By Pip Hinman
It took desperate action by 23-year-old David Kang on Australia Day to bring to public attention the plight of some 50 Cambodian asylum seekers behind bars for over four years. Australia is the only Western country with mandatory detention for people who enter the country illegally seeking refugee status.
The long-term detention of people seeking asylum and the conditions of their detention were criticised by the Human Rights and Equal Opportunity Commission in a confidential report to the Department of Immigration in 1992.
More recently, in a report to the United States Congress, the US State Department singled out the Labor government's detention of Cambodian, Chinese and Vietnamese refugees for special criticism. Included in the report was a complaint from the Canberra office of the United Nations High Commissioner for Refugees which suggested that long-term detention could contravene the 1951 Convention Relating to the Status of Refugees.
Early next month, a parliamentary committee investigating Australia's detention policy will report its findings. WA Greens Senator Christabel Chamarette, a member of the committee, told Green Left she would have to wait until the report was tabled before commenting on the issues in detail. But her opinion, already on the public record, is that detention is not a deterrent. "Detention as a deterrent only works when the 'punishment' fits the crime and when it's consistently applied. But when people are in desperate straits, it has no effect." Chamarette added, "My major reason for opposing it is that it is inhumane".
Kerry Murphy, refugee desk coordinator for the Christian Centre for Social Research and Action, and a former officer of the Immigration Department, told Green Left that the prospect of detention hadn't stopped people from risking their lives in small boats to reach Australia. He cited one recent example of a group of Chinese nationals who arrived last November, four of whom had previously attempted to gain asylum in Australia and been detained for 18 months.
According to Murphy, Australia is unique among Western nations for its mandatory detention of illegal entrants. "Both Britain and the US have detention policies for people without visas or who overstay their visas. But, you're allowed to get bail and report in. In Australia, the law says that you must be detained."
A pilot study was carried out in the US recently. The Immigration and Naturalization Service sanctioned the release of 200 detained asylum seekers in four cities. "The critics, of course, said they would all disappear. But in actual fact, the INS found a very high rate of compliance with the monthly report-in requirements", Murphy said.
Moral question
The focus on detention as a deterrent has tended to sideline a more important moral question, which is whether a rich country like Australia has a right to refuse asylum to those fleeing political or other persecution.
The official number of refugees in the world now stands at a record 19 million, a jump of 2 million since 1991 and more than double the number a decade ago. The actual figures are believed to be much higher — possibly double — if people who have been made homeless within their own countries are taken into account. Australia is in a better position than most to offer asylum.
Murphy points to Third World countries which have a record of being far more generous than the rich nations. "For instance, Pakistan provides asylum to 3 million Afghan refugees, and there are several African states whose refugee population is 10-20% of the country's national population."
By contrast, the number of people being granted refugee status in Western Europe is declining. Australia's 1993-94 migrant intake is a meagre 63,000, with 13,000 allowed in if they can prove refugee status.
According to Chamarette, the richer countries have to show "a greater generosity of spirit". They also have a responsibility to "help people solve their own problems in their own homelands ... We need to understand and see the problem from the point of view of the world community."
Creating a queue
Last October, after mounting criticism of the prolonged detention of asylum seekers, Immigration minister Senator Nick Bolkus announced a new "humanitarian initiative". The Special Assistance Category (SAC), targeted at a few national groups, including the Cambodians, was introduced.
Now, to be eligible for permanent residence, Cambodian asylum seekers have to return to Cambodia for at least a year, "be experiencing hardship as a result of recent upheavals" and have close links with Australia. According to Murphy, of the 316 Cambodians who arrived between November 1989 and January 1994, 109 have returned and 96 have been granted refugee status. Some are waiting to leave; the rest are still behind bars in either Port Hedland (WA) or Villawood in NSW.
Both Chamarette and Murphy say that the SAC is at best a compromise.
"The SAC reinforces the myth that the Cambodians are 'queue jumpers', that they should have taken their ticket and waited in line as if they were in a bank or government department", says Murphy. "It doesn't work like that. If you're desperate, you get out as quickly as you can, and that's what these people have done." Even assuming they had tried the legal channels, Murphy noted, they would have had to go to Thailand or Vietnam to find an Australian Embassy!
Under the SAC, the applicant has to be nominated by a near relative or community support group and fund their own travel back to Australia. According to Murphy, under this new scheme, the Australian government has forced the Cambodians into a queue by insisting they wait in Cambodia for 12 months. "Since there wasn't a queue, the Australian government decided to create one!"
Changing the rules
There have been some quite remarkable legislative changes to frustrate asylum seekers' appeal attempts. In April 1992, a group of Cambodians had their case rejected, and they sought a judicial review. The government decided that the case had been wrongly assessed and agreed to hear it again. The second part of the Cambodians' application was for release into the community while their cases were being finalised.
Two days before the case was due to be heard in the federal court on May 7, legislation was rushed through parliament with bipartisan support for compulsory detention of illegal non-citizens. This was challenged in the High Court but held to be constitutional. However, the High Court ruled that before May 1992, the Cambodians had been held unlawfully and were therefore entitled to compensation for two years of unlawful imprisonment.
Application was made for compensation on their behalf. The government then passed more legislation which limited that compensation to $1 a day!
Behind the bureaucratic and insensitive decisions is a political objective. As part of the so-called peace plan for Cambodia pushed by foreign minister Gareth Evans, which was designed to remove the Cambodian People's Party government, it was necessary to maintain the fiction that the murderous Khmer Rouge had been domesticated and were no longer a threat. Granting asylum to Cambodians who feared for their lives would have undermined this diplomatic fiction.
Strict definition
In 1990 Prime Minister Bob Hawke attempted to whip up bias against a group of Cambodian asylum seekers who had arrived by boat by saying they were not "genuine" refugees, but "economic refugees".
Australia adheres to a rather strict definition of refugee. Strictly, it is not someone who has experienced persecution, but someone who will experience persecution on return to their home country. So, as Chamarette points out, the longer the Cambodians stayed in detention, the less likely they would be able to prove they were refugees.
The government uses the 1951 Convention Relating to the Status of Refugees to determine refugee status. It was devised to apply primarily to refugees in Europe.
"The 1951 definition reflects European notions of what matters, or what is significant", Murphy said. "The focus is on individuals, not groups of people." The definition agreed in 1969 and used by the Organisation of African Unity is a lot broader. It describes refugees as people forced to seek refuge by events such as war or "events seriously disturbing public order". The Organisation of American States definition similarly covers "people who have fled because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts or massive violations of human rights ...".