THE DETRIMENTAL EFFECTS THAT AUSTRALIAN LAWS AND POLICIES HAVE ON THE MENTAL HEALTH OF REFUGEES IN THE AUSTRALIAN COMMUNITY

By Bianca Failla 

I INTRODUCTION 

Australia has been particularly successful in its ability to welcome and settle a variety of individuals from culturally diverse backgrounds, countries and cultures to form a united and harmonious nation.

Part of Australia’s success in creating a cohesive multicultural society is due to the country’s longstanding history of migration, and because of decisions which have been made to provide permanent protection to asylum seekers found to be refugees. This is partly the reason for why many people living within Australia, excluding Aboriginal and Torres Strait Islander Australians, are either migrants, refugees or descendants of migrants or refugees.[1]

Formerly, Australian policies and legislation which encouraged the inclusion and participation of people from refugee backgrounds provided all refugees with the opportunity to make significant contributions to society.[2] Throughout history, Australia has welcomed many refugees who have made a difference to the world on a global scale.[3] Such refugees include but are not limited to; former judges, doctors, scientists, Ig Nobel Prize winners, Archibald prize winning artists, Australian Football League athletes, entrepreneurs and famous business owners.[4]

However, in recent years, Australia has implemented harsh legislation and policies which prevent refugees already living in the Australian community from obtaining permanent protection and restricts their ability to obtain refugee status, on the basis that they arrived without a valid visa when initially seeking asylum in Australia.[5] These laws not only violate international human rights laws, but also create mental health implications for refugees living in Australia.[6]

Medical research has found that refugees who have been provided only temporary protection in Australia have higher rates of mental illness than refugees who have been granted Permanent Protection Visas.[7] Individuals on Temporary Protection Visas also have increased symptoms of anxiety, depression and Post Traumatic Stress Disorder (PTSD) than Refugees who are permitted to reside in Australia on a permanent basis.[8] Mental health professionals and legal researchers have also noted that the news associated with an extension of a period of temporary protection status can worsen cognitive and emotional stress,[9] and scientific studies have shown that refugees face a much higher rate of developing psychotic disorders such as schizophrenia, which could be linked to post-migration stressors such as discrimination.[10]

The Australian Human Rights Commission and the Australian media have also reported that the stress associated with limited merits review processes, and the implementation of unjust laws and policies which make it more difficult for asylum seekers to obtain refugee status have caused individuals who are subject to the temporary protection regime to commit suicide, with many setting themselves on fire, jumping in front of trains and some hanging themselves to death.[11]

This paper will focus solely on the subset of refugees currently living within the community, who initially arrived in Australia as asylum seekers without a valid visa, and the contributions they have made to Australian society. The definition of a refugee under international law will be explained, in addition to the higher incidence of mental health issues refugees are predisposed to prior to arrival. The paper will then critically examine how recent laws and policies further negatively impact on the mental health of refugees and asylum seekers and why they should be changed.

II THE VULNERABILITY OF ASYLUM SEEKERS AND REFUGEES PRIOR TO ARRIVAL

One of the leading causes for why people seek asylum today is due to war and ethnic, tribal and religious violence.[12] Other reasons for why people seek asylum include fearing persecution for their political beliefs, ethnicity, nationality, political opinion or membership of a particular social group.[13]

People who seek asylum in Australia are amongst the most vulnerable people in our society. Many have experienced torture, trauma and other catastrophic life events prior to arriving in Australia, which have made them more susceptible developing mental illness.[14] For example, a psychological report obtained in the case of a Chinese asylum seeker who was persecuted due to being a follower of the Falun Gong Faith, revealed that she had been subjected to interrogations, beatings and was electrocuted with an eclectic rod which caused her to lose consciousness when applied to her forehead.[15]

It is also not uncommon for refugees to have experienced torture in the form of beatings, being subjected to long periods of isolation, verbal threats, humiliation and genital mutilation.[16] Other forms of torture include electrical torture, suspension, mock execution, sleep deprivation or deprivation of food and water.[17]

Asylum seekers and refugees have also been found to have higher rates of mental health disorders such as Major Depressive Disorder, Post Traumatic Stress Disorder (PTSD), anxiety disorders and psychotic symptoms than the general population.[18] The increased vulnerability to mental health issues are due to pre-migration stressors, such as experiencing war trauma, torture, persecution, taking risk taking journeys to their new host countries and being separated from family members.[19]

Research has also shown that although refugees have sustained trauma, many have proved to be extremely resilient and benefit their host countries in a variety of ways.[20] In Australia refugees contribute to the economy through labour force participation, entrepreneurial activity and filling labour market niches. Refugees also stimulate economic growth in regional areas, bring specialised labour skills to the country, develop international trade links and make social and civic contributions to the country through volunteering and community participation.[21]

Many individuals who have been granted refugee status have also shaped Australian society in a positive way. For example, Mr. James Spigelman migrated to Australia from Poland as a refugee and later became the Chief Justice and Lieutenant Governor of New South Wales and was prominent in advocating to shift the New South Wales Supreme Court’s gender imbalance, by encouraging an increased number of female judges on the bench.[22]

Dr Karl Kruszelnicki, who was granted refugee status in Australia due being the son of holocaust survivors,[23] was one of the first eight Australian Apple Masters to be announced, and was also awarded a Ig Nobel Prize by Harvard University for his outstanding research in belly button lint.[24]

Australia is also home to many refugees who reside within the community who are taking active steps to contribute to society, such as Dr Assell Yako.[25] Dr Yako qualified as a doctor in Iraq and saved hundreds of lives, by attending to the health needs of soldiers with battlefield wounds caused by ISIS, and by patching up women and children who had been injured by explosions or gunfire. Since attaining refugee status in Australia, Dr Yako is re-qualifying as an Australian doctor with the hope of giving back to the Australian community.

However, despite medical evidence that refugees have an increased vulnerability to mental illness and their significant contributions to our society, Australia has introduced legislation which limits the ability of refugees living in the community to be granted protection. This discordant legislation is in violation of international human rights law, which raises the question of what Australia’s international legal obligations are and who they are owed to. The first step towards an answer would be to look at international human rights law for a better understanding of what protections are afforded to refugees.

III WHO IS A REFUGEE UNDER INTERNATIONAL LAW

The principle of State Sovereignty implies that State Parties are not required to allow foreign people into their territory.[26] The exception to this rule is if an individual seeking asylum is found to be a refugee.[27] If this is the case, then State Parties are prohibited from returning the individual to a country where their life or freedom may be threatened by reason of their race, religion, nationality, membership of a particular social group or political opinion (the principle of non-refoulment).[28]

The principle of non-refoulment applies to asylum seekers and refugees irrespective of whether they have entered a country illegally.[29] However, individuals who are considered a danger to the security of the country or to the community cannot claim this protection, in addition to individuals who are war criminals or those who have committed serious crimes.[30]

The 1951 Convention relating to the Status of Refugees (the Refugee Convention) states that a person is a refugee if they are outside of their country of nationality (or former habitual residence) and are unable or unwilling to seek protection of that country due to having a well-founded fear of being persecuted on the basis of their race, religion, nationality, membership of particular social group or because of their political opinion (the convention grounds).[31]

In Chan v Minister for Immigration and Ethnic Affairs (Chan),[32] Chief Justice Mason and Justice Dawson explained that having a ‘well-founded fear’ of persecution meant that there must be a ‘real chance’ that the individual seeking asylum will suffer serious harm, in the event that they are returned to their home country.[33] This means that the risk in question must be a fear that is not remote.[34] In Chan, Justice Dawson also explained that the ‘well-founded fear’ test requires a subjective and objective assessment,[35] and the court referred to the case of Immigration and Naturalisation Service v Cardoza-Foneska,[36] which established that a person’s fear may be well-founded even if there is a 10% chance that the person may be persecuted.[37]

The term ‘persecution’ is not defined in the Refugee Convention. However, the case of Chan established that it is not necessary that the persecution inflicted be directed to a single person, and that the harm or threat of harm could be part of selective harassment directed to either one person or a group of people collectively.[38]

Over the years, Australian judges have described the term persecution to include; ‘some serious punishment or penalty or some significant disadvantage’,[39] a denial of fundamental rights and freedoms enjoyed by nationals of a country,[40] severe social, political or economic discrimination, a denial of access to employment or education and restrictions on freedoms traditionally guaranteed in a democratic society, including freedom of worship and assembly.[41] In Applicant A v MIEA[42], Justice McHugh also said that persecution could include death, torture and deprivation of opportunities.[43]

In Chan v Shi Hai v Minister of Immigration and Multicultural Affairs,[44] the court found that persecution may include, ‘conduct which offended the standards of civil societies which seek to meet calls for common humanity’.[45] The court also stated that such conduct could include the denial of access to food, shelter, medical treatment, and in the case of children, a denial of an opportunity to obtain an education.[46]

