STUCK IN A LOOP OF LIMBO

A family fled the same dangers, but only one came by boat. Australia recognised them all as refugees, but now a wife and children have permanent protection while their husband and father endures a re-application process that’s still being devised.

Episode 6 / Yehye’s story

Words by Lauren Martin · Art by Leila

FATHER AND SON SIT side by side, taking turns to talk. One translates the events of the other’s life, a few beats at a time, into English – from a childhood in Iraq, to their sofa in Western Sydney. Above them time has stopped on the wall clock and, next to it, two holy men stare from another era from a framed black-and-white photo towards the concrete suburban shopping mall that looms outside the large living room window.

The younger man on the sofa leans forward in his sweatpants and T-shirt, as if his posture could  propel the story of fateful twists towards a peaceful ending.

His father sits upright, composed. He’s dignified in a crisp, dazzlingly white collarless shirt that reaches down to his bronze, weather-beaten bare feet. White represents purity in his ancient Mandaean faith, where the dual forces of light and darkness struggle for control of the world. Mandaeans are staunch pacifists. Forbidden from using force even in self-defence, they refuse to carry weapons. Consequently, cultural extinction is a real concern for modern members of this diminishing religious community that pre-dates Christ. 

Pacifists make easy targets, and Mandaeans have been persecuted throughout history. But followers were particularly defenceless against the extortionists, kidnappers and other crime gangs who acted with impunity in post-Saddam Iraq. It was there that the eldest son and brother, respectively, of the men on the sofa, followed his Mandaean faith to his death.

So, the remaining family fled Iraq to Syria, where they opened a prosperous shop and registered as people seeking protection with the United Nations’ refugee agency, UNHCR. UNHCR interviews people claiming protection, determines whether they are refugees, and aims to relocate them to a permanent home in a safe country. This process can take years, and there are no guarantees. They waited. 

But then war broke out in Syria, and previously peaceful neighbourhoods turned brutal and deadly. Bombs flew from the sky and the streets, where hand-to-hand fighting included hands with machine guns. UNHCR was swamped with people seeking safety elsewhere. For the father, a goldsmith by trade who enjoyed providing well for his family, the indefinite wait for resettlement looked more and more like a dead end. He grew impatient and, against his family’s wishes, decided to forge ahead, to Australia, in the only way immediately available to him. He paid in gold, upfront, and in trauma, indefinitely.

His wife and children remained in Syria, holding out hope for a UNHCR interview. Eventually they got one, were found to be refugees, and were resettled permanently in Australia. Now, the younger man on the sofa is just a step away from Australian citizenship. His father, haunted by his desperate decision to travel by boat eight years ago, is trapped in perpetual uncertainty.

‘Because we got the permanent [protection visa] and we are awaiting the citizenship… our life is, like, settled,’ says the young man. He escaped the crumbling streets of Syria through the UNHCR and was among the less than 2% of refugees UNHCR is able to resettle. His father’s urgent flight from those same circumstances, when hope seemed futile, did not fit any regularised intake, and so he among the 30,000 people stuck in the legal limbo that surrounds Australia’s ‘legacy caseload’. 

‘Our dreams are all the same thing. But for my dad… every minute when he hears from his friends, from TV or radio or anything, “Oh, that temporary visa, they gonna kick [you] out of sight,” he’s shaking. “Where they gonna kick me out? All my family is here. I have nothing left in our country.”’

Not only is this patriarch on a precarious visa, it is also currently being re-assessed. So, he tells his story under a pseudonym. He chooses Yehye, a name that means ‘he shall live’.

Act 2

The contours of a life sharpen from the perspective of some six decades. Yehye’s own dad died when he was not yet 10 years old. He moved from the village to Baghdad, took up jewellery design and  production. By age 20, he was married, and children soon followed. He was happy, though there were difficulties. ‘Pressure to be Muslims, change our religion,’ he says.

‘It was a very hard life, people [were] racist to us because we had different beliefs. But we, you know, we just continued with life.’

