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.
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.
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.