Hathaway and Foster have also noted that it is generally accepted, that persecution will amount to serious harm if there is evidence of a sustained or systemic serious violation of human rights, which is demonstrative of a failure of a state protection.[47]

Cases such as R v Immigration Appeal Tribunal; Ex Parte Shah, [48] and Hovarth v Secretary of Justice for Home Department,[49] have argued that persecution, will be present if it can be shown that there has been serious harm, in addition to the failure of state protection (which may also include an inability of a State to protect its people). This approach was also followed by Justice Kirby in Applicant A v Minister for Immigration and Ethnic Affairs. [50]

If it can be shown that there has been serious harm of persecution, combined with a failure or inability of the individual State Party to offer protection then this will be sufficient to amount to persecution, if it can be established that the State in question did not take reasonable steps to protect the person seeking asylum.[51] Therefore, if there was a domestic remedy that could reduce the risk of persecution, then the risk of serious harm on its own would not suffice.[52]

The Refugee Convention states that a person’s well-founded fear of being persecuted must be ‘for reasons of’, their race, religion, nationality, membership of a particular social group or because of their political opinion.[53] Therefore a causal relationship or a nexus between the danger of persecution and a convention ground must be established,[54] with the burden of proof being a shared duty of fact-finding between the person seeking refugee status and the asylum State.[55]

Hathaway and Foster also say that there is a consensus in international law that the characteristic which is connected to the risk of persecution must be contained in the convention grounds,[56] there may be a link to more than one convention ground,[57] the risk in question may be implied,[58] or attributed[59] to the person seeking protection (even if they do not possess the protected characteristic), and the convention ground does not need to be the only reason for why the person is being subjected to persecution.[60]

Furthermore, while parties may establish that the nexus requirement is met by proving an intention to inflict persecution by reason of a convention ground,[61] it is only necessary to show that the applicant’s predicament is linked to a Convention ground.[62]

IV AUSTRALIAN LAWS AND POLICIES THAT AFFECT INDIVIDUALS SEEKING ASYLUM IN AUSTRALIA 

A. An Incompatible Definition and the Risk of Non-Refoulment

Australia’s non-refoulment obligations under international human rights law are encapsulated in the Refugee Convention,[63] the International Covenant on Civil and Political Rights (ICCPR),[64] the Convention on the Rights of the Child,[65] (CROC) the Convention on the Rights of Persons with Disabilities [66] (CRPD) and the United Nations Convention against Torture and other Cruel, Inhumane and Degrading Treatment or Punishment.[67]

Despite these obligations, in 2014 the Migration Act [68] was amended with the introduction of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (The Legacy Caseload Act).[69] The Legacy Caseload Act amended the Migration Act[70] to include Section 197C, which provides that Australian officials may remove a person from Australia without considering whether or not they are at risk of non-refoulment.[71] Section 197C of the Migration Act[72] violates Australia’s non-refoulment obligations as it makes it lawful under domestic law for Australia to remove unlawful non-citizens and to ignore its non-refoulment obligations when doing so.[73]

The Legacy Caseload Act also removed references to the Refugee Convention which were originally in the Migration Act,[74] and has now introduced a refugee status determination framework.[75] The Australian Government has dictated its own protection obligations in this framework, which are inconsistent with the Refugee Convention and do not safeguard against refoulment.[76] As a consequence, it is now more difficult for refugees (required to re-apply for temporary protection visas) and asylum seekers, to establish that they are a refugee under Australian law.[77] The implementation of additional criteria to establish refugee status may cause Australia to be in violation of its non-refoulment obligations.[78] Some individuals will be forced to return to countries where they fear persecution, under circumstances in which the criteria for determining refugee status under the Refugee Convention may have offered them protection.[79]

An example would be the discordance in perceived geographical risk of persecution. If a person wishes to establish that they have a ‘well-founded fear’ of persecution, Australian law dictates that they have to demonstrate a real chance of persecution in all areas of their country of origin or formal habitual residence.[80] This is in contrast to international law, which only requires refugees to demonstrate this in the specific area of the country from which they have fled.[81]

The definition of a ‘well-founded fear of persecution’ also comes with additional conditions under Australian legislation.[82] The well-founded fear test will not be met if effective measures are available in the person’s home country, from either their government or a non-state party or organisation that controls the country or a substantial part of that country.[83] asylum seekers will now be deemed not to have a well-founded fear of persecution if it can be established that persecution could have been avoided with ‘reasonable steps’ to modify their behaviour.[84] Additionally, members of a particular social group at risk of persecution are now required to demonstrate that they have or are perceived to have a characteristic that is shared by each member of that group.[85] This has to be either innate or immutable, so fundamental to the person’s identity or consciousness that they should not be forced to renounce it, or something that distinguishes the whole group from society.

Furthermore, evidence of refugees being sent back to countries where they risk persecution was highlight by the Australian Human Rights Commission (AHRC), who noted that the introduction of the internal relocation provision in Section 5J(3) of the Migration Act [86] has led to protection visa applications of some asylum seekers from Afghanistan being rejected on the basis that they could relocate to Kabul, when their claims may have succeeded prior to the amendments brought by the Legacy Caseload Act.[87]

Therefore, to ensure that Australia is not in breach of its non-refoulment obligations under international law, the Australian Government should repeal the Legacy Caseload Act and introduce legislation which will ensure that the Migration Act’s[88] definition of a refugee is consistent with the definition contained in the Refugee Convention.

B.  Limited Form of Merits Review and the Continued Risk of Non-Refoulment 

The Legacy Caseload Act also introduced a limited, merits review process, called the Fast-Track Assessment and Removal Process (FTARP) for asylum seekers who arrived by boat between 13 August 2012 and 1 January 2014.[89] The FTARP also applies to asylum seekers who were sent to Nauru or Manus Island between 13 August 2012 and 19 July 2013 but who were later returned to Australia to create space in offshore processing centres for the asylum seekers who arrived after 19 July 2019. In March 2019, the Australian government also announced its intention to extend the FTARP to refugees whose temporary visas had expired.[90]

Individuals who are subject to the FTARP who receive a negative decision of their refugee status and are not allowed to apply to the Administrative Appeals Tribunal (AAT) for review of their decision.[91] Applications for review are now dealt with by the Immigration Assessment Authority (IAA).[92] The IAA system of merits review disadvantages refugees applying for visas under this system due to it being a limited form of merits review.[93]

For example, under the AAT, the decision maker will review the facts of the case, the law and policy aspects of the original decision, by taking into account new information that was not before the original decision maker[94]. The AAT also usually conducts hearings during which evidence can be tested and additional evidence may be provided.[95] However, the IAA generally does not hold oral hearings or consider new information that was not provided before the original decision maker, other than in exceptional circumstances.[96] Applications for protection also need to be provided in writing which is difficult for people with a limited understanding of English or for those who are without legal representation.[97]

Asylum seekers and Refugees subject to the FTARP must also generally provide all information relevant to their claims during the early stages of visa processing, which the AHRC has stated is challenging for individuals who have suffered trauma, lack understanding of the law or have poor literacy skills.[98] The United Nations High Commissioner for Refugees (UNHRC), has also reported that it is not uncommon for asylum seekers to withhold information about their case in the initial stages of the legal process due to being traumatised by those experiences or due to feelings of shame or fear, which makes it clear that the FTARP disadvantages applicants.[99]

It is also probable that the FTARP may constitute a violation of Australia’s non-refoulment obligations, due to not being an adequate system of merits review, with the IAA having a heavy reliance on information used by the primary decision maker, the restriction on asylum seekers to produce new information in most situations, and the practice of making decisions without interviewing people.[100] These factors may lead to incorrect decisions being made and asylum seekers or refugees being sent back to countries where they may face persecution.[101]

The stress of having protection claims rejected by the IAA has also been said to cause mental health implications for refugees living within the community with some committing suicide after having their claims for refugee status rejected.[102] For example, the AHRC reported that in 2018, after a Tamil asylum seeker had his claim for protection rejected under the FTARP, he was found braindead after a suicide attempt.[103] Shortly after his death, the spokesperson for the Refugee Action Coalition, Mr Ian Rintoul advised the media, that the suicide, ‘is another casualty of deliberately harsh policies to break people who make asylum claims. They are denied natural justice and have been subjected to unacceptable delays, and denied legal help’.[104]

Further evidence of the mental health implications caused by the FTARP, can be seen in the suicide of 30 year-old Mr Khodaya Amini who had burnt himself to death in 2015.[105] Mr Amini was a refugee who was subjected to the FTARP.[106] Prior to taking his own life he contacted two of his refugee advocates in Perth and stated, ‘I can’t stay, I can’t stay’ and ‘the immigration is killing me’.[107] It was also reported that Mr Amini left a suicide note written in his blood stating:

‘A statement [written] with my blood for those who call themselves human beings, I ask you to stand up for the rights of refugees and stop people being killed just because they have become refugees. Humanity is not a slogan, every human being has a right to live. Living shouldn’t be a crime anymore’.[108]

