No fair go for the forgotten ‘legacy caseload’ asylum seekers

By Sangeetha Pillai | 10 Dec 20
M Jafari
Illustration by M Jafari, as part of UNSW Centre for Ideas and Kaldor Centre podcast and longform series, ‘Temporary’ (Kaldor Centre/Right Now)

The Haidari family have the kind of everyday dreams that are familiar to so many of us. They want the kids to have a good education – to finish school and go to university. They want to work, to contribute to their community. They are close-knit and want to be together.

But for a Hazara family in Afghanistan – where the Taliban still wield considerable power –these modest dreams come at a high price, and the Haidaris pay it. In 2011, their eldest son, Ali, was travelling home from university for the summer when his bus was stopped by Taliban soldiers. They searched him, found his student ID, which he forgot to hide, and beheaded him on the spot to set an example to others. Education is viewed with suspicion by the Taliban. A year later, Ali’s father, a doctor, is stopped and searched on his way to work. In his van are medicines with English labels; this is enough to mark him out as an ‘enemy ally’. He never returns home. 

The nightmare has only just begun. The entire Haidari family has now been branded as enemy sympathisers. The Taliban sends letters, then officials, demanding the life of Ali’s younger brother, Zaki, who is now the eldest male in the family. Apparently, this would ‘wipe clean’ the Haidari name. Zaki is only 16-years-old.

For a while, they lay low, hide, move from town to town. But the demands keep coming and they know it’s only a matter of time. They have to get Zaki out of Afghanistan.

They’d prefer to do it in an orderly manner that guarantees Zaki’s safety and that has a clear process, but none of those things exist. It’s hard to make formal travel arrangements when you’re on the run from the militia. Eventually, Zaki’s mother finds someone willing to smuggle him out to a safe country. It costs a lot of money, and the people smugglers don’t say where they’re taking him. They do say that he might die on the way.

Finally, after airports and jungles and terrifying nights at sea, Zaki washes up on Christmas Island. After everything he’s been through, he’s just hoping for a fair go and a chance at finding a safe, permanent home. 

The principle of a fair go underpins international refugee law. The Refugee Convention, signed in 1951 in the aftermath of World War II, is an agreement by the international community to step in and provide safety and protection for individuals whose home countries are unable or unwilling to protect them. 

The Convention prescribes the criteria that a person must meet to qualify as a refugee. It obliges its parties – including Australia – to protect those who meet this standard. It requires refugees to abide by the law in their new country. 

But it does not prescribe the manner in which a refugee must seek protection in order to be granted asylum, recognising that the circumstances in which people need to escape harm are diverse. One way of doing this is to travel to a safe transit country and seek to be ‘resettled’ in a third country, typically with the assistance of the United Nations High Commissioner for Refugees (UNHCR). 

But this is not always feasible. In recognition of this, international law says that refugees have a right to travel to a safe country using whatever means are available, and to claim asylum upon entry. 

Seeking asylum is legal, even if you don’t have a passport, or a visa. It’s legal even if your best shot at finding safety involves leaving your family behind and taking a dangerous road to an unknown country with a bunch of people smugglers. The Refugee Convention dictates that parties must not penalise asylum seekers because they have entered via irregular channels or without obtaining a visa in advance. For so many, there is simply no other option.

Australia has ratified the Refugee Convention. In fact, we played a key role in drafting it. This creates obligations that we can be held to account for in international fora. But, under Australian domestic law, international law is not binding unless it has been incorporated into legislation. Indeed, sweeping constitutional powers over ‘aliens’ and ‘immigration’ – the same powers that laid the foundations for the White Australia Policy – enable the Commonwealth Parliament to pass legislation that directly undermines the Refugee Convention.

The result is that, when it comes to refugees, Australian domestic law resembles a kind of legislative pick-and-mix. To give effect to Australia’s obligations under the Refugee Convention and other human rights treaties, the government’s Refugee and Humanitarian program offers protection to refugees and others fleeing persecution. But, contrary to the letter and spirit of the Convention, those fleeing harm are not treated equally. Instead, Australian law creates multiple classes of refugee. Which class a refugee ends up in hinges on how they arrived in Australia, and when.

The lucky ones, relatively speaking, are those who have been granted permission to resettle in Australia while they are still overseas, either following a referral from UNHCR or with the support of an individual or organisation within Australia. With almost 26 million refugees worldwide, and less than 1 percent resettled each year, the odds of this are slim. But those who make it in via this route come into Australia on a permanent protection visa. This entitles them to the same work and study rights and social services as any other permanent resident. It puts them on a pathway to apply for Australian citizenship in due course, should they wish to do so. It enables them to travel abroad to see family and carries better opportunities to sponsor family members to come to Australia. 

It’s also possible for a refugee to obtain permanent protection in Australia by travelling to Australia on another kind of visa – such as a student visa, work visa or tourist visa – and applying for asylum once in the country, via Australia’s onshore protection program. This can be risky, as those flagged as potential asylum seekers may be denied the right to travel or be turned back upon arrival at the airport, before any protection claim has even been considered. But a refugee who clears immigration and successfully applies for protection will gain the same benefits and right to a permanent home as someone who is resettled from overseas.

For refugees like Zaki, who have no viable option but to climb on a boat and hope for the best, the picture looks very different. Travelling on a boat, without a visa, is perfectly legal under international law if your purpose is to seek asylum. But under Australia’s Migration Act, people who enter Australia in this manner are deemed ‘unlawful non-citizens’ and ‘unauthorised maritime arrivals’

Zaki and others who arrived around the same time – between August 2013 and January 2014 – became known as the ‘legacy caseload’. They were placed into mandatory immigration detention, as required under the Migration Act. From there, their road to seeking Australia’s protection was drawn-out, uncertain, and marked by countless government discretions with the potential to tremendously affect their quality of life. They could be moved between detention centres, or into community-based detention at the discretion of the Department of Home Affairs. They could be granted a bridging visa at the Department’s discretion. This offered a pass out of detention, enabling them to live freely in the community. 

However, it often came with significant financial hardship, because work rights were not guaranteed and income support was very limited. Work rights could be granted, at the Department’s discretion. Members of the legacy caseload were even barred from making an application for protection unless the Minister gave them permission to do so. In some cases this took years. 

If a person from the legacy caseload is recognised as a refugee, they don’t get a permanent protection visa. Instead, they are given a visa granting them temporary protection for three to five years, after which they must reapply, and re-establish their need for protection. They have limited access to income support and social services and cannot travel outside Australia without permission. If they are refused protection, they have limited access to the merits review processes that are available to asylum seekers applying for permanent protection. Their best-case scenario is an ongoing state of insecurity, that often has dire mental health consequences.

They still have it better than some, though. From 2014, asylum seekers who arrived by boat have been turned back at sea, or transferred to offshore processing centres, with no prospect of applying for protection in Australia at all.

Australia’s differential treatment of refugees in need of protection based purely on the circumstances of their arrival undermines both international law and the idea of the ‘fair go’ that is so central to our national identity. 

It’s worth remembering that it wasn’t always like this. In the late 1970s, faced with the arrival of boats of Indochinese asylum seekers, the Fraser government balanced border control with a commitment to providing ‘sanctuary’ within the Australian community for those found to be refugees, in the spirit of the Refugee Convention. The government concluded that neither detention nor cutting welfare support would provide a durable solution to the challenge of mass displacement. Instead, it emphasised the development of fair, efficient and principled processes. After systemic erosion, these processes are in dire need of resuscitation.