No Advantage: Australia’s Legacy Caseload
Australia's Legacy Caseload
‘People of refugee background have, as a result of their lived experiences, resounding resilience, skills, abilities and wisdom. These qualities are the seed of innovation and social entrepreneurship. In persisting and enduring lifethreatening situations to arrive in Australia, in losing all that is familiar, in reassessing what life’s priorities are, in arriving with nothing but a deep desire to live in peace, people of refugee background carry an inherent value for life and continuity and thus a wiser insight into sustainability.’ 1
Iwas one of the 100 million people in the past decade to experience forced displacement. My journey to become an Australian citizen involved a series of unfortunate events culminating in a decade of civil war in my parents' home country of Sierra Leone. The result of the civil war was a mass exodus into neighbouring West African countries. My family escaped to Ghana where I was born in the chaotic process of resettlement, survival, and adaptation in a foreign country.
After years of waiting in a refugee camp hoping desperately for a chance to restart a life with dignity and purpose, finally in the eighth year of my life we won the lottery. We were granted the opportunity to resettle in a country we could eventually call home. I call this opportunity a lottery because for many people who navigate the complex bureaucratic system responsible for managing the resettlement of refugees, a successful resettlement experience is sometimes based on pure chance.
In West Africa there were countless families with similar experiences of the war. Like my family, they all had to flee for their lives, they all applied for refugee status in the same office, using the same form. However, unlike my family, some were not granted refugee status nor were they ever resettled. Their fate, like the fate of many refugees, lies in the hands of invisible people who have the power to make decisions that redirect the course of their lives.
Thousands of displaced people in camps around the world spend years of their lives waiting outside community notice boards in refugee camps wondering if this will be the day; the day when their lives will be changed forever; redirected from despair to hope. They wait to see if their names will appear on the lottery list.
Their fate, like the fate of many refugees, lies in the hands of invisible people who have the power to make decisions that redirect the course of their lives.
From Despair to Hope
Since resettling in Australia members of my family have achieved university degrees, gained meaningful employment, purchased a family home, and contributed to positively transforming our community.
Before resettling we were told that Australia was an egalitarian country with a high regard for human rights, fairness, and equality. My personal treatment and experiences in Australia overwhelmingly attest to the embodiment of these high ideals. When my family arrived in 2005, we were given access to everything we needed to rebuild our lives, including medical, social, and educational support. But for a refugee, resettlement is more than just the capacity to meet material needs – it is driven by a desire to reconnect with lost dreams that could not be fulfilled whilst living in our interim country and within the mental paradigm of survival.
Yet I was to discover that my experience was not universal, and that the Australia that afforded me opportunity and hope, was also cruelly capable of stealing these from others as I became aware of the individuals and families imprisoned in concentration camps on Manus, Nauru, and Christmas Island.
In 2020, forced displacement affected more than one percent of humanity. The United Nations High Commissioner for Refugees' annual Global Trends report revealed that 1 in every 97 people have experienced forced displacement due to persecution and conflict. There has been an unprecedented rise in displacement with 79.5 million people displaced at the end of 2019.
In the past decade alone, 100 million people were forced to seek refuge.
2 From 2009 to 2013, over 50,000 people arrived in Australia by boat to seek asylum; these number were unparalleled in our nation's history.
To address the challenges posed by people seeking asylum by boat, the Labor government brought together an expert panel to provide advice and recommendations on policy options. A key recommendation by the Expert Panel was the establishment of the ‘no advantage' principle which prohibited asylum seekers arriving in Australia by boat from gaining an ‘advantage' over
In 2020, forced displacement affected more than one percent of humanity. The United Nations High Commissioner for Refugees' annual Global Trends report revealed that 1 in every 97 people have experienced forced displacement due to persecution and conflict.
asylum seekers who arrived through other means of travel. Successive Labor and Coalition Governments introduced new policies to extend the application of the no advantage principle to asylum seekers who arrived by boat but had to remain in Australia to process their claims.
Although some asylum seekers arriving in that period had the opportunity to apply for substantive visas, 30,000 people – now known as the ‘Legacy Caseload' – face prolonged processing delays, which legally and psychologically prevent them from rebuilding their lives.
People in the Legacy Caseload have been living in Australia, some for over 10 years, waiting for a response from the government. The no advantage principle continues to apply and many face enormous challenges with limited access to support services.
The Australian government's response to the predicament of people in the Legacy Caseload is to impose a permanently temporary status. If people in the Legacy Caseload are found to be refugees, they are not eligible for permanent residency in Australia, and, unable to return to their home countries they are forced to remain in Australia with no hope of a permanent home to rebuild their lives.
