By Lisa Kent
Pedro Lay arrived in Australia at the end of 1994 as an asylum seeker from East Timor. He was just 12 years old when the Indonesian army invaded East Timor in 1975 and, like other students at his high school, he joined Unetin, a student organisation that supported Fretilin and demonstrated in the streets for Timorese independence.
At the age of 13, Pedro joined his uncle in a Fretilin battalion to fight against Indonesian soldiers. For the next four years he lived in the mountains, moving from place to place, until he was captured in 1980 and imprisoned in a military base in Dili.
Pedro was subjected to torture and interrogation during his five-year imprisonment, which only made him more determined to fight for independence. While he was in prison, Pedro's fiancee was killed by Indonesian army officers for refusing to have sex with them, leaving Pedro with a small daughter.
He was not told of her death until he was released in 1985. Life rapidly become intolerable for Pedro, who struggled to support himself and his daughter by working as a taxi driver. He feared for his life and the future of his daughter, and was continually harassed by Indonesian army officers, who demanded money from him. Pedro made the difficult decision to leave East Timor in 1994, paying a large bribe for a visitor's visa from Bali, because he wanted a safe future for his daughter.
When Pedro arrived in Australia, he applied for refugee status. He expected that Australia would listen to his experiences of persecution and offer him protection and stability in which to start a new life. Instead, two years later, Pedro is still waiting. His confidence and trust in Australia have slowly been eroded.
At the end of 1994, the Department of Immigration and Ethnic Affairs put a freeze on the processing of all East Timorese applications for refugee status; 1350 East Timorese asylum seekers and their families were left in limbo while the DIEA deliberated what to do with them. Accepting 1350 East Timorese as refugees might damage Australia's relationship with Indonesia.
Prior to 1994, East Timorese were considered by the DIEA and the Refugee Review Tribunal to have Indonesian nationality (a contentious claim in itself) and, at the most, a "right to apply" for Portuguese nationality. However, new legal opinion suggested a loophole. According to a professor of law in Portugal, East Timorese people were entitled to claim Portuguese nationality. The East Timorese, it was suggested, possess dual nationality — Indonesian and Portuguese. This avoided the sensitive issue of refugee status altogether, because, according to the Refugee Convention, asylum seekers who have the protection of another country are not entitled to refugee status.
There was, however, one small hiccup for the Australian government. The Portuguese government would accept only East Timorese who agreed to go voluntarily. This put Australia in a potentially sticky position. To send 1300 East Timorese to Portugal against their will, only to have them return, would be embarrassing, to say the least.
Turnaround
The hypocrisy of the Australian government position on this issue is glaringly apparent in the rapid turnaround of opinion. While in opposition (October 11, 1995), Alexander Downer issued a press release which argued persuasively:
"Australia has never considered the East Timorese anything but Indonesian since 1979 — the latest claim by Mr Keating that they are Portuguese is simply absurd and hypocritical. Lying for domestic political gain is one thing but to lie internationally is downright damaging."
Similarly, at the public sitting on February 6, 1995, in the East Timor (Portugal v Australia) case before the International Court of Justice, the Australian government was emphatic in its denunciation of Portugal's colonial occupation of East Timor.
There is no doubt among East Timorese asylum seekers themselves that they do not want to go to Portugal. They have no friends or family connections there, and they cannot speak Portuguese.
Some have lived in Australia since 1991. They have begun to put down roots in Australia. Their children are going to school and learning English. Many have family and friends in Australia who were granted refugee status in previous years.
There is anger and confusion as to why they are considered the nationality of a former colonial power. Pedro says: "We have no connection with Portugal. We could never live there. The Portuguese left us at the mercy of the Indonesians in 1975. How could we consider ourselves Portuguese?"
At the same time, life in Australia is a legal limbo, not knowing what the future will be. "I feel like a boat in a storm, waiting for the Immigration Department to decide my fate", says Pedro.
Hardship
For all asylum seekers in Australia, life is difficult. Many are dependent on a Red Cross living allowance called the Asylum Seekers Assistance Scheme (ASAS), which barely covers expenses such as food, housing and transport. Waiting for their interview at the Immigration Department adds to the stress and insecurity; for some this process has taken more than three years.
Very low levels of English and lack of skills mean they are extremely unlikely to find employment. They are invisible to the wider Australian population, living in the western suburbs and spending the majority of time at home.
This anxiety and confusion have intensified. From the last week of July, the DIEA (now called DIMA) suddenly and without warning lifted the freeze on East Timorese refugee applications and began sending letters to asylum seekers. The letters informed them that DIMA believes them to have Portuguese nationality. The letters go on to say that if they wish to provide any further written information or comment on their case, they have 28 days in which to do so; otherwise a decision will be made on the basis of the available information.
Given the current position of DIMA, this decision is almost certain to be negative. The Timorese are not even given the courtesy of an interview in which they can outline their claims for refugee status. Furthermore, the letters pre-empt the Federal Court case on the issue of East Timorese nationality, which is scheduled for this month.
After rejection by the DIMA, asylum seekers are entitled to an independent review of their claims by the Refugee Review Tribunal. The RRT has so far followed the same line as DIMA, and rejected 35 East Timorese asylum seekers on the grounds that they possess Portuguese nationality. For these asylum seekers, the Red Cross Asylum Seekers Assistance is withdrawn, leaving them without a source of income and creating more pressure on the East Timorese community.
Budget cuts
The federal budget has brought more cuts to the ASAS scheme, which will have a disastrous impact upon the lives of asylum seekers, and particularly the East Timorese. From October 1, asylum seekers who have had their cases rejected at the primary DIMA level will no longer be eligible for the scheme. People will now be expected to find a means of income if they want an independent review of their refugee claims at the RRT.
It may soon be time for supporters of East Timor to show their support for the people as well as the politics. Jobs and housing will soon be needed for the East Timorese asylum seekers in Australia.
The Legal Aid Commission is hoping that the Federal Court case will decide the question of East Timorese nationality once and for all. There are differing opinions among lawyers. Many believe there is little doubt that as a matter of Portuguese law , many Timorese will be entitled to Portuguese nationality.
However the relevant question is whether, as a matter of international law, decision makers in Australia should recognise this. The legal debate revolves around the principle of the right to self-determination, a right which the international community has recognised the East Timorese possess. A number of experts in international law argue that it is inconsistent with the right to self-determination to recognise the ongoing conferral of nationality by the previous colonial power.
While there is hope for a solution through the legal process, the decision of the Federal Court is likely to be a year away, if not more. What of the asylum seekers in the meantime? They are real people caught in the diplomatic and political game playing between Australia, Indonesia and Portugal. The psychological effects of such a long waiting period upon people who have already suffered horrific abuses of human rights are enormously damaging. This is not to mention the impossibility of living without any income.
Regardless of the legal issues, there are strong compassionate reasons why this group of East Timorese should be allowed to remain in Australia. Furthermore, it is within the minister's power to grant permanent residence on humanitarian grounds.
There is no question that the Timorese have suffered persecution, and no question that many would not cope with the new trauma that deportation to Portugal would cause. Human rights groups in Portugal state that East Timorese in Portugal live in difficult conditions while their citizenship is being assessed, a process which is lengthy and by no means straightforward. Australia has an obligation towards these people to recognise their experiences. We must listen to and remember their stories. We must not betray the East Timorese in our own country.
[For more information on East Timorese asylum seekers in Melbourne and offers of assistance, please contact Lisa Kent, Asylum Seekers Project, 50 Mackay Street, Seddon Vic 3011. tel: 9689 9003.]