U.S. Committee for Refugees World Refugee Survey 2003 - Australia

Australia hosted some 25,000 refugees and asylum seekers at the end of 2002. These included nearly 8,500 refugees resettled during fiscal year 2001–2002 (which ended June 30); nearly 4,000 persons granted protection visas during the fiscal year (of which nearly 750 were permanent and about 3,100 were temporary); 8,400 persons remaining on temporary protection visas (TPVs) granted in previous years; applicants in more than 3,900 pending asylum cases; and about 190 persons with temporary safe haven visas.

In September 2001, Australia made international headlines with a dramatic policy change concerning the unauthorized arrival of asylum seekers by boat at Australia's island territories. Under the so-called "Pacific Solution," which continued during 2002, Australia refuses to allow unauthorized boat arrivals onto the Australian mainland and, in most cases, sends them to other countries in the Pacific, where their refugee claims are assessed. At the end of 2002, more than 500 persons – mostly Afghans and Iraqis – remained on these "offshore" processing sites on Nauru and Papua New Guinea (PNG).

Resettlement

Under its refugee and humanitarian program, Australia had more than 13,600 admission places available for FY 2001–2002. This included 12,000 new places and some 1,600 unused places from the previous fiscal year. Of the total, more than 7,300 places were initially allocated for the "offshore" component (for persons resettled from overseas) and 6,300 "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 nearly 8,500 visas actually granted through the offshore program, about 4,200 were in the refugee category (persons meeting the UN Refugee Convention definition). Another 4,300 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 support from an Australian citizen, resident, or community group. Finally, 40 visas were for residual cases from the "special assistance category" (SAC), for persons who had close links to Australia and those 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 previous fiscal year.

In FY 2001–2002, about 32 percent of offshore visas were granted to nationals of the countries of the former Yugoslavia. Another 32 percent went to persons from the Middle East and South Asia, including a significant number from Iraq and Afghanistan. Thirty-three percent were granted to people from Africa, primarily Sudanese, Ethiopians, Sierra Leoneans, and Somalis.

Of the offshore arrivals, more than 300 were persons whose claims were processed from Nauru and Papua New Guinea under the Pacific Solution.

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

For FY 2002–2003, which began July 1, Australia responded to the declining number of onshore asylum applicants – resulting from its new policies toward boat arrivals – by decreasing the projected onshore visa allocation to 1,000. More than 13,200 places are available for the year, including 12,000 new places and a carryover of some 1,200 places from FY 2001–2002. The total includes 4,000 new places for the refugee category and an estimated 8,000 places for the SHP.

Unauthorized Boat Arrivals: Pre-2002 Events

In early 2000, the Australian government 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 seek to prevent Australia-bound migrants – most of whom are asylum seekers from the Middle East and South Asia – from leaving Indonesia, encouraging them to register their refugee claims with UNHCR in Indonesia instead.

The policy took a dramatic turn in September 2001, following the attempted arrival of a Norwegian freighter, the Tampa, which had rescued more than 400 mostly Afghan asylum seekers from a sinking Indonesian ferry. In a change from standard practice, Australia refused to allow the freighter to dock at Christmas Island, an Australian territory closer to Indonesia than to Australia. (Until this time, Australian officials transferred arrivals at Christmas Island and other Australian territories to detention facilities on the Australian mainland and allowed them to apply for asylum.) The incident sparked a diplomatic stalemate that lasted for several days until the tiny Pacific nation of Nauru offered to house the asylum seekers while their refugee claims were being processed. Australia agreed and, in return, provided Nauru with an aid package worth about $10 million ($20 million Australian).

Subsequently, Papua New Guinea joined Nauru as an off-site processing center for Australia-bound asylum seekers, in exchange for about $500,000 ($1 million Australian). Papua New Guinea chose its remote island of Manus for this purpose.