In light of the above issues, the Australian government should provide asylum seekers subject to the FTARP with an opportunity to apply to the Migration and Review Division of the AAT for merits review. The FTARP is an unfair process as it denies procedural fairness which may ultimately result in claims for protection being rejected and legitimate refugees being sent back to countries where they risk persecution, constituting a risk of refoulment.
Decisions which Prevent Access to Justice

Though asylum seekers have endured traumatic experiences prior to reaching Australian shores, the UNHCR has identified that their resilience is significantly eroded by punitive laws and policies that are applied to them once they commence the asylum process.[109 ] Contributory factors include the implementation of unrealistic protection visa application timeframes which are difficult to meet, removing government funded legal assistance (with some limited exceptions), the inability to apply for permanent protection, the implementation of the FTARP process without adequate safeguards against refoulment,[110] and introducing new criteria into domestic law to establish refugee status.[111]

These factors have been linked to psychological deterioration and the development of mental health disorders such as PTSD and depression among refugees.[112] They have also been found to impair the ability of asylum seekers and refugees to adequately prepare their protection claims.[113]

On 31 March 2014, the Australian Government announced that government funded legal assistance for most unauthorised maritime arrivals would be removed.[114] In May 2017 the Australian Government subsequently announced that all individuals in the Legacy Caseload had by 1 October 2017 to submit their applications or face removal.[115]

This deadline would have disadvantaged asylum seekers in the Legacy Caseload who were previously not permitted to lodge their visa applications.[116] The rush to complete their paperwork and the decision to limit their access to legal assistance likely compromised the quality of their protection applications, particularly for those with a limited grasp of English and poor literacy and writing skills.[117] This would have lead many asylum seekers to make mistakes or provide incorrect information in their applications for refugee status resulting in their claims for protection being rejected on the basis of negative credibility findings.[118] They would then have been returned to countries where they are at risk of persecution, further contributing to Australia’s risk of breaching non-refoulment obligations.[119]

For example, the media reported that a Tamil asylum seeker was deported to Sri Lanka in December 2017, where he risked facing persecution, having struggled to access legal assistance and complete a 41 page application in English by the 1 October 2017 deadline.[120] The UNHCR reportedly condemned Australia’s decision to forcibly remove the man and send him back to Sri Lanka without conducting an assessment of his protection claim, for the reason that he was at serious risk of being persecuted in the event that he was returned to his homeland.[121] The media also reported that lawyers for the man stated that he had, ‘a credible claim’ for protection, due to factors such as his Tamil ethnicity and familial connection to the separatist army, the Liberation Tigers of Tamil Eelam.[122]

Mr David Manne, Executive Director of Refugee Legal also advised the media that many asylum seekers would not meet the 1 October 2017 deadline, due to the government’s decision to remove most government funded legal assistance and due to the short timeframe that was imposed on applicants. Manne also reported that, ‘the slip of a pen could mean a death sentence’, highlighting the risk that many asylum seekers may face being removed from Australia and sent to countries where they were at risk of persecution due to lodging inadequate claims without legal assistance.[123]

The pressure imposed on asylum seekers to complete applications by 1 October 2017 caused many people to experience large amounts of stress.[124] For example, Mr Kon Karapangiotidis, Chief Executive Officer of the Asylum Seeker Resource Centre, advised the media that the 1 October 2017 deadline had created ‘a climate of absolute terror, panic, distress and fear’ among people needing to lodge claims.[125]

It is also is highly likely that the stress caused by the restrictions on legal assistance and imposing an unrealistic deadline to lodge claims would have had negative mental health implications for many people seeking asylum, as environmental stress is known to trigger a variety of mental health issues, including the onset of Bipolar Disorder,[126] and anxiety disorders to name a few.[127]

Difficulties experienced by asylum seekers requiring legal assistance was also highlighted by an immigration lawyer who recounted a story of the difficulties encountered by one of her clients, stating;

‘He pushed an envelope across the table that contained a letter. His weathered face apologised ‘no English – help'? He can’t understand what this 6 page, densely written, highly official letter wants of him. After introductions this man tells me that he does not understand what he has to do, but he can see that he has a time limit to do it, in – fact just 28 days. He says he is so worried about not gaining protection from Australia and that he cannot sleep. Then he breaks down. For the next 10 minutes, between racking sobs that he has no control over, he tells me that he has failed his wife and children. They are in danger and he cannot help them. He says he feels useless like a child’.[128]

In light of the above, it is clear that people seeking asylum require legal assistance. To ensure that the Australian Government is not at risk of breaching its non-refoulment obligations under international law, changes should be made to reinstate access to government-funded legal representation and interpreting services to asylum seekers requiring assistance with their claims for protection to ensure that access to justice is maintained. Most individuals seeking asylum do not have capacity to complete lengthy and complicated claims for protection, due to having a limited understanding of English and the documentation not being provided in alternative languages.[129] Other individuals are impacted by mental illness, including anxiety depression and PTSD.

The asylum seeker community in Australia are extremely vulnerable due to many individuals not being able to read and write in English, in addition to suffering from mental illness which further exacerbates the stress associated with the legal process.[130]

In addition to the above, the Australian migration law process is a system which requires an understanding of complex legal terminology, statutory interpterion and an ability to prepare coherent submissions for protection in writing.[131] Government funded legal advice and representation assists individuals seeking asylum to understand legal procedures associated with asylum procedures in addition to their legal rights and obligations under the law, which promotes fairness and justice.[132]

The lack of understanding of the Australian migration law system due to the removal of government funded legal assistance may result in incorrect information being put before decision makers.[133] This poses a risk that individuals who have legitimate claims for protection will be sent back to countries where they fear persecution due to their inability to engage properly with the legal process caused by a lack of access to justice.[134] This places Australia at risk of breaching non-refoulment obligations under international law.

Furthermore, Australia has an obligation to provide legal assistance to ensure that other fundamental human rights under international law and not violated, including the right to equality before courts and tribunals, the right to liberty and security of person and the right to an effective remedy.[135]

C. The Right to Health 

The right to health is a fundamental human right and is recognised in several international instruments, including; the United Nations Universal Declaration of Human Rights,[136] the International Covenant on the Elimination of All Forms of Racial Discrimination of 1965,[137] the Convention on the Elimination of all Forms of Discrimination against Women of 1979,[138] and the CROC[139].

The International Covenant on Economic and Cultural Rights (ICESCR) provides the most comprehensive article on the right to health, which is enshrined in Article 12.[140] Article 12(1) of the ICESCR states that; ‘everyone has the right to the enjoyment of the highest attainable standard of physical and mental health’,[141] and Article 2(1) provides that State Parties must undertake to take steps to the maximum of its available resources to achieve progressively the full realisation of the rights under the treaty.[142]

As Australia is a party that has ratified the ICESCR, it has a duty under international law to ‘to take steps to maximise its available resources to allow for the full realisation of the rights’ under the treaty.[143] Therefore, if it can be shown that Australia has adequate resources, it would be unlawful under international law for it to refrain from taking steps to adequately implement the right to health [144].

The Office of the High Commissioner of Human Rights has stated that if State Parties do not take steps to refrain from interfering with people’s enjoyment of the right to health, they may be in breach of Article 2 of the ICESCR,[145] and that the right to health is also applicable to asylum seekers and illegal immigrants.[146]

However, despite asylum seekers and refugees having a right to health, the Australian government has implemented a process of temporary protection and a FTARP which has caused detrimental effects on the mental health of asylum seekers found to be refugees, which may be a violation of Article 12 and  Article 2 of the ICESCR[147].

