Overview of the Australia’s Offshore Detention policy

The last two decades have experienced numerous amendments to the Australian’s offshore detention policy (Mares and Mares 2001, pp. 341). Majorly, as a political response to the ever increasing number of refugees and asylum seekers arriving the Australian coast by boats and a consequent reports of deaths at seas between Indonesia and Australia as well as the mistreatment of migrants including discrimination, sexual assault and murder, it is important to seek for further amendments of the policies as a remedy to the prevailing controversy. According to studies, 51,640 emigrants arrived in Australia within a period of 5 years to December 2013, and at least 860 deaths were recorded over the same period of five years. It is worth understanding that the both Australia’s major political parties in conjunction with the ministry of immigration have endeavoured to address the controversy surrounding Australian’s offshore detention policy through deterrence-based policies which seem to block access to protection as well as imposing heavy penalties on migrants who arrive by boat (Leach, M., 2003, pp. 25).

Impact of the Australian’s offshore detention policy and its amendments

In the period 2012 and 2013 financial year, the Australian refugee and humanitarian program had expanded to 20,000 places that have been divided between onshore protection and offshore resettlement. According to studies, this marks the largest increase to the program in three decades and is estimated to have resulted in 85% rise as far as the number of offshore resettlement visas issued is concerned. Furthermore, following the change of the government in 2013, the refugee and humanitarian program rescued to about 14000 places in which majority of these places were dedicated to offshore resettlement (Jupp 2014, pp. 540).

However, the department of immigrations projects an increase of 15% places by the year 2019. The government has recently announced that it would create additional 10,000 humanitarian places for refugees and asylums following the crises reported in Iraq and Syria (Hawkins, F., 1991, pp 618). Further, the government has announced that it is finalizing granting all 10,000 visas, despite the fact that some people are yet to arrive in the designated places. In the last three decades, the Australian’s offshore detention policy has had various amendments as outlined below (Mares and Mares 2001, pp. 341).

Community placements

In October 2010, the Australian government adopted the use of community detention as an approach to hold immigration detentions. The government has also begun to release a significant number of asylum seekers from all the closed immigration detention facilities and integrating them into the community on Bridging Visas (Hawkins 1991, pp. 43). Bridging Visas allow the immigrants to integrate themselves into the community pending resolutions regarding their protection claims. The department of immigration has discovered that most asylum seekers with the Bridging Visas are allowed to have access to the country’s universal health care system and receive living allowances that are equivalent to the 80% of Centrelink Special Benefit (Mares and Mares 2001, pp. 341).

The department of immigration has also ensured that people living in the community detention move freely and has the right to expression of speech but cannot choose where to live. That is, they should live in places whose addresses are determined and specified by the Minister for immigration. Such individuals are also subject to supervision arrangements and curfews. By 30th April 2017, the department reported about 560 individuals in community detention as well as more than 20,000 others living in the community on Bridging Visas (Steel et al. 2004, pp. 527).

Work rights

The Ministry of Immigration has dwelled tremendously with regard to work rights of refugees and asylum seekers. For example, by December 2014, the asylum seekers who had arrived in the country by boat after July 2012 and who had subsequently discharged from various immigration facilities and granted Bridging Visas were not eligible to work rights. In this note, by December 2014, the government granted work permits to the asylum seekers in this category. Before the amendment of the policy, individuals in community detention were not entitled to work rights (Borjas 2011, pp. 58).

That is, most asylum seekers could suffer and live in poor conditions. Nevertheless, most asylum seekers enjoy relief as they can now apply for Bridging Visas that grant them working rights in the country. It should also be noted that despite such as relieve, there is still some challenges of timely renewal of the Visas as well as practical barriers to securing employment. These challenges indicate that many asylum seekers have difficulty finding employment despite the right to work.  Furthermore, most of these face the problem of losing work rights especially when their claims are refused.

Access to case support

With regard to the refugees and asylum’s access to support, the Status Resolution Support Services (SRSS) program provides that some Bridging Visa holders with complex needs can access more intensive casework support. However, most individuals in this category claim that they receive little assistance that is below their income support (Betts 2003, pp. 169). With regard to the most vulnerable individuals especially people with disabilities, mental health and children may be discharged into the community detention, a community placement that is more supportive and restrictive and which provides more intensive support than those offering services to individuals on Bridging Visas (Steel et al. 2004, pp. 527).

Refugees with adverse security assessments

Individuals with the well-founded fear of persecution should be assessed and cleared by the Australian Security and Intelligence Organization (ASIO) prior obtaining protection visas. The ministry of immigration, through ASIO, issued adverse security and investigation assessments to more than fifty refugees between 2010 and 2011. According to the guidelines provided by the ASIO, individuals subject to the assessment could not be deported back to their countries of origin because they were recognized as refugees and thus the government could not release them to the Australian community.  Therefore, these individuals were denied protection visas and subsequently remained in definitely in the closed detention facilitates. It is worth noting that, contrary to the rights exercised by the Australian citizens and residents, refugees and asylum seekers are denied the right to appeal the assessment. That is, none of them receive evidence or reasons for the adverse security assessments (Steel et al. 2004, pp. 527).

