Transitory persons, precarious lives: irregular migrants in Australian law (Part 1)

As workers and students were occupying and rioting across Europe in December last year, activists in Australia were again mourning the tragic loss of life of undocumented migrants.[1] On the 15th of December a boat carrying 100 asylum seekers was wrecked against rocks in rough seas off Christmas Island, at least 48 of those on board drowned. The tragedy came soon after three suicides by immigration detainees and an upsurge in hunger strikes and other protests inside Australia’s detention centres. At the time of writing, detainees on Christmas Island were the middle of a week of breakouts and riots. A Department of Immigration and Citizenship spokesperson nicely summed up the mood of detainees: “It would seem [the protesters] were quite intent on causing the maximum disruption and causing the maximum level of violence and property damage that they could inflict on the centre.”

How could it have come to this again? In 2007 the hated Howard Liberal (Tory) government was thrown out in an electoral landslide. Part of the explanation for that result was the impact of probably the most sustained and powerful social movement Australia has seen in 20 years. The movement’s main target was the policy of mandatory detention of asylum seekers. Australia’s policy since the 1990s has been to detain asylum seekers while their applications for protection visas are assessed. They remain in detention until they are either granted a visa and released or deported. It has been common for this to be a period of several years. The ‘detention centres’ are quite literally camps, located in remote desert or island locations with barbed-wire, electric fences, brutal guards, midnight head-counts and detainees addressed only by their number. The movement began with detainees themselves taking action inside the camps and spread with collectives springing up across all parts of the country. Much of the movement was liberal, focusing on children, collecting toys and lobbying. But it was also characterised by more radical action, particularly inside the camps with rioting, sabotage and escapes. Outside a huge movement grew, mobilising new activists and old. There were lots of cases of people who had never previously been involved in political action signing up to hide escaped detainees and engage in civil disobedience. Slowly but surely the policy of mandatory detention on which Howard had built a new Australian nationalism was eroded.

Before the demise of the Howard government, it had been forced to release children and families from detention. The Kevin Rudd-led Labor Party went into the 2007 election with a promise to further unwind the policy. Specifically, mandatory detention would only occur for the purposes of health and security checks with a goal of release within 90 days. The hated Temporary Protection Visas that denied refugees any certainty were to be abolished. Rudd infamously declared the new policy would be “tough but humane”. This was still a very problematic regime, maintaining the exclusion of undocumented migrants as potential terrorists or carriers of disease. It also left unchallenged the notion that to gain access to the Australian community other than through the official border, migrants are forced to present themselves to the Australian state as an innocent victim in fear of UN Refugee Convention-recognised ‘persecution’ and in need of protection. All aspects of an asylum seekers life and the reasons they decided to leave become irrelevant except as they relate to UN convention persecution. Nonetheless we thought we had won a victory that meant an end to the years of detention many endured under Howard, followed by the uncertainty of temporary visas subject to deportation when the government decided a country like Hamid Karzai’s Afghanistan was suddenly safe. We thought that detention would last only a few months at most before asylum seekers would be released into the community. The reality that has emerged over the past 18 months is that the Labor government has continued the same regime for policing the Australian border by physically and legally excluding undocumented migrants from Australia.

‘The absolute scum of the Earth’

Undocumented migrants are physically excluded through a murky policy of providing funding for the Indonesian government to more effectively prevent then ever reaching Australian waters. The Immigration Minister recently boasted that his government “is devoting unprecedented resources to protecting Australia’s borders.” Most undocumented entrants pass through Indonesia before trying to reach Australia. Many are granted UN refugee status in Indonesia, but they then face more than ten years with no access to basic services waiting for official UN resettlement. According to an Afghan man caught in this situation, “Actually, I have been in jail for nine years. Even though, I lived outside, it was the same like jail. Even food sometimes was very difficult to get.” They receive a small ‘allowance’ from the International Organisation for Migration.[2] However the allowance is often paid to hostel owners that accommodate refugees, who often steal it. Not surprisingly, many decide to take the risk of getting to Australia by boat. The government pours its ‘unprecedented resources’ into shady operations of the Australian Federal Police (AFP), the Australian Security and Intelligence Organisation (ASIO) and the Indonesian Navy and Police that attempt to disrupt ‘people smuggling’ operations and prevent boats leaving or intercepting before they reach Australian waters. Tony Kevin’s excellent investigation into the sinking of the asylum seeker boat known as the SIEV X in 2001 documents some of the sabotaging of boats that occurred as part of these ‘disruption programs’.[3]