UNHCR agreed to assess the refugee claims of the first group of asylum seekers taken to Nauru, but it declined to do so for subsequent groups brought there or for the asylum seekers taken to Papua New Guinea. UNHCR said that Australia's policy of intercepting asylum seekers and taking them elsewhere was "inappropriate and inconsistent with the edifice of asylum that's been built up over years."

Australia sent its own immigration officials to interview the subsequent arrivals, screening them under the minimal non-refoulement requirements of the UN Refugee Convention without the protections of Australian domestic asylum law (such as the right to appeal).

Later in 2001, Australia once again permitted some boat arrivals to land on its island territories, but this did not trigger Australia's domestic asylum obligations. In September, Australia had enacted legislation to "excise" Christmas Island and other territories in the Indian Ocean from its "migration zone," meaning that its own immigration and asylum laws no longer apply to unauthorized arrivals on those territories.

At the beginning of 2002, some 800 asylum seekers remained on Nauru and more than 200 in Papua New Guinea under the Pacific Solution. Neither UNHCR nor DIMIA had announced the results of the refugee screening. Another 500 asylum seekers were on "excised" Australian territories.

Unauthorized Boat Arrivals: 2002 Events

The number of unauthorized arrivals by boat to Australian territory fell by more than 70 percent from about 4,100 in FY 2000–2001 to 1,200 in FY 2001–2002. All of those arrivals were before September 2001, when the new policy took effect. In calendar year 2002, only one unauthorized arrival reached an Australian territory by boat. Because that territory, Ashmore Reef, had been "excised" from Australia's migration zone, the individual was not brought to the mainland, but was transferred to Christmas Island (also an excised territory, but with better facilities) where Australian officials determined that he was not a refugee.

Australia's immigration minister, Philip Ruddock, attributed the dramatic reduction in boat arrivals to Australia's new approach to asylum seekers, stating, "This comprehensive strategy has been successful, but most importantly, it has stopped people risking their lives in dangerous journeys organized by unscrupulous people smugglers."

During 2002, Australia transferred more than 350 asylum seekers to Nauru and 150 to Papua New Guinea. All had been on Christmas Island at the end of the previous year (and some of the persons transferred to Nauru had briefly been in Papua New Guinea). During the year, Australia and UNHCR decided the refugee claims of more than 1,100 persons on Nauru, and Australia finalized more than 300 assessments on Papua New Guinea – for a total of nearly 1,500. Of those, more than 700 persons were found to be refugees.

By year's end, Australia had resettled 313 of the approved refugees under its "offshore" admissions program. Another 216 refugees had been resettled elsewhere – 188 in New Zealand, 14 in Sweden, 8 in Canada, and 6 in Denmark.

The year closed with about 120 approved refugees remaining on Nauru and about 100 in Papua New Guinea, along with others who had been denied refugee status. No refugees or asylum seekers remained on Christmas Island or any other excised territories.

In October, Australia and Papua New Guinea signed a one-year extension of their agreement, despite earlier claims by the PNG prime minister that the agreement would not be renewed because he objected to the use of his country as "a dumping ground for refugees." In September, some 50 asylum seekers broke out of the Manus facility in protest of their prolonged detention. All were later returned to the detention facility.

Nauru extended its own agreement with Australia in December. Announcement of the deal came the same day that Human Rights Watch issued a report saying that asylum seekers in the Pacific camps faced "arbitrary detention, lack of due process in asylum procedures, and denial of family reunification." The report also said that asylum seekers were beaten with electric batons and suffered other abuse by the Australian navy after their boats were intercepted.

On two occasions in 2002, Ruddock attempted to excise additional islands from Australia's migration zone. In June, he proposed excising more than 3,000 islands off the northern coastline, in response to advice that boats carrying asylum seekers would likely pass through the Torres Straight bound for new destinations in the South Pacific. The Senate, however, defeated the proposal. Ruddock reintroduced the plan, but it again was defeated.

In December, the minister succeeded – through a different legal maneuver – in temporarily excising four islands off the Western Australia coast, after reports that a boat was headed there. Ruddock reinstated the islands several days later when the boat was determined to be a fishing vessel.

