Taylor, Savitri --- "The Human Rights Implications of the Psycho-Social Harm Caused by Australia's Temporary Protection Regime" [2005] AUJlHRights 8; (2005) 11(1) Australian Journal of Human Rights 8

The human rights implications of the psychosocial harm caused by Australia’s temporary protection regime

Dr Savitri Taylor*

Many refugees and some others whose circumstances are of humanitarian concern are allowed to enter or remain in Australia pursuant to temporary rather than permanent visas. Some of these individuals will never be eligible for permanent resident status in Australia. Instead, they face the prospect of having their immigration status periodically reviewed and hence have hanging over them the permanent threat of possible repatriation. Temporary visa holders are also given lesser economic and social entitlements than permanent visa holders — the purpose being to ‘encourage’ eventual repatriation. It is argued in this article that Australia’s temporary protection regime is flawed because it is not designed to ensure that the psychosocial harm that temporary status (and its accompanying disadvantages) inflicts on an individual will never be so great as to amount to ‘cruel, inhuman or degrading treatment’ within the meaning of art 7 of the International Covenant of Civil and Political Rights (ICCPR).

Australia’s refugee and humanitarian visa regime

Offshore humanitarian program

Australia’s preferred role in global efforts to deal with asylum seekers is to be a country of resettlement for refugees and some other humanitarian cases. Most of the visas available under the Offshore Humanitarian Program are permanent visas.¹ However, most of the permanent visas are not available to persons who have ‘made a substantial secondary movement from the country of first asylum’.² Instead, those who have engaged in secondary movement are considered for the grant of a Secondary Movement Relocation (Subclass 451) Visa. The central criteria for grant of a subclass 451 visa more or less mirror those for grant of the permanent refugee and humanitarian visa classes. However, the visa is a temporary visa, enabling the holder to enter and remain in Australia for a period of five years or, if a further visa application is made, until the day on which the further application is finally determined (Migration Regulations 1994 (Cth), Sch 2, cl 451.511). A person defined as an ‘offshore entry person’³ by the Migration Act 1958 (Cth) is not even entitled to the grant of a subclass 451 visa (Migration Regulations, Sch 2, cl 451.211(b)). If such a person is found to be a refugee or to meet Australia’s humanitarian criteria, they may be granted a Secondary Movement Offshore Entry (Temporary) (Subclass 447) Visa (Migration Regulations, Sch 2, cl 447.211). This visa enables the holder to enter and remain in Australia for a period of three years or, if a further visa application is made, until the day the further application is finally determined (Migration Regulations, Sch 2, cl 447.511).

Temporary safe haven visas

In 1999 the Australian Government created the Humanitarian Stay (Temporary) (Subclass 449) Visa, usually referred to as a ‘temporary safe haven visa’. An application for a subclass 449 visa is taken to have been validly made if the Australian Government makes an offer of temporary stay to a person and the person accepts that offer (Migration Regulations, reg 2.07AC). It does not matter whether the applicant is offshore or onshore at the time of making the application. The substantive criterion for grant is that applicants cannot reasonably return to their place of residence because the circumstances of their displacement have left them in ‘grave fear’ of their personal safety (Migration Regulations, Sch 2, cl 449.221(2)). The period of validity of a subclass 449 visa is whatever period the Minister for Immigration specifies. The Minister has the power to extend the period initially specified by notice in the Commonwealth of Australia Gazette (Migration Act, s 37A(2)). It should be noted, however, that the Minister ‘does not have a duty to consider whether to exercise’ the power (Migration Act, s 37A(6)).

Protection visas

Non-citizens who are physically present in a non-excised part of Australia are able to seek Australia’s protection by applying for a protection visa. The basic criterion for the grant of a protection visa is that the applicant is ‘a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention [Convention Relating to the Status of Refugees (the Convention)] as amended by the Refugees Protocol [Protocol Relating to the Status of Refugees (the Protocol)]’ (Migration Act, s 36(2)). Such obligations are only owed to ‘refugees’ within the meaning of the treaties named. However, the Minister for Immigration has personal non-compellable powers to substitute for the decision of the relevant merits review body a more favourable decision of his or her own (Migration Act, ss 417 and 501J). In the exercise of these powers, the Minister is able to grant a protection visa applicant whatever type of visa the Minister thinks fit, even if the applicant does not satisfy the criteria specified in the regulations for the grant of a visa of that type. Ministerial guidelines relating to the exercise of these powers of intervention set out a range of circumstances of humanitarian concern in which exercise of the powers may occur (Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) 2003a).

Since October 1999, protection visas have been divided into two subclasses: temporary and permanent. Since that time, successful protection visa applicants who have not been immigration cleared⁴ at the time of making the application have been eligible only for the grant of a three-year⁵ temporary protection visa (TPV) in the first instance (Migration Regulations, Sch 2, cl 866.212). Moreover, TPV holders making application for a protection visa on or after 27 September 2001 are eligible for the grant of further TPVs only, unless they meet a further requirement. The further requirement is that they have not, since leaving their home country, ever resided for a continuous period of seven days or more in a country in which they could have sought and obtained effective protection of that country or through an office of the United Nations High Commissioner for Refugees (UNHCR) located in the country (Migration Regulations, Sch 2, cl 866.215). If the latter requirement is met, or is waived by the Minister for Immigration, the grant of a Permanent Protection Visa is possible.

In contrast to the treatment of unauthorised arrivals, most protection visa applicants who initially entered Australia pursuant to some sort of valid temporary visa (for example, a student visa) are able to apply for a protection visa and, if successful, are immediately eligible for the grant of a Permanent Protection Visa. However, special rules apply in the case of persons who have been allowed to enter or remain in Australia through the grant of a temporary Offshore Humanitarian Program visa or a temporary safe haven visa. Persons entering Australia on a subclass 451 visa are able to apply for a protection visa six months before the expiry of that visa (or earlier if the Minister allows) and, if successful, are eligible for the grant of a Permanent Protection Visa (Migration Regulations, Sch 2, cl 866.228A). By contrast, successful protection visa applicants who hold or have held a subclass 447 visa will only ever be eligible for the grant of a TPV unless the Minister for Immigration intervenes to allow grant of a Permanent Protection Visa (Migration Regulations, Sch 2, cll 447.611 and 866.214). Finally, application for any other type of visa by a non-citizen in Australia who holds, or has held, a subclass 449 visa is barred, unless the Minister for Immigration exercises a personal non-compellable power to lift the bar ‘in the public interest’ (Migration Act, ss 91K and 91L). If the Minister chooses to lift the bar to allow such a person to make application for a protection visa and a successful application is made, the grant of a Permanent Protection Visa will follow (Migration Regulations, Sch 2, cl 866.212).

