[NOTE: an updated version of this information briefing can be found here]
Up to 7500 asylum seekers who arrived in Australia by boat have been issued with an ultimatum to apply for refugee status by 1 October 2017. Asylum seekers who do not meet this deadline will be subject to deportation, prohibited from applying for any Australian visa, cut off from government income support and banned from re-entering the country. The Society has condemned this announcement as cruel, inhumane and a denial of fair and proper process. Imposing an arbitrary deadline effectively coerces people to lodge applications without legal support or advice, jeopardising their right to have their claims properly assessed and exposing them to risk of deportation back to danger and harm.
- What changes have been announced for asylum seekers living in the community?
On 21 May 2017, the Immigration Minister announced that asylum seekers who arrived in Australia by boat must lodge their application for refugee status by 1 October 2017. Those who do not meet this deadline will be deemed to have forfeited any claim to protection, prohibited from applying for any other Australian visa, subject to deportation, and banned from re-entering Australia.
For people who do not meet the deadline, any income support they are receiving will be immediately cut off. They will receive some minimal support until their removal from Australia is arranged, including access to Medicare and education for children.
The Government has indicated the October 1 deadline is “non-negotiable”.
This announcement follows on from letters which the Department of Immigration started sending to some asylum seekers late last year, informing them that they only had 14, 30 or 60 days to apply for asylum.
- Who is affected by this deadline?
As at 22 May 2017, there were around 7500 asylum seekers living in the community who were yet to lodge their application for refugee status.
They are among the so-called ‘legacy caseload’ who arrived in Australia by boat between 13 August 2012 and 1 January 2014.
As a result of the 'no advantage' policy which came into effect in 2012, more than 30,000 asylum seekers were left in limbo, living in the community but without any means of applying for refugee status. Most were unable to present their claim for asylum until relatively recently, with some waiting more than four years for the opportunity to lodge their application.
Of the 30,500 asylum seekers who make up the 'legacy caseload', 23,000 have applied for a protection visa.
Among the 7500 yet to lodge their application are families with children, single adult men and women, and unaccompanied minors. They are from a range of countries including Afghanistan, Iran, Iraq, Pakistan, Sri Lanka, Myanmar (Burma) and Somalia. Nearly 1200 of the 7500 are stateless, with no country recognising them as citizens. This includes a significant cohort who are Rohingya.
- Why has it taken so long for asylum claims to be lodged?
Asylum seekers who are yet to lodge their application for refugee status have been subjected to continuous pressure and punitive policy changes that include:
- waiting for several years to be able to apply for refugee status;
- legislative changes which remove procedural safeguards and raise the bar for refugee status;
- removal of access to permanent residence; and,
- a drastic reduction in funding for legal assistance and interpreting services.
According to the Immigration Minister, Peter Dutton, asylum seekers have been in Australia for “five, six, seven years claiming to be refugees but won’t provide any information, won’t answer questions, in some cases won’t provide information about their identity”.
However, the Minister failed to note that most of these asylum seekers have been unable to lodge their claim until relatively recently. It was not until July 2015 that the Government began progressively inviting them to lodge their application for refugee protection. By the time the final batch of invitations was sent last year, some had waited more than four years for the opportunity to apply.
Many have sought legal assistance but have been unable to lodge their claim due to the length and complexity of the application form, the massive backlog in the system, a lack of access to interpreting services, and underfunded and overstretched legal services. Due to unprecedented demand, some legal assistance services have waiting lists of more than 12 months.
- What are the problems with the refugee determination process, and why is legal assistance essential?
Asylum seekers who arrived by boat between August 2012 and January 2014 are subject to the so-called fast-track refugee assessment process, which removes basic procedural safeguards and appeal rights. Essentially, if an asylum seeker doesn’t get everything right in their application, they risk being rejected, with limited scope to correct a mistake, provide additional information or prove they are in need of protection. Under the fast-track process, the avenues for appeal are much more limited, lack independence, and do not enable new information to be considered. According to the Department: ‘if you do not give us all of your protection claims and we refuse your application, you might not have another chance to provide these claims’.
The process for determining whether a person is a refugee is arduous, and an error can have grave consequences. Applicants must fill-out complex forms that are more than 60 pages in length, together with a detailed statement of claim – all in English. The process is complicated enough for a native English speaker. For someone who may have experienced trauma, fled persecution, and has limited English, the process can be overwhelming.
It is crucial asylum seekers have access to legal assistance to navigate this complex application process. Despite this, the Federal Government no longer provides funding for refugee legal assistance and interpreters. A small number who are categorised as extremely vulnerable (such as unaccompanied minors) can receive government-funded assistance with their applications. But for most, the only option is to seek pro-bono legal support.
Refugee legal centres have scrambled to fill the gap but are pushed to capacity, with waiting lists that stretch into the thousands. With limited resources, these centres have been unable to provide assistance to all who need it within the arbitrary timeframes set by the Government.
