What now for refugee policy?

Commentary

Has the plight of refugees changed since the Rudd Government came to power? Dr Don McMaster, a Visiting Research Fellow in the School of History and Politics, has been active in advocating justice for refugees. He explains the developments in immigration and refugee policy under the new leadership.

Since the election of the Rudd Labor Government in November 2007, there have been some positive developments in refugee and immigration policy. The Nauru detention facility has closed and the so-called 'Pacific Solution' appears to be finished.

Immigration Minister Senator Chris Evans has stated that the Rudd Government remains committed to ending Temporary Protection Visas (TPVs), although he was forced to admit that some new TPVs might be issued while the new system is put in place, and that those currently on TPVs are still being treated in line with policies put in place by the previous government.

When questioned about the possibility of establishing a system of complementary protection that would provide a separate visa category for those who require protection but do not fit the criteria for refugee status, Senator Evans stated that he is addressing this possibility, and is "favourably disposed" to looking at how such an agenda might be advanced.

In January 2008, the Human Rights and Equal Opportunity Commission's (HREOC) report into mainland detention recommended the repeal of mandatory detention. However, in response to the HREOC report, Senator Evans stressed that mandatory detention is here to stay, continuing the previous government's contravention of international law, which states that detention is only permissible "where necessary to verify the detainee's identity, to determine the elements on which the claim to refugee status or asylum is based, to deal with people who have destroyed their documents to mislead the authorities, or to protect national security or public order".

The Minister stated that the islands excised from the migration zone under the Howard government's so-called 'Pacific Solution' would remain excised, meaning that people who arrive on those islands without a visa will continue to be prohibited from making certain applications under the Migration Act, particularly for a protection visa, unless the Minister exercises a non-compellable, non-delegable power to allow that application to occur.

The Australian refugee determination system is an administrative system that includes a high emphasis on ministerial discretion. Successive Immigration Ministers have used their powers of discretion in varying ways, often to the detriment of the determination process. As the newly elected Minister in 2007, Senator Evans questioned the powers given to the Minister, which no other government minister has, and flagged changes to this ministerial discretionary power: "One of the first things that struck me when I took on this role was what extraordinary powers I had as minister... The number of appeals to the minister has increased to the point that it has now become part of the process, rather than being a check on the system. Yet ministerial intervention offers no guarantee of fairness."

Senator Evans went on to say that while the tribunal and judicial officers have guidelines to base their decisions upon, which in turn are open for review, the exercise of ministerial discretion has no such guidelines, no knowledge of the factors that influence the minister's decision in individual cases, and more importantly, there is no avenue of appeal from a bad decision, and no way to prevent an abuse of power. This leaves asylum seekers and refugees in a vulnerable position and at the mercy of a minister's whim, with no consistency in decision-making when different ministers have different personalities and different ways of thinking.

The Senator has stated that he supports independent, transparent and appealable decision making in the resolution of immigration matters - a positive move that could help what has become a highly political and arduous process for refugee determination. These are welcome signs by the Rudd Government.

Asylum seekers and refugee determination are contentious areas in most countries and Australia has not been alone in working out how to deal with these issues. However, Australia has implemented stronger and draconian refugee policies compared to other liberal democracies.

While it is refreshing to hear a softening of voice and genuine concern for asylum seekers and refugees emanating from the Rudd Government, it is early days and words do have to transfer into actions. To appease the increased public dissatisfaction about the treatment of asylum seekers, especially since 2001, the Rudd Government will need to keep to its word on providing a fair and humane refugee policy.

This is based on Dr McMaster's recent talk at the University of Oxford.