However, since 2015, many refugees have been released into the Australian community following the overturn of the adverse assessment by the ASIO. Furthermore, the policy dictates that the individuals who have had ASIO assessment overturned to reapply for protection visas. For the refugees who are still in the protection facilities, this indicates longer periods of detention especially if the government intends to release them based on their possession of protection visas. For example, in August 2014, the UN Human Rights Committee reported indefinite detention of the refugees was contrary to the International Covenant on Civil and political rights.

Visa cancellations

Following the amendments to section 501 of the Migration Act 1958, there are additional grounds based on which refugees and asylum seekers can fail a character test. Interestingly, the amendments now allow the minister for immigration to nullify or cancel an individual’s visa on the basis of their character such as having a criminal record or posing or perceived to pose a threat to the Australian community (McMaster 2001, pp. 190). In this connection, individuals who have been sentenced to a year or more have their visas canceled. This means that the cancellation powers put refugees at risk of indefinite or prolonged detention because they cannot be deported to their countries of origin. Moreover, the co-location of individuals who spent time in prisons as well as individuals seeking asylum in the same detention facilities has resulted in tensions in the facilities and consequently intensified security measures put in place to manage the centers.

Border Force Act

In July 2015, the Australian Border Force (ABF) Act was enacted majorly to make crimes punishable by a period of 2 years imprisonment for entrusted individuals to disclose or make a record of protected information. Under the ABF Act, the entrusted individual could be a Border and Immigration worker including people employed or engaged by the Ministry of Immigration. This includes social educators, workers, and other contracted individuals by the Australian government to provide services on behalf of the Ministry. In October 2016, the ABF Act was further amended to exempt health professionals such as nurses and physicians working in detention from the description of Immigration and Border Protection workers. It is worth noting that the Act was amended before a High court challenge that was filled by a group comprised of nurses, doctors, and other health professionals.

Problems and solutions associated with the refugee and asylum policy

Adverse conditions and abuse

It has been noted with concern that the Australian asylum policy condones abuse such as sexual harassment and prolonged and unlawful detention. It is clear that Australia has failed to address the severe abuse of asylum seekers and refugees in a bid to discourage others from entering the country (McMaster 2001, pp. 190). Various reports have shown that refugees and asylum seekers attempting to infiltrate the country via boats are taken to the offshore processing centres on the pacific islands of Papua New Guinea and Nauru, with the Australian government catering for the processing of the applications.  For example, about 2,000 asylum seekers and refugees on Nauru have reported serious inhumane treatment and abuse by the residents and officials of the Australian government (Leach 2003, pp. 255).

That is, the conditions where the asylum seekers and refugees are housed are inadequate and comprise of cramped tents where temperatures are extremely unfavorable as they reach as high as 50oC.  Various interviews contacted by the Amnesty International and Human Rights Watch (HRW) has also indicated that these individuals are subjected to prison-like conditions such as two-minute showers, not allowed to use smartphones and regular search of their tent in the processing centre. In its efforts to review the matter, the ministry of immigration has raised various questions concerning the current Australia’s migration policy. Furthermore, there have been concerns that children detained in Nauru are at risk of post-traumatic stress disorder. This report was based on a reported traumatic incident in which two refugees held in Nauru had set themselves on fire in protest of the pathetic conditions they are subjected to (McMaster 2001, pp. 190).

With this regard, the HRW and Amnesty have described the Australian immigration policy as controversial, and an indication of a persistent failure to address such abuses and to some extent condoning and adopting the abuses (Correa-Velez 2005, pp. 23). The Australian government began the process of directing the refugees and asylum seekers to Nauru in 2013 following a significant rise in the number of individuals trying to infiltrate the country via boats (Mountz, 2011, pp. 381).

Recommendation/Option 1

The refugee and asylum seeker policy should incorporate clauses that protect the people from mistreatment in the detention facilities. The clause should include access to basic needs such as food and shelter. The policy should also incorporate severe punishment to both the residents and government officials found guilty of mistreating the refugees and asylum seekers. Such penalties should include heavy fines or long-term imprisonment or both for individuals found guilty of perpetrating such offenses (Correa-Velez 2005, pp. 23).