Individuals who are subject to the FTARP who have been granted refugee status are barred from making an application for permanent protection visas.[148] Refugees in the FTARP may apply for a Temporary Protection Visa (TPV) or a Safe Haven Enterprise Visa (SHEV).[149] TPV visas are valid for three years and SHEVs last for a duration of five years.[150] However, unlike TPVs, SHEV visa holders are provided with a pathway to attain permanent residency by allowing applications to be made for permanent visas (excluding protection visas), if certain requirements can be met by the visa holder.[151] These requirements include either being employed in a designated regional area (without accessing certain social security benefits) and, or engaged in full-time study in a designated regional area for a minimum of three and a half years.[152]

Studies have shown that refugees who are granted only temporary protection have a much higher rate of mental illness than refugees with permanent protection.[153] Mental health and legal researchers have also documented that news of another extended period of temporary status can become a ‘tipping point’ for worsening cognitive and emotional constriction.[154] This is because temporary protection visa holders are required to have their refugee status assessed every few years, which is a process that exacerbate anxiety and triggers PTSD symptoms due to the fear of being removed and being sent back to a country where they fear persecution.[155]

An example of the negative health impacts of temporary protection visas was reported to the Refugee Council of Australia by a counsellor who stated;

‘I have seen the first-hand impacts of TPVs on people and people being left in limbo. I am really concerned about what we are doing to a whole population of people. We are creating a long-term negative legacy. I can’t work effectively in an environment where people are uncertain and where they are threatened every day. The main premise for trauma treatment is safety, security, attachment, belonging and connection but that is not available. People are suffering. We are creating secondary trauma which will not be possible to treat. We are creating more problems with mental health in the long term’.[156]

In 2006 a study was conducted which found that refugees on temporary protection visas experienced higher levels of anxiety than refugees on permanent protection visas despite that both groups of refugees had experienced similar levels of past trauma and persecution in their home countries.[157] Also, an additional study found that TPV holders had a 700% increased risk of developing depression and PTSD than people on permanent protection visas.[158]

The AHRC has also reported that the uncertainty that temporary protection creates has negative effects on the mental health of children and their ability to participate properly in educational opportunities[159]. For example, A 15-year-old child on a TPV reported:

‘we are here but ever since they give us this Temporary Protection Visa and on top of us this uncertain news and even now and then we are hearing, it's like some sort of ongoing torture for us. Because if I just close my eyes I remember that I will be sent back to Afghanistan ... I am losing my mind and losing my concentration. Really psychologically we are losing our minds, we are getting crazy. They are just killing us piece by piece’.[160]

The impact of temporary protection visas on the mental health of refugees was also communicated to the Refugee Council of Australia by an Afghan man in Victoria who stated; ‘I think these policies that they are applying on us is just like poison to somebody. Slowly and gradually so that the people should not know that [the government of Australia] are the killer’.[161]

It is possible for the Australian government to argue that the implementation of temporary protection is required to promote the general welfare of a democratic society.[162] However, it is unlikely that deterring irregular migration satisfies this test, and even if it did, the argument would be likely to fail the proportionality requirement due to the negative effects on refugee mental health.[163]

While conventional use of temporary protection as a complementary or interim protection mechanism can be justified under international law to offer short term protection to refugees, Australia’s use of the temporary protection regime has not been a short term solution to assist refugees residing within the community.[164] Instead, the temporary protection regime has been in place for several years causing negative implications for the mental health of many refugees living in the community, which may cause Australia to be in violation of the right to health due to the reasons discussed above.[165]

In light of the above issues, it is recommended that refugees who are subject to the temporary protection regime should be granted the right to permanent protection in accordance with their human rights.

D. The Right to Family Unity 

Australian law provides that TPV and SHEV holders and individuals who arrived in Australia by boat on or prior to 13 August 2012 are not eligible to propose relatives for resettlement[166]. Refugees on TPV and SHEV visas are also unable to sponsor family members for Family Stream Visas due to not being Australian citizens or residents[167], and they do not have a right to family reunion or a right to travel outside of Australia to visit their family unless the Immigration Minister grants permission to travel.[168]

Therefore, many people who are subject to TPV and SHEV visas are unable to have physical contact with their families, which contributes to significant psychological hardship.[169] Many refugees have also found that the physical safety offered by Australia is offset by the ongoing mental distress of family separation.[170]

For example, an Afghan asylum seeker reported to the Refugee Council of Australia; ‘while your family is back in a not safe place and almost you are losing them. What is the point of you being safe? You will be physically safe [but] you will not be mentally safe’.[171] Another Afghan refugee who was granted a TPV stated; ‘when I don’t know where my future is, then the depression problem comes back. There is no interest in living for me. Sometimes when I get out of bed in the morning, I am thinking, why am I living? Here is not my family or my children. For what are you living?’.[172]

The protection of refugee families is a fundamental human right which is enshrined in Article 23(1) of the ICCPR and Article 10(1) of ICESCR, which explain that protection and assistance must be provided to families as the fundamental group unit of society.[173] The ICESCR also states that the protection and assistance given to families should be the ‘widest possible’, and that this requirement is especially important when families are established and while they are responsible for the care and education of dependent children.[174]

The United Nations Human Rights Committee has stated that Article 23 of the ICCPR requires State Parties to, ‘adopt legislative, administrative and other measures’ to ensure the protection of families which is provided for in that article is adhered to.[175]

In addition to the above, the UNHCR has also advised the international community that refugee families who have been separated and ‘who have no other country.. [in which] to lead a normal family life together should be entitled to family reunion in the country of asylum or resettlement, and that family reunion should occur with the least possible delay’[176].

However, notwithstanding the rights provided for by Article 23(1) of the ICCPR and Article 10(1) of the ICESCR, it appears that the introduction of TPV and SHEV's fail to offer assistance to protect family unity as they incorporate conditions which prevent family reunification from occurring, in addition to the possibility of contact being facilitated between family members.[177]

Australia also has obligations in respect to children and to protect families.[178] For example, Article 3 of the CROC, requires State Parties to ensure that the best interests of the child is the primary consideration when making decisions concerning children,[179] including ‘taking all appropriate legislative and administrative measures to ensure the child such protection and care as is necessary for his or her wellbeing'.[180]

The UNHRC has stated that in most situations concerning unaccompanied children the best interests of the child will be achieved by reunifying children with their parents or other family members, unless there are allegations of abuse or neglect perpetuated by the child’s parents.[181] The UNHCR’s Executive Committee has also emphasised that State Parties should prevent the separation of child or adolescent refugees from their families, and promote family reunification for minors who seek asylum without the care of a parent.[182]

Australia has an obligation to foster and enable family unity where refugee children and their parents live in different countries. Evidence of this may be seen in the United Nations High Commissioner for Refugees Guidelines on Reunification of Refugee Families (the Guidelines) which advises that governments have an obligation to make certain that the unity of refugee family should be maintained.[183] The UNHCR has also explained that in situations of where refugees have been granted temporary asylum in different countries from their family members, the reunification of the family should be facilitated.[184]

Article 7(1) of the CROC also places an obligation on Australia, to ensure, ‘as far as possible’ that children can ‘know and be cared for by their parents’ and Article 10(1) of the CROC requires Australia to, ‘treat applications by a child or their parents for family reunification in a positive, humane and expeditious manner’.[185]

However, it appears that the amendments introduced by the Legacy Caseload Act are causing Australia to violate human rights associated with providing the ‘widest possible protection and assistance to families and making decisions that are in the best interests of children, as they place barriers to family unity for refugee families who are subject to TPV and SHEV visas. [186]

The AHRC has also acknowledged that while there is no right to family reunification under Article 23(1) of the ICCPR, Article 10(1) of the ICESCR and Articles 7(1) and 10(1) of the CROC, these articles still put a positive obligation on states to enable and support family unity, and contact between children and their parents,[187] and the introduction of TPV and SHEV visas do not facilitate this.

In addition to the right to family unity, Australia also has obligations under Article 17(1) of the ICCPR and Article 16(1) of the CROC not to subject people within its territory to arbitrary or unlawful interference with their family.[188]

Interference within a person’s family will not be prohibited in cases where it is lawful according to international law (which means that the interference must comply with the provisions and objects of the ICCPR)[189]. However, in situations where a State’s actions are arbitrary then there still may be a violation of Article 17.[190] Arbitrary conduct may involve elements of injustice, unreasonableness or unpredictability).[191] As the ICCPR obliges countries that have ratified it to protect and preserve basic human rights, including the right to protect the family as the fundamental group unit of society, enshrined in Article 23(1), it is difficult to see how unjust laws and policies which are aimed at preventing family unity would not be considered an arbitrary and unlawful interreference of family life, especially when Article 23(1) imposes a positive duty on States to ensure that families are protected.[192]

Furthermore, denying refugees the right to family unity not only breaches international human rights law but also has implications for mental health of refugees.[193] For example, refugee service providers reported situations where people have attempted suicide after being advised that the option to reunify with their families was not available.[194] Other refugees also reported depression and anxiety and experiencing difficulties settling in a new country without their families.[195]

Given the negative implications that family separation is causing for the mental health of individuals on temporary protection visas residing within the community it is recommended that these restrictions are removed. In the event that the Australian Government is not willing to allow refugees the right to travel outside of the country to have contact with family members, then it should consider funding holiday visas for family members to visit refugees on temporary visas in Australia.

E. The Right of Non-Discrimination

Researchers have found that discrimination can increase stress, and that stress caused by discriminatory conduct can cause mental health implications, including anxiety, depression and PTSD.[196]

Studies have also been conducted which found that refugees who had been granted asylum were 66% more likely to develop schizophrenia and other non-affective psychotic disorders than non-refugee migrants.[197] Researchers also reported that a possible explanation for the increase in mental health implications were due to post-migration factors such as discrimination and social exclusion.[198]

Despite evidence that discrimination causes mental health implications for refugees in Australia, they continue to experience discrimination in law and policy, despite this being a clear violation of international law.

