The International Regime

The Australian Response

The Refugee Council of Australia

The Difficult Issues

Conclusion
 

Ladies and gentlemen, it is a great honour to be invited to attend this conference.
 

Background

In Australia and perhaps New Zealand today, refugees are amongst the most vulnerable and, unfortunately, sometimes the most maligned and vilified.

The continuum of history teaches the cyclic nature of human experience:  both its tragic moments and those moving experiences which rouse our compassion and provide us with that further impetus to keep on trying to achieve the goals which we all espouse.

Those of us who have both the fortune and misfortune to deal with the plight of refugees experience these sentiments on a daily basis.  We all hold dear fundamental principles of the Rights of Man as expressed in the Universal Declaration of Human Rights on which the United Nations is founded, and the 50th Anniversary of which we celebrated last year, and which is underpinned in the human rights Covenants which have been ratified by that Body and endorsed by Australia and New Zealand.  Let us never lose sight of the fact that almost invariably refugees are victims of the failure of governments both individually and collectively to uphold these principles and the rule of law.  We are fortunate in that in recent years our two countries have never been the cause of an outpouring of humanity.  On the contrary, our countries have a proud record of opening our collective arms to those who have been in no other position than to seek our compassionate support.

Cambodia, Rwanda, Burundi, Bosnia and former Yugoslavia, Guatemala, Cechnya, East Timor, Tibet, Afghanistan.  Each of these distant countries which almost none of us would have visited is now etched on our brains by the tragic sights seen on television of their dispossessed peoples. Formerly quiet backwaters, safe havens, they have become nightmares for their inhabitants and yet another challenge to the humanity of the international community.  As we sit in our armchairs watching the suffering which seems never-ending, we must always remember that each refugee and displaced person from these and other countries is an individual, a person like all of us who breathes, eats, has relationships, feelings, hopes for themselves and their offspring.  We must resolve never to succumb to that most odious of late twentieth century sentiments, compassion fatigue.  Let us always remember the remark of John Bradford on watching people being led to their execution in the sixteenth century:  "there but for the grace of God go I".

There are now more refugees and internally displaced people in the world than at any time in human history.  The UNHCR estimates there are approaching 24 million people of concern to it including some 13 million refugees.

We in Australia and New Zealand have a unique geographical location, so isolated from the rest of the world and immune from its natural and man-made disasters.  In Australia our press regularly exaggerates the so-called "boatpeople threat".  The reality is that between 1 November 1989 and December 1998 only just over 3,000 people arrived by boat unvisaed in Australia.  Not tens of thousands a year as the prophets of doom and racial prejudice would have us believe.  Compare this to the 250,000 Burmese who flooded Bangladesh in the early 1990s, the 4 million Afghans in neighbouring countries, the millions in Africa and the hundreds of thousands applying in Germany annually.  Do we really have a problem?

Our countries' benefit however carries important responsibilities.  We are a nation of small population, a nation of wealth, and a nation rooted in a commitment to democratic principles.  We must use these assets not only for the well-being of those fortunate enough to have been born or allowed entry permanently to this country, but also for the benefit of our fellow human beings.  We must not retreat into a fortress of selfishness.

Non Indigenous Australia is a country of immigrants, a large number of whom came as refugees.  In New Zealand, I believe the situation is comparable.  Most of us here today are either immigrants or children of immigrants.  Those lucky enough to be born here and more sadly those who have migrated often forget the problems of their forefathers.  Remember the words of Leviticus 19:33 and 34:

 33.    And if a stranger sojurn with thee in your land, ye shall not vex him
34.    But the stranger that dwelleth with you shall be unto you as one born among you, and thou shalt love him as thyself; for ye were strangers in the land of Egypt:  I am the Lord your God.

Similar words appear in 3 other chapters of the Old Testament.  How significant is this biblical injunction!

Whilst we should not dwell on our history, nor live in the past, we must learn from the experience of our history to assist others in need who now share the problems that we as a community have experienced in the past.  In a speech entitled:  "Seven Lessons from Hobart" delivered on 28 June 1997 his Honour Justice Michael Kirby mused on lessons to be learnt from the battle fought by a few to achieve homosexual law reform in Tasmania.  His Honour noted:
 

The fifth lesson is that those who have been involved in this reform process should keep their minds alert to new challenges to human rights.  It is often disappointing to see the insularity of people committed to a particular cause.  Women concerned only with gender discrimination.  Indigenous people and their supporters attentive only to discrimination on the ground of race.  Homosexuals concerned only with gay law reform.  It is important always to see these and other grounds of discrimination in a larger context:  disadvantaging people upon preconceived notions without regard to their individual qualities.
 

Refugees from the past and those of today share so many common experiences.  Let us all be enriched in our endeavours by remembering these similarities and building on them for the common good.

The International Regime

Especially given the political climate of Australia today there are massive misconceptions in relation to refugees.  Presumably, these also exist in New Zealand.  Permit me a brief historical and personal diversion.