Until the 2000s, when life in Baghdad became much trickier than before. ‘A lot of terrorist groups, like mafias, affected us more than before, because we have a different religion. When they came to Iraq, they told us, “We’re gonna kidnap, we’re gonna kill you.”’ 

The jewellery shop attracted thugs’ attention. They demanded money. ‘We’re all the time thinking, like, what's going on tomorrow?

‘I lost one of my sons to all that.’ 

His son was an engineer, he says proudly, eyes glistening. He is silent for a while, and still.

‘That time, like, the effect on my family... it was a horrible time for us.’ 

One of his other sons, the one on the sofa, now has become an engineer, too. Both men wear neat, trim beards – one’s still dark, the other’s grown almost completely white. The young man is also a practicing Mandean, part of a community where members are baptised many times, to get closer to the world of light. ‘I remember,’ he says of his Iraqi childhood, ‘we were doing the baptism and there were some people [who] shoot at us from the other side of the river. And many people were injured, like, women's babies…. at the baptism. So, it was not easy doing our practice.’ 

‘So,’ his father says, ‘we left our country to search for a better life [with] human rights.

‘We got a unit in Syria. And we have money, because we opened a supermarket. And my sons, they worked [there]. We were living a normal life, our relationship with the people there, it was very good. There was like a mix – Syrian people … and Egyptian… Jordan, Iraqi people... good relations with other people. 

‘We were living there when the war started.’

Their location seemed quieter than other places in Syria. Maybe, they hoped, they would be safe. ‘We can't go back to Iraq – it's very dangerous for us to go back... So we should stay there and wait. The terrorist groups, they were a little bit away… but then later, they came closer, closer.’

Then the bombs fell on their unit. ‘Two bedrooms, totally smashed,’ explains Yehye's son. ‘Half of the unit. And many people die. There wasn't…. you can't imagine. 

‘It was very dangerous, really dangerous,’ the son adds. ‘And our family situation was bad.’

Act 3

Put yourself in December 2011. In Syria, one million people are in need of aid, a number that would shoot to 12 million over the next four years. Yehye and his wife and children apply as a family to UNHCR for refugee protection, hoping to be resettled in Canada, Australia, the US – anywhere they can escape conflicts that are not theirs, where they can practice their pacifist religion undisturbed. 

Their application is not progressing. ‘I'm losing lives. I lost my son,’ Yehye says. ‘I’m losing hope for a life.’

He hears about people who work faster than UNHCR. He makes a fateful decision, trades them some of the gold he’s kept from the shop, for passage out. And on that decision rests everything since.

‘That time was hurting me a lot, and my tears told me to go... I was thinking about my family, my my, my sons, and I remember them when they were kids’.

Are asylum seekers who travel to Australia without a visa ‘jumping the queue’?

There is no ‘queue’ for people seeking asylum. There is a common misconception that if refugees just waited in camps overseas, they would eventually be resettled, but people fleeing harm do not always get to choose where they travel to. There is also no guarantee of resettlement. Fewer than 1 per cent of the world’s refugees are resettled annually.

For these reasons, international law states that if a person enters a country without a visa seeking asylum, they should not be treated as illegal or be subjected to any disadvantage.

For more information see the Kaldor Centre’s factsheet on resettlement. You may also be interested in this Refugee Council of Australia analysis of global resettlement data from 2004-2018.

His children, no longer small, did not agree with his plan. ‘My dad said, I can't wait for the [UNHCR] interview. Let me try to go to Australia by the boat. And maybe I'm gonna help you to come to Australia faster.’ His wife is against it. But, Yehye sighs, ‘I told them I should go…. I die, or I get a new life.’

His son remembers a silence that went on for days. ‘It was very, very sad. We were not sure he can arrive there... so we were angry and sad at the same time. No one was talking to each other, [we were] all quiet, you know, because a lot of ideas came to us.’

