criticize the location of detention facilities, often in remote areas far from available legal counsel, as well as the security measures and living conditions at the facilities. In June, a parliamentary committee composed of both government and opposition members found that "the government's policy of detention of refugees is a disgrace verging on the inhuman." The committee called for a 14-week cap on processing the claims of asylum seekers before their release into the community. Howard and Ruddock criticized the report and rejected its key findings and recommendations.

In late October, the Inspector of Custodial Services in Western Australia said the immigration detention centers were unacceptably overcrowded, posed hygiene and health risks, and had "disgracefully" inadequate medical and dental services. In response, Ruddock admitted that the centers were overcrowded but denied that conditions were "disgraceful." He also said the government had reduced the overcrowding by not allowing people to reach the Australian mainland.

As in previous years, detention-center residents staged several hunger strikes, riots, and other forms of protest, as well as escapes.

In May, DIMIA launched a "trial of alternative detention arrangements" for women and children at the detention facility at Woomera, in the desert of South Australia. The test was to involve a maximum of 25 volunteers at any one time who would be permitted to live in houses in Woomera Township. The women and children were required to have a family member (usually the husband/father) remaining in the detention center. They would also need to undergo health assessments and be determined to pose "no character or management risks." Participants in the trial would be under 24-hour supervision.

The trial commenced in August, when five women and five children moved out of the detention center into a cluster of houses leased from the Defense Department. The Refugee Council of Australia said the program gave children two unacceptable options: either to remain in the detention center or to be separated from their fathers. Ruddock conceded that there had been a lack of interest in the trial because families did not want to be separated.

Temporary Safe Haven

At the end of 2001, only 180 persons (mostly from Kosovo) remained in Australia under temporary safe haven visas.

Australia created the visa in 1999 to provide temporary protection for people "displaced from their homelands by violence." In 1999, Australia granted the visas to some 4,000 ethnic Albanian Kosovars and to 1,800 East Timorese. In 2000, Australia granted temporary safe haven to 15 asylum seekers from Ambon, Indonesia who arrived by boat in Darwin, Australia.

Recipients of the visas must sign a declaration that they agree to the Australian government's offer of temporary safe haven for a limited period, and will leave when the government requires. Holders of these visas are legally prevented from applying for any other kind of visa unless the immigration minister decides it is in the public interest for them to do so.

Most of the Kosovars with safe haven visas in Australia returned home in 1999, with smaller numbers returning in 2000. Only 157 Kosovars remained on safe haven visas at the end of 2001, their visas having been extended until August 2003.

Australia repatriated nearly all of the East Timorese with safe haven visas in 1999 and 2000, with only eight East Timorese remaining at the end of fiscal year 2000-2001; in most of those cases, their visas were scheduled to expire in 2003. Of the Indonesians, 14 remained in Australia with safe haven visas, scheduled to expire in March 2002.

East Timorese Asylum Seekers

At the end of 2001, some 1,800 East Timorese asylum seekers remained in Australia. This group was distinct from the 1,800 East Timorese who were evacuated to Australia in 1999 and provided temporary safe haven.

A large number of East Timorese sought asylum in Australia during the years of Indonesia's occupation, and many have remained in Australia for years in legal limbo while the executive branch and the courts debated whether the asylum seekers had the protection of Portugal – the former colonial power in East Timor. East Timorese voted overwhelmingly for independence from Indonesia in 1999, and the territory is scheduled to achieve full independence in 2002.

In October 2000, the Administrative Appeals Tribunal ruled in favor of an ethnic Chinese man from East Timor, raising the hopes of the other asylum seekers, particularly the ethnic Chinese. Advocates for the East Timorese called on Ruddock to grant permanent residence to the entire group on humanitarian grounds.

However, in late 2001, Ruddock said that no special consideration would be granted to the East Timorese and that it would not be unreasonable to send home those whose claims were rejected. UNHCR said Australia should show compassion and allow for individual circumstances.

Other Developments

At a mid-December UNHCR meeting in Geneva, Ruddock urged reform of the UN Refugee Convention and suggested withdrawing development aid from nations that refuse to take back citizens whose asylum claims in other countries were rejected. He said there was a real risk that funds earmarked for the UN would be diverted as countries struggle to meet the cost of unauthorized arrivals. Ruddock also accused European countries of ignoring "southern hemisphere problems" like East Timor while expecting Australia to share the burden of "northern crises" like Kosovo.