Arising from the persecution by the Nazis of the Jews and others in particular in Europe, as well as their political opponents, in 1945, Europe was left with tens of millions of people who were displaced, who had had their families and their lives completely destroyed.  I have relatives and friends whose parents were interned in the concentration camps of the Second World War, who suffered those horrors purely because of their religion or race.  When the allied forces opened the doors to the camps in 1945, they saw sights which reduced grown military men hardened to battle to tears.  They could not believe the scope of horrors that they saw; horrors which had been carried out in an organised scientific way by Germans who until then were considered the most refined, genteel, cultured people.  Lessons had to be learned, and a legal regime had to be put in place to protect the persecuted.

It was the world's response to the horrors of the Second World War and the displacement of people there, which led the world community to develop the 1951 Convention on the Status of Refugees.  That Convention had a fairly narrow limitation in that it was intended to cover Europeans who had fled or were the victims of persecution up until that date.

In 1967, the international community extended the Refugee Convention through the Protocol so that it became much more universal in application.  Countries are encouraged to ratify the Convention and the Protocol, and now in excess of 136 countries have ratified both international instruments.

There are also regional conventions which extend the regime, but none regrettably yet in the Asia-Pacific region.

Australia and New Zealand as signatories to the Convention on the Status of Refugees have accepted the legal obligation not to refoule (involuntarily return) persons who are found following our very strict selection processes to be refugees as defined.

In international law, under the Convention, a refugee is essentially a person who has a well-founded fear of persecution arising from their race, religion, nationality, political opinion, or membership of a particular social group, and who is outside their country of habitual residence and nationality and has a fear to return to that country.

The media often wrongly portrays people as refugees who are not refugees under this definition that I have just enunciated.  People who for a variety of reasons may justify our compassion include people who are internally displaced; people who are fleeing natural disasters; people who have other humanitarian grounds for flight; people fearing torture or trauma back home, but for a non Convention reason, or people who seek relocation because of substantial economic problems in their country of origin.  Those people are not considered to be refugees under the internationally accepted definition of a refugee and it is very important at all times to bear this in mind.  Under international law these people are not refugees.

The United Nations High Commissioner for Refugees (UNHCR) is tasked with the overall supervision and responsibility for the care of refugees, and to resolve refugee problems.  The present High Commissioner is Mrs Ogata, from Japan.  She heads a huge international bureaucracy with offices around the world including in New Zealand.  Trouble shooters go to different regions where people are in flight and the UNHCR provides assistance and service to people who have problems.

The UNHCR operates with the assistance of national governments and every September/October there is a major gathering in Geneva of countries who are represented and elected to the Executive Committee, or as it is called Excom, which acts as an advisory body to the UNHCR.  The UNHCR is responsible for the administration, if you like, of the Convention and the Protocol and has responsibility for ensuring compliance with resolutions which come out of these annual Excom meetings.  Whilst those resolutions do not have the binding force of law internationally they have the legal weight of internationally accepted and agreed resolutions so that countries are requested to adhere to these resolutions in the manner in which they deal with the issues.

Excom resolutions cover a variety of aspects from such things as piracy against asylum-seekers; the responsibilities of countries of first asylum, the rights of refugees once determined as refugees and the duties of Convention countries to refugees who have had their status determined.

There is an important distinction between a refugee and a person who is applying for refugee status or an asylum-seeker.  At international law, the Convention benefits and duties basically attach to refugees, in other words those who have been determined following application or other process, to be refugees.  With regards to asylum-seekers, (those who are applying for refugee status) the Convention provides a facility for the determination of refugee status, and an obligation on signatory governments to ensure that people can make that application.  Applications can be individually processed or they can be processed by group determination.

In Australia until recently, the procedure has been almost consistently one of individual determination.  An example of a group determination includes the approach taken to some Indo-Chinese refugees who have sought asylum in other countries of South East Asia (the Comprehensive Plan of Action).  It is important to note that Convention countries accept the principle of non-refoulement - that except in limited situations, refugees cannot be repatriated against their will to the country from which they have sought asylum.

There are three basic solutions applied to the huge international refugee crisis.  These are by the means of voluntary repatriation, local integration, and third country resettlement - the three durable solutions.

Voluntary repatriation occurs where people who had fled a country agree to return to the country from which they have fled voluntarily, usually monitored by the UNHCR.  Local integration occurs where people who have been displaced in time are incorporated into the host country, in which they have temporary refuge.  Third country resettlement involves the relocation of people who are in temporary camps to other countries for permanent resettlement.

The UNHCR plays a major role in co-ordinating all of those three activities as well as looking after the needs of those who are in camps.  At present, tens of millions of people live under the care of UNHCR.  The largest group of refugees from an individual country are Afghans who have sought asylum and shelter in Pakistan:  in the order of four million people.  In Africa there are multimillions of people in refugee camps.  Countries as diverse as Burma, Liberia, Rwanda, Mozambique and Angola have caused outpourings of millions of people who have the need for temporary refuge and assistance.

