[updated 11 September 2017]      

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. 

See also:   Our media release on this issue

 

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 cut off. Some minimal support will be made available 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”. According to a media release issued by the Government on 1 September:

"Those who do not lodge an application before 1 October will be deemed not to have any genuine protection claims and will not be given another option to present claims. Their access to Government funded support services such as rental assistance and income support will cease."

Who is affected by this deadline?

As at 6 September 2017, there were 1,641 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. 

In addition to single men and women, more than half of those who are yet to lodge their application are families with young children. Those affected are from a range of countries including Iran, Sri Lanka, Afghanistan, Iraq, Vietnam, and Pakistan, Sri Lanka and Myanmar (Burma). Many are also stateless, with no country recognising them as citizens. This includes a significant cohort who are Rohingya.

Asylum seekers affected by the deadline are scattered across all the states and territories, however the majority reside in either Victoria or NSW.

Of particular concern, around 549 of those yet to lodge their claim do not have a caseworker and are not in contact with a government-funded service provider. This means they have been difficult to contact and may not even be aware of the pending deadline. This group are at particular risk of being denied the fundamental right to apply for asylum.

 

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 in December 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, limited access to interpreting services, and underfunded and overstretched legal services. 

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 processwhich lacks basic procedural safeguards and appeal rights.

Under this process, the avenues for appeal are limited and lack independence. 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. 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 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 Government has slashed funding to refugee legal assistance and interpreters. For most, the only option is to seek pro-bono legal support.

A small number categorised as extremely vulnerable (e.g. unaccompanied minors) can receive government-funded assistance with their applications. In addition, up to four hours of interpreting and translation services was recently made available for each adult asylum seeker. Translated information about the application process can be found here

Refugee legal centres have scrambled to fill the gap but are pushed to capacity, with lengthy waiting lists. In Sydney and Melbourne, fundraising efforts have helped services to meet the demand and reduce the waiting lists. However, in other locations, services are struggling to provide assistance to all who need it within the arbitrary time-frames 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 applications 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, many legal centres are severely overstretched, with lengthy waiting lists.

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 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 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.

Before the Government announced the October deadline for applications, some asylum seekers may have received a letter asking them to lodge their application for asylum within 60 days. These letters would have been received before May 2017, and were sent by the Department of Immigration to nearly 2,500 asylum seekers. Please note that people who received one of these initial letters still need to comply with the 60-day deadline. People who contact the Department within 60 days of the date of the letter can also be given an additional 30 days to apply.

The Government have now made available a number of translated documents and audio aids to assist asylum seekers who are preparing their applications. This includes:

  • Up to four hours of government-funded telephone interpreter assistance. Information about how to access this telephone assistance should be included in the letter sent by the Government.
  • Audio aids for the application forms in Rohingya, Hazaragi and Tamil.
  • Translated application forms and guidelines. These can be found here.

From 1 July 2017, applications can be lodged online through ImmiAccount. After 1 July, it will still be possible to send paper applications via mail. The Department will need to receive postal applications on or before Friday 29 September 2017.