A LEGACY OF ENDLESS LIMBO

None of them knew it as they fled, but as the refugees who share their stories for Temporary made their desperate, dangerous passages to Australia, a crude politics was whipping up panic about their arrival. The man who 'stopped the boats' then is now Prime Minister.

Episode 1 / The story of how we got here

Words by Lauren Martin

Elaheh carried an old family pocketwatch, not because it was of special use to a young woman recently out of university and in love, but because it happened to be with her when she had to leave in a hurry. Hani strapped a copy of The Alchemist around her waist, because she dreamed of some day learning to read the fabled novel about destiny. Zaki, he just packed some clothes and papers, and he put on the bravest face a 16-year-old boy could muster.

None of them knew what they would need – only what they were leaving behind.

‘I’d seen stuff like it in the movies,’ says Elaheh, ‘but when you watch these things, they’re so far from your life that you don’t even feel any kind of empathy, you know?’

Zaki was just a teenager with a few papers and a lot of fears when he arrived by boat. Abdul Karim Hekmat
Hani brought a book about chasing your destiny, determined to read it some day in English. Supplied
Elaheh's pocketwatch might have marked the time she would be separated from her family. Supplied

NONE OF THEM EVEN KNEW, as they grabbed their things, that they were bound for Australia, where there was growing panic about their arrival. In Australia, more than 200 years after Captain James Cook’s boat sailed in and set in motion a new claim in the British empire, Elaheh and Hani and Zaki would be called unauthorised maritime arrivals. They were cause for alarm.

At the time – as the second decade of the millennium was getting rolling, from about 2011– this alarm spreading across a vast, sparsely populated continent in the southern hemisphere hardly registered abroad. It didn’t rate amid Prince William marrying a commoner, Xi Jinping ascending as China’s leader, Osama bin Laden perishing at the hands of US Navy Seals. Syria’s dictator starting a slaughter of his own people. Donald Trump hosting new seasons of The Apprentice.

In Australia’s parliament, though, an energetic MP named Scott Morrison held the immigration portfolio in Opposition, and he certainly did detect the sense of alarm. You could say he directed it. His party, eager to govern, ensured that the alarming people stayed on the front pages in Australia. Not Elaheh or Hani or Zaki – no, the individual names and faces were subsumed into numbers. The numbers of boats. The numbers of people on the boats. The Labor Government floundered as their opponents fashioned around these faceless people a public fear.

Morrison is a skilled marketer, and his approach proved effective with public opinion. By 2013, a popular ‘stop the boats’ slogan helped to carry the Liberal-National Coalition into Government – where they remain today.

By 2019, now-President Trump was tweeting his admiration of Australia’s innovative manoeuvres to keep out people fleeing for their lives. And now-Prime Minister Morrison was proudly displaying a boat-shaped trophy with the words ‘I stopped these’ in the highest office in the land.

Australia's hardline approach to people seeking asylum has drawn much international condemnation and, from US President Donald Trump, praise.
A trophy from his days as Immigration Minister takes pride of place in the office of Australia's Prime Minister, Scott Morrison.

But what about the people caught up in all that campaigning – whose boats arrived, but whose lives were stopped? When the Coalition Government took power in 2013, these people’s refugee claims were either frozen or had not even begun. Elaheh, Hani, Zaki and many others like them – about 30,000 people in Australia – survived to start stories still without an ending.

Forced to leave their home and families, they sought protection in Australia, where they became a number – called by their numerical ‘Boat ID’. They were called ‘illegals’, even though seeking refuge is legal, however you arrive and whatever papers you carry. They were, as is usual, health checked, security checked, identity checked.

Video Explainer: Is it legal to seek asylum?

The people in Temporary were labelled ‘illegal maritime arrivals’. Watch Professor Jane McAdam explain in one minute why that is wrong.

And then they waited.

First, they waited in remote Australian detention centres, waiting to be sent to even more remote offshore detention centres. But Australia filled up the available impoverished islands in other countries. Camps full. So these people were sent into the Australian community – to wait for further instructions.

To wait, sometimes for years, for the minister to allow them to apply for asylum.

To wait for the interview, and a decision, which thousands still await today.