Historically, apart from the displaced people after the Second World War, there have been millions of people displaced in Latin America and in the Middle East.  It is a little known fact that over 750,000 Jews were expelled from the Arab countries in the immediate years after the creation of the state of Israel in 1948 who had to flee and seek sanctuary in Israel the only country to accept them, where they were allowed to stay and given asylum.  It is a sad commentary on contemporary history that the wealthy Arab states were not so magnanimous to Palestinians who left Israel, and many of whom, over 50 years later, remain enclosed in refugee camps in the region.

There are a small number of countries which take refugees for permanent resettlement (Australia, Canada, Denmark, Finland, Netherlands, New Zealand, Norway, Sweden and the USA).  In fact, Australia, and I can say this with some degree of pride, on a per capita percentage basis, has taken more people as refugees than any other country for permanent resettlement.

That is part of the Australian Government's approach which is called "burden sharing".  Burden sharing is the responsibility of the international community to care for the needs of refugees.  Burden sharing can be done in a variety of ways.  It can be done by way of financial assistance to the UNHCR, by provisions of goods and services to the UNHCR, or volunteers to the UNHCR, by provision of aid to refugees, as part of the permanent resettlement program, or in the nature of aid to countries which provide temporary asylum to refugees.

I conclude my global overview to refer to the particular needs of vulnerable groups of refugees.  The international community through the UNHCR recognizes that there are some particular groups who have special needs.  In particular, there are women and children, and there are people who suffer from disabilities, intellectual or physical or are medically at risk, or who are otherwise isolated from the mainstream community, like homosexuals and lesbians, persons persecuted on the basis of their sexual orientation.  All of these groups are particularly vulnerable in the context of international refugee movements.  The international community, through for example Excom, has been attempting to grapple with the needs of these vulnerable groups.

It is a matter of great concern that women in refugee camps have been the subject of particular harassment, usually sexual, by strong men in the camps, or by the military officers guarding the camps from the countries from which they have fled, or others, and they are particularly vulnerable because in most situations the women are not literate, they do not have the strength and support of their home community and they have particular needs.  Children of course are vulnerable to all sorts of exploitation for similar reasons, and arising from their separation from the community with which they are familiar.

The Australian Response

In Australia the legislation which primarily governs Australia's treatment of refugees and Australia's response to the refugee crisis is the Migration Act 1958 (as amended). That legislation of course covers all aspects of migration to Australia, not only the refugee system.

Persons seeking entry to Australia apply for a visa of a particular class and are approved if they meet all the prescribed criteria.  The current offshore refugee and humanitarian visa classes are:  refugee (Class 200), in-country special humanitarian (Class 201), global special humanitarian (Class 202), emergency rescue (Class 203), women at risk (Class 204), citizens of former Yugoslavia (displaced persons) (Class 209), minorities of former USSR (Class 210), Burmese in Burma (Class 211),  Sudanese (Class 212), Burmese in Thailand (Class 213),  Sri Lankan (special assistance) (Class 215), Ahmadi (Class 216), Vietnamese (Class 217).  The on-shore classes are territorial asylum (Class 800), and protection (Class 866).

Our Migration Act is one of the most complex of laws in Australia.  Judges of the Federal Court regularly refer to it as being as complex as the tax or the company laws of Australia.

Behind the Act and Regulations made thereunder is government policy. Every year the government makes a determination on how many people will be allowed to come to Australia under the various different programs of migration.  There are currently three major programs:  the independent and skilled migration program, the family preferential migration program and the humanitarian/refugee program.   Annexure 1 to this paper is a chart listing the numbers taken in recent years in the various categories.

Australia takes and has taken over the last few years about 12-14,000 persons per year for resettlement under the refugee/humanitarian program.  This program comprises an off-shore and an on-shore component.  The larger off-shore component includes persons who are displaced (ie, have humanitarian needs) and who have been determined to be refugees overseas who need to be resettled and usually who have some family connections with Australia.  In the late 1980s and early 1990s, the largest group of refugees taken under the off-shore program by Australia were Indo Chinese, Vietnamese, Laotians and Cambodians.  In recent years, most refugees come from former Yugoslavia and Iraq.  We also have had specific programs for people from a huge diversity of countries including the former Soviet Union, East Timorese living in Portugal, Sudanese and Admadis from Pakistan.   Annexure 2 summarises the proposed composition of the 1999-2000 refugee and special humanitarian program proposed to the Minister for Immigration by the Refugee Council of Australia.

The on-shore component comprises people who are in Australia who have sought refugee status because of their fear of persecution for a Convention reason.  2,000 places are provided nationally for on-shore approvals.  If the number of on-shore grants exceeds this quota, places may be deducted from the off-shore program.  Australia applies very strictly the international definition as part of the determination process.  The procedure to determine refugee status in Australia is not simple and can be quite lengthy.

In the last few years the Government has introduced steps to try to expedite the processing of such applications which have caused concerns amongst advocates (as to which see below).  Two classes of people seek refugee status in Australia:  those who are lawfully in Australia at the time of application and those who are unlawfully in Australia at the time of application.  With regard to the second group there are two sub-categories:  those who had arrived legally and those who have arrived without prior visa authorization.  As I am sure most of you would know entry to Australia is controlled by visas from all countries with the exception of the citizens of New Zealand.

