Government betrays East Timor refugees
By Margaret Allum
The federal minister for immigration, Philip Ruddock, announced on November 19 that the government has dropped its appeal against the Federal Court's September 1998 decision in the test case of Kon Tji Lay, an East Timorese seeking refugee status in Australia.
However, now the government plans to legislate away any chance of the Timorese asylum seekers gaining permanent residence and to force the refugees to leave Australia.
The Australian government had asserted that in this and other cases involving East Timorese asylum seekers, the applicants were eligible for Portuguese nationality because of East Timor's status as a former Portuguese colony, and therefore should not be able to claim refugee status in Australia.
Prior to 1994, the Australian government had assessed their nationality as Indonesian. Its post-1994 guidelines recognised that the asylum seekers might not be safe if deported to Indonesia (many sought refuge after the Dili massacre in 1991), but claimed that Portugal would provide effective protection.
The Federal Court ruled in 1997, in the first test case since the issue of Portuguese nationality was raised, that it had not been properly considered whether Portugal was indeed offering "effective protection".
In the second test case, involving Kon Tji Lay, the court ruled in September 1998 that there was no evidence to support the government's assertion regarding Portuguese protection, whereupon the government appealed the decision.
On October 8 this year, the Federal Court granted an adjournment at Ruddock's request, to give time for the government to reconsider its position.
Ben Moore, from the Sanctuary Network, an organisation defending the right of East Timorese asylum seekers to settle in Australia, told Green Left Weekly that the news that the government was dropping its appeal initially seemed positive, until the new strategy to facilitate the deportation of the 1650 East Timorese asylum seekers became clear.
New legislation
Ruddock said on November 14 that he was seeking ALP support for amendments to the Border Protection Bill. If passed, these would prevent people who have dual (or multiple) nationalities or prima facie protection in another country from being protected by asylum in Australia.
The onus would then be on refugees to prove that they cannot be protected by the other relevant country or countries. The minister would have discretionary power to lift this bar on protection visas.
The amendments include an interpretive provision which will "make clear that Australia does not owe protection obligations to a non-citizen who, without a well-founded fear of persecution, does not take all necessary steps to access protection which may be available in another country".
The amendments would create a legal distinction between permanent residence and refugee status, limiting those with refugee status to a three-year visa which would have to be reapplied for at the end of that time.
Recent hysteria from the government and its media mouthpieces on the arrival by boat of refugees from Asia and the Middle East has fuelled an anti-refugee atmosphere which many be conducive to passing such legislation.
Sanctuary Network said that 32 East Timorese with cases in the Federal Court have been "offered" the opportunity to make fresh applications within seven days for permanent residence.
For the East Timorese, not only will it mean that their applications will have to start from scratch after up to 10 years waiting for permanent residence, but it will also be up to them to prove that they cannot be offered protection by Portugal or within the new East Timor. These applications would most likely be unsuccessful, according to the Sanctuary Network.
Pip Hinman, the national secretary of Action in Solidarity with Indonesia and East Timor (ASIET), told Green Left Weekly, "The fact that the government had to back down from its appeal shows the effect of the strong campaigning and public support for the asylum seekers' desire to obtain permanent residence in Australia. It obviously realised that it could not win the case legally or politically."
Hinman was scathing on the government's new plans: "The new moves legislate away the chance of permanent residence; they're another betrayal of the East Timorese by the federal government".
The government's moves come just over a month after Ruddock's boast, on October 14 during Austcare Refugee Week, of "Australia's proud tradition of helping refugees and others in humanitarian need around the world".
Sanctuary Network quotes Carla Chung, 22, one of the approximately 1650 East Timorese asylum seekers in Australia: "I have been in Australia for five years in December. I am not Portuguese, and the Australian government's argument that I am is extremely insulting.
"Now the situation in East Timor has changed. Whilst I ultimately want to return to East Timor, others have lost everything and have nothing to return to. Many of my friends still suffer from the scars of their torture in Timor. They can't go back. Some have married Australians and had children here. Australia is now their home."
Liz Wheeler, a spokesperson for Sanctuary Network, said, "The Australian public will not stand for this. Sanctuary Network will persist with its offer to harbour illegally East Timorese facing deportation. If the government wants to run it this way, then we're ready for the fight."
ICJ inquiry
The long-term asylum seekers are not the only East Timorese to receive poor treatment from the federal government.
The International Commission of Jurists has been trying to obtain witness accounts from the recently arrived Timorese housed in the three "safe havens" at Leeuwin in WA, Puckapunyal in Victoria and East Hills in NSW. The government has refused members of the ICJ entry to the refugee camps, forcing them to meet with East Timorese outside the camps in order to document their accounts of atrocities by the Indonesian military and militia groups.
David Bitel, ICJ secretary general, told Green Left Weekly that the government's refusal was an "attempt to frustrate" this documentation. "The government can't prevent the refugees from leaving the camps and talking to us", he said, "but it makes the process more difficult".
He believes that the government is concerned that the documentation would have some prejudicial effects on its "proper attempts to re-establish its relationship with Indonesia".
Bitel also expressed some concern about the possibility of the government forcing the refugees to return early. While he didn't believe that they should stay beyond the three-month visas granted to them unless special circumstances require it, he said that they should be allowed to stay for the full three months if they wish.
He said that the ICJ is anxious to document properly and accurately what has transpired; if the refugees are sent to back to East Timor, the documentation process would continue, but it would become more difficult. He added that the closer in time the testimonials are taken to the time the events happened, the more legally reliable they are.
NZ-style visas
Max Lane, the national chairperson of ASIET, told Green Left Weekly that, regardless of whether East Timor is now safe to return to, the desperate lack of infrastructure means that it would be an injustice to force anyone to return immediately.
He argued that a special category of visa should be made available to all East Timorese to travel between East Timor and Australia, in the same way that citizens of New Zealand can do so between New Zealand and Australia, and that they should be able to reside in either country for as long as required.
"It's not just those who have been seeking asylum in Australia for up to 10 years, who have family members here who they want to be in touch with and perhaps look after", Lane said. "Many other East Timorese people also want to be able to do that.
"Many also want to participate in the rebuilding of their country, either now or at a later stage. Some have jobs here, others are studying here — they should all be allowed ongoing multiple entry between East Timor and Australia."
While in Australia, they should be able to access full health care, education and training and other governmental assistance, he said.
Lane also believed that such rights to multiple entry should continue even when the immediate crisis is over and their country is totally rebuilt: "Given what the East Timorese have experienced in the 24 years of brutal occupation, with the Australian government's complicity, it is the least that our government can do to compensate in some way for its actions. This is one demand on the government which, if granted, will go far to help the rebuilding."
Citizens of New Zealand are nearly always automatically issued a special category visa, known as subclass 444, upon arrival in Australia. While this is a temporary visa, the visa holder is permitted to remain in Australia for as long as they are a New Zealand citizen.
Section 32 of the Migration Act 1958 provides for the creation of such visas, and could accommodate the creation of a similar visa for East Timorese. The migration regulations' definition of those eligible for such visas would not preclude East Timorese citizens if the government decided to amend the provisions.
Under the existing legislation, New Zealand citizens also have the ability to sponsor other non-citizen, non-New Zealanders for other types of visa — for example, spouse or business visa.