On Sunday, the deadline fell for 30,500 asylum seekers living in Australia to lodge their applications for asylum. Immigration minister Peter Dutton announced the deadline in May this year, alongside the condition that anyone who didn’t meet the deadline would be . The government’s FAQ for people affected by the deadline put it bluntly: “If you do not lodge, you are not an asylum seeker and must return home.”
The imposition of a non-negotiable, non-discretionary and blanket deadline to a group of asylum seekers – where the failure to meet the deadline extinguishes any form of claim – is an exceptionally unfair, arbitrary and dangerous measure.
500 asylum seekers face deportation for missing protection deadline
The affected asylum seekers have been subject, since at least 2012, to rule by a form of executive decree. Their experiences could amount to a case study into what the effects of unfettered, out of control, discretionary government power look like. The surprise announcement of this deadline was no exception to this.
The deadline itself was a discriminatory measure, applying only to asylum-seekers who arrived by boat between August 2012 and January 2014 – the so-called “legacy caseload.” When announced, had not yet lodged their applications. Dutton declared these people to be “fake refugees” costing Australian tax payers “hundreds of millions of dollars a year.” Remarkably, with the assistance of refugee advocacy organisations, many people have managed to submit their applications for asylum. Yet as of last week, refugee organisations reported that at least 500-600 people are yet to lodge their claims.
The “lodge or leave” terms of the deadline, such that those falling foul of it may be deported without any determination of their protection claim, breaches the most fundamental obligation owed by Australia under international refugee law: the prohibition on sending people back to places where they may face persecution otherwise known as the norm of non-refoulement.
The entire refugee convention turns on respect for this principle. Successive Labor and Liberal governments have engaged in a permanent form of doublespeak when it comes to their compliance with it. They have implemented offshore detention policies that have to deter potential asylum seekers and punish those who travel to Australia by boat. They have defended a policy of “” that allows predominantly Sri Lankan asylum seekers to be repatriated after answering as few as three questions. Yet they have implemented these measures that violate the convention’s spirit and text while declaring full compliance with the black letter of international refugee law.
If any asylum seeker who has been unable to meet the deadline is returned without an assessment of their case, even the thinnest, most dubious and calculated claim of compliance with international refugee law can no longer stand.
UNHCR has repeatedly that “fair and efficient [status determination] procedures are an essential element in the full and inclusive application of the [Refugee] Convention.” Over the last 40 years, of people arriving to Australia by boat have been found to be refugees. In certain years, , who comprise about 13% of the “legacy caseload”, have been granted protection. The “legacy caseload” also includes approximately 2,500 stateless people, many of whom are Rohingya fleeing persecution described as “” in Myanmar. Knowing this, it is inevitable that some asylum seekers will be recklessly returned to situations of harm if the deadline is enforced against them.
One of the government’s attempts to justify the deadline has included a claim that these asylum seekers have “” to apply for asylum despite having had “significant opportunity” to do so. But these accusations leave out the critical fact that for between 2012 and 2015, the affected asylum seekers were prohibited by law from filing an application for protection under any circumstances. For some, this resulted in waiting nearly five years to apply for asylum. As the , the government only began allowing some asylum seekers to lodge their claim in mid-2015, with the majority of asylum seekers only becoming eligible to lodge their claims towards the end of 2016. That is, mere months before the deadline was announced.
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Not surprisingly, the prolonged legal uncertainty faced by the “legacy caseload” has been to contribute to increased mental deterioration and self-harm for those affected. As well, the enforcement of the deadline will continue a trend recently identified by Claire Higgins as “”, since the government has threatened to immediately deny both income support and rental assistance to those who do not meet the deadline whilst compelling them to make arrangements to depart.
The unfairness of this deadline hasn’t ended on 1 October. Given the cascading harms caused by the policy, there are serious questions about whether the refugee determination process that follows will be fair and produce legally correct outcomes.
Tanya Jackson-Vaughan, executive director of the Refugee Advice and Casework Service, recently that refugee organisations providing legal advice to these asylum seekers hold serious concerns about their capacity to support clients in the next phase of the assessment process. They are calling for urgent funding to provide legal assistance for members of the “legacy caseload”. And as with each unforeseen executive announcement, the refugees affected must now wait to see exactly how this latest incarnation of policy-on-the-run will be enforced against them.
- Dr Anthea Vogl and Sara Dehm are lecturers at the UTS Faculty of Law