A person seeking to apply for refugee status (a Protection visa as it is technically termed) must make an application to the immigration authorities.  In support of the application the applicant has to prove that he/she has a well-founded fear of persecution.  The onus is on the applicant. The High Court of Australia in 1988 handed down a decision in Chan Yee Kin v MIEA (1989) 169 CLR 379 which forms the basis of the modern interpretation of the law of refugee determination in Australia.  The seven judges of the High Court in typical fashion unanimously but separately gave their views on the procedures by which the determination should be made and their understanding of the requirements of the definition.

The High Court consensus view is that well-founded fear is one where there is a real chance that the applicant would suffer the persecution that the applicant fears.  As Justice McHugh said, a real chance would exist even if it is only a 10% chance that the applicant would suffer persecution.  If so, that fear is well-founded.  There must be persecution which is the concept whereby a person finds himself or herself deprived of rights.  Professor Hathaway in his seminal work, The Law of Refugee Status, refers to the gradings of rights between economic, social, cultural, civil and political rights insofar as they relate to the issue of persecution.  He hypothesises various categories of persecution based on the International Conventions and looks at whether acts in breach would justify the grant of refugee status.  Thus, for example, if a person fears death or torture, it is pretty easy to say that this amounts to persecution which would justify the grant of refugee status.  But what about a situation where a person fears forced marriage against his/her will or is deprived of the rights of education, housing, or to adequate food.  Do those deprivations amount to persecution within the context of the definition?  Effectively, there must be a degree of seriousness from the extreme situations of death and torture, to the areas of deprivation of liberties which clearly would not justify persecution such as the denial of the right to watch television on a Sunday, if you are ni a fundamentalist Christian country.

As notes above, there are five grounds of persecution within the definition. The persecution must arise because of the applicant's race, nationality, religion, political opinion, or membership of a particular social group. The last, membership of a particular social group, has brought much case law problems in Australia.  There have been some very interesting developments on what constitutes a social group.  The decision of the Supreme Court of Canada in AG of Canada and Ward (1993) 103 DLR (4th) is important.  There the applicant was a member of the IRA who had sought refugee status in Canada because of that, and Ward's Case gave a definitive Canadian pronouncement on what constitutes membership of a social group for the purposes of the definition.

In Australia there have also been cases, where the concept has been examined.  Applicant A v MIMA (1997) 142 ALR 331 concerned a woman who had claimed that because she already had one child, if she was sent back to the PRC, under China's "One Child Policy" she felt that she would either be forcibly sterilized or if she did become pregnant that the authorities would force an abortion on her.  The High Court by majority held that she was not a member of a distinct social group, and thus could not be granted refugee status.  This decision caused a political crisis in Australia, which I will come back to briefly later.

A list of all High Court cases appears at  Annexure 3.  Many hundreds of cases have been considered by our Federal Court.  All of these decisions as well as those of the RRT can be accessed through the Internet.

There are other examples of social groups which have been accepted in Australia.  An Iranian woman who did not accept and wish to be subjected to the strictures of Shariat law with regard to treatment of women because of her free thinking attitudes was recognized as a refugee.  Such decisions have been very controversial.  Indeed, the Minister has appealed to the Federal Court cases involving women fearing domestic violence.

Another group of people who have been accepted as forming a social group, are people who are HIV positive provided that the country from which the HIV positive person comes from persecutes people who are HIV positive.  There have been several successful applicants in Australia on this ground, including one from China and one from Burma.  Other social groups comprise homosexuals coming from countries (often Islamic countries or some Latin American countries) where there is persecution of homosexuals; or victims of clan or caste persecution.

Refugee claims have nothing to do with economic grounds, or natural disasters, and it has nothing to do with a person wanting to seek a better life.  Whilst all of those are clearly understandable reasons why people would seek to relocate, they do not justify the grant of refugee status in Australia.  In the current 1998-9 processing year about 12% of applications have been approved at primary stage, which represents a slight increase over recent years.  In the same period, 5,118 applications have been lodged.

Where a refugee application is made on-shore, the application is considered by a single officer of the Department of Immigration administratively.  That officer treats in total confidence the claims made by the applicant but the chances are that the application will be rejected.  Once rejected the applicant may appeal to the Refugee Review Tribunal, which is an administrative, and in theory an inquisitorial not a judicial tribunal, with a single member who has the power to make a decision which replaces the decision of the departmental decision-maker.

The success rate of the RRT which applies the same legal principles is higher than the success rate at first instance.  About 10% of appeals to the RRT have been successful in the current program year.

If the RRT rejects an application, an applicant can appeal to the Federal Court but only on questions of law as narrowly permitted under section 476 of the Migration Act.  The Federal Court does not have the power to review the merits of the case and cannot consider commonly understood "natural justice" grounds in the appeal.  The final avenue of appeal is the discretionary power of the Minister to approve the grant of refugee status if the application has been denied by the tribunal or the court under section 417 of the Act.  The Minister exercises that power rarely and his discretion is non-compellable and non-appellable.  For practical purposes most applications to the Minister are unsuccessful.

