Amnesty International’s Refugee Spokesperson Dr Graham Thom

Erin Handley and Rose Hunter in conversation with Graham Thom
© Amnesty International
Dr Graham Thom is Amnesty International’s Refugee Spokesperson. Dr Thom has been Amnesty International Australia’s Refugee Coordinator since 2000, working on behalf of individual asylum seekers as well as on broader human rights issues relating to refugees. In February, Dr Thom was part of a recent Amnesty delegation that visited immigration detention centres around Australia interviewing detainees and staff.
Dr Thom publishes and lectures on domestic and international refugee issues and has represented Amnesty International at UNHCR’s Annual Tripartite Consultation on Resettlement in Geneva for the past three years. He completed his doctoral thesis on post-war migration at the University of Sydney in 2000.
Recently, Dr Thom commented on changes announced by the Department of Immigration and Citizenship on the assessment of Protection Visas and Complementary Visas in Australia.

RN: Recent changes to Australia’s Protection Visa system announced in March mean that there will be a single statutory process for both boat and air arrivals. What is your view of this change?

[Dr Graham Thom] This is a really important change and I think we need to remember this is how the system operated up until 2001, so it’s not anything really new. This is how systems operate in similar countries around the world. Really, asylum seekers, regardless of their mode of arrival, shouldn’t be treated any differently. People under the Convention shouldn’t be penalised based on their mode of arrival , and so this is a really important step for the Australian Government to move away from a system where we had a significant number of asylum seekers put through a non-statutory process, taken out of the Australian legal system in a sense, now being brought back into a more transparent statutory system – that is really important.

People under the Convention shouldn’t be penalised based on their mode of arrival…

When researching for this interview a lot of information on the Howard Government’s policies on temporary protection visas came up. There have been several key changes to protection visa policies since then, including the removal of temporary protection visas. Do you see incremental changes in this area as a response to the campaigning and advocacy that people like yourself have been undertaking on this issue?

Well, we would like to think that organisations such as Amnesty have played an important role in trying to assure that governments like Australia’s are treating asylum seekers in line with their international obligations. We have had a number of situations in recent years in Australia where the government has moved a long way, we believe, from the way it should be treating asylum seekers, and off-shore processing is an obvious example, as well as the use of temporary protection visas, the excision of various islands out of the migration zone, and the ongoing use of mandatory detention.

So while we have seen some important changes and we have seen a number of those more Draconian measures removed, we still have a situation in this country where both sides of politics support mandatory detention.

So while we have seen some important changes and we have seen a number of those more Draconian measures removed, we still have a situation in this country where both sides of politics support mandatory detention.  We still have a situation in this country where both sides of politics would, if they could, implement off-shore processing. We still have excision in this country. So while there have been some important steps in recent years, Australia still has some way to go. What has helped organisations like Amnesty and others has just been the evidence of why temporary protection visas and mandatory detention and having two separate processing systems just haven’t worked and have in fact damaged people and have been really detrimental both in terms of their impact on policy and also on the individuals. Being able to highlight that evidence has been something that I think is crucial in helping to get the little reforms that we have seen in recent years.

Apart from the improvements that could be made in the area of mandatory detention, what are some other areas of immigration policy where improvements could be made?

I think we’re starting to see a number of those in terms of the greater use of bridging visas, to get people out of detention more quickly. We did see significant numbers of people in detention in the last few years, and long-term detainees as well, which has had horrendous impacts on their mental health.  But there are some other things that can still be done. A number of these reforms were highlighted in the recent parliamentary inquiry into mandatory detention, things like changing the Guardianship Act, so that the Minister for Immigration is not the legal guardian of unaccompanied minors. It’s ridiculous having a situation where the jailor is the person who’s supposed to be acting in the best interests of the children. It’s an enormous conflict of interest. Similarly, issues around ASIO checks, and how people are being trapped by the ASIO checks – if they haven’t had the ASIO assessment, they’re not allowed to appeal that in any meaningful way. So they are now stuck indefinitely in detention.