Restricted Media Access to Nauru

Because the Australia’s refugee and asylum seekers have restricted media access to Nauru the policy has been described as controversial. Furthermore, in 2014, the government hiked its media visa application fee from $147 to $5862 and fixed it as a non-refundable amount in the event of rejection. The HRW and Amnesty and other stakeholders have described such a clause as very high and exploitative. With this regard, visa requests by media firms such as ABC and Al Jazeera have been rejected. Moreover, ABC’s Ginny Stein reported that even before submitting an application she was discouraged and informed that it had been rejected. It was until October 2017 that the first foreign journalist was granted access (Every and Augoustinos 2007, pp. 411). At one time, an associate editor of the Australian criticized foreign outlets for projecting complaints from refugees and asylum seekers in Nauru without him being on the ground to verify the information and also, being the first foreign journalist to access be granted access to the island, having vague knowledge about the information. Interestingly, Kenny reported that the support for the strong border protection policies contributed to his application’s success (Correa-Velez 2005, pp. 23).

Recommendation/Option 2

With regard to the restricted access of foreign journalists accessing detention facilities, the current Australian’s offshore detention policy should incorporate lenient considerations of the application for access (Silove 2000, pp. 604). Such lenient restrictions would permit journalists into accessing the detention facilities and air some of the challenges faced by the individuals. Consequently, such penetration into areas such as Nauru would elicit global concern and, therefore, measure from global governments and well-wishers would intervene and help cover some costs.  Since it is a basic human right to have access to information, there ought to be the enactment of policies that prohibit the ban on Facebook and other social media as well as the use of smartphones in the Nauru Island (Murray and Skull 2005, pp. 25). This would result to positive results contrary to the perception of the Nauruan government that social media is a powerful tool for disrupting, embarrassing and destroy its reputation and consequently its instability (Dudley 2003, pp. 102).

Delays in refugee and asylum seeker determination and pressure for its application

Under the Australian immigration policy, most refugees and asylum seekers, who come to the country by boat, await for over three years before they get an opportunity to lodge a protection application. Although the Australian’s offshore detention policy permit this group to apply for protection visas, the refugee status determination is frequently suspended for the group. This has been reported as a challenge as the department of immigration normally takes longer to lift such a ban once it is imposed (Every and Augoustinos 2008, pp. 562). Furthermore, the scraping out of government-funded legal advice which has led to the long waiting list to access a lawyer who can assist in lodging a visa protection application has been a significant barrier. This prompted the issuance of warning letters by the department of immigration to the asylum seekers who had not applied for the protection visas as well as those who were in the long list of community legal centers (Gibney 2004, pp.783).

Recommendation/Option 3

There should be an amendment to the current policy stipulating a specific timeline within which asylum seekers and refugees visiting the country can be granted an opportunity to lodge a protection application (Gibney 2004, pp.783). There should be clear guidelines, for example, people should be given 30 or 60 days with a possibility of a 10-day extension and should be advised that failure to do so would lead to losing bridging visas, welfare payment and the right to lodge their applications. Furthermore, it should be stated clearly that if people fail to seek for protection visas through an application by a certain date, they would be barred from applying for a permanent or temporary visa in the country and, therefore, should return to their countries of origin.  Such amendments would curb the problem of the delays in the detention facilities as well as relieve pressure for application of visas and protection among the refugees and asylum seekers (Steel 2006, pp.56).

Further, the existing policy should include a fast track RSD process especially for asylum seekers arriving by boat. That is, in the event their claims are nullified by the department of immigration, the group of asylum seekers should no longer be able to apply for review to the independent statutory authority for conducting merits review of the claims (McMaster 2002, pp. 279). The policy should also be in such a way that the department of immigration would have the mandate to decide which of its own negative decisions would be presided over by the Immigration Assessment Authority. With this regard, the Immigration Assessment Authority would provide a far more limited form of review. That is, asylum seekers would no longer be interviewed, and no further information can be presented except in exceptional circumstances (Clyne 2005, pp. 173).

Conclusion

The Australian’s offshore detention policy is a test in how a country can balance its right to determine who enters into the country with the rights of the world’s dispossessed. In 2001, the country was believed to set itself apart, especially following the Tampa affair incident that brought its policy to the public domain and operationalized. It is clear that the over the years, the refugee and asylum seekers policy have flaws and controversies that need to be addressed through amendments of the some of the Acts or reforms. Some of the controversies or flaws identified include adverse conditions subjected to the refugees and asylum seekers, abuse including sexual and physical assault and restricted media access to detention facilities such as Nauru. Other controversies that have marred the policy include delays in refugee and asylum seeker determination and pressure for its application, work rights and prolonged detention period in Nauru and Papua.

It is therefore critical to recommend some of the reforms that the ministry of immigration must put in place in order to address the identified controversies. For example, the ministry must ensure that the right of the refugees and asylum seekers are granted. The ministry should also pass ensure safety in the detention facilities, strict adherence to the timeline within which the Bridging visas and protection application should be granted to the refugees and asylum seekers. Finally, there should be amendments regarding access to information and the authorization of foreign journalists into the detention facilities.

Briefing Package for Incoming Minister: Australia’s Offshore Detention policy