Australia is one of many countries grappling with the growing challenges of unprecedented global displacement.
Yet by failing to resettle people in the Legacy Caseload, through the provision of a permanent home, Australia is forfeiting the considerable positive contributions people from refugee backgrounds offer their new home countries.
Power and Pandemic
Since my arrival in Australia in 2005, the stories of refugees and asylum seekers have continued to dominate national politics and influence political messaging strategies, especially during elections. The question of how Australia should respond to refugees and asylum seekers continues to be a source of major political currency.
While almost all of the political focus tends to be on refugees and asylum seekers imprisoned in concentration camps offshore, during the height of the Covid-19 pandemic the focus began to shift to refugees and asylum seekers detained in onshore facilities. Alternative places of detention (APOD) came into the spotlight as activists gathered outside hotel complexes like Mantra and Park Hotel in Melbourne, as well as at Kangaroo Point Central in Brisbane, to protest the government's treatment of refugees and asylum seekers who were brought from offshore concentration camps to Australia to receive medical treatment.
The government's treatment of
30,000 people – now known as the ‘Legacy Caseload’ – face prolonged processing delays, which legally and psychologically prevent them from rebuilding their lives.
refugees and asylum seekers living in Australia - whether in detention facilities or in community detention - reached new heights of cruelty during the first outbreak of Covid-19. In March, when the government began strictly implementing public health advice to prevent transmissions, refugees and asylum seekers in Australian detention facilities were excluded from national efforts to contain the virus. The government refused to follow the advice of public health experts in regard to the safety of refugees and asylum seekers in Australian detention facilities.
Both the Australasian Society for Infectious Diseases, the Australasian College of Infection Prevention and Control, and hundreds of medical professionals called for the release of refugees and asylum seekers in detention facilities, citing the greater risk of infection and possible deaths.
3 These calls were ignored.
Concerns were raised about the private nature of detention facilities which meant that there was no way of knowing if refugees and asylum seekers were being tested for Covid-19. The only publicly-acknowledged protection measure by Australian detention centres was the exclusion of visitors from facilities, which served the function of further isolating refugees and asylum seekers from their support networks in the broader community.
The government's treatment of refugees and asylum seekers living in Australia - whether in detention facilities or in community detention - reached new heights of cruelty during the first outbreak of Covid-19.
People seeking asylum have been consistently excluded from the national public health response to Covid-19. While many Australians are benefiting from social distancing and infection control measures, during the height of the pandemic some asylum seekers were cramped in sleeping quarters of four to six people per room. In a country that has made a significant effort to control the spread of Covid-19, even in a pandemic, asylum seekers and refugees in onshore detention facilities are still not considered worthy of protection.
The pandemic revealed the government's chameleonic humanity: for one group of people it adheres to the advice of public health experts; for refugees and asylum seekers in their care it comfortably disregards that same advice. Not even a global pandemic could elicit a logical and humane response to refugees and asylum seekers from the Australian government.
THE PANDEMIC REVEALED THE GOVERNMENT’S CHAMELEONIC HUMANITY
…The manner in which they come
The criminalisation of people seeking asylum has enabled successive Australian governments to enact punitive laws that continue to harm refugees living in communities across Australia. In 2020 awareness of refugees and asylum seekers in onshore detention facilities grew and the attention shifted to APODS in Victoria and Queensland. During this time, the government introduced the 'phone ban' Bill; an amendment to the Immigration Act which could allow the Australian Border Force to conduct strip searches without a warrant and remove mobile phones from refugees and asylum seekers. The introduction of this Bill was a deliberate attempt to silence and suppress the voices of asylum seekers.
Immigration detention facilities house hundreds of asylum seekers and refugees who are vulnerable to the excessive use of force by private security contractors hired by the government. In 2019 the Commonwealth Ombudsman released a report – ‘Monitoring Immigration Detention' - that brought to light an incident where a private security contractor injured a person who posed no risk to safety. Australian immigration 4
detention facilities are intended to serve an administrative function, instead they have become more like prisons. Although the Bill to ban mobile phones was not passed by the Senate, its introduction continues to demonstrate the government's commitment to use punishment and deprivation as methods to manage refugees and asylum seekers.
There is a nationwide awareness of detainee experiences in onshore and offshore detention, mainly due to the efforts of those detainees, their advocates and activists who have been vocal opponents of government policy. Creative methods of story sharing by refugees has brought national and international media attention to the predicament of detainees. The award-winning book,
No Friend but The Mountains by former refugee and Kurdish journalist Behrouz Boochani, enabled a more nuanced understanding of the impacts of Australia's detention regime, and placed increasing pressure on the government to release refugees and asylum seekers. These methods of activism and advocacy have been successful in drawing attention to the situation, the release of some detainees and the closure of offshore detention centres.