In order to justify this approach in the context the new ‘humane’ policy, the government has put a heavy emphasis on the deviance of ‘people smugglers’ and the need for harsh policing to protect asylum seekers from them. Then Prime Minister Kevin Rudd called ‘people smugglers’ “the absolute scum of the earth.” Many of those caught by Australian anti-people smuggling laws are poor fishing boat operators. They go into debt to buy a boat and when they cannot make the repayments, they are forced into using the boat to transport undocumented migrants or to fish illegally. Further pressure was created in 2009 when an oil spill off Western Australia destroyed fishing grounds off West Timor. The two men who were the specific target of Rudd’s ‘scum of the earth’ tag were fisherman. They were charged and found guilty in 2009. During sentencing, the judge stated he would have preferred to have imposed a lesser sentence than the statutory minimum in light of the fact that they were simply fisherman confronting economic hardship.[4]

Between 2000 and 2005 out of 1000 allegations, only 19 people were charged with people smuggling and only 17 were convicted.[5] It is likely that many of those targeted by people smuggling allegations are asylum seekers being harassed by the AFP in the hope of deterring them from seeking to reach Australia. Even the few who are prosecuted are often asylum seekers helping to organise passage for themselves and others. In one documented case an Afghan man had paid for transport from Jakarta to Australia by boat. The boat got lost and drifted back to Indonesia. Furious that he had been ripped off, the man contacted Australian Federal Police to offer a deal: information on the ‘people smuggler’ in return for resettlement in Australia. The AFP refused the deal so he refused to give them the information. A year later the AFP instructed the Indonesian police to arrest him on people smuggling charges. In another case, Iraqi Hadi Ahmadi was sentenced to seven and half years jail for assisting 911 asylum seekers to reach Australia on four boats.[6] Ahmadi had UNHCR refugee status and had made two unsuccessful attempts to get to Australia by boat himself. He told the court that he had assisted the asylum seekers out of a sense of compassion and had not received any money. The case against him relied on an informant who was paid $250,000 by the AFP. Another Iraqi sentenced to concurrent six and eight-year jail terms, Ali Al Jenabi, was described by one of the asylum seekers he ‘smuggled’ to Australia as “[T]he best smuggler. He had a good heart. He was not hard, not a greedy person.”[7]

There are undoubtedly some people exploiting undocumented migrants and asylum seekers for profit. But this is no greater crime than the Australian government brutalising and exploiting asylum seekers for political gain. There is no ‘legal’ way for undocumented migrants reach Australia, whoever they are, the ‘people smugglers’ are presently their only option.

A new round of legislative amendments to Australian anti-people smuggling laws in 2010 introduced an aggravated people-smuggling offence that carries a maximum penalty of 20 years in jail and a minimum mandatory sentence of eight years.[8] Aggravating circumstances include conduct giving rise to danger or death of people smuggled, which would apply to every boat setting out for Australia. The amendments also created a new offense of providing material support to a people-smuggling operation with a maximum penalty of ten-years jail. This offense can apply to charity organisations or family members providing funds to undocumented migrants to help them pay for passage or to groups of migrants who cooperate to organise group passage. There are already reports of family members of asylum seekers being charged in this way.

Border policing operations and harsh anti-people smuggling laws result in boats carrying asylum seekers taking greater risks to avoid detection by Australian authorities. So if they get into trouble, there is a greater likelihood that there will not be any boats in the vicinity to effect a rescue. This might be what happened with the boat that was wrecked on Christmas Island in December. Although there is evidence that the Australian government may have knowingly allowed refugee boats to sink in the past.[9] There is also no evidence of the Australian Navy previously having failed to detect and intercept a boat on approach in recent years. Anecdotal evidence also suggests that the anti-people smuggling laws result in fewer experienced crews agreeing to take boats to Australia, leaving migrants in the hands of less experienced crews.[10] Crews often have no choice but to abandon boats at sea to avoid prosecution. This leaves passengers, sometimes with a GPS navigation device, to the mercy of the ocean. Another tactic used by the Australian Navy is to intercept asylum seeker boats and tow them back to Indonesia. To get around this, less seaworthy boats are preferred, on the basis that they are not fit to be towed back forcing the Navy to pick up the asylum seekers. The bottom line is government policy has turned seeking asylum in Australia into a potentially deadly endeavour.

In his excellent recent book Border Crimes, Mike Grewcock shows how these policies transform undocumented migration from a humanitarian issue to one of national security and border protection.[11] The Howard government gave its policing activities a military title: Operation Relex, in 2006 that became Operation Resolute. The association of undocumented migrants with the military and federal police characterises them as deviant and undeserving. It also fabricates an emergency situation in which Australian borders are under threat of invasion or of being overwhelmed. This emergency both justifies and is justified by policing and detention operations.