Ruddock's opponents in parliament claim that such island excisions make it more likely that human smugglers will head for the Australian mainland. DIMIA officials say that is exactly their intent – since it could lead to interdiction and capture.

During the year, the Australian government defended itself in two asylum-related controversies that began the previous year. What the media termed the "children overboard" affair began in October 2001 when Australian Prime Minister John Howard – in the midst of a tough re-election campaign – claimed that asylum seekers aboard a boat off Christmas Island threw their children into the water to attract attention. The government released photos of sailors allegedly rescuing the children.

Subsequently, a Navy official revealed that the pictures were of sailors helping transfer the children to a Navy ship after their boat sank – and said Howard had known about the error, but did not acknowledge it until after the election. A prolonged Senate inquiry in 2002 concluded that then-defense chief Peter Reith had known the truth and had allowed Howard to continue making the claim of children overboard (through more carefully worded statements) throughout the election campaign.

The second controversy involved a boat carrying asylum seekers, mostly Iraqis, that reportedly sunk off the coast of Indonesia's main island of Java two weeks after the alleged children overboard incident. More than 350 asylum seekers – mostly women and children trapped below deck – drowned. Twenty-four of the dead and six survivors had been recognized as refugees by UNHCR in Indonesia, but had attempted the journey to Australia after a prolonged period with no resettlement options.

Howard acknowledged the tragedy but said there was nothing Australia could have done because the boat, dubbed the SIEV-X ("suspected illegal entry vessel" – "X" for unknown), was in Indonesian waters, outside of Australia's maritime surveillance zone.

Evidence later revealed that the SIEV-X had sunk in international waters within Australia's surveillance zone and that the navy had had prior information of the boat's departure and possible distress. The head of Australia's Coastwatch said the comprehensive surveillance pattern implemented after the Tampa incident carried with it a duty to rescue.

Although the Senate panel investigating the children overboard allegations cleared the Australian Defense Force of any wrongdoing in the SIEV-X tragedy, questions surrounding the incident remained at year's end, with the Senate calling for an independent judicial inquiry into Australia's efforts to disrupt people-smugglers in Indonesia.

During the year, Ruddock continued to press for international cooperation to prevent the smuggling of asylum seekers. In August, Ruddock warned European countries that unless they cooperated with Australia's efforts to discourage such migration, asylum seekers would likely seek protection on Europe's shores. "We can work together in dealing with the problem at source or we will continue to protect our borders and you will continue to have a problem," Ruddock told the Europeans.

Domestically, Ruddock continued his efforts to convince the Australian public that asylum seekers who leave countries of first asylum, or transit countries, to seek protection in Australia were making a "lifestyle choice" rather than seeking protection.

Protection Visa System

Since 1999, protection visas have been divided into permanent protection visas and temporary protection visas ( TPVs). TPVs are intended for persons who arrive in an "unauthorized" manner and are later found to be refugees. TPV holders are eligible to work and to receive certain benefits – including Australia's Medicare program – but are excluded from other services. Originally, all TPVs were granted for three years.

The September 2001 legislation that removed certain territories from Australia's "migration zone" also made significant changes to the protection visa system. Most notably, the law – known as the "Tampa legislation" – provides that asylum applicants cannot receive 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 this rule if he deems it in the public interest.

Persons who attempt to enter Australia by way of an "excised" territory, such as Christmas Island, are not eligible for any visa unless the immigration minister grants discretionary exception. Such persons are "guaranteed access to asylum determination processes" (such as on Nauru or Papua New Guinea) and, if found to be refugees, may be permitted to reside in Australia. However, under the seven-day rule, most such persons are ineligible for permanent protection. Australia grants them only three-year TPVs, which may be renewed if the need for protection continues. The visa holders cannot bring their families to Australia, and they do not receive the settlement services provided to refugees who arrived lawfully. If they leave Australia, they are not allowed to return.