Measures introduced on 27 August 2004

On 27 August 2004, some new measures affecting holders of subclass 447 visas, subclass 451 visas and TPVs came into force. Before the introduction of these measures, an unsuccessful further protection visa applicant had to leave Australia immediately after the final negative determination or become an unlawful non-citizen subject to detention and removal (Migration Act, ss 189 and 196(1)). With effect from 27 August 2004, a new visa category called the Return Pending (Subclass 695) Visa was introduced (DIMIA 2004c). Most unsuccessful further protection applicants are eligible for the grant of this visa, which gives holders an 18-month period at liberty in the community to make arrangements to depart from Australia (DIMIA 2004c).⁶

Holders of subclass 447 visas, subclass 451 visas, TPVs and Returning Pending Visas are, as a general rule, barred from making an application in Australia for any substantive visa other than a protection visa. The other measure of significance introduced on 27 August 2004 was that this bar was lifted in relation to a whole range of non-humanitarian visas for holders of the visa subclasses just specified who were in Australia on 27 August 2004 (Migration Regulations, reg 2.07A0).⁷ The measure was introduced with an eye on the upcoming federal election (held on 9 October 2004), in response to a perceived softening in public attitudes to asylum seekers; intense campaigning by communities and businesses in the rural and regional areas in which many TPV holders were living and working; and pressure from Coalition backbenchers with electorates in those areas (Megalogenis 2004; Banham 2004; Shaw 2004). The articulated rationale for the measure was that:

Some TPV and [subclass 447 and 451 visa] holders have made important contributions to the community during their time in Australia, particularly in rural and regional areas. They are making a contribution to the economies of regional Australia or may have particular skills that would otherwise qualify them for a migration visa.

There are also some TPV and [subclass 447 and 451 visa] holders who have established strong links to Australian nationals (DIMIA 2004f).

Only those individuals otherwise able to meet the usual eligibility criteria for the non-humanitarian visas for which they are allowed to apply are able actually to benefit from the measure.⁸

The bottom line

The upshot of the refugee and humanitarian visa regime described above is that Australia will be hosting a growing group of individuals forced to reapply for formal protection on a regular basis. According to Human Rights Watch (2003), Australia is, in fact, the only country that does not permanently resettle all persons who have gone through an individual determination process and been found to be Convention refugees. There are, however, many countries that deal with mass influxes of asylum seekers by granting temporary protection on a group basis, and/or by granting temporary protection to persons who do not meet the Convention definition of a ‘refugee’ but cannot safely be returned to their country of nationality. Moreover, since the rhetoric of all Western states increasingly emphasises that repatriation is preferable to all other durable solutions, Australia may simply be a step ahead of the pack in instituting a temporary protection regime even for recognised Convention refugees. The issue dealt with in this article is therefore of significance to all Western countries.

Temporary visa entitlements

Holders of subclass 447 visas, subclass 451 visas, TPVs and Return Pending Visas are free to work and are given access to Medicare (DIMIA 2002; DIMIA 2003b; DIMIA 2004c). However, unlike permanent refugee and humanitarian visa holders, who are given immediate access to all of the social assistance available to Australian citizens (DIMIA 2003c: 25), these temporary visa holders are given access only to a minimum package of Commonwealth-funded social assistance (Centrelink payments) (DIMIA 2002; Victorian Settlement Planning Committee 2002; DIMIA 2003b; DIMIA 2004c). Moreover, the holders of these classes of visa cannot access any Commonwealth-funded general and special settlement services to which permanent visa holders have access (DIMIA 2003c: 25–7), apart from the Early Health Assessment and Intervention Service. Subclass 449 visa holders are even worse off than the holders of the other temporary visa classes so far described, as they are not even given access to the minimum package of Centrelink payments or to Medicare (DIMIA 2004b: para 4.4). The Department of Immigration may, however, provide so-called ‘safe haven allowances’ to those who have no alternative source of income or support (DIMIA 2004b: para 8.2). Grant of work rights is left to the Minister’s discretion (DIMIA 2004b: paras 4.4 and 8.4).

The final way in which the holders of these temporary visa subclasses are worse off than permanent visa holders is in not having the right to sponsor the entry of family members.⁹ This fact, combined with the fact that holders of these visa subclasses who leave Australia cannot re-enter (Migration Regulations, Sch 2, cll 447.511, 449.511, 451.511, 695.511 and 785.511), means that those with family members overseas are forcibly separated from those family members for years or, in the case of those condemned to a succession of temporary visas, forever.

Refugees, immigrants and human beings

Article 1A(2) of the Convention, as modified by art I(2) of the Protocol, provides that for the purposes of the Convention, the term ‘refugee’ applies to any person who:

... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.¹⁰

Some of the holders of subclass 447 visas, subclass 449 visas, subclass 451 visas and TPVs are, in fact, ‘refugees’ in that sense. Others may have been ‘refugees’ at the time of visa grant but may subsequently have ceased to be ‘refugees’. Yet others would have been granted their visa not on the basis of refugee status, but on the basis that Australia owed them non-refoulement obligations under other international law or that their circumstances were otherwise of humanitarian concern. All, however, are human beings and as such possess under international law, if not national law, those rights described as ‘human rights’. Therefore, rather than considering the quality of ‘refugee’ protection provided by Australia, this article considers the quality of human rights protection provided.

