NOT ALWAYS SUCH A SAFE HARBOUR

For some years, during the Howard Government, I unwittingly found myself as a personal advocate for a number of asylum seekers detained in Sydney’s Villawood detention centre where they awaited decisions on their claims for protection. It was an eye-opening experience and one with ongoing frustrations and tensions. At times it kept me awake at night.

Reading Aileen Crowe’s Acts of Cruelty – with a foreword by Justice Michael Kirby – I was taken back to many of the encounters and moments of those years arguing with bureaucrats and ministers in support of individuals who had escaped horrifying treatment in far away countries and had entered Australia by plane to seek its protection under the terms of Australia’s Migration Act 1958 under the Refugee Convention of 1951. Aileen Crowe’s account of the system is comprehensive and revealing and a work of considerable effort. She is also to be commended for her work for refugees over such a long time.

For the most part, Aileen Crowe’s study is a meticulous recording of the many hurdles such refugees face once they enter Australia’s borders. Unlike boat people who wash ashore, those who come by plane might have spent time in the Australian community on various visas before being forced to make their claims before the migration authorities. Overstayers and students the most likely. Others are queried from the outset or make their claim immediately on touching down.

As in the cases I once became involved with, Aileen Crowe meets her individuals, some a family unit, after their initial encounters with immigration. By this point something invariably has gone amiss with their claims, documents do not prove identity or verify the stories the individuals have related or, simply, there is no way for the individuals to prove completely what has happened to them. There are tight regulations about how refugee status is defined – does the individual belong to a persecuted “group” or is the persecution within the guidelines of the definition of “persecution”. Above all, with no documentary evidence, is the story reliable, fanciful, or maybe concocted from an online search?

Crowe sets out the account of her experiences by recording in detail the progress of a number of individual cases she advocated for. The countries and surnames are not revealed and, in most cases, nor are the names of officials who oversaw the reviews. In a handful of cases, Crowe does reveal the names of officers – these usually for their bias or subjective opposition to a claim. Sometimes, it seems that particular officials have become hardened by their role and see it as their place to hound a claimant as if they might be dealing with a criminal.

Crowe’s cases proceeded through various stages over years; people left in limbo in the community, often without the right to work and at the mercy of charity, pro bono legal help and/or the donations of quiet Australians. My own experience saw many such quiet Australians in the years I helped refugees. But there is no guarantee such help might arrive, and such challenged refugee claims wreak havoc on families and individuals unnoticed by the populace at large, even when a particular story might make the news.

Above all, so often in assessing such individuals’ claim for protection, officials are free to make a judgement on prevailing conditions in countries they have no specific knowledge of. I once read a Refugee Review Tribunal decision where the member deciding the case had used the Lonely Planet tourist guide for information on a particular country. Aileen Crowe documents numerous failings of Tribunal members and Immigration officials making judgements of country information from utter ignorance.

In a review of a case for protection, individuals go before a member of the Refugee Review Tribunal. In effect, these “members” are free to impose a verdict based simply on their own feelings about the integrity of the claim. A quota effect of how many cases might be succeeding in the member’s tally can also influence the chances of the official having his/her appointment renewed. This can often result in the member rationalising a decision from his/her preconceived views about or need to reject a refugee’s case. Documentation from earlier interviews is very often riddled with inaccuracies from typographical errors to misinterpretations of the person’s answers due to language/translator misunderstandings and so on. Body language from distress as in the case of traumatised individuals can be interpreted as shiftiness or deceptive behaviour. Crowe writes:

The use of language was a factor in the way reviewers could (re)formulate a person’s story in order to construct the basis for their unfavourable review. An example is the suggestion that if “no threats” or “no harm was carried out”, then the person must have been safe. … Terry Thousend did not appreciate that Mateo might have tried to escape the threats, and Ros Rodberry did not indicate that she had explored the steps Nankunda took to avoid being harmed or, more seriously, the harm she did experience. A systematic culture of avoidance indicates a priority for making negative decisions about people seeking protection.

In 2005, the discovery that a German Australian citizen with a mental illness had spent months in an immigration detention centre around the same time as the wrongful deportation of an Australian resident from the Philippines threw light on the woeful state of Australia’s onshore refugee and Immigration processing systems. Until that time, complaints from advocates such as Aileen Crowe had fallen on deaf ears. The problems these cases threw into the light stemmed from the substantial increase in people arriving “unlawfully” on Australian soil, endless bureaucratic bungling, an adversarial culture within the department of Immigration and government generally, and the public’s indifference to the plight such people endured. This sat alongside a growing resentment among many of immigrant and refugee backgrounds in Australia at what had become colloquially known as “queue jumping”. Jumping the immigration queue is not something ordinary Australians feel strongly about but for Australians who have relatives with official applications offshore and waiting in places of persecution or UN camps for a visa to Australia, those who come unlawfully are seen as interlopers.

It is this aspect of the complex issue of detention and visa processing of refugees onshore that Aileen Crowe does not take up. Her analysis of the flaws, inconsistencies, even cruelty within the system of reviewing refugee cases is revealing and deserving. But she ignores the underbelly of the policy emanating not from the top but from the bottom – there is no mention that the policy of detention of unlawful non visa holders was brought in by a Labor government (Keating) as a result of a growing resentment in Labor electorates among many immigrant groups at the growing number of “illegals”.

Towards the conclusion of her thesis, it is also unfortunate that Crowe resorts to an assertion that the cruelty of the system is mostly due to a racist culture in Australia. In doing this, Crowe draws unreliable parallels with Australia’s historic treatment of Indigenous Australians and the longstanding White Australia Policy. In her analysis, she ignores the fact that Australia’s White Australia Policy was akin to similar policies in countries such as Canada and the US and was a policy that grew from a working class and Labor fear of cheap labour competing with local wages. Another form of economic protection.

Having experienced advocating for a number of detainees needing help in being accepted for protection visas to live in Australia, I find the suggestion that as a system Australia’s Immigration assessments and/or detention policy are in any way based on a racist approach to be untrue. Achieving a visa, if one’s case for protection is not successful in the first round, is no easy matter and years may pass as the cases are re-assessed while the individuals live in apprehension and even without work. But, the fact that the Immigration system permits such a lengthy revisit – whatever the cruelty – suggests that the system while imperfect is not discriminatory. And, in the end, the cases Aileen Crowe persisted with were successful.

Australia’s Immigration system is far from perfect. The numbers of refugees across the globe seeking protection are in the multi millions and the pressure on all Western countries to accept more refugees is stressful. Australia is one of the leading countries to offer refugees of multi racial, multi faith backgrounds a home.

Aileen Crowe’s Acts of Cruelty offers a deep look at a system designed to help abandoned individuals seeking protection but which, itself, too often abandons them. She suggests what should be improved and what could be done, not just for the rights of refugees but to save taxpayers’ money being spent on wasteful and flawed bureaucracy. For that, her book is timely.

Anne Henderson is Deputy Director of The Sydney Institute and author of Menzies at War, which was shortlisted for the 2015 Prime Minister’s Award for Australian History.