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

Only refugees who are assessed by UNHCR while in the first safe country they reach (for example, Afghans in Pakistan), and who are selected by Australia for resettlement, will receive permanent protection visas in the first instance. Their families are able to join them in Australia.

The legislation also greatly reduced the grounds for judicial review of asylum claims and 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. The government attempted to remove some discretion from the courts, which government officials have viewed as too generous in interpreting the Refugee Convention.

In September 2002, Australia's High Court considered two challenges to the judicial review provisions of the Tampa legislation. The Court's decisions were expected in early 2003.

Onshore Asylum

Asylum seekers who arrive in Australia by air or with valid visas are handled through the domestic asylum adjudication procedure.

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 by the Refugee Review Tribunal (RRT) or, in some cases, the Administrative Appeals Tribunal, 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 FY 2001–2002, Australia received more than 8,600 applications for protection visas, a decrease of almost 35 percent from the previous year. The major countries of origin for new asylum seekers were China, Iraq, Indonesia, India, Fiji, and Afghanistan. DIMIA officers decided nearly 10,000 asylum claims at the primary stage, granting some 2,800 (29 percent) and denying almost 7,000. Of those granted, nearly 300 were issued permanent protection visas, while some 2,500 received TPVs. At year's end, more than 3,900 claims were pending at the primary stage.

The largest numbers of protection visas granted in the first instance went to persons from Iraq, Afghanistan, Iran, Sri Lanka, and areas controlled by the Palestinian Authority.

Of more than 1,000 visas granted after appeal to the RRT, more than 400 were permanent and nearly 600 were temporary. The RRT had more than 7,400 appeals pending at the end of the program year.

The immigration minister granted 25 protection visas (22 permanent and three temporary) under his "public interest" powers.

The government provides legal representation (for purposes of applying for asylum) 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 non-citizens 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. The majority of asylum seekers in Australia are detained for the duration of the adjudication process, which often takes months or even years.

Since the policy changes of September 2001, far fewer asylum seekers have been in detention, since new arrivals are unlikely to reach Australia's "migration zone." No unauthorized boat arrivals were transferred to mainland detention centers between September 2001 and the end of calendar year 2002. According to DIMIA, at the end of 2002 only 20 persons in detention had not yet received a primary decision on their asylum application.

In 2002, Australia closed one of its six mainland immigration detention centers and opened another. The changes, with more planned, were in response not only to the declining numbers of asylum detainees, but also to the widespread criticism of Australia's detention facilities, which in the last few years – including 2002 – have seen numerous riots, breakouts, hunger strikes, and other forms of protest by detainees.

In early September, the first group of asylum seekers took up residence in the newly built Baxter Reception and Processing Center, a high-security facility near the isolated industrial town of Port Augusta in South Australia. Baxter, the first purposely built asylum seeker detention center, was intended to allow DIMIA to close other detention facilities. Baxter's first residents were transferred from the controversial Woomera detention center, slated to close in 2003.

Later in September, the Curtin detention center near Derby, Western Australia was officially "mothballed," according to DIMIA. Ruddock said that Curtin, on the site of a former military base, was "able to be closed because of our efforts to curtail the activities of people smugglers. ... " A spokesperson for a refugee advocacy group described Curtin as "one of the worst of the worst" of the detention facilities. Upon closure, Curtin's detainees were transferred to Baxter.

Less than four months later, Baxter joined the other facilities as the site of protests. On December 27, detainees set fire at Baxter, beginning a string of arsons that would involve five of the six detention centers by the dawn of the new year. The detainees protested the conditions at the centers and, in some cases, the denial of their asylum claims. A prominent psychiatric specialist said the detention centers represented a "crisis of mental health" and were "breeding grounds for behavioral disturbances."

During 2002, Australia also began construction of a permanent detention facility on Christmas Island. Announcing the plans in March, Ruddock said the new facility would not replace the Pacific Solution, but could eventually replace some of the mainland detention centers. At year's end, the project was reportedly behind schedule, but would likely be completed in 2003. In the meantime, asylum seekers on Christmas Island are housed in a temporary reception and processing center opened in late 2001.