Under the Migration Act, applicants for refugee status can only have "one bite at the refugee cherry".  Once they have been rejected they cannot make a second application unless they can establish that it is in the public interest to be allowed to do so (ie, there has been a change of circumstance such that there are new circumstances prevailing which would entitle them to be granted refugee status) - Section 48A and B. This was an important change to the law because previously people obtained indefinite stay in Australia by lodging repeat applications, often without basis in fact.  The government is very anxious to prevent people from doing this and does not wish Australia to be seen as a "soft touch" for on-shore asylum-seekers.  The Migration Act has progressively been more and more refined to make it very difficult for people who come to Australia to be granted refugee status on-shore.  Ministerial statements (from both sides of politics) reflect this concern repeatedly and are the cause of a major debate at present in Australia amongst those concerned about rule of law and refugee issues generally.

The Refugee Council of Australia

The Refugee Council of Australia was established in 1981 and now has over 120 organizational and individual members.  It has the primary aim of promoting the adoption of flexible, humane and constructive policies towards refugees, asylum-seekers and displaced persons by the Australian and other governments and their communities.  Some of the organizational members of the Council include Australian Catholic Migrant and Refugee Office, Australian Council of Trade Unions, Australian Jewish Welfare Society, Australian Lutheran World Service, Australian Red Cross, National Council of Churches in Australia, Overseas Service Bureau, Jesuit Refugee Service, International Commission of Jurists - Australian Section, Ethnic Affairs Commission of New South Wales, Salvation Army, Society of St Vincent de Paul, United Nations Association of Australia, Save the Children Fund Australia, and the Young Womens' Christian Association of Australia.  Many of our other organizational members also represent ethnic communities comprising large numbers of former refugees.

To achieve our aims, the Council pursues objectives listed in Annexure 4 and engages in a number of activities including research, policy development, advocacy and community education.  The Council provides advice for member agencies and others working in the area.  Our website:  www.refugeecouncil.org.au provides a useful resource base and is part of our strategy to increase our profile.

It plays an important role liaising with government and internationally with agencies in other countries as well as with the UNHCR and has lobbied extensively on a wide range of issues relating for example to the government's detention policy, refugee status determination procedures, and very importantly settlement services which are available to refugees.  It has worked recently on the publication of working papers which cover a whole series of refugee settlement issues.  Topics include the philosophy of refugee resettlement, the wider impact of refugee resettlement, human rights and refugee resettlement, immigration issues relating to refugee resettlement, refugee women resettlement needs, refugee children resettlement needs, the needs of older refugees, the problems of ethnic minorities, counselling problems, health issues (and this covers the particular problem of refugees who have been the victim of torture and trauma and who need particular service because of that), the need for English language provision for refugees, the role of income support, housing issues, employment and training issues, and general information services for refugees, and the role of the community and other NGOs in assisting in refugee resettlement.

The Council does not presently contain a service provision arm. However, the Council was instrumental in the establishment in the late 1980s of the refugee Advice and Casework Service (RACS) which it operated for approximately 7 years.  RACS now functions independently.  It is the most important community legal center providing assistance to asylum-seekers and now survives on government funding.  In the early 1990s the Council auspiced a legal team which gave advice to asylum-seekers in the Port Hedland Detention Centre in Western Australia, where most unvisaed asylum-seekers are detained.  Through the Council was also created the Australian National Council on Refugee Women (ANCORW) which is also now an independent body, which operates a project which facilitates the obtaining of employment by refugee women.  The RCOS has also been instrumental in the creating throughout Australia of specialist services to provide assistance to survivors of torture and trauma.

Members of the Council elect a Board of which I have the honour to be President.  We have an Executive Director, Margaret Piper who may be known to many here present.  Project staff are employed in accordance with various grants that the Council receives to undertake specific projects.  The Council has enjoyed a special relationship with Austcare, Australia's peak refugee support agency and national co-ordinator of Refugee Week.  Austcare is the principle non-government funding provider to the Council.  The tasks undertaken by the Council are frankly enormous and constantly stretch our resources to the extreme.  Our achievements depend on the inexhaustible energy of our Executive Director and the assistance of our supporters.  Principle activities of the Council in the annual calendar are:

(a)    Compilation of a major intake submission in February prepared after consultation with a large number of community organizations and individuals which is presented to the government as part of the annual intake consultation.  The Council's recommendations are usually given serious weight by the government in planning for the size and composition of the annual refugee and humanitarian program.  The 1999 submission has recently been presented to the Minister and a copy is available here today.

 

(b)    In October each year the United Nations High Commissioner for Refugees holds its annual Executive Committee meeting in Geneva bringing together governments and NGOs from around the world.  The Council plays an active role in this process and now also co-ordinates NGO submissions preparatory to the meeting.

(c)    Throughout the year there are regular consultations with government (DFAT, A-Gs and DIMA), NGOs and international agencies, notably the UNHCR, on refugee issues which the Council attends.

(d)    Specific reports have been undertaken in recent years on particular issues.  Important works have been prepared on the refugee crisis in Bosnia, and the problems associated with the Chinese takeover of Hong Kong and the situation in the Federal Republic of Yugoslavia.