Something that Amnesty has been calling for and now the parliamentary inquiry has called for is the ability for these people to be able to go to the administrative appeals tribunal, so at least they have a day in court, at least they know the reasons why this assessment has been made and they can challenge that. So that’s a really important reform as well. Some of the other changes into legislation too are important; ensuring that we have a set time period that people can be kept in detention, and the committee recommended 90 days as a time limit. We would like to see it a bit shorter than that, but I think any time limit is an improvement on what we’ve got at the moment.

…the committee recommended 90 days as a time limit. We would like to see it a bit shorter than that, but I think any time limit is an improvement on what we’ve got at the moment.

There are small but important things that need to still happen to ensure that people in the community are supported in a way that they are able to fully articulate their claims so that we have a fair and transparent system. That way a determination can effectively be made on who is in need of protection and who is not.

Complementary protection is a category of protection for people who are not refugees, as defined in the 1951 Refugee Convention, but who cannot be returned to their home country because there is a risk the person would suffer certain types of harm that engage Australia’s international non-refoulement obligations. At the same time changes were made to the protection visa system changes were also made to the way complementary visas are assessed. Now asylum seekers will be assessed for complementary visas at the same time as they are assessed for a protection visa. Could you shed some light on the situation of those seeking complementary protection and where you think the issue fits into the asylum seeker debate in Australia?

This has been one of the really important changes in recent years – one of the important positives we’ve seen to the way people are assessed for protection. Under international law people are not allowed to be sent back to a country where they face torture or death – that’s what non-refoulement means. It’s a very narrow group of people that are defined in the Refugee Convention that this applies to, however Australia had broader obligations under the Convention against Torture and the Convention on the Rights of the Child and other conventions. So instead of putting people who may not be refugees but still face torture or death through the entire system and then have to rely on a discretionary decision at the end, an assessment can now be made at the very beginning. And so when you have a situation where a reviewer might say “Yes we accept you’ll be killed if you’re returned, but no you’re not a refugee because you don’t fit within the definition, sorry we’re rejecting you”, and then that person has to go to the next level of appeal knowing they’ll be rejected again and then months and months later have to go to the minister for a decision to finally be made. The reviewer now – at the very beginning – can say “ok you’re not a refugee but yes you will face some other form of serious harm, therefore we have an obligation to protect you”.

So instead of putting people who may not be refugees but still face torture or death through the entire system and then have to rely on a discretionary decision at the end, an assessment can now be made at the very beginning.

And so a system is now in place, a really important system, which will only capture a small number of people who don’t fit within the refugee definition but at least something can be done in an open and transparent way right at the beginning of the process.

We need to remember that this is how all other Western democratic governments make their assessments around protection, and that’s really what the system should be about – assessing whether somebody has a protection need. What we’ve seen is Australia come into line with similar Western democratic countries. It is an important change, and it should ensure a much more efficient, much fairer, much more transparent system – that’s really what you want to see when you’ve got a system designed to make protection assessments.

Complementary visas require “real risk of significant harm” for the applicant to be granted protection in Australia. “Significant harm” is defined as where a person will:

  • be arbitrarily deprived of his or her life;
  • have the death penalty carried out;
  • be subjected to torture;
  • be subjected to cruel or inhuman treatment or punishment; or
  • be subjected to degrading treatment or punishment.

How do you see this working in practice, given many seeking protection in Australia come from unstable states, or even war zones?

I think this is what’s going to be really interesting in how the new complementary protection legislation is interpreted by the Department of Immigration and also the various tribunals and ultimately the courts.

The way the legislation has been set up is about significant harm for the individual, based on those criteria. It’s not about generalised violence. Just because you come from Afghanistan or Somalia or Iraq, you can’t say “because there’s generalised violence, I might be killed, therefore I need protection”. From explanations we’ve been given around complementary protection, that’s not going to be accepted. We still don’t have, as part of the assessment process in Australia, a way to look at generalised violence. So it will be very interesting. The individual still has to prove their real risk of significant harm. If you’re from Somalia, if you’re from a particular ethnic group, you must prove why you will still be targeted specifically and you’re life will be at risk. You can’t just say “there are bombs going off once a week and people are dying and there are record number of civilian deaths in Afghanistan this year – I could be one of them”. That’s not going to be accepted as far as we understand, when people seek protection.