Australia is not permitted to discriminate against asylum seekers and refugees under international law, as the right to equality and non-discrimination are human rights that are afforded to all citizens within Australia’s territory and jurisdiction, including asylum seekers and refugees.[199]

The Human Rights Committee in its General Comment 18 on Non-Discrimination has defined discrimination to mean: ‘any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin which has the purpose or effect of nullifying or impairing the enjoyment or exercise by all persons on equal footing all rights and freedoms’.[200]

Article 2(1) of the ICCPR, Article 2(1) of the ICESCR and Article 2(1) of the CROC imposes an obligation on State Parties to ensure that people within its territory and jurisdiction can enjoy human rights without discrimination.[201] Article 2(1) of the CROC provides that State Parties must make certain that children are protected from all forms of discrimination on the basis of the status and activities of their parents, guardians or family members.[202]

Article 26 of the ICCPR states that, ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.[203] In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.[204] Article 26 of the ICCPR prohibits discrimination beyond the scope of the ICCPR including in any law or any field which is regulated or protected by a public authority.[205] Article 26 also lists an exhaustive list of grounds which parties must use to argue that they have been discriminated against in public life, however the ground that is specific to unauthorised maritime arrivals is ‘other status'.[206]

Not all forms of differential treatment will amount to unlawful discrimination under international human rights treaties. The United Nations Human Rights Committee has explained that under the ICCPR, ‘not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant’.[207] Forms of discrimination which are recognised as special measures to promote equality of specific groups may also be an exception to discriminatory treatment in specific situations.[208]

It is possible to argue that unauthorised maritime arrivals are discriminated against on the basis of their mode of arrival or legal status upon arrival and this may be covered under the ground ‘other status’ (however it should be noted that this has not been confirmed by courts and to date the United Nations Human Rights Committee has not provided an explanation of the term ‘other status’.[209]

In particular, the conditions imposed by the FTARP and restrictions that the government has implemented on access to free government funded legal services which apply only to certain asylum seekers, are based on their legal status upon arrival in Australia may constitute unlawful discrimination.[210]

Refugees who arrive without a valid visa are treated less favourably than those who arrived lawfully, for the reason that they are unable to attain permanent protection visas and are subjected to a unfair FTARP.[211] Individuals on temporary protection visas are also unable to have access to tertiary education assistance schemes, meaning that some individuals will be unable to access higher education due to not being able to afford higher education fees.[212]

The Australian government has advised that the discriminatory application of the FTARP was required to prevent unmeritorious claims and to prevent people smuggling.[213] The AHRC has acknowledged that while preventing unmeritorious visa applications may be a legitimate reason, the discriminatory implications of the FTARP are not connected to the government’s objective.[214] Researchers at the AHRC have also stated that they had no knowledge of any evidence which showed that individuals who were subject to the FTARP were more likely than other visa applicants to make unmeritorious claims or lodge vexatious applications for merits review.[215] In fact, studies have shown that people who have arrived in Australia’ by boat have been more likely to be recognised as refugees than asylum seekers who seek asylum in Australia without a valid visa.[216]

Furthermore, it is unlikely that the less favourable treatment afforded to unauthorised maritime arrivals living in the community such as, denying them family reunion, providing them with only temporary protection and removing access to a full merits review process on the basis that some merits review applications may be ‘vexatious’ is reasonable and objective, or that the aim seeks to achieve a purpose that is legitimate under the ICCPR.[217]

In fact, the Special Rapporteur on the human rights of migrants has confirmed that Australia’s temporary visa arrangement compared to the rights afforded to refugees on full protection visas is discriminatory.[218]

In addition to the above, SHEV visa holders may also argue that the conditions on which SHEV visas are required to qualify for other permanent visas are discriminatory. For example, to qualify for a permanent visa, refugees who are on a SHEV visa must be employed at a designated regional area (without accessing certain Centrelink benefits) and/or studying full-time in a designated regional area for a minimum of three and half years.[219]

However, in reality permanent residency may be unattainable for people with disabilities which prohibit them from working or studying on a full-time basis[220]. Therefore, the conditions imposed on SHEV visa holders to qualify for a permanent visa may be a form of indirect disability discrimination under the CERD.

Article 2 of the CRPD, explains that disability discrimination may include a denial to provide a reasonable accommodation for a person with a disability, if that reasonable accommodation does not impose an undue burden.[221]

Therefore, if Australia is unable to specify any undue burdens which may be imposed by the failure to provide SHEV visa holders with disabilities with a reasonable accommodation to assist them in obtaining permanent visa status, unlawful discrimination may be established, as State Parties must take appropriate steps to ensure that reasonable accommodations are provided to people with disabilities.[222]

The Legacy Caseload Act also provides that children born to refugee parents will acquire the legal status of their parents.[223] This legislation also violates Australia’s obligations to ensure that all children are registered immediately after birth and have the right to acquire a nationality, as well as the general obligation to act in the best interests of the child.[224] It may also constitute unlawful discrimination on the basis that children are treated less favourably on the basis of the legal status of their parents.

F. Protection Against Penalisation

Article 14 of the United Nations Universal Declaration of Human Rights, provides that all people have the right to seek asylum, and Article 31(1) prohibits State parties from imposing penalties on people who do not meet the legal requirements for entering into a county, if the individual meets the definition of a refugee and they are fleeing a territory where their life or freedom has been threatened.[225]

The term ‘Penalty’ is not defined in the Refugee Convention [226]. However, some have argued that based on the French language version of the Convention which includes the term ‘sanctions penales’ (penalty sanctions), and because of case law such as, R v Secretary of State for the Home Department; Ex parte Makoyi,[227] which say that the term ‘penalties’ in the Convention should be interpreted to mean ‘criminal penalties,’ then a narrow interpretation of the term should be adopted.[228]

As there is a difference of opinion between the language texts in interpreting the term ‘penalty’ and the answer cannot be found by ordinary treaty interpretation principles, ‘the meaning which best reconciles the texts, having regard to the object and purpose of the treaty’ must be applied.[229] The Vienna Convention on the Law on Treaties also directs State Parties to examine the supplementary means of interpretation by viewing the preparatory work of the treaty when interpreting treaties.[230]

When interpreting the object and purpose of the Refugee Convention, it is probable that a broad interpretation of the term penalty should be adopted, given that the Convention’s pre-enactment debates (travaux prepartories), provide information which state that the object and purpose of the Convention is to favour a broad view of the term ‘penalty’ in Article 31(1).[231] This view is also consistent with the views of Goodwill-Gill and Hathaway who have explained that it is possible to interpret the term ‘penatly’ in a broader way.[232]

Additionally, legal academics and government officials have also provided specific examples in relation to what may constitute a penalty. Edwards has interpreted the term penalty, as including the denial of certain benefits to refugees.[233] Hathaway has argued that the term penalty involves a ‘loss inflicted for violation of the law’, and that Article 31 makes it unlawful to impose ‘any detriment for reasons of their unauthorised entry or presence’ on refugees.[234 ] In England, a Social Security Commissioner has stated that a penalty may also constitute ‘any treatment that was less favourable than that accorded to others ... unless objectively justifiable on administrative grounds’.[235]

A broad interpretation of the term ‘penalty’ was also adopted by an American Special Rapporteurs on Torture, Mr Manfred Norwak, who announced that; ‘every sanction that has not only a preventative but also deterrent character is to be termed a penalty, regardless of its severity or formal qualification by law’.[236] Norwak also argued that the term penalties goes beyond criminal offences, to include conduct which has a deterrent character.[237]

In light of the above, if a broad interpretation of the term penalty is adopted, it is possible to argue that recent laws and policies which have been applied to asylum seekers and refugees living in the Australian community, violate Article 31 of the Refugee Convention as they impose penalties based on their legal status when seeking asylum.

As discussed previously, the imposition of the FTARP, restrictions that the Australian government has implemented on access to government funded legal assistance, and the imposition of unrealistic deadlines to submit protection applications which apply to only certain refugees based on their legal status upon arrival in Australia may constitute less favourable treatment and unlawful discrimination.[238] Also, unauthorised maritime arrivals are only permitted to receive temporary visa status and are denied the right to family reunion, which is another form of less favourable treatment and a denial of benefits based on their legal status upon arrival.[239]

It has also been suggested that the imposition of the temporary protection regime also constitutes a penalty due to punishing people for seeking asylum in Australia.[240] For example, the Australian government has justified that the implementation of the temporary regime was to deter irregular migration, high risk voyages and people smuggling and to promote orderly immigration. However, it is unlikely that this argument is valid, for the reason that the law has been changed so that new asylum seekers are sent offshore for processing, the penalties apply only to a cohort of people already in Australia (those subject to the FTARP) and any decrease in boat arrivals is not because of the temporary protection policy but due to naval blockages.

Also, the introduction of TPV and SHEV visas violate Article 1C of the Refugee Convention, as visa holders are required to submit applications for protection when their visa expires, despite the onus being on the Australian government to show why it is safe for a person’s refugee status to be revoked, which may also constitute a form of less favourable treatment.[241]

V. CONCLUSION

In conclusion, throughout history, Australia has provided protection to many individuals found to be refugees. Many refugees who have been offered permanent protection by Australia, have changed the country in a positive way, and have made significant social, economic and civil contributions to society, not because they have been forced to, but because they have wanted to give back to a country that has offered them protection and which they now consider to be their home.

