By Lizzie O’Shea
This week is Refugee Week, an opportune moment to reflect on the year that has passed.
We are now detaining more children than ever before. Through the creation of the dysfunctional and inappropriate “no advantage” test, we are also creating a subclass of asylum seekers gripped by poverty. This particular category of asylum seekers has been released into the community on bridging visas without any basic rights or support systems. They are vulnerable already, having survived significant adversity to seek asylum in the first place, and yet we put them in positions of great social stress.
This year, the Australian government has attempted to further shirk our international legal responsibilities by shipping some of these people to offshore detention centers. To facilitate this task, the government has performed a strange form of legal surgery by excising the Australian mainland from the migration zone. To me, the concept of excising ourselves generates a fundamental existential crisis; but not to our legislature, who remain committed to using vulnerable people for the cause of political trickery.
Worst of all, people continue to die at sea. The tough approach of deterrence has proven to be no deterrent at all, as boats of people still sail precariously into Australia’s territorial waters. For many of us, this outcome was hardly unexpected: people flee their home country because they fear for their lives, often because of war and the daily terror it inflicts. To expect that draconian policies at this end of the journey will somehow be factored into this decision fundamentally misunderstands the entire issue.
In a ghoulish final twist, we now don’t even bother to collect the bodies of those drowned at sea. We leave them to be swallowed by the ocean, as if they never existed.
The next step in this dark road is to start sending people back. This is exactly the proposal mooted by the Coalition.
As a party to the Refugee Convention, we seem to be drifting further and further from any meaningful implementation of our international obligations. But despite feeling as though we are politically at sea over the last year, unmoored from our legal responsibility or even basic notions of human dignity, the pink light of dawn is visible on the horizon. There are still things to be hopeful about.
This time last year, I was lamenting the frustration of being an advocate in a process without due process, an application of justice plagued by injustice. Manokala Jennaddarsan was the subject of an adverse assessment from ASIO and had been detained for a number of years with her six year old son, Ragavan. This time last year, the High Court was about to hand down its decision about the validity of a regulation relied on by the Minister to detain people with these assessments. The decision of the High Court, while ultimately skirting around the key question, undeniably took us a step closer to ending this kind of arbitrary, indefinite detention. Seemingly in response, the government established an independent review system, to give some hope at least that there was meaningful accountability in this exercise of power.
Many advocates had serious concerns about the limitations of the independent review process. Nonetheless, just days before we were due to make submissions to this independent reviewer, in a dramatic turn of events, Manokala and Ragavan were released. The Attorney General was quick to point to this case as an example of the system working.
We were overjoyed that the family was released. But we must respectfully disagree with the Attorney General. No new information was provided to ASIO to inform this change of heart. There is nothing about Manokala that has changed since when she went into detention as a result of the adverse assessment. Rather than the system working, this is most likely an exercise in damage control on the part of ASIO.
To that end, then, this never would have happened had the independent review process not been set up. ASIO feels that it is on the back foot. No longer can they make these assessments at will, without concern for the consequences. The Minister cannot just dump these people in detention and forget they exist. They know that the public and the courts are watching. My prediction for the next year is that this form of detention will be found to be unlawful by the High Court.
Moreover, the resilience, determination and creativity of refugee advocates are endlessly inspiring. This year, the story of Song for Selva was particularly so. Les Thomas, a Melbourne musician, has been the driving force behind These Machines Cut Razor Wire, an annual live music fundraiser for the Asylum Seeker Resource Centre. This year, again, he lamented that the organization of such a concert was necessary. Personally, I was thrilled that the momentum was there to create a bigger and better event than the year before.
Thomas wrote a song around the words from a letter by a refugee, Selva, who had been detained in Melbourne for 37 months. The song was written and produced with the help of other local musicians. Within days of passing a recording to Selva in detention, Thomas was told he was to be released and given a visa.
Thomas encourages us to use music ‘to its full advantage to help bring us together, highlight injustices, share knowledge, lighten our load and, ultimately, set us free.’ His activism is inspiring, mostly because his story is one of raising the plight of refugees and asking for help from friends and colleagues and receiving it. We never know if others agree and sympathise with us until we ask. Sometimes when one person takes a stand, it can be a lightning rod for all sorts of activity from those around us.
We are most likely sailing directly towards a Coalition government. Sadly, the course has been mapped by the Labor Party, to their shame. There will be dark storms ahead, undoubtedly. But we must imagine calmer waters, when the right to seek asylum is stripped of politics and is purely one of international law. We have to get together and work out ways to challenge the demonization of these people. When people can see the faces of refugees, hear about their hopes and fears, they are much more difficult to hate. Prejudice rarely survives human contact.
Lizzie O’Shea is a lawyer for Maurice Blackburn’s Social Justice Practice, which runs cases in the public interest. She has represented refugees, Aboriginal and Torres Strait Islander people and those unfairly targeted by national security legislation.
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