Those visa holders who happen to be ‘refugees’ will, of course, be able to claim rights under the Convention. However, these rights are additional to their rights under international human rights law, not substitutes for them. Article 5 of the Convention spells this out by providing that ‘Nothing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention’.

By the same token, persons who once were, but have ceased to be, ‘refugees’, according to the cessation clauses of the Convention, do not at the same time cease to be human beings. The fact that these individuals no longer have the entitlements they previously had under the Convention does not in any way affect their human rights.

Some who read the analysis that follows may object that what is being attempted is a collateral attack on the generally accepted proposition that states have the sovereign right to control the entry and sojourn in their territory of non-citizens. That is not the case. It is accepted that there is no international law right of immigration and that Australia would, therefore, be doing no international legal wrong by, for example, altogether discontinuing its offshore refugee and humanitarian migration program. It is also accepted that while the Convention, human rights treaties and customary international law prohibit states from removing individuals to places in which they would face serious violations of their human rights, this obligation of non-refoulement is not equivalent to an obligation to grant permanent residence. It is not a challenge to the correctness of any of the foregoing to argue, however, that all that Australia does, whether by choice or otherwise, must be done in a manner that respects the human rights of those affected.

Another objection that may spring into the minds of some is that few countries would not be breaching human rights if the arguments herein are correct. The short response to that is that human rights violations do not cease to be human rights violations merely because they are widespread or even perceived to be unavoidable. For example, slavery was no less a human rights violation in those times when the prosperity of national economies depended on it.

Cruel, inhuman or degrading treatment?

One of the many human rights treaties to which Australia is a party is the ICCPR. Pursuant to art 2(1) of the ICCPR, each state party to the ICCPR:

... undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

It is well established that citizenship and immigration status fall within the scope of ‘other status’. The rest of this article focuses on whether the temporary protection regime that Australia has instituted may in some instances result in the violation of the right not to be ‘subjected to torture or to cruel, inhuman or degrading treatment or punishment’, as set out in art 7 of the ICCPR, of the persons subjected to the regime. It is worth emphasising at this juncture that this article does not include consideration of whether return to their country of origin of persons whose temporary refugee or humanitarian visas have expired may in some circumstances result in a breach by Australia of the ICCPR’s implicit non-refoulement obligation.¹¹ Instead, the article confines itself to considering whether subjecting, or continuing to subject, an individual to Australia’s temporary visa regime may in some circumstances amount to ‘cruel, inhuman or degrading treatment’, placing Australia in direct violation of art 7.

Article 7 is one of a handful of ICCPR provisions stated to be non-derogable (ICCPR, art 4(2)). However, in order to determine whether particular treatment amounts to a breach of art 7 in the first place, it is necessary to take into account the nature and severity of the treatment, the state of mind of those administering the treatment and also the justification for the treatment (Joseph et al 2000: para 9.18; Arai-Takahashi 2002: 15, citing jurisprudence relating to art 3 of the European Convention on Human Rights (ECHR), which is the European parallel of art 7 of the ICCPR). Let us now consider each of these elements in turn, in relation to Australia’s treatment of refugee/humanitarian visa holders. For the sake of convenience, all will be referred to as asylees.

Nature and severity of treatment

According to the UN Human Rights Committee, the aim of art 7 ‘is to protect both the dignity and the physical and mental integrity of the individual’ (UN Human Rights Committee 1992: para 2). The nature of the treatment prohibited, therefore, is treatment that debases or humiliates the victim¹² or causes the victim ‘physical pain’ or ‘mental suffering’ (UN Human Rights Committee 1992: para 5). However, in order to fall within the scope of art 7, the ill treatment must also attain a minimum level of severity. Whether ill treatment does attain this minimum level of severity ‘depends on all the circumstances of the case, such as the duration and manner of treatment, its physical or mental effects as well as the sex, age and state of health of the victim’ (Vuolanne v Finland at para 9.2).¹³

Let us now consider exactly how Australia’s treatment impacts on asylees, especially on their mental health. In doing so, a psychosocial approach will be taken. This approach accepts that an individual’s mental health is affected by social factors and that social interventions are often as necessary as medical ones in the promotion of mental wellbeing (International Organisation for Migration (IOM) 2003: 92). Before commencing our examination of the impact on mental health of the social conditions imposed by Australia on asylees, though, two points need to be emphasised. The first point is that these individuals have one significant thing in common, and that is a personal history of traumatic experience. These traumatic experiences would, of course, range in nature and intensity. At one extreme there is torture, which everyone would agree to be a severely traumatic experience for anyone. At a minimum, however, every asylee has had the experience of being forced into exile. Indeed, many have experienced the misfortune of exile more than once. These are individuals who, after living for years in one country of asylum and making a life for themselves there, find they are no longer welcome and are forced to move on to yet another country.

According to a psychologist who works with refugees:

Refugees are dominated by one feeling and that is a painful, traumatic and deep sense of loss. Loss of what is obvious and tangible and external such as possessions, a home, work, role, status, life style, a language, loved members of the family or other close relationships, and the loss that is less obvious, ‘internal’ and ‘subjective’ such as loss of trust in the self and others, loss of self esteem, self respect and personal identity. [Baker 1992: 87.]

Beyond this, it is difficult to generalise about the mental wellbeing of asylees at the point of arrival in Australia. However, it is apparently the case that the rates of post-traumatic stress disorder (PTSD), depression and anxiety are high, and manifested through the usual range of unpleasant symptoms (Marston 2003a: 60 and 63; Murray and Skull 2002: 49; Silove 2003: 76).

The second point to be emphasised before embarking on an examination of post-arrival social conditions on the mental health of asylees is that while they do have something important in common, they are not in other respects a homogenous group. The same social factors will have different impacts on different individuals, depending on their individual attributes such as age, intelligence, gender, biological predisposition to psychiatric disorders and, of course, the extent to which their mental health has already been damaged through past experiences (IOM 2003: 92; Baker 1992: 84; Murray and Skull 2002: 49; Silove 1999: 202; Turner 1995: 63). On the other hand, however, it is possible to generalise to this degree: certain kinds of social conditions tend to promote the mental wellbeing of asylees, and others tend to do the opposite. Unfortunately, the conditions that many asylees now experience in Australia are ones that tend to further degrade their mental wellbeing.