Unfortunately, the implementation of recent laws and policies have impeded the ability of refugees and asylum seekers currently residing in the Australian community from obtaining refugee status and deny permanent protection on the basis that they arrived in Australia without a valid visa. These laws and policies impact negatively on the mental health of an already vulnerable cohort of individuals, condemn people in our community to permanent uncertainty, re-traumatisation and deny family reunion. For this reason, changes within the law are required to avoid continued international human rights violations, including subjecting asylum seekers and refugees to penalties, unlawful discrimination, a denial of family unity and the risk of refoulment.

The denial of permanent protection to refugees living in the Australian community who initially arrived without a valid visa, and the introduction policies which make it more difficult for asylum seekers to be granted refugee status undermine the successful settlement of people living within our community. They also pose obstacles to overcoming mental illness and community cohesion.

Government funded legal assistance needs to be reinstated, to ensure that individuals seeking asylum can have their applications prepared in a coherent way. Government-funded legal assistance is crucial to the element of a fair and efficient justice system founded on the rule of law.[242] It ensures fairness and public confidence within the justice system is maintained, and in situations relating to asylum seekers who are unable to read and write in English it may mean a difference between life or death.[243]

The Australian government should provide asylum seekers subject to the FTARP with an opportunity to apply to the Migration and Review Division of the AAT for merits review and permanent protection should be granted to all individuals on temporary visas in need of protection. The Legacy Caseload Act should be repealed, and new legislation and policies should be introduced which ensure that Australian laws are consistent with Australia’s human rights obligations under international law.

The Australian Government and Australian politicians should also focus more attention on developing a solution on how we may provide permanent protection to refugees residing within the community, instead of creating and passing laws which cause Australia to be at risk of breaching its non-refoulment obligations, wasting taxpayer money on facilitating an unjust FTARP and returning individuals in need of protection to countries where they are at risk of persecution.

The Australian community needs to be reminded that refugees are victims of torture and persecution. They are people who have fled their countries because they have no other choice, and along the way they encounter serious trauma which makes them more susceptible to developing mental illness. Therefore, we have a moral responsibility and a legal obligation as a nation, to make changes within our domestic legislation, in accordance with international human rights laws, to ensure that we do not contribute further to the suffering of refugees and asylum seekers residing within our community.



[1]Australian Government, ‘Our People’ (web page, undated) < https://www.australia.gov.au/about-australia/our-country/our-people>.

[2] Refugee Council of Australia, ‘Why people need to leave’ (web page, 31 March 2017)<https://www.refugeecouncil.org.au/why-people-leave/>. 

[3] Ibid.

[4] NSW Government Department of Education, ‘Refugee Settlement’, Roads to Refuge (web page, 2015)< https://www.roads-to-refuge.com.au/settlement/settlement-contributions.html>.

[5] Refugee Council of Australia, above n 2.

[6] Ibid.

[7] Shakeh Momartin, Zachary Steel, Mariano Coello et al, ‘A Comparison of the Mental health of Refugees with Temporary Versus Permanent Protection visas’ (2006) 185 Medical Journal of Australia, 357.

[8] Anagha Killedar and Patrick Harris, ‘Australia’s Refugee Policies and their Health impact: a Review of the Evidence and Recommendations for the Australian Government’ (2017) 41, Australian and New Zealand Jorunal of Public Health, 333.

[9] Nicolas Procter, Mary Anne Kenny, Heather Eaton et al, ‘Lethal Hopelessness: understanding and responding to asylum seeker distress and mental deterioration’ (2018) 27 International Journal of Mental Health Nursing, 448.

[10] Anna-Clara Hollander, Henrik Dal and Glyn Lewis et al, ‘Refugee Migration and the Risk of Schizophrenia and other non-affective psychoses: cohort study of 1.3 million people in Sweden’(journal, 2016)<10.1136/bmj.i1030>.

[11] Australian Human Rights Commission (AHRC), ‘Lives on hold: Refugees and Asylum Seekers in the ‘Legacy Caseload’’, Government Report (2019) 41, 43; Nicolas Procter, Mary Anne Kenny, Heather Eaton et al above n 9.

[12] Refugee Council of Australia, ‘Why people need to leave’ (web page, 31 March 2017)<https://www.refugeecouncil.org.au/why-people-leave/>.

[13] Ibid.

[14] Derrick Silove, Zachary Steel and Ina Susljok et al, ‘Torture, Mental Health Status and the Outcome of Refugee Applications among Recently Arrived Asylum Seekers in Australia’ (2006) 2(1) International Journal of Migration, Health and Social Care, 1.

[15] Ibid.

[16] Zachary Steel, Naiomi Frommer and Derrick Silove, ‘Part I- The Mental Health Impacts of Migration: the Law and its Effects. Failing to understand: Refugee Determination and the Traumatised Applicant’ (2004) 27, International Journal of Law and Psychiatry, 522.

[17] Ibid.

[18] Debbie Hocking, Serafino Mancusi and Suresh Sundram, ‘Developing and Validation of a mental health screening tool for asylum seekers and refugees: the STAR-MH’ (2018) 18, BMC Psychiatry, 1, 8.

[19] Rachel Tribe, ‘Mental Health of Refugees and Asylum Seekers’ (2002) 8, Advances in Psychiatric Treatment, 240.

[20] Richard Parsons, ‘Assessing the economic contribution of refugees in Australia’, Multicultural Development Association (literature review, June 2013)< https://apo.org.au/sites/default/files/resource-files/2013/08/apo-nid35435-1117991.pdf>.

[21]Ibid.

[22] Cynthia Clayton, ‘Face to face with Justice James Spigelman AC QC NPJ’ Hong Kong Lawyer (journal article, May 2016)<http://www.hk-lawyer.org/content/face-face-justice-james-spigelman-ac-qc-npj>.

[23] The University of Sydney, ‘Dr Karl: A Favourite in Australian Science’(web page, undated)<https://sydney.edu.au/science/industry-and-community/community-engagement/dr-karl.html>.

[24] Ibid.

[25] Laurie Nowell, Refugee Stories (Wilkinson Publishing, 1sted 2018) 172.

[26] Kate Jastram and Marilyn Achiron, ‘Refugee Law: a Guide to International Refugee Law’ (Office of the United Nations High Commissioner for Refugees, 2002) 41; Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) (Refugee Convention), Art 33 (1).

[27] Ibid.

[28] Kate Jastram and Marilyn Achiron, Above n 26.

[29] Ibid.

[30] Refugee Convention, above n 26, art 33(2).

[31] Ibid, art 1(2).

[32] (1989) 169 CLR 379 (Chan).

[33] Ibid, at 389 and 397-398.

[34] Chan, above n 32 at 397-398.

[35] Chan, above n 32 at 396.

[36] 480 U.S. 421, 431 (1987).

[37] Chan, above n 32 at 429.

[38] Chan, above n 32 at 388 and 429.

[39] Chan, above n 32 at 388; SZTEQ v MIBP(2015) 229 FCR 497.

[40] Chan above n 32 at 388.

[41] Chan above n 32 at 431.

[42] (1997) 190 CLR 225.

[43] Ibid, at 258.

[44] [2000] 201 CLR 293.

[45] Ibid, at [29].

[46] Ibid.

[47] James C. Hathaway and Michelle Foster, ‘The Law of Refugee Status’(Cambirdge University Press, 2nded, 2014) 183.

[48]v[1999] 2 AC 629, 653.

[49] [2001] 1 AC 489, 515-516.

[50] (1997)190 CLR 225, [118].

[51] MIMA v Respondents S152/2003(2004) 222 CLR 1 at [19], [21]-[23].

[52]Ibid, 185.

[53] Refugee Convention, above n 26 at Art.1(A)(2); Hathaway and Foster above n 47, 362.

[54] Applicant A v. Minister for Immigration and Ethnic Affairs, (1997) 190 CLR 225 at 240; Hathaway and Foster above n 47, 362.

[55] Hathaway and Foster above n 47, 364.

[56] Hathaway and Foster, above n 47, 426; James C. Hathaway and Michelle Foster, ‘Causal Connection ("Nexus") to a Convention Ground Discussion Paper No. 3Advanced Refugee Law Workshop International Association of Refugee Law Judges Auckland, New Zealand’ (2002) 15(3) International Journal of Refugee Law, 462.

[57] Calado v MIMA[1999] FCA 53; Hathaway and Foster above n 47, 462.

[58] Sepet v. SSHD, [2001] EWCA Civ 681; Hathaway and Foster, above n 47 426.

[59] HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596, Hathaway and Foster, above n 47, 366.

[60] R. (Sivakumar) v. SSHD, [2003] UKHL 14; Hathaway and Foster  above n 47, 426.