On January 21, 2021 after months of protest and advocacy, 34 detainees were released from hotels after a year in detention. Peter Dutton, the Minster of Home Affairs, stated that ‘it's cheaper for people to be in the community than it is to be at a hotel or for us to be paying for them to be in detention.' Although advocates, activists, and detainees themselves celebrated this major win, an uncertain future still lies ahead with unresolved legal issues due to policies which continue to implement the no advantage principle. These newly released refugees will be joining a community of 30,000 asylum seekers in the Legacy Caseload already living in Australia without permanent protection and government support.
There appears to be an underlying insidious motivation in the release of refugees into the community, as
No Friend but The Mountains by former refugee and Kurdish journalist Behrouz Boochani, enabled a more nuanced understanding of the impacts of Australia's detention regime
the government then abandons its responsibility to provide the food and shelter given while they were detained. People are being released into an even more difficult situation in Australia with no hope of a long-term resolution. To change this, refugees, advocates, and activists have a huge fight ahead of them, a fight which has tormented people in the Legacy Caseload for over 10 years.
Addressing The Legacy
One area of refugee advocacy that has been consistently challenging in achieving change, garnering media attention and national awareness has been the permanent protection for refugees in the Legacy Caseload. To achieve change and finally resolve this situation, refugees and asylum seekers, and their advocates, must develop new forms of activism which use creative methods and tools to raise awareness of this long-term issue.
In December 2014 the Legacy Caseload Act was passed, amending Australia's legislative framework for assessing refugee claims and providing protection. These changes had adverse implications for people in the Legacy Caseload.
Some of the changes included the introduction of a new Statutory Refugee Status Determination Framework which limited the ability of asylum seekers to challenge negative decisions on their visa applications. Asylum seekers in the Legacy Caseload are restricted to the fast-track process which requires them to provide all information relevant to their claims during the first stage of visa processing. This is difficult for many people seeking asylum who struggle with the English language and have limited literacy skills
Refugees, advocates, and activists have a huge fight ahead of them, a fight which has tormented people in the Legacy Caseload for over 10 years.
and lack an adequate understanding of the process of Australian migration law. This, coupled with the standard practise of no oral hearings and the refusal to conduct interviews with visa applicants by the Immigration Assessment Authority, creates a situation whereby it is incredibly difficult for asylum seekers to prove their refugee status. Even with a successful visa determination in this flawed system, refugees in the Legacy Caseload are still ineligible for permanent residency in Australia.
In my advocacy work I've met many refugees in the Legacy Caseload living in the Australian community with limited access to support services, who are facing enormous financial hardships.
This 'permanent temporary' status, combined with the prolonged delays in processing their visa applications, has had devastating impacts on their mental health. In 2012, researchers identified a clinical syndrome observed among asylum seekers living in the community. ‘Protracted asylum seeker syndrome' is a condition caused by the stressors related to the prolonged waiting times for the finalisation of refugee status determination.
The 2019 Australian Human Rights Commission report about refugees and asylum seekers in the Legacy Caseload stated that ‘around a third of the people in the Legacy Caseload are still waiting for their applications to be finalised. The Department estimates that primary assessments for people in the Legacy Caseload will be completed by December 2021.' 5
Asylum seekers in the Legacy Caseload are at risk of arbitrary detention and the term ‘lethal hopelessness' has been applied to people in the Legacy Caseload because of the high rate of suicide. Mental health experts working with people in the Legacy Caseload describe suicidal ideation in children as young as 10. In the Human Rights Commission report, one mental health expert stated, ‘this type of despair … has a quality about it that's unlike any other population I've seen.'
Since 2014, there have been nine recorded suicides of people in the Legacy Caseload.
Some examples:
• 1 June 2014: Leo Seemanpillai, a 29-year-old Sri Lankan asylum seeker died after setting himself alight outside his house in Melbourne.
• 17 June 2015: Raza, an Afghan asylum seeker died after jumping in front of a train in Perth.
• June 2016: Mohammad Hadi, a 23-year-old hanged himself in a park in western Sydney.
• August 2016: Saeed Hassanloo, a 27-year-old Iranian asylum seeker took his life in Hobart.
In comparison to the rest of the general Australian population, asylum seekers have exceptionally high
The term ‘lethal hopelessness' has been applied to people in the Legacy Caseload because of the high rate of suicide.