Offshore processing

Australia's humanitarian program is complex, but the basic structure is one of bifurcation between onshore and offshore processing of claims for people seeking asylum. While the onshore humanitarian program is common across most signatories to the 1951 Refugee Convention, it is Australia's offshore detention policy that is the most controversial and widely criticised by civil society members.^[10]

Australia is one of two nation-states that currently employ a policy of shifting potential people seeking asylum by boat to other nation-states for processing of asylum claims. This policy receives support from both major political parties.^[10]

Legacy caseload

In July 2019 it was estimated that there were about 30,000 people living in Australia who are ineligible for permanent residency, because they came to the country by boat before 2014. Recommendations to the government by the Australian Human Rights Commission to help improve the lives of these non-residents, some of whom live in poverty and suffer from mental health issues because of restrictions of their access to financial support and other welfare, and their uncertain futures, was rejected.^[20]

"White Australia policy": Pre-federation-1973

The White Australia policy is a term used for the historical policies responsible for the exclusion of non-European origin, especially Asians (primarily Chinese) and Pacific Islanders (primarily Melanesians) from immigrating to Australia.^[33]

World War II refugees: 1930s

In the 1930s more than 7,000 refugees from Nazi Germany were accepted into Australia.^[34] In the eight years after the end of World War II almost 200,000 European refugees settled in Australia. Australia was reluctant to recognise a general "right of asylum" for refugees when the Universal Declaration of Human Rights was being drafted.^[35]

West Papuan refugees on Manus Island: 1960s

University of Sydney immigration law specialist Professor Mary Crock says that Australia's history of offshore processing goes back to the 1960s, when Manus Island was set up to take refugees from West Papua.^[36] Known as "Salasia Camp", it consisted of a few corrugated iron houses on a bare concrete slab, not far from a beach near the main town Lorengau. Indonesia was preparing a military takeover of the former Dutch New Guinea colony in the 1960s, causing thousands of refugees to flee into the then Australian colony of Papua New Guinea; the first were sent to Manus in 1968 by the Australian government. The camp was built by Australia in order to avoid a diplomatic confrontation with Indonesia, and for this reason they were not granted refugee status. It was not a detention centre; the refugees were free to come and go, but remained stateless until granted citizenship by PNG in 2017.^[37]

Vietnamese boat people: 1970s

The first recorded instance of asylum seekers arriving in Australia via unauthorised boat occurred in April 1976. Fleeing South Vietnam after the Communist Party victory of 1975, an estimated 2,000 "Vietnamese boat people" followed between 1976 and 1982. The sporadic arrival of unauthorised boats was a cause of concern for the Australian people.^[38] The initial controversy regarding asylum seekers in Australia was mostly because of family reunions.^[33] Employment and security concerns were also raised with the Waterside Workers Federation calling for strikes on the matter.^[4] This led to the first detention of boat people. In response, the government of Malcolm Fraser authorised the immigration of more than 50,000 Vietnamese from Indian Ocean refugee camps. At the time, the "open door" immigration policy enjoyed bipartisan support.^[38]

Professor Crock says that a type of offshore processing was used after the Vietnam War. The regional processing regime established right across Southeast Asia was designed to stop asylum seekers where they were, process them in situ, and then to distribute them in an orderly way.^[37]

Mandatory detention: the 1990s

During the early 1990s, asylum seekers from Cambodia began to arrive in Australia. In response, the Keating government instituted a mandatory detention policy aimed at deterring refugees.^[38] Under mandatory detention, anyone who enters the Australian migration zone without a visa is placed in a holding facility while security and health checks are performed. Additionally, the validity of the person's claim to asylum is assessed by the Department of Immigration and Citizenship.

