Labor junks one Howard refugee law, keeps others

The federal immigration department said on March 20 that it would bring all asylum seekers under a “new single protection visa process”. From March 24, refugees that arrive by boat would be able to put their cases for refugee status to the same body — the Refugee Review Tribunal — as those who arrived by plane.

Since former Liberal prime minister John Howard excised large parts of Australia’s migration zone in 2001, asylum seekers that arrived by boat were taken to the Independent Merits Review (IMR) system.

The IMR became notorious for its biased reviewers, contracted by the immigration department. It made errors in a large number of cases. The federal magistrates court found at least 24% of the decisions made on refugee cases were legally invalid because of this, said the Age on March 20.

A senior reviewer was twice found by the court to have a particular bias against Afghan Hazara refugees, but the immigration department allowed him to continue assessing cases.

Prominent refugee lawyer David Manne won a High Court case in 2010 that found the separate systems discriminated against refugees that arrived by boat. The ruling meant refugees were allowed to appeal IMR decisions in Australian courts.

Manne welcomed the change. He told The Australian: “It can only improve the quality of decision-making by ending the discriminatory scheme based on how and where people arrived in Australia.”

Refugee Council of Australia chief executive Paul Power said Australia had “the world's most convoluted asylum process”, and a single process would improve decision-making.

Refugees already in the system will continue to be assessed by the IMR, but can still appeal any decisions in court.

Yet the federal Labor government stopped short of returning Howard’s excised territories to the migration zone, which means refugees arriving by boat will still be locked up in detention indefinitely.

Mandatory and arbitrary detention will continue, even as recent attention to the growing crises in Australia’s refugee detention centres has forced the government to begin releasing refugees. After early delays, more refugees are now receiving “bridging visas” to live in the community while their claims are assessed.

Priority is being given to long-term detainees, but many remain locked up for prolonged periods, particularly those refugees that appeal their cases in court.

Most asylum seekers that arrive by plane are also given bridging visas while they await a full protection visa. Most of these asylum seekers are from China, but smaller numbers fly from India and some south-east Asian countries. Many enter the country on student or tourist visas and apply for asylum on arrival.

But some who arrive by plane, for reasons that appear to be based on nationality, are still taken to detention and can be held indefinitely. Some Bangladeshi, Tamil and Rohingya refugees in Sydney's Villawood detention centre arrived by plane, but were taken from the airport straight to detention.

A Tamil man recently told me at Villawood he had been in detention for two years after arriving in Australia by plane.

He said he had never been told about a possible “bridging visa” until other detainees began to be released into community detention last December.

The government’s refusal to repeal the excision of migration zones also means the government could eventually reintroduce the illegal and inhumane policy of “offshore processing”, despite the High Court ruling it unlawful last year.

The immigration department said the “legislative impasse” over offshore processing meant “there was no longer any benefit” to subjecting refugees to different systems.

Immigration minister Chris Bowen said the government still wanted to carry out the unlawful “Malaysia solution”, but the “High Court decision and [Liberal leader] Tony Abbott’s negativity in blocking offshore processing prevent the government from pursuing this option”.

His comments followed independent MP Rob Oakeshott’s attempts to put a bill to parliament that would make the “Malaysia solution” legal.

Refugee advocates strongly criticised the Australia-Malaysia human swap deal because it would have deported to Malaysia asylum seekers that had a legal right to protection in Australia.

Bowen and the Gillard government have backed the bill, but it will not pass without support from the Coalition, Greens and independent MP Andrew Wilkie, who all oppose it.