In late July, the UN Commission on Human Rights issued a report saying that Australia's detention of asylum seekers, including children, in remote locations breached UN treaties and was "inhuman and degrading." In response, Ruddock said the report was flawed and that it ignored the fact that people in immigration detention had arrived in the country illegally and were free to return home at any time.

In December, at a hearing on children in detention before Australia's Human Rights and Equal Opportunity Commission, testimony revealed a significant level of reported incidents of child abuse and neglect at the Woomera detention center. According to a human services official, most incidents involved physical abuse, including some incidents of sexual abuse, the participation of children in protests involving self-harm, and the neglect of children by severely depressed and traumatized parents.

Returns to Afghanistan

On May 16, Australia signed an agreement with Afghanistan's then-interim government providing for the voluntary return and reintegration of Afghans who had either failed to qualify as refugees or were still in the process of having their claims adjudicated. Australia would provide Afghans in either group with $1,100 each ($2,000 Australian) or up to $5,600 per family ($10,000 Australian), as well as airfare and support services, if they accepted the offer within 28 days of being denied refugee status.

Ruddock said that more than 1,000 Afghans would be immediately eligible, and that the offer would subsequently apply to more than 3,500 Afghans with three-year TPVs once those visas expired. According to Ruddock, the cash and other incentives would give Afghans "real choices" about what to do upon return to post-Taliban Afghanistan. Asylum seekers who rejected the offer and were eventually denied asylum would be sent home without the cash, he added.

The offer applied to Afghans who, as of May 16, 2002, were in the detention facilities of Nauru, the excised territories, or mainland Australia. Mainland asylum applicants with pending cases were required to withdraw their claims in writing to be eligible for the offer. However, asylum applicants could wait until their claims were decided and would still have 28 days after being notified of a negative decision (or, for those who appeal, 28 days after the appeal is denied) to accept the offer.

IOM administered the reintegration package and distributed the cash assistance upon the returnees' departure for the Afghan capital of Kabul.

By year's end, more than 300 Afghans had accepted the reintegration package. Of those, 274 had returned from Nauru and 40 from mainland Australia.

Afghans with three-year TPVs have until June 30, 2003 to volunteer for the reintegration program. An Afghan TPV holder who has applied for a further protection visa and who decides to accept the reintegration package prior to a decision must withdraw the visa application in writing and forgo any action before the RRT or the courts.

In late May, the government extended the offer to persons of all other nationalities with pending or rejected asylum applications on Nauru or Papua New Guinea. By year's end, approximately 20 non-Afghans – including Iranians and Sri Lankans – had accepted the reintegration package.

Temporary Safe Haven

At year's end, 192 persons (mostly from Kosovo) remained in Australia under temporary safe haven visas.

Australia created the visa in 1999 to provide temporary protection for certain 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 – both groups having been admitted to Australia for this purpose. In 2000, Australia granted temporary safe haven to 54 asylum seekers from Ambon, Indonesia who arrived by boat in Darwin, Australia. In 2002, Australia granted the visas to six persons from Iran and three persons from Iraq.

Most of the Kosovars returned home in 1999, and most East Timorese repatriated in 1999 and 2000 – in some cases after government coercion, such as the discontinuation of services. Most Indonesians returned home voluntarily within months of arrival.

Recipients of the visas must sign a declaration that they agree to Australia'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.

East Timorese Asylum Seekers

At the end of 2002, some 1,600 East Timorese who had sought asylum in Australia remained there. This group was distinct from the 1,800 East Timorese who were evacuated to Australia in 1999 and provided temporary safe haven.

Thousands 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 achieved independence in 2002.

Advocates for the East Timorese called on Ruddock to grant permanent residence to the entire group on humanitarian grounds – a request that he refused. In September 2002, the government began issuing decisions on the East Timorese asylum claims. By year's end, some 900 of the applications had been processed – all rejected. Ruddock said that he would intervene in cases of East Timorese with strong family links to Australia.