Ministerial discretion, national security and transitory persons

This physical exclusion is backed by a legal exclusion that attempts to capture undocumented migrants in a permanent exception in relation to Australian law. This process began under Howard with the so-called Pacific Solution. Most boat arrivals do not reach the Australian mainland. Instead they land on islands to Australia’s north that are under Australian jurisdiction or are intercepted in Australian waters. The Howard government enacted legislation that excised almost 5000 such reefs and islands from the Australian migration zone, deeming them ‘excised offshore places’.[12] Having reached an excised offshore place, an asylum seeker becomes an ‘offshore entry person’ and thus cannot lawfully make a refugee visa application according to the terms of the Australian Migration Act 1958 (Cth). However, the Act has provision for the Immigration Minister to grant discretionary leave to apply for a visa if it is deemed ‘in the public interest’ to do so.[13] This ministerial discretion has given rise to a non-statutory ‘offshore processing’ regime which virtually all boat arrivals now go through. The increased border policing operations are designed to ensure that most asylum seekers don’t reach the mainland and so fall into this offshore processing system.[14] After a group of asylum seekers from West Papua succeeded in reaching the mainland the Howard government unsuccessfully introduced a bill to extend offshore processing to all asylum seekers, to effectively excise the Australian mainland from the Australian migration zone.[15]

Offshore entry persons may be taken to another country for processing where, according to the Act, they become a ‘transitory person’. The Howard government did a deal with the world’s smallest Pacific Ocean island nation, Nauru, providing over $100m in aid payments allowing it to build a detention and processing centre where these transitory people were held for as long as seven years.[16] It was almost impossible for lawyers, or anyone else, to get to Nauru. In 2007, the Labor government closed the camp on Nauru allegedly ending the Pacific Solution. But the policy has simply continued in a different place, the new detention facility on Christmas Island, complete with electric fences, microwave probes that detect movement, CCTV cameras all over the camp and in every room that beam video back to a control room in Canberra and centrally controlled locking and access to all rooms. Like Nauru, Christmas Island is a long way from the Australian mainland, so it’s not possible for activists to get there to, say, throw mobile phones over the fences, sneak video cameras in and out or help detainees rip down the fences and escape, all of which was done to great effect even at the remote desert detention centres on the mainland. It also makes access by lawyers or visitors very difficult.

The first step after the asylum seeker is taken to the remote detention centre is an interview with a migration department official to determine whether there is a prima facie case for protection according the UN Convention on Refugees. There is no representation or advice of any kind at this stage apart from what asylum seekers pick up on their journey and unless the detainee uses very specific convention language relating to fear of persecution, they can be ‘screened out’ and removed. AFP officers are present during the initial interview and a transcript is made which is available to departmental refugee status assessors and independent reviewers, but not to the asylum seeker or their representative. Despite this, any discrepancies between what the asylum seeker says at the initial interview and what they say later after receiving advice and representation, is used to discredit their case.

If a prima facie case is found, then the detainee can apply for a Refugee Status Assessment (RSA). Applicants have no formal right to independent legal representation through the RSA process and had none under the Howard government.[17] In 2008 the new government decided to provide government-funded ‘representation’, however contracts for the provision of this representation have been reported in some instances to have gone to inexperienced and incompetent lawyers. Some contracts have been taken by genuinely independent refugee advisory NGOs, but because of the remote location of detention facilities and timeframes set by the department, they have extremely limited time to work with asylum seekers to prepare their applications.

Once the application is made, the applicant is interviewed and their claim assessed by an immigration department official.[18] The government provides interpreters at this stage but there have been reports of interpreters coming from religious or ethnic groups hostile to the applicant. If the government official assessing the case does not find that Australia owes the applicant protection obligations, their application is rejected. Prior to 2008, the only right of appeal at this stage was to another, more senior immigration department official. Since 2008, the right to ‘independent merits review’ was granted.[19] This process involves an ‘independent’ reviewer, contracted and appointed by the Minister, who reassesses the merits of the case. Not much is known about the terms of the contract between the department and the independent reviewers who are provided by a recruitment agency called Wizard People Pty Ltd. The department has prepared guideline manuals for Refugee Status Assessors and Independent Reviewers, however these guidelines are non-statutory and as such cannot be relied on or enforced by applicants. Anecdotal evidence suggests that about 70% of these reviews find that the applicant is owed protection.

If the RSA finds that Australia does owe the applicant protection obligations they are still not guaranteed a visa. Successful RSA applicants are referred to the Minister to determine whether it is in the public interest to allow them to make a visa application, which is determined by an ASIO security check. As with rendition practises in the US, virtually no information is made available about how the ASIO security check is conducted or decisions reached and there is no right of appeal. Two detainees recently brought an action in the Federal Court challenging ASIO’s adverse security finding against them and alleging that ASIO’s refusal to provide reasons for its finding was a breach of procedural fairness.[20] They were successful in an action for discovery, however Sundberg J denied the detainees access to the documents on the basis of an ASIO affidavit alleging that their production would prejudice national security and the public interest. Hence the documents could not be entered in evidence for the substantive hearing. The detainees therefore asserted that since no facts existed that could justify ASIO’s adverse finding, ASIO must have relied on irrelevant evidence and ignored relevant evidence and that ASIO’s refusal to produce evidence must be inferred to indicate none existed. [21] The court rejected this argument on the basis that ASIO’s refusal to produce evidence was legitimate, that national security trumps procedural fairness, and that since the reasons for the finding were unknown, it was impossible to conclude whether the evidence relied was irrelevant. In other words, ASIO is free to make decisions on the public interest of allowing an asylum seeker to make a visa claim without having to provide any reasons or evidence to parliament or the courts. It is important to remember here that applicants only reach the stage of an ASIO security assessment once they have been assessed as being owed protection obligations, that is they are a ‘genuine’ refugee, and hence according to international law, they cannot be returned to their country of origin. The adverse security finding bars them from making a visa claim and so they are held in indefinite detention.