(e)    The Council is regularly called upon to provide advice to government and has organized and participated in training programs of DIMA staff.

(f)    Given the frequency of legislative change and parliamentary inquiries, the Council is regularly making and presenting submission to such inquiries.

Australia holds annually a Refugee Week, to highlight and publicize refugee issues.  In 1997 the theme of Refugee Week was: "More than half the world's refugees are children".  The Council has been involved in highlighting the problems of refugee children and their special needs in refugee determination process and with regard to settlement issues generally.  In 1998, the Refugee Week theme was:  "Clearing a Safe Path" (referring particularly to our concerns about land mines).

In April 1998, the Council hosted a very successful national conference for and about refugee women:  "The Journey Continues".  A further conference is being planned for 2001, to commemorate the fiftieth anniversary of the Convention.

The Australian Government policy of mandatory detention of unvisaed asylum-seekers has caused the Council great concern.  In consultation with other interested community groups an Alternative Detention Model has been prepared and presented to government.  The Council has played an active role in urging government to move away from the mandatory detention regime, and has convened the successful public meetings in Sydney and Melbourne, designed to highlight community concern about the issue.

In 1998 the Australian Human Rights Commissioner published his report:  "Those who've come across the seas:  Detention of unauthorised arrivals".  In Australia, the Human Rights and Equal Opportunity Commission has a statutory mandate, as well as a moral duty, to amongst others, inquire into acts or practices of Australian governments which may be inconsistent with or contrary to human rights and to recommend changes to laws and practices which offend against these principles and in particular the principle that every person is free and equal in dignity and rights.  Given the absence of a constitutional or legal Bill of Rights in Australia, the Commission's mandate as a watchdog is fundamental.  Its role as a safeguard protecting us from the tyranny of government is fundamental.  The recommendations in the Commission's report to ensure that those who are detained, are kept in conditions which respect the human dignity of those detained and comply with internationally acceptable standards are clearly uncontroversial and most were adopted by the Government.  The RCOA called on the government to action those of the recommendations which had not yet been implemented.  We specifically called on the government forthwith to end the arbitrary and mandatory detention for extended periods of unlawful non-citizens claiming asylum which practice the Inquiry found breached numerous Australian human rights obligations.  In considering the Commissioner's report we must recall that Australia is not about to be subjected to the unauthorized arrival of uncontrollable hordes from around the world.  The clearest example that Australia does not have a problem is exhibited by the total absence of unauthorized arrivals in the last year from Indonesia notwithstanding the chaos that we have witnessed in that country.  What clearer evidence can there be?  Where is the problem we ask repeatedly, but no-one in authority seems to be listening.

Regrettably, in attempting to understand the issue, the xenophobia of the comfortable masses must loom large as a justification.  If so, the moral issue is clear.

Community education, is fundamental to provide support for refugees and their plight and to balance the negative rhetoric that emanates from members of the community who regrettably do not understand the issues or propagate the misconceptions.  Addressing this problem, the Council has published a set of Fact Sheets which I have also brought here to show.  These plain English and reproducible fact sheets cover issues such as "Who are refugees?", "Australia's response to refugees", "Refugee status determination", and significantly "Myths about refugees".  The Council also publishes Updates to explain issues and to suggest possible action by our members.  Topics covered include the Federal Budget, the 13 June 1997 announcement of a new temporary visa class, and the importance of independent merits review for refugee applicants.  The Council also publishes a regular newsletter which is circulated widely in Australia and overseas which compliments the more elaborate and externally funded newsletter which has been published by the National Network of Refugee Women.  The Executive Director and members of the Board are involved in projects designed to influence community attitudes through the media and the school education system.  In May 1998, a very successful Radioathon was run on SBS radio which raised over $600,000 - on behalf of the RCOA and Austcare.

All of the above and a lot more with a staff of 2 1/2 and an annual expenditure budget of $121,673.

The Difficult Issues

Public debate on issues affecting refugees is rarely far from the media headlines.  In recent years the following, amongst others, have been significant issues in Australia:

1.    Perceived abuse of the on-shore program - we all agree that the term "queue jumper" should never apply to refugees.  Nevertheless, there certainly has been abuse in Australia of the on-shore refugee program.  In part this flows from the absence of an on-shore humanitarian and compassionate visa class which had been abolished in December 1989.  As a consequence of a significant rise in the number of manifestly unfounded claims for refugee status, administrative and regulatory change was introduced progressively from late 1996.  These changes include the expeditious processing of applications at primary departmental stage, the denial of work permits and other benefits to claimants who have been in Australia for more than 45 days, and a post-hearing fee of $1,000 for unsuccessful applicants to the Refugee Review Tribunal.  Informed public debate has expressed concern at which is seen to be bureaucratic overkill by these measures.

2.    Inadequate determination process - at primary stage there have been expressed increasingly loud public concerns at the inadequacy of the determination process.  The use of standard replies reflecting a cynical approach to claims, the failure to interview applicants except in rare cases and a failure to accord meaningful natural justice to applicants are some of the frequently expressed problems.  In December 1998, in an unprecedented move, the Law Council of Australia, Amnesty International and the Australian Section of the International Commission of Jurists called for a public and parliamentary review of the determination process.