Those who arrived in Australia as asylum seekers would already have been subjected to disabling social conditions in Australia before being granted a protection visa. The administrative detention to which almost all unauthorised arrivals are subjected is likely to have had an adverse impact on mental health, which persists post-release (Marston 2003a: 63; Silove 2003: 75–6). In the case of other on-shore asylum seekers, time spent in the Australian community awaiting a protection visa decision may well have been characterised by a prohibition on working, a denial of access to social assistance and other stressful conditions. Not surprisingly, their mental health is likely to have deteriorated markedly over this period of time (Silove 2003: 76). Finally, the refugee status determination process is likely to have been traumatising in itself, since it requires of asylum seekers that they recount any past experiences of persecution in minute detail to usually sceptical decision-makers. For many, this amounts to a reliving of the past in the present, with the added burden that they are met with disbelief instead of the validation they would receive in a counselling situation (Victorian Foundation for Survivors of Torture Inc (VFST) 2002: 36 and 42).

As outlined previously, social disadvantage is also the lot of persons granted temporary rather than permanent protection by Australia. Holders of subclass 447 visas, subclass 451 visas, TPVs and Return Pending Visas have permission to work, but are likely to experience difficulties in actually finding work because of their temporary status, which is off-putting to many employers (Hannan 2003: 164). Those who are in poor health and/or have poor English language skills are likely to experience even greater difficulties finding work. While holders of these visa classes are at least given access to a minimum package of social assistance, they are denied access to essential settlement services. In other words, they are not assisted to overcome the underlying causes of their social disadvantage. Subclass 449 visa holders are even worse off than other temporary visa holders, since it is completely within the discretion of the Minister for Immigration whether they are given permission to work or access to any kind of social support. These conditions of social disadvantage are significant contributors to anxiety and depression in the persons affected and impede recovery from disorders such as PTSD (Marston 2003a: 60; Silove 1999: 202).

Another major social factor that adversely impacts upon the mental health of persons granted temporary protection of some sort is separation from the family members who have not accompanied them to Australia. Separation does not simply deprive asylees of the emotional support that family provides, it also leaves them in fear for those left behind and produces in them guilt for being safe while relatives are not (Turner 1995: 62 and 67). Family separation in these circumstances does not merely impede recovery from psychiatric disorders such as depression and PTSD (Silove 1999: 202), but may be causative of mental health problems (Marston 2003a: 25–8; Kaplan and Webster 2003: 109).

The next factor to consider is the impact of temporary status itself. The conditions that tend to promote the mental wellbeing of asylees are conditions that allow them to feel that their environment is safe, predictable and within their control; that they can trust other human beings enough to engage in ordinary social intercourse; and that they can look to the future with hope (Murray and Skull 2002: 49; Turner 1995: 62 and 69; VFST 2002: 36; Hannan 2003: 163–4; Basoglu and Mineka 1992). Temporary status engenders feelings of exactly the opposite kind in asylees. They cannot feel safe because they live with the threat of being returned to the place they fled. They feel powerless, mistrustful and hopeless, because the most important decision about their future is entirely in the hands of others (VFST 2002: 36). Last but not least, developing social connections becomes a double-edged sword. Should their sense of home detach from the place they fled and become associated instead with the place of asylum through the relationships formed by living and working there, the possibility of so-called repatriation will, in fact, hang over them as the threat of exile from home (Koser and Black 1999: 9). All of this can prevent recovery from pre-existing disorders such as PTSD and depression and can also be causative of new mental health problems (Marston 2003a: 63–4; Silove 1999: 202; VFST 2002: 36). In fact, of all the considerable difficulties faced by persons with temporary protection, it is temporariness itself that they identify as being the greatest contributor to their mental suffering (Marston 2003a: 22 and 32). Not surprisingly, therefore, the UNHCR, after observing that it is rare for states to engage in periodic review of the status of previously recognised Convention refugees, argues that state practice in this regard is an acknowledgement ‘that a refugee’s sense of stability should be preserved as much as possible’ (UNHCR 2003: para 18). It should not be forgotten, either, that status determination is itself a traumatising process. Therefore, persons who are subjected to the process at regular intervals are in effect being forced to remain victims forever.

Finally, of course, all of the different sources of adversity just canvassed have a cumulative impact on the individual exposed to them. It is worth emphasising that this is properly taken into account in assessing whether ill treatment of a given individual has been so severe as to amount to cruel, inhuman or degrading treatment. To put it another way, it is the combined effect of all of the adverse conditions imposed on an individual that must be evaluated against the human rights standard rather than the effect of any particular condition by itself (Arai-Takahashi 2002: 25, citing jurisprudence relating to art 3 of the ECHR).

Intention

Turning now to the question of intention, in order to establish a breach of art 7, it is probably necessary to establish a degree of intentionality beyond the simple intention to perform the action in question. The intention to cause the adverse consequences of an action would certainly meet the intention requirement (Mariya Staselovich v Belarus at para 9.2). Awareness of the adverse consequences of an action in a particular case, coupled with a failure to take the steps necessary to ameliorate those consequences, would also meet the intention requirement. Thus, in C v Australia, a case in which a detained asylum seeker alleged breach of his ICCPR rights by Australia, the United Nations Human Rights Committee expressed the view that ‘the continued detention of [Mr C] when the State party was aware of [Mr C’s] mental condition and failed to take the steps necessary to ameliorate [Mr C’s] mental deterioration constituted a violation of his rights under article 7’ (C v Australia at para 8.4). Finally, it is probably the case that negligence — that is, failing to take care to prevent the reasonably foreseeable adverse consequences of an action — would also meet the intention requirement (Joseph et al 2000: para 9.07).