There is anecdotal evidence that ASIO has based adverse findings against some Sri Lankan Tamils on information from the Sri Lankan government, which was (and still is) in the process of waging a genocidal war against Tamils. Wherever the evidence comes from, most of the adverse findings are assumed to result from some association with the Liberation Tigers of Tamil Eelam (LTTE). The Australian government has no business passing judgement on how Tamils pursue their struggle for self-determination. Regardless of how we might view the politics or tactics of the LTTE, it does not pursue its struggle in foreign countries. This means the only motivation the Australian government can have in declaring LTTE members or associates a ‘security risk’, is to add legitimacy the Sri Lankan government’s war against them.

>>> Part II


[1] Unless stated otherwise, information contained in this article comes from the personal experience of the author or from personal correspondence with former and current detainees, activists and legal advocates. Much of this information is contained in media releases by the Sydney Refugee Action Coalition and can be found at http://refugeeaction.org.au/. Special thanks to Ian Rintoul and Louise Buon-Kuo for information and suggestions.

[2] IOM is the principal intergovernmental migration agency. Its mission is to provide “humane and orderly migration for the benefit of all” http://www.iom.int/jahia/Jahia/about-iom/lang/en (emphasis added).

[3] Kevin, A.C. A Certain Maritime Incident: The Sinking of Siev X Scribe Publications 2004

[4] The Queen and Mohamid Tahir and Beny, NTSC, SCC 20918263 and 20918261, transcript of proceedings, 28 October 2009.

[5] Grewcock, Michael ‘”Scum of the Earth”? People-Smuggling, Criminalisation and Refugees’ (2010) 19 3 Human Rights Defender (UNSW): n.11.

[6] Ibid.

[7] Ibid.: 16.

[8] Anti-People Smuggling and Other Measures Bill 2010

[9] Kevin, A.C. A Certain Maritime Incident: The Sinking of Siev X Scribe Publications 2004

[10] In a Senate Estimates hearing the Secretary of the Department of Immigration and Citizenship, Andrew Metcalfe, admitted that the government is aware of young and inexperienced crews being used on asylum seeker boats without admitting the role of government policy in encouraging this: www.aph.gov.au/hansard/senate/commttee/s-news/s13572.pdf p.72.

[11] Grewcock, M. Border Crimes: Australia’s War on Illicit Migrants Institute of Criminology Press 2009

[12] S.5 Migration Act 1958 (Cth)

[13] Ibid, S.46A

[14] The government attempted to extend these arrangements to the entire Australian mainland. The Bill passed in the lower house but was withdrawn following opposition in the Senate: Penovic, Tania and Dastyari Azadeh ‘Boatloads of Incongruity: The Evolution of Australia’s Offshore Processing Regime’ (2007) 13 1 Australian Journal of Human Rights 33: 37-38.

[15] Migration Amendment (Designated Unauthorised Arrivals) Bill 2006

[16] Grewcock, Michael ‘Systems of Exclusion: The Rudd Government and the ‘End’ of the Pacific Solution’ (2008) 19 3 Current Issues in Criminal Justice 367.

[17] Despite many attempts, only one lawyer was ever granted entry into the detention centre on Nauru.

[18] A new process was introduced in March 2011 in response to the 2010 High Court decision. Under the new procedure the first stage, called the Protection Obligations Determination, is “streamlined” to quickly determine whether the applicant is obviously subject to Australia’s protection obligations or whether the case is more complicated and needs to be referred to the review stage. This effectively means there is only one proper assessment stage with no right to merits review. For more information on the new process see: http://refugeeactioncoalitionsydney.files.wordpress.com/2011/03/legal-obligations-fact-sheet2.pdf .

[19] Note the distinction between merits review and judicial review: in general, judicial review only examines the process by which a decision is made, as long as the process was lawful, the decision stands. Merits review re-examines the facts of the case to determine whether the decision was fair.

[20] Sagar v O’Sullivan [2011] FCA 182 (4 March 2011)

[21] Parkin v O’Sullivan [2009] FCA 1096 (30 September 2009)


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