If their claim is not accepted, and they wish to appeal the decision, a much narrower path of justice awaits them.

If their claim is accepted, and they are found to be a refugee – someone with a well-founded fear of persecution or serious harm – the best they can hope for is a temporary protection visa. On these, you cannot bring your family to Australia, you cannot travel when you want, and you cannot become a citizen. You cannot plan a life.

In this, the best possible outcome, they then wait a few years and begin the process again.

Even today, when the political slogans have moved on from boats, these people are in Australia but on the outer, clinging to their keepsakes and dreams, in a legal limbo without end.

They are Temporary. In this series, and in the corresponding podcasts, they let us in on their lives. Their status may be temporary, but their stories are indelible. And they have been mostly lost across one of the world’s wealthiest countries, notorious for its punitive treatment of people seeking its protection.

  • Zaki: On the scene in detention centres

    'So we had flyers and there was TV ads as well, like, everywhere you go. They were, like. "You came to Australia at the wrong time." Because we arrived in Australia in November 2012 and the policy for immigration was changed in August 2012, so anyone who came by boat after August 2012, they wouldn't be resettled in Australia permanently.'
  • Hani: On the tyranny of being temporary

    'The expiry date [on the visa] is not the problem, because everything expires. But it's like, the uncertainty of a human being living in limbo is the worst.'
  • Elaheh: On being forced to leave your family

    'I'm glad I'm here. But coming here wasn't worth this. I wouldn't choose this life at the expense of not seeing my family for so long, if I had had the choice.'

The origin story of temporary protection

THIS DRACONIAN SYSTEM of managing people seeking asylum emerged in Australia in the 21st century. It grew ever more harsh, arbitrary and elaborately complicated. It was largely supported by both major political parties. It is not, however, entirely workable, as becomes evident in the personal stories of Temporary.

But how did it come to this? It’s worth briefly going back to a then-unknown political candidate whose racist remarks got her expelled from the Liberal Party in 1996. That didn’t stop Pauline Hanson – she  got herself elected anyway and started her own party, One Nation. Her outrage about Indigenous Australians soon extended to immigrants, asylum seekers and refugees.

And the political appeal of her message began to eat away at Australia’s principles. Both major parties had for decades welcomed refugees to the country. Indeed earlier leaders in the Liberal Party had warned of the damage that would follow should politicians exploit the plight of refugees for ‘partisan advantage in an election context’.

It was Hanson who first suggested, in 1996, that refugees in Australia should only ever be given temporary protection. People fleeing Saddam Hussein. People escaping the Taliban. At the time, John Howard’s Coalition government dismissed the idea outright. Then-Immigration Minister Philip Ruddock put it this way:

‘Can you imagine what temporary entry would mean for them?

It would mean that people would never know whether they were able to remain here.

There would be uncertainty, particularly in terms of the attention given to learning English, and in addressing the torture and trauma so they are healed from some of the tremendous physical and psychological wounds they have suffered.

So, I regard One Nation’s approach as being highly unconscionable in a way that most thinking people would clearly reject.’

Photo: Mike Bowers / Guardian Australia

Unconscionable. Yet the very next year, the Liberals introduced temporary protection visas – and they've been a central plank of the party’s refugee policy ever since.

Temporary protection, when it first became law in 1999, did not slow the arrival of people on boats, though. In fact the numbers increased until 2001. That’s when Prime Minister Howard stopped a Norwegian freighter MV Tampa, from landing with 433 asylum-seekers rescued at sea – a standoff that changed Australia’s refugee debate forever.

The Tampa came in an election year. During the campaign came ‘9/11’, the terrorist attacks on New York, on which politics would pivot dramatically. Suddenly asylum seekers became ‘Muslim boat people’ in the lingo of talkback radio – and they most certainly became used for ‘partisan advantage in an election context’.

‘We will decide who comes to this country and the circumstances in which they come,’ Howard declared in 2001.

With this mantra Howard ushered in a radical new approach: the Navy would intercept boats; asylum seekers would be shipped to offshore detention camps; and thousands of Australian islands would be wiped off Australia’s territorial map, ‘excised’ from its ‘migration zone’.