A weariness hangs on his father now. ‘I don't advise anyone to come by boat,’ the man says. ‘Even in that time, I know it's wrong. I completely understand it's wrong and maybe I'm going to die in the ocean. But I guess I did that decision because I was very sad with myself, like, I was very sad. Very sad. Sorry.’

 Act 4

During the family’s days of silence in Syria, Yehye makde it to Indonesia, where, he says, at about 2 o'clock in the morning, ‘we start moving inside the ocean, to come to Australia.’ 

His  wife and children in Syria had no idea at this moment that Yehye had boarded a wooden boat that would be at sea for four days. Storms would come, bringing 20-metre-high waves, knocking down everyone on deck. Over the screams of women and cries of children on board, Yehye would hear the sound of wood cracking. ‘It wasn't controlled…. It was so horrible.

‘Moments like…’ he has no words. ‘Dying moments.

‘We lost the hope to be alive.’

They’re all still alive, though, when the storm wearies. The boat holds. Their breathing steadies. 

And then the winds return. Their crowded, creaking craft is blowing towards rocks that point sharply at the fragile hull. They are out of food. ‘There's nothing, just water and sky.’

And then – another boat appears, prompting in Yehye ‘tears of the happy and the hope to start again’. Australian Navy sailors, Yehye’s says, ‘save our life. They gave us food, water and everything we need. They were respecting us.’ Two days later, the Navy ship would deliver the asylum seekers to Darwin, where, in late 2011, ordinary people lined up and welcomed the bedraggled travellers.  

Soon after landing, an immigration officer calls the men together. He says the boat behind theirs sank, and 250 people died. ‘He said [he] was very sad.’

The officer hands over a phone, telling the men to pass it around and call the loved ones they’d left. ‘Because, he said, your family's gonna hear the news of the boat [that sank and think it was you]. So contact your family.’

During the family’s days of silence in Syria, Yehye’s loved ones had received another call – it was from UNHCR, calling to schedule an appointment, to assess their family asylum application. His son explains: ‘But first, they ask, “Is the whole your family still in Syria?” We told them, “Not all of us. My dad, he left us.” They said, “Okay, when your dad comes back, come to have the appointment.”

‘They stopped our application because my dad, he wasn’t with us.’

Yehye arrived in Australia in 2011, a year when fewer than 5,000 people came by boat to seek asylum in Australia. In the following year, that number would more than triple, and Australia’s politics of immigration would ratchet up exponentially. With an election looming in 2012, both major political parties battled to look tougher on borders, and, slogan by slogan, promise by promise, law by law, they created a system uniquely draconian in the world, at least at the time. 

The most dramatic policy turning point came in mid-2012, when the Labor Government pronounced that from that day forward, no-one seeking asylum would ever be settled in Australia if they had come by boat. Since that time, thousands of people have been held on remote offshore islands. When those centres filled up, many thousands more people in Australia were in theory subject to this offshore processing policy; likewise, they weren't allowed to ever settle permanently in Australia. So they will only ever be allowed to hold temporary protection visas here.

Because Yehye came to Australia before this pronouncement, he might have expected to be considered for permanent protection, as was the law when he arrived. Permanent residency, which leads to citizenship, and durable safety. That is what his family received – eventually, once the UNHCR considered their application, without Yeyhe, and they were accepted for resettlement in Australia.

But the vicissitudes of the processing of his case meant that, instead, in 2017 he received temporary protection, a three-year visa. 

Entitlements on different visa types

Australia was pioneering a legal stratification of refugees. Yehye’s family straddles both sides of this novel policy that distinguishes resettled refugees from those who apply for asylum from onshore. These groups, both recognised as needing protection, nevertheless receive radically different treatment in Australia. The country is a signatory to the Refugee Convention, which makes clear that no refugee should be penalised for their mode of arrival.  

Amid furious domestic politicking, Australia asylum legislation kept being rewritten, added to and altered without regard to those it was meant to protect. People got caught between laws. Laws were applied retrospectively. Few could follow the tortuous complexity of it all.