It is strongly arguable that Australia intends, in the active sense, the adverse consequences of its treatment of temporary asylees. Many developing countries find themselves hosting mass influxes of asylum seekers, who further burden economic resources that are already insufficient to meet the needs of their own populations. Though such countries treat asylees in a manner that falls short of the ideal, they may well be able to argue that since they do not have the capacity to do more, they cannot be said actively to intend the shortfall or its consequences. Australia, by contrast, is a sufficiently affluent country that it can well afford to give its asylees access to the same social and economic rights as its citizens during their sojourn here, and even to grant them permanent residence if need be. Australia chooses to treat asylees in the manner that it does, and it does so in order to deny to asylees a share of the most crucial resource that any society has to distribute — hope (Marston 2003b: 118). The recipients of temporary protection are denied full membership of the community both materially and psychologically in order to engender in them (and in those who might be tempted to follow in their footsteps) the hopeless conviction that eventual repatriation is their only option.¹⁴ Evidence of the truth of this proposition is not hard to find. On several occasions, the previous Minister for Immigration spelled out in clear terms that he wanted TPV holders to receive the message that they were outside the ‘embrace’ of Australian society (Mares 2002: 205, citing a March 2002 interview with the Minister on the SBS TV program Insight; see also Ruddock 2000; Law Report 2001).

On 3 February 2003, an Iraqi TPV holder, Mr Habib Wahedy, committed suicide in South Australia. The Australian Government denied that it had knowledge of this suicide risk, despite a refugee support group raising concerns about Mr Wahedy’s mental health while he was still in mandatory detention (Ellison 2003). In response to questions asked in Parliament about Mr Wahedy’s death, the Government pointed out that Mr Wahedy, in common with other TPV holders, had been given access to the full range of medical and psychological services available to Australian citizens (and more) and that he, or others on his behalf, could have sought assistance from such services (Ellison 2003). The implicit assertion here is, of course, that the Government does not actively desire its treatment of TPV holders to have adverse consequences for their mental health and by giving them access to counselling services has done all it can reasonably be expected to do to guard against those consequences. The second part of that assertion seems akin to saying that it’s possible to prevent or remedy the traumatising effects of child abuse by providing the child with counselling while leaving the child in the abusive situation. As an alibi it simply does not convince.

Justification for treatment

Finally, we come to the element of justification. A subtle distinction needs to be drawn here. Since art 7 is non-derogable, it is not possible for a government to argue that, while particular treatment is cruel, inhuman or degrading treatment, it is nevertheless justified by the end to be served by its infliction. However, it is possible for a government to argue that particular treatment ought not to be classified as cruel, inhuman or degrading treatment in the first place because it constitutes a proportionate means of pursuing a legitimate end (Joseph et al 2000: para 9.26). Of course, this kind of argument is not going to succeed if the treatment in question could not conceivably achieve its end except by causing severe pain and suffering. But it would be a stretch to describe the grant of temporary protection in these terms, so let’s consider justification.

The justification most usually proffered in support of temporary protection regimes is that they are necessary to ensure the political capacity to provide protection to those in need of it. In other words, the argument is that citizens of receiving countries will be more willing to bear the burden of extending protection to those in need of it, if assured that the individuals concerned will return to their country of origin when the need for protection no longer exists (see, for example, Barutciski 1998: 246). Another justification proffered for temporary protection regimes is that a country’s finite protection capacity (a finitude that, as already indicated, Western countries define in political rather than economic terms) must be deployed in such a way as to benefit the greatest number of people. Again, this objective is served by returning those who no longer need protection so that others who do can take their place (Brekke 2001: 12). These justifications are, of course, self-limiting. The quality of protection provided by the receiving country cannot then be so bad as to be not worth having, because that would make the whole endeavour pointless.

Australia purports to be pursuing two other objectives as well through the provision to some individuals of temporary protection with restrictions on economic and social entitlements. These objectives are the deterrence of people smuggling and the deterrence of secondary movement. The fact of the matter is that the introduction of a temporary protection regime in 1999 did not stem the flow of smuggler facilitated unauthorised movement. It was, among other things, the naval blockade of Australia from August 2001 that achieved that (Sidoti 2003: 27–8). In any event, the deterrence of smuggling hardly serves as justification for granting temporary protection with inferior social conditions, even to persons who did not use the services of people smugglers (as is in fact the case). There remains, then, the objective of deterring secondary movement. Let us accept for the sake of argument that this is a legitimate objective and one that can be achieved by the means employed. Let us focus instead on whether the treatment amounts to a proportionate means of achieving the legitimate end. Whether this is so or not will depend on all the circumstances of the particular case (Legomsky 2003: 72). This is because, as already explained, the same treatment may impact more severely on some individuals than others, depending on their personal attributes and past experiences. Nevertheless, some generalisations are possible.

At some point in time after the grant of temporary protection, the suffering caused to any individual by conditions of uncertainty and insecurity will almost certainly be disproportionately greater than the social good that is achieved by subjecting that person to those conditions. This will be so even if he or she is treated in all other respects as well as are asylees with permanent status. European countries, which have temporary protection regimes for persons other than recognised Convention refugees, have so far accepted the truth of this proposition and mostly allow for more secure status after periods ranging from one to seven years (Sopf 2001: 151–2).

Next, however, we have to take into account the fact that in Australia asylees with temporary status are not treated in all other respects as well as are asylees with permanent status — rather, they are treated much worse. In the case of any given individual, the cumulative impact of insecure status and difficult social conditions can be expected to reach the threshold of severity that renders the treatment disproportionate to the objective to be achieved in a significantly shorter period than if the individual was subject only to insecure status. The TPV regime as originally instituted made all TPV holders eligible for Permanent Protection Visas if they were still in need of protection after three years It can be inferred from this fact that the Australian Government’s own initial judgment was that three years on a TPV was about as much adversity as it could inflict on the individuals concerned without routinely breaching art 7 of the ICCPR. It would probably be necessary to conduct epidemiological studies to ascertain whether this judgment erred too much on the side of either optimism or pessimism.

