Peter Dutton’s asylum seeker deadline
On Monday morning, the phone at Victoria’s Refugee Legal service began ringing off the hook. Twenty-four hours earlier, Immigration Minister Peter Dutton had announced that onshore asylum seekers, who for five years had not been allowed to lodge formal protection applications, now had to do so in the next four months or face deportation.
“People are petrified and panicking,” Refugee Legal executive director David Manne told The Saturday Paper. “What this does, and what we’re seeing, is it also causes profound retraumatisation, a second wave of suffering … People deserve a fair go before the law, not an arbitrary deadline.”
It wasn’t just what Dutton had said that upset Manne and his clients, it was the way he said it.
“I wanted to announce today that the government has taken a decision in relation to those people who are fake refugees,” Dutton had begun. “People who are refusing to provide detail about their claim for protection.”
Dutton said Australia was among the most generous countries to refugees. “But we aren’t going to be taken for a ride by the thousands of people who are refusing to provide details about their protection claims,” he continued. “We are not going to allow, given the level of debt that our country is in, for more debt to be run up paying for welfare services for people who are not genuine. We are not going to allow this situation to continue.”
David Manne and his colleagues said the statement was effectively a “mass defamation”.
“To cast aspersions over thousands of people seeking asylum who haven’t even been able to present their case yet, let alone have it heard, is not only completely unwarranted, it is quite improper and highly prejudicial,” Manne says.
The new deadline affects the 30,500 people who arrived in Australia by boat between August 13, 2012, when the then Labor government suspended processing of claims from those described as “illegal maritime arrivals”, and January 1, 2014, after which time those arriving were sent offshore or turned back.
Those in what’s called the “legacy caseload” have been on bridging visas onshore, waiting for the opportunity to apply for asylum.
Late last year, Dutton began lifting the freeze, group by group, and the department started contacting people to tell them they could apply.
According to departmental figures provided to a senate estimates committee hearing this week, by April 30 about 23,000 had done so, with 10,790 of those cases decided. In contrast to Dutton’s “fake refugee” warnings, most claims were found to be genuine.
Some 3817 people had been granted three-year temporary protection visas and 2652 granted five-year safe haven enterprise visas, offered to those willing to move to regional Australia for work or study. Just under 3000 applicants had been rejected and ordered to leave Australia. Just over 12,000 were still being processed.
The Coalition government changed the law in December 2014 so those seeking protection can only receive temporary visas, albeit they can apply for indefinite renewals. The minister’s edict is aimed at the 7000 onshore who have not yet applied.
Last weekend, Peter Dutton said any of them who failed to do so by October 1 would have their bridging visas and welfare support cancelled and would be deported. “So if people think that they can rip the Australian taxpayer off, if people think they can con the Australian taxpayer, then I’m sorry, the game’s up.”
The move is forecast to save the government $47 million over five years. Asked if it was budget-driven, Dutton said: “This is brought on by wanting to make sure that we’ve got a reasonable, fair system.”
At this week’s regular post-budget estimates committee hearings, Department of Immigration and Border Protection secretary Michael Pezzullo said it was “crunch point” and those who had laid out their basic claims in interviews on arrival were now being asked to substantiate them.
His departmental officers reported that, as of April 30, 7853 people had not lodged their paperwork. By May 14 – a week before the deadline announcement – that number was down to 7194. Almost 40 per cent of those who had not lodged were Iranian and the second-largest group were stateless persons. The rest were Sri Lankans, Afghans, Pakistanis, Vietnamese and Bangladeshis.
Greens senator Nick McKim asked why so many had applied in just two weeks.
Pezzullo said there had been an “intensified” period of sending out letters since December last year, telling the affected people they could lodge applications. The committee was told the department was working through service providers and community contacts to ensure the message reached those who couldn’t understand English or were illiterate.
The officers acknowledged reports of long waiting lists to access legal assistance to fill out the 43-page application form, which involves 112 questions, including listing every place visited in the previous 30 years.
Employment Minister Michaelia Cash, who represents Peter Dutton in the senate hearings, noted “tens of thousands of people have already been able to fill out these forms”.
McKim responded that many of them had needed legal help to do it but his research showed between 3000 and 4000 people were on waiting lists, an estimate the department did not dispute.