It’ll be interesting to see how it’s interpreted, but at least it will mean that people who don’t sit within the five categories under the Refugee Convention can still be able to show things like subjected to degrading treatment or punishment, and often this can be gender-related persecution – women suffering targeted honour killings, domestic violence, those sorts of things. As long as they can prove that the state can’t protect them or won’t protect them, then if it doesn’t meet the refugee criteria, it should now fall under the complementary criteria. It will be interesting for those cases where generalised violence is the fear, because as far as we understand it’s not going to apply to those cases.

Do you think there should be a system to deal with those cases where there is generalised violence?

Well a lot of other countries do have systems that deal with that and I think it is still something that Australia needs to address. If you are going to return somebody, how do you do so in safety and dignity? If there is a situation of generalised violence, then what do we do with people who are not refugees and they don’t have complementary protection? What do you do with those people where you still have some sort of certainty about returning them to a country like Somalia but they’ve failed in their protection application?

The use of removal pending bridging visas and things like that that we have in Australia are still very problematic, we believe, because you are keeping people in indefinite limbo on some of those bridging visas. This is an issue I think that will still need to be addressed and it will be interesting to see how complementary protection is interpreted and what happens to people who fall outside of that.

If you are going to return somebody, how do you do so in safety and dignity?

While small changes in policy and practice like these are extremely important to the lives of those seeking protection in Australia, it seems as though these issues have not received the media coverage they deserve. Do you see the larger debate on asylum seeker policy in Australia overshadowing important issues like this?

The short answer is yes, and that’s because the media in Australia and the politics in Australia are fixated on boats. Everything is around boats, regardless of the numbers – realistically, these are not big numbers when you look at Australia’s overall migration program, when you look at the numbers moving around the world. We’re not talking about big numbers, but in terms of the political heat and the media coverage it’s all consuming. So to be able to have a sensible debate and a sensible discussion around “how do we do protection? What is it we’re trying to achieve through these policies, through these practices?” becomes extremely difficult.

A good example recently was around the Homestay Network and how the government is getting people out of detention on bridging visas and the possibility now of ordinary Australians to use the Homestay Network to be able to house people for six weeks until they get on their feet. And a good news story like that is a sensible approach to ensuring that we’re not keeping people stuck in remote indefinite detention.

The reality is that 90 per cent of people coming by boat will ultimately be found to be refugees. They’re going to be in the community anyway, so how do we progress them into a community that’s of best interests to the individual, but also to Australia, to make sure that these people have someone there who can guide them into putting a CV together, to learning how to catch the bus, to going to the supermarket. All those basics can be done, instead of people rotting away in a detention centre.

But again, what does the media fixate on? It fixates on boats, it fixates on border security, it fixates on people smuggling. So to be able to have a sensible conversation around “what is protection and how do we best do it in a way that benefits us as a community and the individuals who need protection?” is lost, unfortunately, in that very politicised debate. It would be great if we could take a step back and have a sensible conversation around policy.

It would be great if we could take a step back and have a sensible conversation around policy.

Is there anything else you’d like to add on this issue?

I think it is good if we can focus on policy and what it is we’re trying to do and what protection is all about and why do we have a humanitarian program and why do we resettle people but why do we still need to have an asylum system? And get back to the fundamentals of what this is all about. Unfortunately as I said, we’re still a little way away from that. But we can only hope.

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  • Jon Cavdarski

    Dear Amnesty
    I am horrified to hear that Mr Graham Thom helped Man Monis get a protection visa and then kill 2 innocent Australians.
    These evil people should not be helped !
    I think its time for a new Amnesty spokeman
    Regards
    Jon

  • I think that to focus on a single example of a refugee situation gone wrong is of little help to anyone. Dr Graham Thom is a spokesperson for Amnesty International because he has devoted a large part of his adult life to the need for improvements to the current system of dealing with refugees. The Immigration Department could just as easily be blamed for the mistakes made with Man Monis because it is often dissagreement over policy between the various well meaning interest groups that can lead to an individual slipping past the usual checks on an individuals credentials for acceptance in our society.