In 1990, a number of asylum seekers arrived from Somalia without documentation. They were detained at Villawood Immigration Detention Centre for 18 months without any progress on their status. Some began a hunger strike in response to the prolonged detention. Eventually, all were determined to be genuine refugees.^[39]

In the mid-1990s, numerous boats carrying Chinese and Sino-Vietnamese refugees were returned to their place of origin after asylum claims were denied. The rapid repatriations meant that many citizens were unaware of the refugees.^[38] During this period a refugee from Indonesia was detained for 707 days before being granted refugee status.^[39]

During the Kosovo War (1999), the Australian government conducted Operation Safe Haven and gave temporary asylum to 4000 Kosovo Albanians by housing them in military facilities.^[40][41][42] The event shaped a pivotal change in Australian government policy toward refugees by offering temporary asylum instead of permanent settlement.^[43]

In 1999, Middle Eastern immigrants fleeing from oppressive regimes in Afghanistan, Iran and Iraq began to arrive in large numbers.^[38] The Howard government extended the time they spent in mandatory detention and introduced temporary protection visas for boat arrivals.^[9] The deterrents did little to stop immigrants; roughly 12,000 asylum seekers reached Australia from 1999 to 2001.^[38]

Pacific Solution: 2001–2007

In August 2001, a Norwegian freight ship, the Tampa, picked up 438 people whose vessel was sinking off the coast of Indonesia. Captain Rinnan first tried to slowly turn the boat towards Indonesia, after being threatened with prosecution by the Australian government. However, after a while the mainly Afghan asylum seekers noticed, so, concerned that if the ship continued to sail to Indonesia they might jump overboard or riot and harm the crew, decided to head back towards Christmas Island. The Howard government refused to allow the boat to land, saying it was a matter for Norway and Indonesia to work out between themselves. Neither made a move, creating a three way diplomatic standoff which became known as the Tampa Affair. Australia seized control of the ship, drawing international criticism but strong support in Australia. After ten days, Australia struck a deal with New Zealand and Nauru to have those nations temporarily host the refugees while Australia processed their asylum claims.^[45]

Following the September 11 attacks in the US in 2001, anti-Muslim rhetoric increased in Australia, as Muslims were the primary asylum seekers at the time.^[33] Following the Tampa Affair, the Commonwealth Migration Act (1958) was amended by the Howard government in September 2001.^[46] The amendments, which became known as the Pacific Solution, excised Christmas Island and Ashmore Reef from the Australian migration zone.^[38] The Christmas Island Detention Centre, designed as a temporary holding centre, was set up, and asylum seekers were directed from there to nearby island nations Papua New Guinea, to be housed in the Manus Island Regional Processing Centre and Nauru, to the Nauru Regional Processing Centre. There, asylum seekers had to undergo a lengthy process before they could immigrate to Australia.^[1] The Pacific Solution was intended to remove the incentive for refugees to come to Australia. While detained offshore, asylum-seekers under the Pacific Solution were denied access to Australian lawyers and to protection under Australian law.^[9] The combination of the boat arrivals and the September 11 were said to have turned the November 2001 election in John Howard's favour.^[36]

At the time, the minority Labor Party opposed the policy. In 2003, Julia Gillard, then shadow minister for Population and Immigration, promised that Labor would end the Pacific Solution "because it is costly, unsustainable and wrong as a matter of principle".^[47] The policy was also highly criticised by human rights groups and refugees, including those imprisoned on Nauru who undertook hunger strikes from 2003 to 2008.^[1][48] The primary concern was that abuse of the process could potentially develop in remote locations, and that immigration control would dominate over child protection issues, children being without an effective guardian. In July 2005, Australia ceased the practice of mandatory detention of children.^[49]

In 2002, the arrivals dropped from 5,516 the previous year to 1.^[4] From 2001 to 2007, fewer than 300 asylum seekers arrived.^[38] The program cost Australia more than AU$1 billion during that period.^[50]

End of offshore processing: 2007–2012

After winning the 2007 election, the Labor Party under Prime Minister Kevin Rudd abandoned the Pacific Solution, installing a more liberal asylum policy.^[1] The Rudd government pledged to settle all asylum claims within three months and closed the Nauru detention facility.^[38] It abolished temporary protection visas in 2008.^[9] Only 45 of the 1,637 asylum seekers detained in Nauru were found not to be refugees.^{[citation needed]}

Over the next few years the number of asylum seekers arriving in the country increased substantially.^[1] According to parliamentary records, only 25 asylum seekers travelled by boat to Australia in the 2007–08 financial year.^[36] In 2008, there were 161 immigrants under asylum laws; in 2009, claims jumped to 2,800;^[1][38] in 2009–10, more than 5,000 people came.^[36] The issue quickly became a political problem for Rudd. He claimed it was a change in the international political environment that caused the increase, not the abandonment of the Pacific Solution. When that idea failed to be accepted, he proposed what became known as the Indonesian Solution. Under the plan, Indonesia would receive financial aid and intelligence in exchange for cracking down on the people smugglers that transported the asylum seekers.

