The Australian Government’s treatment of refugees remains one of the most controversial issues of our time. But what does it actually mean to be a refugee, and what does the process for claiming refugee status involve? Having worked and volunteered in this sector for several years, I wanted to share five things you may not know about the refugee process.
1. One wrong move, and your case gets thrown out
Put in simple terms, a refugee is someone who, because they belong to a particular marginalised group (their race, ethnicity, religion, political affiliation, etc.), is unable to gain protection by their home government. When a refugee arrives at another country requesting shelter, they are also termed an ‘asylum seeker’ or ‘person seeking asylum’. Under the 1951 Refugee Convention, Australia – along with the other 144 signatories – is required to grant protection to refugees.
But up until very recently, if a refugee committed any crime in Australia, the Minister of Immigration could revoke their visa and deport them on ‘character grounds’. Now, it could be that the person is violent because of complex PTSD, stemming from being tortured by their home government. Or perhaps they stole Advils because our government cut those who fled by boat off essential welfare. This apparently does not matter to our government, who would rather send these people back into warzones and mortal danger than look after them.
Thankfully, the Federal Court has curtailed this power in a recent ruling, holding that our international duty to protect refugees doesn’t allow us to throw them out for the slightest misdeed. However, this could be overturned if it goes to an appeal, and the government has a history of rewriting laws to get around Court judgments it dislikes (whether Labor or Liberal). Besides, for the countless refugees already sent back into peril, this ruling came far too late.
Furthermore, if somewhere along their long journey to Australia a refugee commits identity fraud, their case is highly likely to fail due to ‘character grounds'. This includes impersonating someone else, using another person’s identity documents, lying about one’s nationality, and more. You may find this reasonable enough but consider, for example, that you are a Rohingya. The Rohingya people are officially stateless; the Myanmarese government does not recognise them as citizens or grant them adequate identity documents. Also consider that your life is under threat by roving militias, and you do not want your children to be murdered. You may pretend to be a Myanmarese citizen and not Rohingya, so as to escape into a neighbouring country. Still trapped in poverty and fearful of being sent back, you may eventually seek asylum in Australia – a country that signed the Refugee Convention and is obliged to offer you protection. But when you arrive, our government flatly rejects your case because of your fake Myanmarese passport. You may ask, what else was I to do?
2. A lot of work is performed by everyday volunteers like you
Many refugees are unable to afford a top-tier migration lawyer, and their ability to get help has been further hampered by the Liberal Government’s cuts to legal assistance. As such, thousands rely on non-for-profit organisations such as Refugee Legal, Asylum Seeker Resource Centre, Victorian Legal Aid, and Muslim Legal Services. Many of these organisations, in turn, rely upon countless volunteers to handle administrative tasks, office maintenance, and other legal ‘odd-jobs’. Whereas the Government spends millions on top-tier law firms to help them, say, deport families, the people seeking asylum rely on everyday people like you, people who saw a volunteer listing and stepped up to do what’s right.
Whether phoning clients to make sure they attend hearings, running documents between the legal centre and the Magistrates’ Court, or even finding plots of land on Afghani real estate websites which prove the client’s house was indeed bombed to rubble, these volunteers can be integral in getting successful applications for refugees.
We are lucky to live in Victoria, where the Labor Government has provided over $3 million to help refugees and community refugee centres, but these organisations are nevertheless scraping by the skin of their teeth. You can support them if you like, or even sign up to volunteer. After all, these critical legal battles of our age will not be won by wealthy barristers in expensive-looking offices, but rather by second-year law students, working at Coles on the weekend, getting out of bed because they want to make the world a better place.
I’m not saying they are the Rebels from Star Wars, but well, the comparison is there.
3. You can be in fear for your life, and still not be a refugee
As stated above, a refugee is someone who, because they belong to a particular marginalised group, is unable to gain protection by their home government. Because their home government either lacks the resources to protect them, or maliciously supports and even causes the violence, it instead falls on countries like Australia to step in and protect these people instead.
Now, consider the often-discussed case of ‘climate refugees’. If your entire country is engulfed by rising sea levels, are you being persecuted? It is true that your government cannot protect you, insofar as they can’t pull a Moses and part the rising seas. But you are not being persecuted because of your membership of a particular marginalised group. It’s not just women, or Muslims, or LGBTIQA+ people who are targeted by climate change (although there are some who blame them for the floods and superstorms). As such, if you arrived at our borders claiming you’re not safe in your country – or more likely, that your country no longer exists – Australia would have no obligation under international law to protect you.