David Manne said Refugee Legal alone had more than 2000 people waiting to do the paperwork. It had appealed to the legal community for pro-bono workers to help people meet the deadline and now had 550 volunteers, spanning 12 law firms, law students and paralegally qualified members of the public. “It’s been a remarkable response,” he said.
Manne said that while it was important Australia had a rigorous process to examine applications for asylum, “the process should be fair”.
The departmental officials told the committee the average processing time for applications, once lodged, was between 261 and 312 days and that the time frame had “trended up” in the past two months.
Nick McKim was outraged. “At the same time as the government … has made a decision to impose what many, including me, are on the public record as saying is an unreasonably tight deadline for lodging the application, the length of time that it is taking the department to assess these applications is getting longer. Is that a factually accurate statement?”
Acting deputy secretary Kaylene Zakharoff said: “That is correct”.
McKim asked why the deadline had been set at all.
Pezzullo said October had been chosen because it was one year since the minister had lifted the final bar on actually applying for protection, for all but the 14 people they had been unable to contact.
“By the time we get to October this year, which is the deadline period, folk will have had 12 months to get their applications in,” he said.
He said those unable to do so would be put on “a removal pathway”.
“The fact that they have been in our community without that deeper level of analysis because they refuse or they are disinclined or they are not able to put in their form – whichever verb form you wish to use – is of concern to the government; hence, it has come down with this policy position.”
Pezzullo acknowledged letters had only begun going out in earnest between December and May, hence the recent surge before the minister’s announcement.
“At that strike rate – if you use a cricket analogy – we are confident that between May and October we should be pretty close to full lodgement,” Pezzullo said. “In other words, the volume that is coming in would be consistent with the lodgement of all applications, with maybe some exceptional circumstances.”
McKim asked why, then, Dutton’s dramatic weekend announcement had been needed at all.
“Just to make sure that we keep that – again, to use the cricketing analogy, without seeking to be frivolous about it – run rate going,” Pezzullo replied.
“Yes, but the run rate was going along at a lick,” McKim responded. “… You would have basically achieved the target table in the final over, would you not?”
Pezzullo warned: “Lots of things could happen in the final over.”
McKim asked if Dutton’s “lodge it or leave” announcement was “actually far more about politics than it was about achieving a legitimate policy outcome”. He said Dutton’s announcement was “far less a dog whistle than it is a foghorn”.
Pezzullo confirmed the deadline had been kept secret, with no consultation, because it was a budget measure.
But inside the government, some of Dutton’s colleagues say the deadline-setting announcement could have been handled differently. They point to former immigration minister Philip Ruddock’s approach – what some call the “steel hand in the velvet glove” – and contrast it starkly with what they call Dutton’s “rah-rah”.
Some refugee advocates also believe the way the deadline was announced was more about politics than policy. “This deadline is completely arbitrary, unnecessary and unreasonable,” David Manne says, explaining that people are actually “desperate” to lodge applications.
“For years, they were left in legal limbo by successive governments and only more recently allowed to apply … The concept that they’ve been somehow conning the system, somehow refusing to lodge, is just completely false.”
Manne doubts Pezzullo’s assessment that the department was “on track” to receive all applications by October, given the backlog.
In the committee, Labor senator Louise Pratt asked about what appeared to be budget savings from people missing the deadline and losing access to welfare.
“We would anticipate that everyone will comply,” Pezzullo said. “If you comply with the deadline you do not lose your income support.”
But his officials then revealed the budget savings were based on an estimated 2500 not lodging in time.
In the committee hearing, Pezzullo said: “Those people need to understand that there is no open-ended ‘just get your application in and it is okay’.”
He and Border Force commissioner Roman Quaedvlieg would now work out how to “operationalise” the deadline.
“The commissioner and I will now think about how we aggressively pursue a departure strategy,” he said.
David Manne is deeply concerned at deportation threats. “Any move by the government to deport a person to danger without them being able to have their case heard will face a legal challenge in the courts,” he says.
Manne has mounted successful challenges to government policy before. With a phalanx of volunteer lawyers behind him, he is more than willing to have the courts decide who is the real fake.
This article was first published in the print edition of The Saturday Paper on May 27, 2017 as "Deadline betrayal". Subscribe here.