Turning finally to the interaction of individual factors with social factors, it is argued that the particular circumstances of a given asylee may be such that it would be inhuman treatment to subject that person to any period of uncertainty and insecurity after his or her status is recognised. For example, in the case of asylees who have previously been tortured or experienced other severe trauma, it would usually fall well within the description of inhuman treatment to then knowingly subject them to a state of uncertainty and insecurity. Ironically, this used also to be the judgment of the Australian Government before it introduced the TPV regime. Dr Michael Wooldridge (then Minister for Health and Family Services) said in 1998:

[The views of the One Nation political party] have reached new depths with the recently launched immigration policy in which the spurious claim is made that Australia’s refugee policies should be changed and that, at best, Australia should only be a temporary haven for refugees before they are sent back again when things get better. Those views are deeply flawed and dangerous ...

[C]reating uncertainty and insecurity as these views undoubtedly do is one of the most dangerous ways to add to the harm that torturers do.

It is even well documented that in pursuing domination, regimes that practise torture deliberately set out to create a climate of fear and chronic alarm by removing any sense of safety or control from those they seek to oppress.

The views and policies of One Nation would only continue the suffering of refugees who have been tortured and could well complete the insidious work that torture began.

Another example of an individual factor that would have to be taken into account is the time an asylee had already spent in transit countries before arrival in Australia. It seems reasonable to assume that an individual who has already experienced conditions of uncertainty and insecurity for an extended period of time would suffer greater harm from uncertain status in Australia than one who has not.

Finally, there is the consideration that the total number of years spent in Australia as asylum seeker/temporary visa holder may, by the time the question of return arises, add up to a significant proportion of the individual’s life. Despite Australia’s efforts to prevent integration, the longer the total time an individual has spent in Australia the more likely the person is to have formed attachments that have transformed this place into his or her affective ‘home’. In fact, those who arrived here as young children would know no other ‘home’ than Australia. In judging proportionality between the public policy goal and the harm to the individual, disruption of all the attachments formed by the individual in Australia should be weighted as very considerable harm to the individual and may well militate against his or her removal from Australia (Aleinikoff 2003: 20).

Reality check

At the least, the mental suffering potentially caused by Australia’s temporary protection regime raises art 7 issues. Unfortunately, those issues have not yet been raised in front of the Human Rights Committee. However, the Human Rights Committee jurisprudence relating to analogous situations suggests that the propositions contained in this article are sound in principle.

In Jegatheeswara Sarma v Sri Lanka, the Human Rights Committee found that the author of the complaint was the victim of a violation of art 7 by reason of ‘anguish and stress caused [to the author] by the disappearance of his son and by the continuing uncertainty concerning his fate and whereabouts’ (at para 9.5). In so finding, the Human Rights Committee reaffirmed views it previously expressed in the very similar case of Quinteros v Uruguay. These cases suggest that subjecting individuals to the anguish and stress caused by prolonged uncertainty (13 years in Jegatheeswara Sarma and seven years in Quinteros) about matters of central importance in their lives can, in principle, be ‘cruel, inhuman or degrading treatment’ in violation of art 7. On the other hand, the finding was in both cases additional to a finding that the ‘disappearance’ of the family member was itself a human rights violation by the state party concerned. By contrast, allowing an individual to enter or remain in Australia can hardly be considered a wrong in itself, but is in fact the opposite (that is, a good). Given this consideration, it is probably the case that the Human Rights Committee’s decisions relating to the ‘death row phenomenon’ deal with a situation more closely analogous to the situation dealt with in this article. The analogy is that the threat of being returned to a place to which he or she for good reason does not wish to return hangs over the head of an asylee in the same manner that the sentence of death hangs over the head of the death row detainee.

Imposition of the death penalty in accordance with domestic law in those countries that are not party to the Second Optional Protocol to the ICCPR Aiming at the Abolition of the Death Penalty cannot be considered a violation of international human rights law.¹⁵ Nevertheless, persons under sentence of death experience ‘ever increasing mental anxiety’ while awaiting execution of the sentence (the death row phenomenon) (Joseph et al 2000: para 9.39). While a ‘sizeable minority’ of the Human Rights Committee has been prepared to find that simply keeping a prisoner on death row for an extended period of time can amount to a violation of art 7 of the ICCPR (Joseph et al 2000: para 9.45), the majority view has consistently been that ‘prolonged detention on death row cannot, per se, be regarded as cruel and inhuman treatment’ (Johnson v Jamaica, at [8.4]). On the other hand, the majority has also emphasised that ‘each case must be considered on its own merits, bearing in mind the imputability of delays in the administration of justice on the State party, the specific conditions of imprisonment in the particular penitentiary and their psychological impact on the person concerned’ (Francis v Jamaica at para 9.1).¹⁶ Most recently, in Wilson v Philippines, the Human Rights Committee found as follows (at para 7.4):

As to the claims concerning the author’s mental suffering and anguish as a consequence of being sentenced to death, the Committee observes that the author’s mental condition was exacerbated by his treatment in, as well as the conditions of, his detention, and resulted in documented long-term psychological damage to him. In view of these aggravating factors constituting further compelling circumstances beyond the mere length of time spent by the author in imprisonment under a sentence of death, the Committee concludes that the author’s suffering under a sentence of death amounted to an additional violation of article 7. None of these violations were remedied by the Supreme Court’s decision to annul the author’s conviction and death sentence after he had spent almost fifteen months of imprisonment under a sentence of death.

The conditions of detention in Wilson v Philippines included serious physical violence committed against the author by the prison guards, which in itself was a violation of art 7. This may or may not be a basis on which to distinguish it from the situation considered in this article. There is, in fact, a good case to be made that the restrictions on the economic and social entitlements of temporary asylees constitute violations of their rights under the International Covenant of Economic, Social and Cultural Rights (ICESCR).¹⁷ It may alternatively or additionally be the case that the provision of inferior visa entitlements to temporary asylees vis-à-vis permanent asylees amounts to a violation of art 26 of the ICCPR, which in essence ‘prohibits discrimination in law or in fact in any field regulated and protected by public authorities’ (UN Human Rights Committee 1989: para 12). Discussing these possibilities is, however, beyond the scope of this article. It is argued instead that Human Rights Committee jurisprudence does not in fact require the aggravating factor to be itself a human rights violation in order to constitute ‘further compelling circumstances’. For example, in Williams v Jamaica, the author was on death row for seven years before having his sentence commuted to life imprisonment. The Human Rights Committee found that the author’s mental condition ‘seriously deteriorated’ during that time, but the state party either did not act or acted inadequately to prevent this adverse consequence of prolonged incarceration (para 6.5). The Human Rights Committee seems to have considered the unremedied psychological impact of death row detention on the particular detainee to be a sufficient ‘further compelling circumstance’ for it to conclude that the state party had violated art 7 in the particular case.

