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Issue #1540      21 March 2012

“Manifestly unjust” asylum seeker laws opposed

An enormous gap is opening up between the federal government on the one hand and the legal profession and judiciary on the other, over immigration policies.

The Senate is inquiring into a proposal by the Greens to abolish mandatory sentencing. In one submission the Judicial Conference of Australia, an organisation of judges and magistrates, has protested strongly at being forced to impose excessive, arbitrary and “manifestly unjust” sentences, because of the government’s mandatory jail terms of a minimum three years for people smuggling.

Most of those charged are not people smugglers but young Indonesian men or boys who worked as crew members to help their impoverished families. Even those who are acquitted have often endured up to 18 months in prison before their case is heard.

The number of acquittals is now rising, and less than half of the people-smuggling cases since the beginning of last year resulted in convictions. Barrister Phillip Boulten, QC, commented: “There’s a sneaking suspicion that (juries) are exercising some sympathy for the accused …”.

Another major area of concern lies in the huge number of appeals against rejection of applications for refugee status. The government provides funding for legal assistance to asylum seekers to make their initial case for refugee status. In 2010 the High Court ruled that asylum seekers were also entitled to appeal to the courts against official rejection of their applications, but the government refused to grant extra funding for this.

Asylum seekers have therefore had to depend on assistance from legal professionals working pro bono – i.e., without charging a fee unless they’re successful; or for free. The shortage of pro bono lawyers has resulted in a huge backlog of appeals.

If detainees can’t get legal assistance, they have to prepare their appeals themselves, an impossible task for most of them.

A permanent warp

Statistics indicate a bias by government against Iranian and Afghan applicants. In the first three months last year the government accepted only 9 percent of Iranian applicants as genuine refugees, and only 26 percent of Afghans. After the Christmas Island and Villawood riots last year the figures suddenly rose to 50 percent and 57 percent respectively. After judicial review the figures rose again.

The courts have overturned most of the government’s negative decisions on applications for refugee status. As a result, in 2009–2010, 88 percent of applicants (including those initially rejected by the government) were found to be genuine refugees. The figures for subsequent years are expected to be similar.

Despite this, the government is still unwilling to change its relatively negative approach to applications for refugee status. Until last week the government had advised asylum seekers whose applications had been rejected that they had 55 days to seek a judicial review, after which time they were likely to be deported. However, last week the Federal Court declared there was no time limit for submission of applications.

The government also continues to insist that the riots at the Christmas Island and Villawood detention centres were instigated by detainees on a “downward path” i.e., they weren’t genuine refugees, hence they were likely to be deported, and that’s why they rioted. However, almost all have now been found to be genuine refugees.

Name the crime

The government’s immigration policies such as mandatory detention are based on the assumption that asylum seekers have broken the law by arriving unannounced by sea. In fact, there is no Australian law that forbids this.

Moreover, the 1951 UN Convention on the Treatment of Refugee, to which Australia is a signatory, obliges us to care humanely for all asylum seekers – regardless of their manner of arrival – while their applications for refugee status are dealt with.

Widespread objections recently forced Serco, the private firm running the detention centres to issue a formal apology for having described detainees as “offenders”. Nevertheless, both the government and the opposition continue to refer to them as “illegal immigrants”.

The association of asylum seekers with allegedly criminal behaviour was recently highlighted by a remark from ABC TV journalist Leigh Sales that it was easier to visit a prisoner at the infamous Guantanamo Bay jail than an Australian immigration detainee.

Instead of responding by seeking more humane and open visitor policies, immigration authorities apparently sought information on rules governing media interviews with prisoners at Guantanamo Bay!

As a result, visiting journalists must now sign an agreement based on policies currently in force in Australian prisons and on “the current US Department of Defence media access policy for its detention facility at Guantanamo Bay”, according to a confidential official document.

Under this agreement, journalists visiting detention centres must be escorted by immigration officials, and cannot have “substantive communication” with detainees. The agreement does not acknowledge the right of asylum seekers detainees to protest at unjust detention. Officials can censor recordings or terminate visits at will, because detainees might “use the media’s presence as an opportunity to protest their continuing detention”, as the Department of Immigration’s national communications manager declared.

Greens senator Sarah Hanson-Young has claimed that the reason why the government has failed to sign a new UN treaty recognising the right of children to complain about mistreatment by government is because mandatory detention of children would place Australia in breach of the treaty.

That official association of asylum seekers with “illegal” entry facilitates extreme and racist behaviour concerning asylum seekers. The federal opposition spokesperson on immigration, Scott Morrison, has been criticised for suggesting that asylum seekers spread disease (an allegation Hitler made against the Jews). A grossly inaccurate petition alleging that asylum seekers receive almost $57,000 per annum in government allowances is currently circulating on the Internet.

The government has promised to scrap the current system under which applications from asylum seekers who arrive by air are dealt with differently from those who arrive by boat. However, the fundamental problem of treating the latter as having broken the law remains in place.

Senator Hanson-Young commented: “They have forgotten they are dealing with asylum seekers, not criminals or terrorists.”  

Next article – Editorial – What is the SAS doing in Africa?

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