This illustrates that not every person seeking asylum is actually a refugee. More importantly, it has frightening implications for how those displaced by climate change may be treated, especially since our government is already reluctant is follow what obligations we do have.
4. Credibility is everything
Let’s say you’re a gay man fleeing Brunei, where homosexuality is punishable by stoning. How do you prove you’re gay? Maybe you have love letters stored away in your home, but when you found out a violent mob was coming to your house, you didn’t think to pack those. Or for another example, how would you prove you were at a protest march against the Iranian government in 2008, demonstrating your status as a political dissident? Evidence can be a very difficult matter even in domestic cases; when the facts travel across multiple jurisdictions and reach back decades, it becomes very difficult to back up your reasons for seeking asylum on refugee grounds.
This is where credibility comes in. The refugee decision-maker (a legal term referring to both Department officials, and the Appeals Tribunal members who review Department decisions) will scrutinise your story. They will look for inconsistencies and contradictions, and come to a decision about whether you are credible or not. If the decision-maker decides you are not credible, then they may decide not to believe anything your say and reject your application outright. Unfortunately for many refugees, the law means that such assessments may largely be decided on intuition. Yes, the decision-maker is required to give reasons, but their reasoning too often ignores the complexities of trauma and how a refugee they deem ‘unreliable’ may be repressing horrific memories of torture. If someone adds a new ground for asylum to their application later on, for example homosexuality, the decision-maker may suspect it’s to ‘embellish their claim’; in reality, there were fairly obvious reasons why the refugee was reluctant to tell a busy courtroom about their sexual orientation unless absolutely necessary.
Worse yet, decision-makers will occasionally assess a refugee’s story against what they are told by the US State Department’s ‘Country Information’ reports – and often take the word of the US government over the refugee who actually lived in that country. The reason this is so concerning is that the Trump administration has gutted the State Department's funding, affecting the reliability of their information.
The overwhelming majority of people seeking asylum since 1976 have been recognised as genuine refugees. When we consider the likelihood that Australia’s procedures have resulted in genuine claims being rejected, the number of genuine refugees is likely even higher than research suggests. However, the starting point for decision-makers is not believing the refugee, but rather scrutinising them endlessly and looking for a reason to doubt them. The government must institute more formalised and sophisticated procedures for determining one’s credibility; the stakes are far too high.
5. There is hope
On 18 May 2019 I was driving from Dan Murphy’s to an election party, expecting to drink my way into a new era of progressive leadership, when I heard on the radio that Morrison would easily retain government. Thinking of all my friends who would continue to be tormented by this government, I wanted to cry. My heart broke thinking of the cruelty they would be forced to endure.
And it is cruelty, make no mistake. At times, the system seems designed to break people’s spirits. The forms are over eighty-pages and only in English. Applicants are expected to remember inane employment details dating back decades, and are penalised if they make honest mistakes. They have to wait years for their hearings, during which time they have limited work rights and the spectre of deportation looming over them (if they are even allowed to live in the community). If they arrived by boat, they are only given one chance to explain their reasons for seeking asylum; critical information later gathered by psychiatrists after months of therapy is inadmissible. This is not to mention those detained, unlawfully in offshore prison camps; if you’re despairing at your social isolation, spare a thought for the innocent men imprisoned for years on Manus Island without basic healthcare and support.
But there is hope. In refugee legal centres, we do get positive decisions, with hard-fought legal battles resulting in lasting protection for refugees and their families. Even if we are ultimately unsuccessful with their application, by fighting for their case we may keep those seeking asylum here for longer, with more time receiving an Australian wage; upon returning, they may have enough savings to, for example, buy a fishing boat and earn a sustainable income. Elsewhere, we see more victims of our process speak out, and more Australians saying enough is enough.
And even if this government gets re-elected again and again, rest assured that our army of lawyers, volunteers and political campaigners will not give up on the refugees. We will not give up on a kinder and more humane future.
For more information on Australia’s system for asylum seekers, the United Nations Human Rights Council has a valuable collection of resources. The Refugee Council of Australia also provides excellent and up-to-date information.
Image: Abbie Milne, The Falmouth Anchor