- Why is the Society concerned, and what are we calling for?
The St Vincent de Paul Society condemns the Government’s announcement as cruel, morally reprehensible and a fundamental repudiation of Australia’s moral and legal obligations to those seeking asylum. We have called on the Government to revoke the arbitrary October deadline for submitting asylum seeker claims and to provide additional funding for legal support and interpreting services for those preparing claims.
Australia has an obligation to protect people fleeing persecution and to uphold the standards of procedural fairness when assessing refugee claims. Access to asylum can mean the difference between life and death. If due process fails, there is an increased likelihood that people will be wrongly refused protection and endangered by deportation to their country of origin.
The arbitrary deadline will effectively coerce people into lodging their application without legal assistance, increasing the risk that they will be returned to harm or persecution. It is the latest in a series of measures used by the Government to make applying for protection as difficult as possible. Since 2014, the Government has:
- Created complex and confusing application forms that are very difficult to complete without legal assistance;
- Removed funding for most legal support and interpreting/translating services for asylum seekers;
- Narrowed the criteria for refugee status; and,
- Removed access to proper review processes, which means if someone makes a mistake on their application form they may have limited appeal rights.
Without legal advice, asylum seekers may not have the opportunity to prepare an application that properly details their claims for protection. The threat of deportation heightens the likelihood that applications will be poorly prepared, thereby increasing the risk of a negative decision for those with legitimate claims for asylum.
To support asylum seekers through the complex and convoluted application process, it is crucial the Government reinstate funding for legal assistance and interpreting services. Many who are yet to lodge their application have in fact ‘engaged’ with legal centres. However, as a result of Government policy, these legal centres are severely overstretched, with waiting lists in the thousands.
Those affected by this process have waited years for the opportunity to apply for refugee protection. Prolonged uncertainty, enforced poverty, and the ever-present threat of deportation has brought many to the edge of despair. Professor Nicholas Proctor recently described the increase in suicides and suicide attempts among this cohort, and characterised their predicament as one of ‘lethal hopelessness’, with many ‘being at advanced stages of feeling mentally trapped, figuratively boxed in, especially hopeless and helpless’. For these asylum seekers, there is a real risk that the Government’s ultimatum will be a tipping point, pushing them over the edge.
Those who fail to meet the 1 October deadline will have their income support payments cut off while they await deportation. Some have already lost their support payments. Cutting off income support is cruel, inhumane and will only lead to further stress and mental deterioration. Current benefits are not enough to live on, and withdrawing these meagre payments will place asylum seekers in an untenable situation.
We call on the Government to immediately restore funding to legal assistance services, and to ensure those yet to make an application are given appropriate time and support to do so. They should not be threatened with deportation or the loss of benefits during this time.
- Why is the Minister’s characterisation of asylum seekers as “false refugees” misleading and inappropriate?
We also call on the Government to refrain from using derogatory, misleading and prejudicial language when discussing asylum seekers.
The Immigration Minister has labelled those who are yet to lodge their application as “fake refugees” who are “conning” the system. He says Australia can no longer afford to be “taken for a ride by people who refuse to provide details about their protection claims.”
Such statements grossly misrepresent the situation for people who have been denied the opportunity to properly present their claim. In our experience, asylum seekers living in the community are desperate to have their application processed so that they can get on with their lives. The Minister’s statement implies that it is their intransigence that is the problem, yet most were only given permission to apply for asylum relatively recently and face difficulties navigating the complex application process without legal assistance.
Critically, the suggestion that these people are “fake refugees” is at odds with any notion of fair process and is highly prejudicial. Before their claims have been assessed the Minister has pronounced judgement. Such statements merely feed into a toxic discourse that demonises asylum seekers, fosters suspicion, and perpetuates false stereotypes.
- What should you do if you, or someone you know, is an asylum seeker who arrived by boat and is yet to lodge their application?
If you, or somebody you know, arrived in Australia by boat between August 2012 and January 2014 and are yet to lodge an application for asylum, you should immediately
contact the legal centre or migration agent that is helping you; or,
- if you do not already have someone helping you with your claim, contact your nearest legal centre immediately to see if they can help.
You should do this before you talk to the Department: it is vital you get legal advice to assist with your application. The earlier you talk to a lawyer, the better.
Legal centres are doing everything they can to help people, but they are under-resourced and under-staffed. If you, or an asylum seeker you know, are yet to lodge their application, they should inform the legal centre when they first make contact.
Some asylum seekers may have already received a letter from the Department asking them to lodge their application for asylum. In some instances, asylum seekers who have not responded to these letters within a specified timeframe have had their income support payments suspended. If you believe this has happened to you, you should talk to the agency that provides your income support payments (i.e. your SRSS provider) as soon as you can. Once you submit your application, your support payments should be reinstated.