Let Timorese stay!
The immigration department's September 25 announcement that it had rejected
168 asylum claims made by East Timorese refugees is a national disgrace.
These are the first of more than 1700 applications which have been awaiting
processing for up to 10 years.
The number of East Timorese arriving in Australia to claim asylum increased
dramatically in the aftermath of the 1991 massacre at the Santa Cruz cemetary
in Dili. These arrivals threatened to strain the diplomatic relationship
between Indonesia and Australia. Refugee status was regularly given to
East Timorese before 1991.
There is no question that when their claims were lodged in the 1990s,
East Timorese were entitled to refugee status. But the Australian government
put its diplomatic relationship with the Suharto regime ahead of human
rights considerations. If the East Timorese were recognised as refugees,
it would have been a public acknowledgement that there were serious human
rights abuses happening in East Timor, which would have been politically
embarrassing for both the Indonesian and Australian governments.
Complaints were made in 1995 about the functioning of the Refugee Review
Tribunal, based on evidence that RRT members were specifically directed
to stop hearing East Timorese cases.
A small number of East Timorese asylum claims were processed in 1997
and 1998. Rejected by the immigration department and the RRT, they took
their appeals to the Federal Court, which argued that the RRT had made
an error in its findings that they were not eligible for refugee status
in Australia. The government appealed against the decision, and some of
those cases still remain unresolved.
The Australian government denied the refugees asylum on the basis that
the East Timorese held dual nationality — Indonesian and Portuguese — and
therefore could access Portuguese protection.
In October 1998, Judge Finkelstein ruled in the case of asylum seeker
Kon Tji Lai that Portugal could not offer effective protection to Timorese
people. He found that the RRT had made an error of law, in that there was
no evidence that Portuguese protection was “effective”. The court found
that the Timorese are not entitled to automatic citizenship by virtue of
being born in East Timor.
It wasn't until March this year that the immigration department announced
it would resume the processing of the 1700 applications because the situation
in East Timor had stabilised enough.
Over the course of the 1990s, waiting for their applications to be heard,
these 1700 East Timorese asylum seekers have become fully integrated into
Australian society.
They will be assessed on a case-by-case basis, and will not necessarily
be entitled to an interview. Those whose applications are rejected can
appeal to the RRT. The immigration department and the RRT will only assess
their claims as they relate to the UN refugee convention.
The only avenue for asylum seekers who are found not to be refugees
according to the UN convention is to appeal directly to the immigration
minister. The minister can grant a visa on humanitarian grounds, taking
into account things such as the length of time the applicant has been in
Australia, whether someone was a refugee when he or she left but is no
longer due to changed circumstance, and members of the family unit who
are Australian citizens or permanent residents.
If all efforts at claiming refugee status fail, and if the minister
refuses to grant the right to stay in Australia on humanitarian grounds,
some of the young Timorese may be able to apply for a close ties visa,
given that many have spent their formative years, between the ages of 12
and 18, in Australia. Timorese who have married Australian citizens will
be able to apply for a spouse visa. Neither of these avenues for permanent
residence are guaranteed.
The fact that these asylum seekers were kept hanging in limbo for up
to a decade, only to be denied, is a shameful indictment of a government
which owes East Timor so much for its decades of betrayal.
The government should create a special visa category to enable these
East Timorese asylum seekers to remain permanently in Australia.
From Green Left Weekly, October 2, 2002.
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