In October 2009, the Australian customs boat Oceanic Viking was involved in an operation to apprehend 78 Sri Lankan asylum seekers and move them to an Australia-funded immigration detention centre on the Indonesian island of Bintan for processing.^[52] The asylum seekers were taken to Indonesia but refused to disembark until 17 November, after a deal was agreed upon.^[53] The asylum seekers were transferred to Indonesian detention, and after a month were determined to be refugees and resettled in several countries.^[53][54]

In December 2010, a boat carrying around 90 asylum seekers sank off the coast of Christmas Island, killing 48 people.^[55]

Ahead of the 2010 election, Tony Abbott campaigned on the asylum issue, and with Rudd refusing to engage with him in "a race to the bottom", polls showed the public strongly favouring Abbott's anti-asylum views. By this time, Rudd was struggling in the polls for a number of reasons and had lost the confidence of the Labor Party Caucus, which, fearing defeat in the upcoming election, installed Julia Gillard in his place. Gillard argued it was wrong to give special privileges to asylum seekers. She was against a return to the Pacific Solution, instead arguing for the establishment of a regional offshore processing centre. Gillard's new position was welcomed in the polls, and in the August 2010 election, Labor retained power in a minority government supported by a number of independents.^[38]

In May 2011, the Gillard government announced plans to address the issue by swapping 800 new asylum seekers for 4,000 long-standing assessed refugees in Malaysia. The so-called Malaysian Solution was eventually ruled unconstitutional by the high court,^[36] partly because Malaysia was not a signatory to the 1951 UN Refugee Convention.^[56]

In 2011, Australia received 2.5% of the world's total number of claims for asylum.^[57] During 2012, more than 17,000 asylum seekers arrived via boat.^[58] The majority of the refugees came from Afghanistan, Iran, and Sri Lanka.^[1] In June 2012, a boatload of asylum seekers capsized in the Indian Ocean between Indonesia and Christmas Island, leading to 17 confirmed deaths, with 70 other people missing.^[59]

Offshore processing resumed, PNG solution: 2012–2013

In June 2012, Gillard appointed an expert panel to make recommendations on the asylum issue by August 2012.^[60] The report included 22 recommendations.^[57] Following their recommendations, her government effectively reinstated the Pacific Solution, and re-introduced offshore processing for asylum seekers. Some Labor members complained that Gillard had abandoned her principle for the sake of politics. Greens' Senator Sarah Hanson-Young called offshore processing "a completely unworkable, inhumane, unthinkable proposition".^[47] The Nauru processing facility was reopened in September, and the Manus Island facility in Papua New Guinea reopened in November.^[61][62] However, the centres could not keep up with demand, creating a large backlog.^[1] The first 6 months of the policy did not see a reduction in immigration attempts – in the first half of 2013, there were more than 15,000 asylum seekers.^[58] For the 6 months to June 2014 however, the number has appeared to sharply reduce, with the immigration minister Scott Morrison claiming that there "had (not been) a successful people smuggling venture" in the period.^[63]

In July 2013, Rudd, who had recently returned to power as Prime Minister, announced that anyone who arrived in Australia by boat without a visa would not be eligible for asylum.^[1] In co-operation with Papua New Guinean Prime Minister Peter O'Neill, the Regional Settlement Agreement was drafted. Under the agreement, new asylum seekers would be sent to Papua New Guinea where legitimate cases would be granted asylum in that, but would lose any right to seek asylum in Australia.^[64] To accommodate the refugees, the Manus Regional Processing Centre would be enlarged significantly. In exchange for taking the asylum seekers, Papua New Guinea would receive financial aid from Australia. Like Australia, Papua New Guinea is a signatory to United Nations Refugees Convention.^[58] Rudd said the policy was not intended to be permanent and would be reviewed annually.^[1]