Howard called it the ‘Pacific Solution’.

Six years later, Howard’s government would fall, and the new Labor government would largely dismantle the Pacific Solution. Of the 11,000 people then on temporary protection visas – or TPVs as they're known – 90 per cent eventually received permanent protection – to go with the permanent, mostly invisible scars caused by years of instability in Australia.

By 2009 Morrison was shadow minister for immigration. His aggressive approach to the role sometimes affronted even his own Liberal Party colleagues’ sense of decency — when he criticised paying for families to attend funerals of people who died in a 2010 boat crash on Australia’s shores, he was forced to admit his ‘timing’ was ‘inappropriate’. Soon after, aghast colleagues leaked that Morrison had urged the shadow cabinet to capitalise on voters’ growing concerns about 'Muslim immigration'.

But how did these people land in limbo?

Put yourself now in the year 2012. Conflict and persecution are driving an average of 23,000 people per day to leave their homes and seek protection elsewhere. Less than that number would arrive to Australia over the whole of that year, yet those 17,000 people — small in the global context of 7.6 million refugees — enable Morrison and his colleagues in Opposition to create a frenzy in Australia’s parliament.

Data: Australia and asylum seekers: by the numbers

Australia receives a very small number of the world’s asylum seekers, both in absolute terms and in relation to other countries. The graphs below help explain:

Asylum applications received in Australia compared to other countries in 2019

In 2019, 2 million new asylum applications were lodged throughout the world. The chart below shows how the number of applications Australia received that year compares to the countries that received the greatest number of applications.

Data source: UNHCR Refugee Data Finder

How many refugees and other humanitarian entrants does Australia accept compared to other migrants?

The graph below compares the number of people Australia plans to take in 2020-21 through its Refugee and Humanitarian Program with the number of people it plans to take through its skilled and family migration schemes.

Data source: Minister for Home Affairs

The pressure grows so great that the embattled Labor Government tries to seize the debate by reinvigorating the Pacific Solution. They lock up asylum-seekers in remote, offshore camps. In an astonishing legal sleight-of-hand, they excise the entire Australian mainland from the Australian migration zone.

It not enough to win the politics, though. The Opposition keeps hammering the idea that Australia is experiencing a ‘border protection crisis’ that is ‘a national emergency’. Fraught, the Labor Party dumps its leader and installs a new Prime Minister who goes even further: he dramatically declares that no person who comes by boat, even if found to be a refugee, would ever be settled in Australia. Permanent protection here was suddenly out of the picture.

Still it’s not enough, politically. In 2013, more than 25,000 people would arrive by boat to seek asylum in Australia. That's equivalent to 0.1% of Australia's population of nearly 24 million. Nevertheless, this so-called ‘flood’ of people on boats claim considerable media space.

With a slogan of 'stop the boats', the Liberal-National Coalition under Prime Minister Tony Abbott wins government in 2013.

Morrison is sworn in as Immigration Minister and sets a tone of battle. The Department of Immigration and Citizenship becomes the Department of Citizenship and Border Protection. As the Liberal Party’s policy put it: ‘The scale of this problem requires the discipline and focus of a targeted military operation, placed under a single operational and ministerial command and drawing together all the necessary resources and deployments of government agencies.’

Flanked by a three-star general, Morrison launches ‘Operation Sovereign Borders’, a militarised mission to turn back boats suspected of carrying people seeking Australia’s protection. It’s a high-profile campaign executed with war-settings secrecy.

Australia’s former defence chief calls it misguided, saying asylum seekers ‘are not our enemy. They’re not attacking Australia.’ Decades before, the country had played a vital role in drafting the 1951 Refugee Convention, the international treaty that guarantees protection to people fleeing persecution based on their race, religion, nationality, political opinions or membership of a social group. The Convention does not require people to enter the country in a particular way.

Yet, Morrison’s aggressive approach has popular support. Professor Jane McAdam, Director of UNSW’s Andrew & Renata Kaldor Centre for International Refugee Law, explains this as a natural result of the rhetoric employed:

‘If you call people illegals, and in the public's mind create the idea that somehow people engage in criminal activity by coming here when they're not - it is legal to seek asylum - then I think that enables a whole lot of other policies to be implemented.’