[61] Hathaway and Foster above n 47, 367 and Guy S. Goodwin-Gill and Jane McAdam, ‘The Refugee in International Law’ (Oxford University Press, 3rded, 2007), 100-2.

[62] Hathaway and Foster, above n 47, 368; Ideally the convention grounds could warrant a more in depth critique, however they are outside the scope of this research paper due to space constraints.

[63] Refugee Convention above n 26 art 33;

[64] International Covenant on Civil and Political Rights (ICCPR), opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 6 and art 7.

[65] Convention on the Rights of a Child (CROC), opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), art 37(a).

[66] Convention of the Rights of Persons with Disabilities (CRPD), opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008, art 15(1).

[67] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 4 February 1985, UNTS 1465 85(entered into force 27 June 1987) Art 3(1).

[68]1958 Cth.

[69] Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the Legacy Caseload Act).

[70] 1958 (Cth).

[71] Migration Act 1958 (Cth), s 197C.

[72] Ibid.

[73] AHRC above n 11, 36

[74] Migration Act 1958 (Cth).

[75] AHRC, above n 11, 27.

[76] Legacy Caseload Act, above n 68 Schedule 5.

[77] AHRC, above n 11, 70.

[78] AHRC above n 11, 35.

[79] AHRC, above n 11, 27.

[80] Migration Act 1958 (Cth), s 5J(1)(c).

[81] Refugee Convention, above n 26, art 1(2).

[82] AHRC, above n 11, 27.

[83] Migration Act 1958 (Cth), s 5J(2), 5LA.

[84] Migration Act 1958 (Cth), s 5J(3)

[85] Migration Act 1958 (Cth), s 5L.

[86] Migration Act 1958(Cth).

[87] AHRC, above n 11, 28.

[88]1958 (Cth).

[89] Legacy Caseload Act, above n 69, schedule 4.

[90] Jane McAdam and Fiona Chong, Refugee Rights and Policy Wrongs(University of New South Wales Press Ltd, 1sted, 2019) 43-46.

[91] Migration Act 1958 (Cth), s 46A.

[92] Migration Act 1958 (Cth), s 473CA; Jane McAdam and Fiona Chong, above n 93.

[93] Jane McAdam and Fiona Chong, above n 90.

[94] Ibid.

[95] Jane McAdam and Fiona Chong, above n 90.

[96] Migration Act 1958 (Cth), s 473DC and s 473DD.

[97] AHRC, above n 11, 29.

[98] Ibid.

[99] United Nations High Commissioner for Refugees (UNHCR) Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees(1sted, December 2011) 198.

[100] AHRC, above n 11, 35.

[101]Ibid.

[102]AHRC, above n 11, 45.

[103]Ibid.

[104] Ben Doherty, ‘Tamil asylum seeker dies after suicide attempt in Brisbane hospital’, The Guardian (online), (web page, 29 August 2018) www.theguardian.com/australia-news/2018/aug/29/tamil-asylum-seeker-dies-after-suicide- attempt-in-brisbane-hospital (viewed 10 September 2018).

[105] Stephanie Anderson, ‘Asylum Seeker sets himself on fire in Victoria while on video call to refugee advocates’ABC News (web page, 20 October 2015)< https://www.abc.net.au/news/2015-10-19/asylum-seeker-sets-himself-on-fire-on-phone-to-refugee-advocates/6867712>.

[106] Nicolas Procter, Mary Anne Kenny, Heather Eaton et al, above n 9

[107] Ibid.

[108] Nicolas Procter, Mary Anne Kenny, Heather Eaton et al, above n 9.

[109] UNHCR, ‘Monitoring Asylum in Australia’(web page, undated)< https://www.unhcr.org/en-au/asylum-in-australia.html>.

[110] UNHCR, ‘Expert Roundtable on Mental Health in Refugee Status Determination’(web page, 17 August 2017) <https://www.unhcr.org/en-au/news/latest/2017/8/599540787/expert-roundtable-on-mental-health-in-refugee-status-determination.html>.

[111] AHRC, above n 11, 12.

[112] UNHCR, above n 109.

[113] UNHCR, above n 109.

[114] Scott Morrison, ‘End of taxpayer funded immigration advice to illegal boat arrivals saves $100 million’ (Media Release, 31 March 2014) <http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F3083291%22>.

[115] Peter Dutton, ‘Lodge or leave – Deadline for illegal maritime arrivals to claim protection’ (Media Release, 21 May 2017)< https://minister.homeaffairs.gov.au/peterdutton/2017/Pages/deadline-for-illegal-maritime-arrivals-to-claim-protection.aspx>.

[116] AHRC, above n 11, 28.

[117 ]Ibid.

[118] AHRC, above n 11, 34.

[119] AHRC, above n 11, 35.

[120] Ben Doherty, ‘UN condemns Australia’s forced return of asylum seeker to Sri Lanka’The Gaurdian (media release, 22 December 2017)< https://www.theguardian.com/world/2017/dec/22/un-condemns-australias-forced-return-of-asylum-seeker-to-sri-lanka>.

[121]Ibid.

[122]Ben Doherty, above n 120.

[123]Ben Doherty, ‘Deadline for Asylum Seekers in Australia Impossible to Meet, Lawyers Say’
The Gaurdian (newspaper article, 23 May 2017)< https://www.theguardian.com/australia-news/2017/may/23/deadline-for-asylum-seekers-in-australia-impossible-to-meet-lawyers-say>.

[124] Michael Koziol, ‘Peter Dutton’s Crackdown on ‘Fake Refugees’ Prompts Nearly 7500 Asylum Claims’Sydney Morning Herald, (newspaper article, 12 October 2017)< https://www.smh.com.au/politics/federal/peter-duttons-crackdown-on-fake-refugees-slashes-asylum-seeker-caseload-from-7500-to-71-20171012-gyz965.html>.

[125] Ibid.

[126] Black Dog Institute, ‘Causes of Bipolar’ (web page, 2018)< https://www.blackdoginstitute.org.au/clinical-resources/bipolar-disorder/causes>.

[127] John Barnhill, ‘Overview of Anxiety Disorders’,MSD Australia(MSD manual, October 2018)< https://www.msdmanuals.com/en-au/home/mental-health-disorders/anxiety-and-stress-related-disorders/overview-of-anxiety-disorders>.

[128] Mary Anne Kenny, Nicholas Procter and Carol Grech, ‘Mental Health and Legal Representation for Asylum Seekers in the Legacy Caseload’ (2016) 8(2) Cosmopolitan Civic Societies Journal,84, 84-85.

[129] Asylum Seeker Resource Centre (ASRC), ‘Fair Process: Policy Statement’(policy statement, undated)https://www.asrc.org.au/policies/fair-process/.

[130 Ibid.

[131] ASRC, Above n 129.

[132] Jane McAdam and Fiona Chong, above n 90, 193.

[133]Ibid

[134]ASRC above n 129.

[135] Jane McAdam and Fiona Chong, above n 90, 194.

[136] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948), (UDHR)Art 25(1).

[137] International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) (ICERD) Art 5(e)(iv).

[138] Convention of the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981), Art 12.

[139] CROC, above n 65, Art 24.

[140] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICESCR) Art 12.

[141] Ibid, Art 12(1).

[142] ICESCR, above n 140, art 2(1).

[143] ICESCR, above n 140, art 2(1); Law Council of Australia, ‘Australia’s International Human Rights Obligations’(web page, undated)<https://www.lawcouncil.asn.au/policy-agenda/human-rights/australias-international-human-rights-obligations>.

[144] James C Hathaway, The Rights of Refugees Under International Law(Cambridge University Press, 2005) 512.

[145] Committee on Economic, Social and Cultural Rights, General Comment 14: The right to the highest attainable standard of health, 22ndsess, UN Doc. E/C.12/2000/4 (2000) [33]

[146] Ibid, [34]

[147] Mohammud Jaamae Hafeez-Baig, ‘Putting the ‘Protection’ in Temporary Protection Visa’ (2016) 28(2), Bond Law Review,126.

[148] Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth): Explanatory Memorandum, 9, 19, 13; Migration Regulations 1994(Cth) reg 1401(3)(i);(ia).

[149] AHRC, above n 11, 65.

[150] Jane McAdam and Fiona Chong, above n 90, 20.

[151]Ibid.

[152]Australian Government Department of Home Affairs, ‘Safe Haven Enterprise Visa’(web page, 16 November 2019)< https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/safe-haven-enterprise-790>.

[153] Jane McAdam and Fiona Chong, above n 90, 22 and 23.

[154] Nicolas Procter, Mary Anne Kenny, Heather Eaton et al, above n 95, 450; Jane McAdam and Fiona Chong, above n 79, 23.

[155] Jane McAdam and Fiona Chong, above n 90, 22.

[156] Refugee Council of Australia,‘A Place to Call Home? The Impact of Australia’s Refugee and Asylum Seeker Policies on Community Cohesion’Report (2015) 8.