Announcing the new policy, Rudd remarked "Australians have had enough of seeing people drowning in the waters to our north. Our country has had enough of people smugglers exploiting asylum seekers and seeing them drown on the high seas."^[1] Liberal Party leader Tony Abbott praised the substance of plan, but said Rudd's government was incapable of making it work. Greens leader Christine Milne, however, called the plan "absolutely immoral".^[64] Human rights groups criticised the decision. "Mark this day in history as the day Australia decided to turn its back on the world's most vulnerable people, closed the door and threw away the key," said Graeme McGregor of Amnesty International Australia.^[1] Human rights lawyer David Mann called it a "fundamental abrogation of Australia's responsibilities" and doubted the legality of the policy.^[1] He has also questioned the record of human rights in Papua New Guinea.^[65]

The New York Times described Rudd's decision as likely "part of a concerted effort" to nullify opposition attacks ahead of the 2013 federal election.^[1] He had been under fire for the unpopular programs of Gillard that led to his return to power, and immigration had become a major issue in the election campaign.^[1][58] Concurrent with Rudd's announcement, Indonesia announced it would toughen requirement for Iranians seeking visas, a change that had been requested by Australia. An Indonesia spokesperson denied that the change in policy was because of an Australian request.^[1]

The New York Times reported that more than 600 asylum seekers had died en route to Australian territory between 2009 and 2013.^[1] According to the Morrison government in 2019, more than 50,000 people had arrived by boat and at least 1,200 people drowned at sea during the Rudd-Gillard-Rudd years.^[36]

Operation Sovereign Borders: Sept 2013

At the federal election on 7 September 2013, Abbott led the Liberal/National coalition to victory, to a large degree on the popularity of his "Stop the boats" slogan, after nearly 19,000 refugees had arrived by boat in the previous year (despite the number being relatively low by world standards).^[66] The Abbott government clamped down further on boat arrivals, naming their strategy Operation Sovereign Borders. This was implemented by then immigration minister Scott Morrison and continued by successor Peter Dutton from December 2014 and under prime ministers Malcolm Turnbull and Scott Morrison, as of November 2019^[update].^[67][68] Their "zero tolerance" policies included the use of boat turn-backs, offshore detention and processing and tight control of information about any arrivals by the government.^[36][69]

In 2015, the government rejected suggestions that it would accept Rohingyas (a persecuted Muslim minority in Myanmar) during the Rohingya refugee crisis, with the Prime Minister Tony Abbott responding "Nope, nope, nope. We have a very clear refugee and humanitarian program".^[70] However, later in the year the government unexpectedly increased its intake of refugees to accommodate persecuted minorities, such as Maronites, Yazidis and Druze, from the conflicts of the Syrian Civil War and Iraq War.^[71][72] (It was these refugees who swelled the figures for 2016–2017.^[25])

US refugee swap deal: 2016

In 2016 Turnbull announced a new resettlement deal with the then US president Barack Obama, who agreed to take 1,250 of the refugees held on Manus Island and Nauru in exchange for Central American refugees coming to Australia. Upon taking office not long afterwards, Donald Trump was not pleased with the deal, but went on to honour it, and as of February 2019^[update] more than 500 refugees had moved to the US.^[36]

Closure of Manus detention centre: 2017

The centre was formally closed on 31 October 2017,^[73] but as of February 2019^[update], there were 600 asylum seekers still housed on the island in several transit centres near the main town of Lorengau.^[36]

The Australian government ruled out bringing people held on Manus Island to Australia. New Zealand's offer to resettle 150 refugees within its existing quota was refused by the Australian Government several times.^[74] United States officials began assessing applications for asylum for refugees to be resettled in the United States as part of a deal struck with the Australian government.^[75]

Statistics and assessment: end 2018

Over the period from the Abbott government through to the Morrison government, arrivals dropped to around 1,200. However, the conditions of those left on the islands has continued to garner national and worldwide attention. Immigration law specialist Professor Mary Crock said there was no statistical evidence that offshore processing itself deterred asylum seekers; it was rather boat push-backs that were more successful. People had become aware of the human cost as well as the monetary cost. "We've spent more on this than [the US$5 billion] Trump is asking for his wall," she said.^[36]