3.    Executive control of the RRT - although in theory independent, Tribunal members are appointed for relatively short terms and the present Minister for Immigration has publicly expressed on a number of occasions the point that tribunal members who do not properly apply the Convention (based on whose interpretation one queries) face non reappointment when their terms expire.  Statistics are always difficult to interpret but observers remarked that in the few months prior to the reappointment of all tribunal members by the present government the success rate (for applicants) in the Tribunal dramatically declined.  Further, increasingly, the minister has appealed to the Federal Court against unfavourable (in his view) determinations by the Tribunal.

4.    Judicial review - the public debate in this area in Australia has descended to an alarmingly low level.  Judges have been accused of "embarking on legal frolics" and have been attacked for having the temerity to "interpret the law".  There is currently a Bill before the Federal Parliament to effectively exclude from meaningful judicial review decisions of the Refugee Review Tribunal, by the mechanism of a "privative clause".  Fortunately, the Bill seems destined to defeat in our Opposition dominated Senate.

5.    Confusion of on-shore and off-shore programs - the present administration deducts from the off-shore refugee intake numbers where those granted refugee status in Australia exceeds the projected figure of 2,000 places.  This policy effectively confirms the existence of the refugee queue and potentially pits community against community.

6.    Inadequacies in the off-shore grant process - The Refugee Council and communities regularly bemoan the inadequacies of the off-shore application and determination process, the length of time it takes to process applications and the apparent lack of consistency in decision-making.  Calls are made regularly for reviews in this area.

7.    Mandatory detention regime - I have addressed this issue above but it is one of the most significant areas of human rights abuse in Australia.  To our international shame, the Australian government rejected the view of the Human Rights Committee charged with overseeing the International Covenant on Civil and Political Rights which condemned Australia's mandatory detention regime as a breach of international law.  See A v Australia, Communication No 560/1993, dated 3 April 1997.  Continuing calls for a review of the policy fall on deaf ears.

8.    Visa control - concerns are repeatedly expressed that Australia's mandatory visa control system effectively precludes many persons from being able to seek protection of the Australian authorities.  Clearly, if a person applies for a visitor visa with the expressed intention of applying for refugee status on arrival, the visitor visa will be denied.

9.    Airport turnarounds - there has been an increase in the number of people arriving at airports in Australia without visas.  Concerns have been expressed that the current procedures adopted by immigration officers at airports does not adequately facilitate genuine asylum-seekers from making claims.  Last year, there were several well-publicized cases of Sri Lankans who had sought to make refugee claims on arrival, which applications were denied.  Subsequently, Federal Court injunctive relief was obtained, as a result of which applications were then lodged and processed successfully.

10.    Access to benefits - The Red Cross in Australia arranges for the distribution of government funded benefits to certain asylum-seekers who have no other means of support.  However, the criteria for eligibility are very strict. Coupled with the limitations on access to work rights, many asylum-seekers and their families have literally found themselves "in the streets" dependent on support of Australian charities whose resources are stretched to the limit.  Last year, an Indonesian asylum-seeker found his way to the Refugee Council office and as he had no assets or means of support and was not eligible for any government benefits and as all emergency accommodation in Sydney was full, the only place that could be found for him to sleep was the local police station.  Clearly, this is not a solution that can continue.

11.    Access to legal advice and professional assistance for asylum-seekers - Government cutbacks in funding legal aid have depleted the resources of professional services available to provide assistance to asylum-seekers in properly presenting their claims.  There is currently a Bill being considered by the Federal Parliament which will also have the effect of preventing the Commonwealth Human Rights Commission from making contact with asylum-seekers no arrival to inform them of their legal rights.

Conclusion

Clearly the agenda is full but unfortunately much remains still to be done. For this there is a continuing urgent need for the support of all those sympathetic to the plight of refugees.  Refugees almost by definition are amongst the most vulnerable in the community and because of their particular circumstances need the support of mainstream advocacy groups within the community.

In protecting the interests of asylum-seekers, let out political leaders act as statesmen and forget the politics of division which unfortunately have resurfaced in Australia in recent years.  A truly great government is one which governs righteously not only in the interests of the majority, but also in the interest of minorities legislating in a manner which reflects fundamental moral standards and gives them protection from the abuse of the majority.

Most importantly, there is a moral reason why we should support the refugee cause.  We must maintain understanding and support for the most vulnerable in our community and support for principles of justice and human rights, the absence of which in society are the fundamental root cause of refugee outflows.  These principles demand our support, if not eternal vigilance.

If history teaches us anything it is that it is cyclic.  We can and must empathize with refugees from whatever background.  If we do not lead by example who will?
 

"First they came for the Jews and I did not speak out - because I was not a Jew Then they came for the communists and I did not speak out - because I was not a communist Then they came for the tread unionists and I did not speak out - because I was not a trade unionist. Then they came for me - and there was no one left to speak out for me." Attributed to Pastor Nlemoeller (victim of the Nazis).  

It is not a question of self interest.  Rather it is an issue of doing the correct thing because it is correct to do so.