‘We have people that arrived on the same boat from the same country fleeing the same war that lodged an application for protection on the same day on the same paperwork, and now Person A is applying for citizenship whilst Person B is stuck on a temporary protection visa – purely because the administrators of those two cases, one was quicker than the other, and so Person A got in before the law changed, got their permanent protection visa and now applying for citizenship,’ says Sarah Dale, Centre Director and Principal Solicitor at the Refugee Advice and Casework Service (RACS). “Person B – maybe the person managing their case was off sick for a week, maybe that person had 40 cases and too much to do and couldn't get through them. But for whatever reason, Person B's case was slower than Person A, through no fault of their own. And now they're stuck on temporary protection.’ 

And so it was with Yehye.

Australia first experimented with temporary protection visas in the early 2000s, but they proved unworkable. When the numbers of people seeking asylum slowed, the politics cooled, and, faced with mounting mental health impacts and administrative burdens, the government at the time quietly moved refugees from TPVs to permanent protection.

What’s wrong with Australia's temporary protection system?

Several elements of Australia’s refugee protection system fall short of the standards for a fair process established under international law and best practice. Some aspects that particularly affect members of the legacy caseload are:

For a comprehensive analysis on the challenges that the legacy caseload face, see the Australian Human Rights Commission’s Lives on Hold report.

For guidelines on how Australia could build a fairer refugee protection system, see the Kaldor Centre Principles for Australian Refugee Policy.

This time, there is no sign of such a solution. And no one knows how it’s going to work. 

While recognised as a refugee, Yehye needs to re-apply for his protection. His is among a wave of re-applications now being submitted, but into a legal vaguery. Alison Ryan, Senior Supervising Solicitor at RACS, says: ‘There is no clear procedure about when those cases are going to be looked at… for thousands of people that have applied for their new visa, their re-application, there haven't been interviews, there hasn't been a process rolled out for those people yet.’

Here is what we understand so far about this novel re-application process. It involves deadlines with vital consequences; your re-application must be found to be valid by the Department of Home Affairs before your temporary protection visa expires. ‘If you do not meet that deadline, you will be unlawful,’ explains Ryan. ‘You will not be able to work. You'll not be able to get Medicare. You should be subject to detention and removal.’

There is no known allowance for missing this deadline – not being in hospital, not mental health issues, not being confounded by this unprecedented process. Ryan has been urging refugees to begin the process six to eight months before their visa will expire.

First, the refugee ought to submit a Freedom of Information (FOIA) request to discover the reasons why they were found to be a refugee. ‘When you're granted a [protection] visa, you're not given the reasons, so it's very hard to see whether something's changed that might affect your reapplication,’ Ryan says.

“The re-application process, on its face, is a lot more straightforward, because the form is shorter. They’re just basically asking, has something changed? But you still have to meet the complex law underneath it.”

Making a FOIA request is more difficult for refugees who do not have an email address – which is many. Whether filed electronically or in paper form, the request must be very specific and include all necessary supporting documents. While the law promises a 30-day turnaround on FOIA requests, it is rarely achieved; Ryan suggests allowing three to four months.

The FOIA response enables a refugee to see the first decision-maker’s internal notes. In some cases, the Department of Home Affairs may have only accepted part of the case, so you need to tease out the relevant issues. ‘What citizenship did they accept you had? Did they accept your identity, where you came from, your account of why you fled? If you offered evidence of being detained or tortured, was it accepted? Did they consider whether you could move to other places, and if so, why did they determine that was not possible? 

‘The law is really clear, the onus is on the applicant to prove their case,’ says Ryan.

‘The re-application process, on its face, is a lot more straightforward, because the form is shorter. They're just basically asking, has something changed? But you still have to meet the complex law underneath it. 

‘So in order to be a refugee, you need to prove that there is a real chance that you're going to face serious harm in your home country for a specific reason,' Ryan explains. 'And you need to prove that you can't go anywhere else in your country. And you need to prove that there's no other country that you have a right to go to.’ 