Public opinion seemed to be reflected in the polls at the October 2018 Wentworth by-election, after successful candidate Kerryn Phelps had urged voters to protest 'inhumane' refugee policies by voting for her.^[76]

Medevac Bill & re-opening of Christmas Island: Feb to Dec 2019

On 13 February 2019, a bill which became known as the "Medevac bill" was narrowly passed by the Australian parliament allowing doctors to have more say in the process by which asylum seekers on Manus and Nauru may be brought to the mainland for treatment. The approval of two doctors is required, but approval may still be overridden by the home affairs minister in one of three areas. The fast-tracked medical transfers will only apply to the existing cohort of refugees and asylum seekers on Manus Island and Nauru, a point that Mr Morrison refuses to concede. Human rights advocates hailed the decision, with one calling it a "tipping point as a country", with the weight of public opinion believing that sick people need treatment.^[77][78][79]

A few days later, after warning about an influx of asylum seeker boats by both Dutton and Morrison, the prime minister announced the re-opening of the Christmas Island detention facilities, implying that this change in the law would provide the signal for people smugglers to begin operating again. The government later announced a plan to send sick refugees there, rather than hospitals on mainland Australia as was the intention of the Medevac bill.^[36] In the days following, Dutton said that because of this change in the law, Australians on waiting lists for hospital treatment and those already in public housing were going to be adversely affected.^[80]

This was seen by Robert Manne as a turning point in Labor Party policy, after having had almost identical asylum seeker policies as the Coalition for the past five years. He also points out the numerous obstacles any potential people smuggler or asylum seeker would have to face, because the deterrent aspects of the policy are still firmly in place, and the new legislation applies only to the approximately 1000 people still on Nauru and Manus (of whom only a relatively small number will be allowed to access the urgent medical attention they need).^[80]

In December 2019, the Medevac bill was repealed, after 37 votes to 35 in the senate supported the government's move to repeal the law.^[81][82]

"Biloela family" asylum seekers

In a long-running case in which a couple of Tamil asylum seekers, Kokilapathmapriya Nadesalingam (Priya) and Nadesalingam Murugappan (Nades), were refused refugee status after settling and starting a family in Biloela in central Queensland, the community rallied to support the family, who became known as "the Biloela family" in the press. The family was removed in a dawn raid on their home and taken to Melbourne in March 2018, pending deportation.^[83] Various legal avenues were pursued, with the family taken to Christmas Island Detention Centre in late August 2018. In April 2020 they were awarded costs of more than $200,000 against the federal government, for lack of procedural fairness in assessing their youngest daughter's claim.^[84][85] After election of a Labor government under prime minister Anthony Albanese, on 25 May 2022 interim home affairs minister Jim Chalmers granted the family a bridging visa which would allow the family to live and work in Biloela while they work towards the resolution of their immigration status.^[86]

March to May 2020

In March 2020, Home Affairs told the Senate estimates committee that "211 refugees and asylum seekers remained on Nauru, 228 in Papua New Guinea, and about 1,220, including their dependents, were in Australia to receive medical treatment". Transfer and resettlement of approved refugees in the US was proceeding during the COVID-19 pandemic. 35 refugees left Port Moresby on 28 May 2020, and others would be flown from their places of detention within Australia, to be resettled in 18 US cities.^[87]

July to October 2021

On 31 July 2021, there were 124 adults remaining in PNG and 107 on Nauru.^[88]

In September 2021, the Minister for Home Affairs signed a new deal with Nauru to keep an ongoing form of asylum seeker processing centre on the island.^[89]

In October 2021, the Australian Government cut off all support to the remaining men in PNG, leaving the PNG Government to take over responsibility for them.^[90] The remaining men were told that their options are transferring to the Nauru processing centre or resettling in PNG.^[91][92][93]

December 2021 – July 2022

As of December 2021, there were 2,352 "Irregular Maritime Arrivals" (IMAs) who had applied for a protection visa and whose bridging visa had expired; there are no statistics for non-IMAs under the same conditions. This group has no access to services like Medicare, no Centrelink (social security) payments or other social services, and are not allowed to work. They rely on free food from charities, A$400 given to them in cash by the Australian Red Cross each month, and live in overcrowded, rundown properties together.^[94]