Given my previous comments I hesitate to raise this as a justification, but none of us must ever be complacent in our apathy.  The Hanson phenomenon in Australia is not unique, and highlights the vulnerability of the fragile Australian multicultural society.  Who will be targeted next?

We who live permanently in Australia and New Zealand are largely fortunate to be happily assimilated into our countries.  We have learnt from our past traumas and we have a responsibility to assist those persons and communities who are now undergoing traumas and who arrive dispossessed and homeless, powerless and vulnerable.  They deserve our help and support, not contempt or hostility.

Community education is of course fundamental and we must all play a role in the education of our community, participating in broader cross community activities.  Only with our support will the evils which cause the refugee outpourings be removed.

There is a major role to play in this area for the new Refugee Council of New Zealand and the vital network of well meaning people extending from it.  I wish you a successful future.
 
 David Bitel is President of the Refugee Council of Australia and Secretary-General of the Australian Section of the International Commission of Jurists.  He is also a judicial member of the NSW Equal Opportunity Tribunal and Secretary of Australian International Legal Resources Inc.  He is a Partner of Parish Patience Solicitors, an accredited immigration law specialist by the NSW Law Society and a registered migration agent.  He is a member of human rights and other subcommittees of the International Bar Association, the Law of Society of NSW and the Law Council of Australia.

(a)    Concessional Family in now known as the Skilled-Australiaion Linked Category and was shifted from the Family stream to the Skill stream on 1 July 1997 following major changes to eligibility criteria focusing more on employability factors.

(b)  Includes Employer Nomination Scheme (ENS), Labour Agreements and Regional Sponsored Migration Scheme (RSMS).

(c)    Business Migration Program changed to Business Skills during 1991-92.
 
 

Please note that figures have been rounded and that, due to rounding, total may not be the exact sum of components

(a)    Persons granted permanent residence status on humanitarian grounds on the basis of applications lodged prior to December 1989.

(b)    Prior to 1996-97, On-shore Refugees were not counted against the Humanitarian Program.  For 1998-99, if more than 2,000 persons are granted asylum on-shore, the number of persons resettled from overseas will be correspondingly reduced.

(c)    These totals reflect the decision to bring forward, into 1995-96, 2,000 places from the 1996-97 Program.
 

* with at least 500 places from the Refugee Program allocated to Women at Risk entrants.
 
 

Koon Wing Lau v Calwell (1949) 80 CLR 533

Wong Man On v The Commonwealth (1952) 86 CLR 125

Shaw v Ipatoff (1957) 97 CLR 248

Attorney-General (Vict.) v The Commonwealth (1962) 107 CLR 529

The Queen v Wilson, Ex parte Witness T (1976) 135 CLR 179

Simsek v MacPhee (1982) 148 CLR 636

The Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Chu Kheng Lim and Others v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1

Cunliffe and Another v The Commonwealth of Australia (1994) 182 CLR 272; (1994) 124 ALR 120

Senator Nick Bolkus, Minister for Immigration and Ethnic Affairs and Joanne McRae, Manager of the Immigration Reception and Processing Centre at Port Hedland in the State of Western Australia v Tang Jia Xin (1994) 69 ALJR

Carine and Another v Esanda Finance Corporation Limited (1995) 182 CLR 398; (1995) 127 ALR 76; (1995) 69 ALJR 206

Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273; (1995) 128 ALR 353; (1995) 69 ALJR 423 

Minister for Immigration and Ethnic Affairs v Wu Shang Liang, Huang Cheng Jiang and Liu Jun Liang  (1996) 185 CLR 259

"Applicant A" and "Applicant B" v Minister for Immigration and Ethnic Affairs and Janet Wood, Member, The Refguee Review Tribunal (1997) 190 CLR 225

Re The Minister for Immigration and Ethnic Affairs of The Commonwealth of Australia & Anor, Ex parte Lai Qin (1997) 186 CLR 622

Minister for Immigration and Ethnic Affairs v Guo & another (Matter No. S151 of 1996); Minister for Immigration and Ethnic Affairs v Pan & Another (1997) 191 CLR 559

The Minister for Immigration and Multicultural Affairs and Luke Hardy

Minister for Immigration and Multicultural Affairs and Brendan Kissane [1998] HCA 72
 

In order to achieve this aim, the Council shall pursue the following objectives:

(a)    To act as a unifying organisation and general representative for its members no matters relating to refugees, asylum-seekers and displaced persons.

(b)    To present the case for refugees as strongly as possible wherever appropriate.

(c)    To monitor, research, advocate and represent on issues relating to refugees and refugee needs.

(d)    To access and reflect community attitudes towards refugees and refugee needs.

(e)    To assist the Government to formulate policy and provide services to refugees.

(f)    To increase public awareness and media sensitivity towards refugees and refugee needs.

(g)    To ensure maximum possible flow of accurate and current information amongst and to Council members.

(h)    To maintain close links with national and international agencies working with and for refugees.

(i)    To promote the empowerment of refugee communities and individuals in Australia and internationally.

(j)    To do all such other things that shall help to achieve any or all of the foregoing aims and objectives.