Boat turnbacks are only one aspect of the operation. In domestic law, seeking asylum in Australia becomes a legal snakes-and-ladders course for anyone who came by boat.

Politicians make the rules, and they justify them by reminding us of the sometimes-lethal consequences of fleeing by boat: between 2011 and 2013 hundreds of people died at sea trying to reach Australia. Each new piece of legislation – often retrospective, more restrictive, and divisive – is sold as a means of saving lives at sea, no matter if people are stuck where their lives are at risk.

Little is said, however, about those tens of thousands of people who survived the journey to Australia, where a mercurial legal landscape now greets them.

First, as many people as possible are sent offshore.

Australia sends more than 4,000 people either to Papua New Guinea’s Manus Island or to the bankrupted nation of Nauru, an atoll of abandoned phosphate mines. But these Pacific islands have only so much space to devote to Australia’s detention camps. So, almost flukishly, because Manus and Nauru are ‘full’, tens of thousands of people avoid this fate and wind up in the Australian community.

It’s astonishing how arbitrary the process can be.

  • Sarah Dale, Director and Principal Solicitor, Refugee Advice and Casework Service (RACS)

    'We have people that arrived on the same boat, and now one is in Manus; one is in Nauru; and one's here in the community. The person here in the community... they're relatively protected. The man on Manus is stuck; he's been moved to Port Moresby, and we don't know what's going to happen to him. The other man who was on Nauru, he's now being resettled in the United States.'

The people languishing offshore eventually draw worldwide attention, so extreme are their conditions. Australia’s offshore-processing arrangements draw worldwide condemnation, so extraordinary is their break from international law, and from decency as it had been diplomatically understood. In the US, a desire to stop the suffering leads the Obama administration to make a special deal to take up to 1,250 refugees from Manus and Nauru. Even so, for hundreds of people held offshore, there is yet today no durable solution.

But 30,000 asylum seekers and refugees ended up 'onshore', in Australia. Even though this group is much larger than the numbers offshore, it has received, by comparison, little notice. Collectively, the people in this group are known as the 'legacy caseload'.

Graphic: Who are the legacy caseload?

McAdam explains: ‘Between August 2012 and 1 January 2014 there was a group of people seeking asylum who were subject to being transferred to Manus Island or Nauru for processing, but, because of capacity issues there, they were kept in Australia, and they became what is known as the ‘legacy caseload’.

‘We're talking about around 30,000 people. So they were in Australia, but because they were in theory subjected to this offshore processing policy, they weren't allowed to ever settle permanently in Australia.’

They remain almost invisible among us, and in perpetual uncertainty. Amid the constantly shifting goalposts, most of these people have experienced destitution – forbidden for long periods from working or studying, and provided with minimal welfare (at a rate set below Australia’s already-low Newstart benefit for unemployed citizens). First, they were detained in Australia, often moved from one detention centre to another in the dead of night. Then, they were parked on bridging visas of various duration and with varying rights to work or study, subject to a vague ‘code of behaviour’, with penalties including getting hauled back into detention or even deported, again most likely in the dead of night.

Such circumstances have conspired to keep these people quiet.

Mental health consequences of temporariness

Only having access to temporary protection leaves refugees in a prolonged state of uncertainty and insecurity.

Recent research has found that refugees on insecure temporary visas experience significantly worse mental health than refugees on secure permanent visas:

  • 49% of temporary visa holders had a probable diagnosis of post-traumatic stress disorder (PTSD), compared to 30% of permanent visa holders.
  • 43% of temporary visa holders had a probable diagnosis of depression, compared to 17% of permanent visa holders.
    People on temporary visas were 2.4 times more likely to report suicidal intent than permanent visa holders.

For more information, see this explainer, and this article.

You're not alone

If this story raises any concerns for you, there are people ready to listen and help.

Call Lifeline on 13 11 14 or Beyond Blue on 1300 22 4636.