And all this must be proved for the future. Though the re-application must be submitted now, the test is whether in the foreseeable future you would face persecution in your home country.

‘So it's not saying, I was found to be a refugee in 2016, therefore I still am a refugee,’ says Ryan. ‘You need to look at the current circumstances in that country in relation to your case.’  And of course the situation could change – so many circumstances are fluid in places such as Afghanistan, Iraq, Myanmar.

When Ryan first spoke to us, there were no clear procedures about when cases would be considered. There had been no interviews. No certainty refugees would be given adequate time and resources, including interpreting assistance, to be able to put in to be able to put in the reasons why they think they still are refugees. The basic procedural fairness that should underpin any justice system was not a given in this process. In the months since then, some TPV re-applications have been granted but without shedding much light on the why or how.

Once a refugee submits their case for a second temporary protection visa, their current visa becomes ‘indefinite’, extended until 35 days after their case is decided sometime in the future. This bureaucratic no-man’s-land can cause problems with Centrelink, Medicare, employers.

Ryan’s concern is that refugees who miss their deadline to apply for their new TPV will be sent, or simply forced by circumstance, back to danger. Even before the coronavirus pandemic closed the borders and shut down many job, Ryan noted, ‘For the clients that have now been months without visas, not being able to support themselves, without being able to work, homeless, living from charities – even if we're not putting them on the plane, we're telling them, you need to go.

‘Our international obligation is that we don't send people back to a place where they're going to be persecuted,’ she says, but her anguish extends beyond her legal role.

‘The fact that we are making this endless process seems to be just crazy… it feels like no one is winning. And 30,000 people – in terms of the Australia's wider migration policy, the number is so small. So I really feel that we should take the politics out of it, look at it in a pragmatic sense, administratively or humanely or however we want to do it, and just resolve it.’

Act 5

Mandeans are a vanishing congregation, something felt acutely by its faithful souls today. Personal instability can resonate as fear for the future of the whole belief system.

University of New South Wales Professor of Psychology Angela Nickerson has done research on Mandean asylum seekers in Australia, which notes: ‘The sense of ongoing threat experienced by refugees living in situations characterised by instability and uncertainty may extend beyond fear for one’s own future and the safety of family members, to encompass concerns about the future of the group as a whole and the traditions that define one’s religion and culture.’

She found, however, that ‘when the prolonged uncertainty associated with temporary protection was removed, participants’ psychological functioning improved’. 

Yehye is waiting again, uncertain.

‘You can imagine just from a bureaucratic perspective how this creates a huge backlog,’ Professor Jane McAdam, director of UNSW’s Kaldor Centre for International Refugee Law.

‘But far more importantly, from a human perspective, 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?

‘You worry that you might be sent back. You can't build a new life for yourself… the levels of psychological distress are through the roof,’ McAdam says.

Yehye is at pains to ‘thank Australia for bringing his family here to Australia. We have a good life now and we are safe. My sons, they got married, they work. One of my sons, he’s an engineer. I have young sons. I hope they can help Australia for the future.’ 

Australia has acknowledged him and his family members as refugees, their fears legitimate. Yehye alone among them is facing this future of indefinite limbo.

Two sons sit with him now. The older one says, ‘In our community, people in his age, they're relaxing. But for my dad all the time, I find him, he’s upset at home. “Dad, why you're not going with them, hang out with the old people?” And he says, “No, I don't want to.” 

‘He is not comfortable. Like, his life is on the edge. Maybe they get to kick him out. And he's very old… he’s not strong enough to get this feeling. All the time he’s thinking what's going to happen tomorrow? That's going to affect his health.’

His father nods. The uncertainty exhausts him. ‘My age is 65 now, and I'm waiting.’

Podcast episode 6: Stuck in an endless loop

In this episode, Sisonke Msimang meets a father who lives in anxious uncertainty, enduring an opaque re-application process that could result in his being torn away from the family he sought to save.

Hear Yehye’s story