Returning to the human rights implications of Australia’s temporary protection regime, the analogy with the death row phenomenon cases suggests that, rightly or wrongly, precarious immigration status alone may pass muster with a majority of the Human Rights Committee and escape characterisation as a violation of art 7 — except perhaps in cases where unremedied and extreme mental harm can be demonstrated. However, the present addition to precarious immigration status of restricted economic and social entitlements is a plus factor that is likely to invite very close scrutiny. What the first principles analysis above demonstrates is that findings of art 7 violations are well within the realms of possibility.

The way forward

Subjecting individuals to Australia’s temporary protection regime is not per se ‘cruel, inhuman or degrading treatment’ in violation of art 7 of the ICCPR. However, if done across the board and without regard for individual circumstances, it may result in art 7 violations in particular cases. This is made all the more likely by the double strain presently imposed on temporary refugee and humanitarian visa holders in the form of uncertain immigration status and inferior economic and social entitlements. Even if the economic and social entitlements of temporary visa holders are made equivalent to those of permanent visa holders, it is the present author’s view that subjecting individuals to a temporary protection regime may still result in violations of art 7 of the ICCPR unless the regime is designed in a manner that allows for case by case assessment of the point at which the mental suffering inflicted on the individual by temporary protection limbo becomes disproportionately greater than the social good achieved by subjecting the person to that limbo.

In order to avoid violations of art 7, individuals should be given the opportunity to obtain permanent resident status before this ‘tipping point’ is reached in each particular case. At present, in those cases where grant of temporary rather than permanent protection, prolongation of temporary status or repatriation would amount to a breach of art 7 of the ICCPR, the Minister for Immigration could theoretically exercise one of the Minister’s many discretions to waive the usual criteria for the grant of a Permanent Protection Visa or to grant a permanent visa of some sort, regardless of whether any of the prescribed criteria for that class of visa are met. In practice, however, there can be no assurance that the Minister would exercise discretion favourably in an appropriate case. This is not intended to be a reflection on the present Minister for Immigration. Indeed, there is some indication that the present Minister, Senator Amanda Vanstone, is willing to exercise discretion in an appropriate case. Shortly after becoming Minister, she intervened to grant Permanent Protection Visas instead of TPVs to an Iranian woman and her three children, apparently on health grounds. A psychologist involved in the case observed, ‘And what is interesting about that is, under the previous minister, it would just be impossible’ (SBS World News, 13 October 2003).¹⁸ Under the next Minister, whoever he or she may be, it will perhaps be equally impossible, and that is the most significant flaw of the present temporary protection regime.

At the time of writing, it was being reported in the media that the Federal Government was considering changes to immigration policy to combat Australia’s severe skills shortage, and that the options being considered included ‘relaxing the rules governing temporary protection visas’ (Dodson 2005). Presumably, such a relaxation would involve allowing all holders of subclass 447 visas, subclass 451 visas, TPVs and Return Pending Visas (not just those who happened to be in Australia on 27 August 2004) to apply in Australia for certain non-humanitarian visa subclasses. Supposing this does happen, it still will not address the human rights issues raised in this article in any significant way. Although TPV and temporary Offshore Humanitarian Program visa holders in Australia on 27 August 2004 numbered in the thousands, as at 16 February 2005 implementation of the 27 August measures had resulted in only 15 people (five Iraqi doctors and their families) being granted non-humanitarian visas (Shaw 2005). Those with further protection applications afoot who are eligible for the grant of Permanent Protection Visas are awaiting the outcome before considering their non-humanitarian visa options, because the entitlements attached to non-humanitarian visas do not cater for the special needs of refugees and similarly situated individuals (Shaw 2005). For example, non-humanitarian visa holders are not given access to the specialised settlement services to which permanent refugee and humanitarian visa holders have access and most are subjected to a two-year waiting period before being allowed access to most Centrelink payments (Burn and Reich 2005: 430 and 504–8). Even more to the point, the number of TPV and temporary Offshore Humanitarian Program visa holders who can actually benefit from non-humanitarian visa options at the end of the day is likely to be small, because many will be unable to meet the usual eligibility criteria for those visas (Shaw 2005; Georgiou 2005). In short, giving individuals with protection needs non-humanitarian visa options is not the way forward. What then is the way forward?

It is suggested that the way forward is to grant Permanent Protection Visas to all temporary asylees whose protection needs continue to exist at the expiration of their temporary visas. In order for such a protection regime to be administratively workable, it is probably necessary to set a usual duration for temporary visas, at the expiry of which application for a Permanent Protection Visa is possible. However, that usual period should be a period within which it is highly unlikely that the ‘tipping point’ would be reached by anyone fitting the usual profile of the relevant population. Further, visa applicants should be given the opportunity to make the case for immediate permanent status or a shorter initial temporary protection period before application for permanent status is possible. If such a case is made, a decision to grant a visa should be accompanied by an individualised determination by the same decision maker of the appropriate duration of the visa. This aspect of the visa decision should be subject to merits review and judicial review in the same way as are all other aspects of the visa decision. Finally, in recognition of the fact that individual circumstances may well change after the making of the initial visa decision, there should be a mechanism for bringing forward the time at which a given individual is eligible to apply for a Permanent Protection Visa. This mechanism should not be the uncertain discretion of the Minister for Immigration as at present, but rather should be an administrative decision-making mechanism that complies with the same procedural standards as the system in place for deciding the visa applications themselves.

Implementation of the modest proposals above will do no more than ensure that Australia does not violate art 7 of the ICCPR in relation to those who are subject to its temporary protection regime. Surely, though, we should be aspiring a great deal higher in our treatment of our fellow human beings.