It was estimated in July 2022 that there were around 100,000 asylum seekers in Australia, with around 30,000 of those whose applications for refugee status have been rejected, and the rest status as yet undetermined, or on temporary visas.^[94]

Housing

For asylum seekers that arrive in Australia and receive a temporary protection visa (subclass 785),^[96] they are given the right to live in the community and are largely given autonomy to choose housing. The Australian government does not provide services to link asylum seekers with potential housing.^[95] Their ephemeral status in the country, entirely dependent on status determination by the government, leads to apprehension amongst housing providers arising from concern that they may not remain in Australia for the duration of the lease. The lack of clarity and certainty owing to their undefined legal status therefore deters housing providers from offering leases to asylum seekers.^[95]

Compounding this factor is the exceptionally low income for most asylum seekers, arising from their inability to work legally in Australia (an issue that will be comprehensively discussed below).^[95] These low wages limit housing options for asylum seekers and leaves them susceptible to a higher risk of exploitation. Substandard housing conditions clearly follows from this difficulty.^[95] One instance in Adelaide found 20 temporary protection visa holders living in a single address, while a service provider in Sydney reported instances where people seeking asylum had been convinced by real estate agents to rent non-residential properties such as warehouses with dividers between the beds.^[95]

General issues prevalent across most major cities in Australia in relation to housing are compounded in severity for asylum seekers.^[95] Housing affordability for most areas in proximity to city centres has become out of reach for both buyers and renters.^[97] In the two largest cities of Sydney and Melbourne, housing availability is an additional strain for renters, with a competitive market leading to some perpetually searching for housing.^[97] The impact these general issues have on asylum seekers searching for housing open arrival into Australia is therefore significant and, at times, debilitating, leading to substantial possibility of homelessness throughout these communities.^[95]

Income and work rights

Asylum seekers in Australia are precluded from the ability to work until a determination is made on their refugee status.^[98] The timeline for status determination varies considerably on a case-by-case basis. Until the passage of the Migration and Maritime Powers (Resolving the Asylum Legacy Caseload) Act 2015 (Cth), the Commonwealth was required to report the percentage of decisions made within 90 days of lodging their application. From 2013 to 2014, the Department of Immigration and Border Protection made just seven percent of initial decisions within the given timeframe.^[99] While more current data is unavailable, it is unlikely that the change of Liberal leadership (and therefore government) from Abbott to Turnbull has raised these rates. This means that it is likely that the overwhelming majority of asylum seekers in Australia are unable to work for well over three months while they wait for status determination.^[99]

The lack of ability to work forces asylum seekers in Australia to rely heavily on Centrelink payments.^[95] Their capacity to earn is then greatly reduced and there is an identifiable gap in the interstice between application for refugee status and refugee status determination where asylum seekers in Australia are placed into a tenuous financial position.^[95]

The bleak outlook on income are working rights so described leads to a direct impact on the mental health of the asylum seeker community.^[95] For those asylum seekers that go on to be recognised as legally defined refugees, the labour opportunities are largely seen as a window dressing exercise.^[95] The support given is unspecialised, with Jobactive largely ignoring the unique difficulties newly recognised refugees possess when searching for and obtaining work.^[95]

Procedural challenges

The Status Resolution Support Services (SSRS) is the Department of Immigration and Border Protection's replacement for the previous Community Assistance Program that is meant to connect migrants and non-citizens with social services.^[100] The services are delivered under six different bands that vary dependent upon identity and timeline of asylum.^[95] There are issues latent within the SSRS arising from a strict adherence to the band taxonomy that leads to a stringent, and at times problematic, application of the band criteria.^[95] There is the additional strain of a high caseworker to client ratio of 1:120, which has largely been viewed as a compromise on quality.

The Code of Behaviour is an agreement asylum seekers sign when arriving in Australia that largely binds them to certain standards of behaviour while awaiting refugee status determination.^[101] This has been received by the community as casting a dark shadow for asylum seekers' experience in Australia, with many of the signees feeling that the agreement creates uncertainty and confusion as to which actions may jeopardise their applications.^[95] The effect of the Code of Behaviour has deterred refugees from community events out of fear that their participation could contribute to a denial of their applications.^[95]