Among this 'legacy caseload' are Zaki, Hani, Elaheh and the others in this series. Their strength in sharing their stories is all the more remarkable because researchers have found among their peers in this group a sense of ‘lethal hopelessness’, resulting from an ‘excruciating, insurmountable and unendurable uncertainty’. Dozens of people in the legacy caseload have ended their life, more have self-harmed, and more still have seen their mental health deteriorate to debilitating levels. Some people talked to us but did not want to be included, some said that talking at all would only add to their trauma. Some changed their minds as political circumstances changed – notably, the 2019 election, which, had it turned out differently, promised refugees in this group permanent protection.

Their lives are much more than an asylum story – the part they’d like to finish, so they can start building a new one. But there is no end in sight, and their resilience is extraordinary.

The unbearable uncertainty of ‘permanent temporary’

The people in Temporary are on what the government calls a ‘fast-track’, a system which, despite its name, is taking much longer – longer than before, and longer than it reasonably should. More than 10,000 people had to wait until 2017 for the government to greenlight them to apply, and then were given only a very short time to complete the application form, which runs to more than 110 questions, some with 14 sub-questions. At the same time, funding for legal support was cut off.

Thousands of people today are still awaiting their protection interview or an outcome from that first assessment.

For those whose refugee claim, once finally heard, is rejected, their right to a review of that decision is restricted. Funding for legal support is not available.

Many people have had their claim accepted. Yet, even as a recognised refugee, still there is no permanent protection for them. At best, they can receive a restricted protection visa that allows them to stay another three or five years before starting the whole process over again.

Let’s recall what these best-case-scenario visas mean: you cannot bring your family to Australia, you cannot travel without permission, and you cannot become a citizen. (Unconscionable, you might say.)

Historically in Australia, Professor McAdam says, ‘when someone was found to be a refugee they were given permanent protection,’ and encouraged to become a citizen. Stability supports integration; people become part of a new community faster. Research shows, in a surprise to many people, that refugees who acquire citizenship are the most likely to return should conditions change in the country they fled, precisely because they have a lifeline should they need the safety of their country of refuge.

When Australia first experimented with TPVs, in the Howard years, the United Nations Special Rapporteur on the Human Rights of Migrants saw the human devastation and warned: ‘the unbearable uncertainty of "permanent temporary" situations should be avoided at all costs’.

  • Jane McAdam, Director of UNSW's Kaldor Centre for International Refugee Law

    'Now the situation is that even if somebody who seeks Australia's protection here is found to be a refugee, they are only eligible for a three-year visa or some people can apply for a five-year visa that requires them to live in a regional area, but after that three- or five-year period is up, they are expected to reapply. Now, how can you move on with your life if every three years or every five years, you have to re-prove that you still have a fear of persecution in your home country?'

Yet in 2014, Minister Morrison unveiled temporary protection 2.0. for people who came by boat.

By then, says Professor McAdam, Australia’s public had been primed to accept all this and more. ‘If you think people coming by boat are illegal, then in turn why shouldn't people be separated from their families and told they can never settle permanently in Australia? And why shouldn't they be denied the opportunity to ever have permanent protection here?’

On these new temporary protection visas, refugees never have the opportunity to become permanent. They need to apply and reapply until the end of time.

But when reinstating TPVs, Morrison also created a new class of temporary visa, called the Safe Haven Enterprise Visa, or SHEV.

A SHEV dangles the prospect that a refugee might escape this unceasing uncertainty. A SHEV requires a refugee to live in a designated regional area – essentially outside Sydney or Melbourne. It provides work rights – though employers tend to be wary of people on any time-limited visa. It provides study rights – if you can pay the prohibitive international-student fees.

Crucially, though, a SHEV provides the opportunity to apply for a skilled or a regional-employer sponsored visa, or a student visa, after five years – or possibly even less time – provided you’ve been in regional employment without depending on social security benefits or in full-time study.

'That said, when Scott Morrison was immigration minister, he made it pretty clear that it was very unlikely that such people would ever meet the requirements for those visas,' McAdam notes.

Does the SHEV offer a realistic pathway to permanent residency?

While in theory SHEV holders have the option of applying for a range of permanent visas, in practice this ‘pathway to permanency’ has been described as ‘illusory’. Limited work options for temporary visa holders and the lack of subsidised study options make it very difficult for SHEV holders to achieve the requirement of 3½ years of work or study without accessing government support.