[157] Shakeh Momartin, Zachary Steel, Mariano Coello et al, ‘A comparison of the mental health of refugees with temporary versus permanent protection visas’ (2006) 185 Medical Journal of Australia, 357.

[158] Mohammud Jaamae Hafeez-Baig, above n 147, 129.

[159] Australian Human Rights Commission, ‘A Last Resort? National Inquiry into Children in Immigration Detention’, Government Report (2004) 20.

[160] Ibid, 816.

[161] Refugee Council of Australia, above n 156.

[162] ICESCR above n 140, Art 4.

[163]Amrei Muller, ‘Limitations to and Derogations from Economic, Social and Cultural Rights’ (2009) 9(4)Human Rights Law Review 557, 560.

[164 ]Mohammud Jaamae Hafeez-Baig, above n 147, 116.

[165] Ibid.

[166] AHRC, above n 159, 83.

[167] Ibid.

[168] Department of Home Affairs, ‘Check visa details and conditions’(web page, 13 December 2019) < https://immi.homeaffairs.gov.au/visas/already-have-a-visa/check-visa-details-and-conditions/see-your-visa-conditions?product=785#>.

[169] Jane McAdam and Fiona Chong, above n 90, 22.

[170] Refugee Council above n 156, 10.

[171] Ibid.

[172] Peter Mares, ‘Borderline: Australia’s Response to Refugees and Asylum Seekers in the Wake of the Tampa’, (UNSW Press, 2nded, 2002) 198-9.

[173] ICCPR, above n 64, art 23(1); ICESCR, above n 140, 10(1).

[174] ICESCR, above n 140,10(1).

[175] Human Rights Committee, General Comment No. 19: Article 23 (The Family), UN Economic and Social Council, 39th sess (27 July 1990) [3].

[176] United Nations High Commissioner for Refugees, ‘Protecting the family: Challenges in implementing policy in the resettlement context’ (Background note for the Annual Tripartite Consultations on Resettlement, Geneva, Switzerland, 20–21 June 2001) [1(d)].

[177] Mohammud Jaamae Hafeez-Baig, above n 147, 130.

[178] CROC, above n 65, art 3, art 7(1), art 10(1).

[179] CROC, above n 65, art 3.

[180] Ibid.

[181] Francis Nicholson, ‘The Essential Right to Family Unity of Refugees and Others in Need of International Protection in the Context of Family Reunification’, Legal and Policy Research Report (2018) 186.

[182] Executive Committee of the High Commissioner’s Program, ‘Refugee Children and Adolescents, Conclusion’, (UN Executive Committee Decision, 17 October 1997) < https://www.unhcr.org/en-au/excom/exconc/3ae68c68c/refugee-children-adolescents.html>.

[183] ‘UNHCR Guidelines on Reunification of Refugee Families’ (1983), Office of the High Commissioner for Refugees, 3(1).

[184]Ibid, 9(d).

[185] CROC, above n 65,10(1).

[186] AHRC, above 11, 13.

[187] AHRC, above n 11, 87.

[188] ICCPR, above n 64, 17(1); CROC, above n 65, 16(1).

[189] Human Rights Committee, General Comment 16: Article 17 (Right to Privacy), 32th sess, UN Doc. HRI/GEN/1/Rev.7 at 142 (2004) [4].

[190] Mohammud Jaamae Hafeez-Baig, above n 147, 131.

[191] Manfred Nowak, ‘U.N. Covenant on Civil and Political Rights’ (N.P. Engel Publishing, 2NDed, 2005) 29.

[192] ICCPR, above n 64, 23(1).

[193] Refugee Council of Australia, ‘Addressing the Pain of Separation for Refugee Families’, Report (2016) 39.

[194] Ibid.

[195] Refugee Council of Australia, above n 193.

[196] American Psychological Association, ‘2015 Stress in America: The Impact of Discrimination’, (web page, 2015)< https://www.apa.org/news/press/releases/stress/2015/impact>.Heidi Ellis, Helen Macdonald and Alisa Lincoln et al, ‘Mental health of Somali adolescent refugees: The role of trauma, stress and perceived discrimination’(2008),76(2) Journal of Consulting and Clinical Psychology, 184.

[197] Anna-Clara Hollander, Henrik Dal and Glyn Lewis et al, above n 10.

[198] Ibid.

[199] ICCPR, above n 64, art 2(1).

[200] Human Rights Committee, General Comment 18: Non-discrimination, 37th sess, UN Doc. HRI/GEN/1/Rev.1 at 26 (1994) [6].

[201] ICCPR above n 64 art 2(1), ICESCR above n 140, art 2(1) and CROC above n 65, 2(1)

[202] CROC above n 65, art 2(1).

[203] ICCPR, above n 64, art 26

[204] Ibid.

[205] ICCPR, above n 64, art 26.

[206] ICCPR,above n 64, art 26; Mohammud Jaamae Hafeez-Baig, above n 147, 138.

[207] Australian Human Rights Commission, ‘Rights to equality and non-discrimination’, (web page, 1 May 2013)<https://www.humanrights.gov.au/our-work/rights-and-freedoms/rights-equality-and-non-discrimination>.

[208] ICERD, above n 137, art 1(4); Convention of the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981), Art 4; CRPD, above n 66, Art 4.

[209]Mohammud Jaamae Hafeez-Baig, above n 147, 138.

[210] AHRC, above n 11, 38.

[211] AHRC, above n 11, 11;

[212] Refugee Council of Australia, ‘Barriers to Education for People Seeking Asylum and Refugees on Temporary Visas’, Report (2015) 4.

[213] Statement of Compatibility with Human Rights, Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), 23.

[214] AHRC above n 11, 38.

[215] Ibid.

[216] AHRC above n 11, 38.

[217] Ibid.

[218] François Crépeau, ‘Report of the Special Rapporteur on the human rights of migrants on his mission to Australia and the regional processing centres in Nauru, Human Rights Council’, 35th sess, Agenda Item 3, UN Doc A/HRC/35/25/Add.3 (24 April 2017) [94].

[219] Australian Government Department of Home Affairs, ‘Safe Haven Enterprise Visa Pathway’(web page, 16 November 2019)< https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/safe-haven-enterprise-790/safe-haven-enterprise-visa-pathway>.

[220] Jane McAdam and Fiona Chong, above n 90, 21.

[221] CRPD, above n 66, art 2.

[222] CRPD, above n 66, art S 5(2),(3).

[223] Legacy Caseload Act, above n 69, schedule 6.

[224] Ibid.

[225] UDHR, above n 108, art 14, art 31(1); Thom, Graham, ‘Australia's Obligations Under Articles 31(1) of The Refugees Conventions: What are Penalties?’(journal article, 2006) <http://www5.austlii.edu.au/au/journals/AltLawJl/2006/35.html>.

[226] Thom Graham, above n 225.

[227] (Unreported, England and Wales High Court, 21 November 1991). Thom Graham, above n 192.

[228] Thom Graham, above n 225.

[229] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) (Vienna Convention), art 33(4).

[230] Ibid.

[231] Guy Goodwin-Gill, ‘Article 31: Non-Penalization, Detention, and Protection’, (Cambirdge University Press, 2003) 189; James C Hathaway above n 144, 409.

[232] James C Hathaway above n 144, 411.

[233] Alice Edwards, ‘Tampering with Refugee Protection: The Case of Australia’ (2003) 15 International Journal of Refugee Law192, 197–9.

[234] James C Hathaway above n 144, 410; Mohammud Jaamae Hafeez-Baig, above n 147, 145.

[235] Mohammud Jaamae Hafeez-Baig, above n 147, 154.

[236] Manfred Nowak, UN Covenant on Civil and Political Rights — CCPR Commentary (1993) 278 cited in Goodwin-Gill, above n 11, 195.

[237] Ibid.

[238] AHRC above n 11, 38; Mohammud Jaamae Hafeez-Baig above n 147, 133.

[239] Human Rights Council of Australia, 'Without Prejudice Discrimination and Refugees' (web page, 14 November 2002)< http://www.hrca.org.au/discrim%20and%20refugees.htm#_ftnref1>.

[240] Besmellah Rezaee, Punishment For Punishment’s Sake: The New Guiding Principles Of Australia’s Immigration Policy’, Right Now Human Rights in Australia (web page, 24 January 2014)< http://rightnow.org.au/opinion-3/punishment-for-punishments-sake-the-new-guiding-principles-of-australias-immigration-policy/>.

[241] Refugee Convention, above n 26, art 1C; Andrew and Renata Kaldor Centre for International Refugee Law, ‘Legislative Brief: Migration Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014’, UNSW Syndey, (Web Page, 21 May 2019) <https://www.kaldorcentre.unsw.edu.au/publication/legislative-brief-migration-and-maritime-powers-legislation-amendment-resolving-asylum>.

[242] Jane McAdam and Fiona Chong, above n 90, 189.

[243] Ibid.