Australia Open? The Fate of Asylum Seekers Down Under

Conclusion

Asylum law in Ireland is at a crossroads between ignoring systemic flaws and reforming the system in accordance with obligations under international law. While the German system is not perfect, it provides a valuable illustration of how to take account of refugees’ needs in a practical and human rights-oriented manner. It is recommended that Ireland look to countries such as Germany when implementing reforms of the Direct Provision system. This should ensure a fairer system for those seeking asylum while mitigating the most egregious human rights violations caused by Direct Provision.

Australia Open? The Fate of Asylum Seekers Down Under

By Ellen Hyland, Copy Editor, SS Law and Political Science

International attention turned to Australia’s immigration policy in January 2022 after Serbian tennis star Novak Djokovic attempted to enter the country without proof of vaccination to compete in the Australian Open tennis tournament. Within a matter of days, Djokovic was refused entry, detained, and deported from Australia after providing questionable proof-of-recovery documents and causing the Government to worry that his presence in the country “could stir anti-vaccination sentiments.” It was clear that the Government wanted to send a message to the international community that wealth is not a shield against Australian border control; Prime Minister Scott Morrison went so far as to Tweet that “Rules are rules, especially when it comes to our borders. No one is above these rules.”

This is a questionable stance to take, given the arguably inequitable approach taken by the Government to one particular class of people entering into Australia. An aspect of the 11-day Djokovic saga that has been glossed over is where Djokovic was detained while awaiting deportation. The same building where the athlete waited for his expensive lawyers to argue his case also housed several asylum seekers, many of whom had been there for years.

Rules are Rules, Unless on Christmas Island

Australia’s border policy is notoriously strict – one need only remember documentary series from the early 2000s such as Nothing to Declare which displayed the country’s stringent border practices. Their refugee policy is also incredibly uncompromising. In the 2010 case of Plaintiff M61/2010E v Commonwealth, for example, it was found for the first time that asylum seekers who arrived at so-called “excised offshore places” could apply for a visa. Under the Migration Act 1958, “excised offshore places” are areas under Australian control that are not subject to usual immigration and asylum law, and include Christmas Island, Ashmore and Cartier Islands, Cocos Islands, and other territories such as sea or resources installations.

If applying for asylum in one of these places, potential asylum seekers were subject to a two-stage process. The Department of Immigration and Citizenship would first carry out an assessment, and if that failed, there was an ‘Independent Merits Review’ carried out by people hired by the same Department. Many applicants throughout the years complained of the unfair procedural process they were subjected to, but it was not until Plaintiff M61/2010E that the courts found that this procedure was unjust as it did not allow the asylum seeker to properly argue his case in the same manner as a person who sought refuge on Australia’s mainland.

apply for a visa if the Minister explicitly allows it through a process called “lifting the bar.” It is submitted that the law around excised offshore places is indicative of Australia’s reaction to their obligations under the Convention Relating to the Status of Refugees 1951 – the Government has never been above attempting to creatively exploit loopholes in the Convention or create obstacles in the way of asylum seekers reaching Australia’s shores and seeking refuge. As well as this, Plaintiff M61/2010E uncovered the clear double standard that exists for asylum seekers detained in areas like Christmas Island – rules, it seems, are only rules when applied to people on the mainland.

Unhygienic, Overcrowded, and Primitive

Outside of the hotel where Djokovic resided, people protested with placards reading “Free the Refugees,” and “Novak, speak out for your fellow prisoners.” These sentiments may strike a chord with those who object to the Direct Provision system in Ireland. There, asylum seekers are forced to remain for years in a centre in legal limbo, and their basic human rights are drip-fed to them through rarely-seen court decisions – the right to work (N.H.V v Minister for Justice & Equality) and the right to a driver’s licence (Landsberg & Breetzke v NDLS & Others) being two that come to mind. Indeed, Australia’s treatment of asylum seekers who are awaiting refugee status is similar to Ireland’s treatment of those in Direct Provision. The process is lengthy, the conditions are grim, and there is little political motivation to enact change.

Nevertheless, the conditions seem to be the worst in Australia’s controversial offshore detention centres, to which asylum seekers apprehended in Australia’s waters are sent. These centres once existed in both Papua New Guinea and Nauru, but since 2016 when Papua New Guinea’s Supreme Court found the practice unconstitutional, they only operate in Nauru. In 2020, a prosecutor for the International Criminal Court (ICC) wrote to independent Australian MP Andrew Wilkie on the conditions in these detention centres. The prosecutor wrote that the centres constituted cruel, inhuman, or degrading treatment, but declined to open a preliminary examination into the practice.

Notably, the conditions in the letter were described as “unhygienic, overcrowded and primitive,” and the letter also mentions reports of asylum seekers being subjected to physical and sexual violence.

The conditions in Djokovic’s immigration hotel were not particularly savoury either, with asylum seeker Mohammad Joy Miah telling the press, “I have not had any fresh light or fresh air from outside,” and that he had been served maggots in his food.

These issues are compounded by the length of time asylum seekers remain in these conditions. All asylum seekers must stay in detention until their claim for refugee status has been finalised, which can take years. In September 2021, the average number of days asylum seekers spent in Australian detention centres was 689 days, compared to 115 days in September 2013. As per the Migration Act 1958, there is no time limit on the number of days an asylum seeker can spend in mandatory detention, nor does the law discriminate between adults and children. Detainees therefore sit in dismal conditions for years, watching the world go on without them. Djokovic waited 5 days in detention before he was deported. Some of his roommates had been there for 9 years.

Discussion

The procedures and conditions that asylum seekers are subject to are unsettling from an international human rights point of view. Australia ratified the Optional Protocol to the Convention Against Torture (OPCAT), which requires, among other things, regular visits to places of detention, and stipulates that cruel, inhuman, or degrading treatment “constitute serious violations of human rights.” It is also important to stress that Australia

Conclusion Asylum law in Ireland is at a crossroads between ignoring systemic flaws and reforming the system in accordance with obligations under international law. While the German system is not perfect, it provides a valuable illustration of how to take account of refugees’ needs in a practical and human rights-oriented manner. It is recommended that Ireland look to countries such as Germany when implementing reforms of the Direct Provision system. This should ensure a fairer system for those seeking asylum while mitigating the most egregious human rights violations caused by Direct Provision.