In addition, there are significant barriers that mean that it is unlikely that a SHEV holder will be able to meet the criteria for any of the permanent visas that they might apply for.

Importantly, SHEV holders are not able to apply for a permanent protection visa. When introducing the TPV and SHEV visa categories, then immigration minister Scott Morrison emphasised that to meet the criteria to apply for any of the available permanent visas, a SHEV holder would have to clear 'a very high bar'.

The most likely scenario is that when a SHEV expires, the only viable option will be to apply for another SHEV or a TPV.

For further reading, see the Australian Human Rights Commission's Lives on Hold report.

‘So while SHEVs in theory offer a pathway to remaining in Australia,’ says McAdam, ‘the reality seems to be they will offer a pathway for very very few people at all.’

Others make the point that, should a refugee succeed in moving from a SHEV to another visa that loosens some of the travel and other restrictions – but which also has to be renewed – they will effectively lose their refugee status. So when the next visa comes up for renewal, the refugee will instead be a temporary migrant, potentially surplus to requirements and sent packing, to a country they fear and perhaps have not seen for 15 years. So it’s both a carrot and, potentially, the stick they most fear.

Shaun Hanns is a former Protection Obligations Decision Maker in the immigration section of Australia’s Department of Home Affairs. From 2013 to 2018, Hanns issued many people with a TPV or SHEV. He calls temporary protection ‘probably the absolute worst policy that the Liberal government has in this space’.

'TPVs have just never worked as a deterrent, which is what we are told that they're here to do,’ Hanns says. On this, the Australian Human Rights Commission agrees. Its 2019 report on the legacy caseload, Lives on Hold, says: ‘Maintaining the integrity of Australia’s migration system and preventing people smuggling are legitimate objectives. However, the use of temporary protection arrangements does not appear to be rationally connected to these objectives.’

The report notes that boats had stopped before the new TPV and SHEVs were legislated in 2014, suggesting ‘the use of temporary protection arrangements was not a significant factor in this decline.’

The boats had stopped. The people were stuck.

So, now what?

All of the 30,000 people in this ‘legacy caseload’ were supposed to have had their interview and received a decision in 2018. Yet at the end of 2019, more than 5,400 were still waiting for the outcome of their first assessment by the Department of Home Affairs. ‘On current projections, we're looking at about 2021 to actually finish off the first assessment of everyone,’ Hanns said before the COVID-19 pandemic hit.

Meanwhile some refugees’ TPVs have already expired, and re-applications have been submitted to the Department of Home Affairs — but none is known to have been decided. By the end of 2020, 7,000 people will have needed to re-apply.

No one expected this to be the situation in 2020. Australia held a federal election in 2019, and Labor was ahead in the polls for many months prior. Labor’s policy was  to abolish TPVs and move refugees to permanent protection.  

‘The entire thing,’ says Hanns, referring to the see-sawing policies on TPVs, ‘it's just a whole waste of taxpayer money to torment people, to not impact on the ultimate outcome in any meaningful way anyway.’

Sarah Dale, now director of the free legal support service RACS, has been involved with these cases since the beginning. ‘I see the impact of these visas and these policies and I see how it breaks people,’ she says. ‘And I think, my goodness, they didn't break under ISIS. But they are breaking in our country now.’

Elaheh, Hani, Zaki and other people who open up in Temporary are among those holding together best, each at different stage of this legally-designed uncertainty. As we publish their stories weekly, and in distinct companion podcasts, they will share their memories. Their good days and bad. What it’s like to leave home, to watch the crabs on Christmas Island, to face an interview that seals your fate, to be separated from their family or stuck in judicial purgatory.

Each of them is still waiting, and they invite you to explore their experiences in a limbo of Australia’s own making.

Podcast: A limbo of Australia's own making

In the first episode of Temporary – a narrative podcast from UNSW and Guardian Australia – we meet Zaki, wfled a Taliban death warrant

Listen to the first episode

10-Minute Law

A quick audio explainer of the legal stuff.
Kaldor Centre Director Jane McAdam answers FAQs about refugees in the legacy caseload.