* PhD (Melb), LLB(Hons) (Melb), BComm (Melb); Senior Lecturer, La Trobe Law, La Trobe University. This article is based on a paper presented at the 28th International Congress on Law and Mental Health (Panel: Migration, Mental Health and Human Rights) on 2 October 2003. The law stated in the article is current as at 3 April 2005. I am grateful to Dr Saretta Lee, FRANZCP, Consultant Child and Adolescent Psychiatrist, Prince of Wales Hospital, Sydney, for her comments on the paper on which this article was based. Any errors are, of course, entirely my own.

1 These are the Refugee (Subclass 200) Visa, In-country Special Humanitarian (Subclass 201) Visa, Global Special Humanitarian (Subclass 202) Visa, Emergency Rescue (Subclass 203) Visa and Woman at Risk (Subclass 204) Visa.

2 Policy guidelines contained in Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) 2004a, para 11, relating to the application of a visa criterion specified for visa subclasses 200, 202 and 204 (Migration Regulations 1994 (Cth), Sch 2, cll 200.212, 202.212 and 204.213). There is no such restriction on the grant of visa subclasses 201 and 203, but only small numbers of these subclasses are granted annually.

3 An ‘offshore entry person’ is a person who became an ‘unlawful non-citizen’ by entering an ‘excised offshore place’. In an attempt to discourage people smuggling, the Migration Act 1958 (Cth) provides for such persons to be excluded from Australia’s legislated refugee protection system and made reliant instead on the unchecked exercise of executive power. Christmas Island, Ashmore and Cartier Islands, Cocos (Keeling) Islands and Australian offshore installations are defined in the Migration Act to be ‘excised offshore places’ because they are the places most easily reached from Indonesia and were, therefore, the Australian destinations most usually chosen by people smugglers. The Migration Act also allows for other places to be designated by regulation as excised offshore places.

4 A person who obtained immigration clearance by using fraudulent documents does not for this purpose count as immigration cleared.

5 If a further protection application is made, the existing visa is deemed to continue on foot until a final determination is made on the further application (Migration Regulations, Sch 2, cl 785.511).

6 In order to encourage voluntary repatriation by holders of subclass 447 visas, subclass 451 visas, TPVs and Return Pending Visas, the Australian Government also offered holders of these visa subclasses present in Australia on 27 August 2004 a reintegration assistance package consisting of a payment of $2000 per individual (up to a maximum of $10,000 per family) and payment of the cost of international travel (DIMIA 2004d).

7 The permanent non-humanitarian visas for which application can be made are the Child (Subclass 802) Visa, Aged Parent (Subclass 804) Visa, Spouse (Subclass 820/801) Visa, Interdependency (Subclass 826/814) Visa, Orphan Relative (Subclass 837) Visa, Aged Dependent Relative (Subclass 838) Visa, Labour Agreement (Subclass 855) Visa, Employer Nomination Scheme (Subclass 856) Visa, Regional Sponsored Migration Scheme (Subclass 857) Visa, Contributory Aged Parent (Subclass 884/864) Visa, Business Owner (Subclass 890) Visa, State/Territory Sponsored Business Owner (Subclass 892) Visa and Distinguished Talent (Subclass 858) Visa (DIMIA 2004e). Application can also be made for several subclasses of non-humanitarian temporary visa (DIMIA 2004e).

8 There were some adjustments and exceptions made to the usual criteria (Migration Regulations, Div 2.2AA; Vanstone 2004; DIMIA 2004e), but these were quite minor.

9 Holders of permanent refugee and humanitarian visas are able immediately to sponsor the entry into Australia of family members (DIMIA 2003c, 11).

10 Article 1A(1) of the Convention defines an additional category of refugee, but it is a category that has little relevance now. Articles 1D, 1E and 1F of the Convention provide for the exclusion from refugee status of persons who would otherwise fall within the definition in art 1A.

11 Article 7, read in conjunction with the art 2 obligation requiring that a state party respect and ensure ICCPR rights for all individuals within its territory and subject to its jurisdiction, entails an obligation not to ‘expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement’ (UN Human Rights Committee 1992, para 9). See also UN Human Rights Committee 2004 at para 12 summarising its previous jurisprudence.

12 For example, in Yankov v Bulgaria, the European Court of Human Rights held that ‘the forced shaving of detainees’ hair is in principle an act which may have the effect of diminishing their human dignity or may arouse in them feelings of inferiority capable of humiliating and debasing them’ and, therefore, is potentially degrading treatment in violation of art 3 of the ECHR (Yankov v Bulgaria at para 114).

13 The same principle is articulated in the ECHR jurisprudence. Thus — to continue the example in the preceding footnote — in Yankov v Bulgaria, the European Court of Human Rights, after deciding that the shaving of detainees’ hair is potentially degrading treatment in violation of art 3 of the ECHR, went on to look at all the circumstances of the case, ‘including the victim’s personal circumstances, the context in which the impugned act was carried out and its aim’, in order to assess whether the ill treatment reached the minimum threshold of severity necessary to constitute a violation of art 3 (Yankov v Bulgaria at para 114). Its eventual conclusion was that there had indeed been a violation of art 3 (Yankov v Bulgaria at para 121).

14 This is true not only of Australia, but also of other states that employ temporary protection regimes (see Mertus 1998: 83–4; Schuck 1998: 298).

15 Article 6 of the ICCPR, which provides that ‘[e]very human being has the inherent right to life’, goes on to allow for the imposition of the death penalty in those countries in which it has not been abolished.

16 The majority found that there was a violation of art 7 in the circumstances of this case (Francis v Jamaica, 1995, para 9.2).

17 The arguments I have made elsewhere (Taylor 2000) in support of the proposition that Australia is violating the ICESCR rights of asylum seekers would seem to apply mutatis mutandis in relation to the entitlement situation of temporary visa holders.

18 The psychologist’s observation about the previous Minister is anecdotally supported by a case study contained in a submission made by the Legal Aid Commission of NSW (2003, 15–6) to the Senate Select Committee on Ministerial Discretion in Migration Matters.

References

Australian legislation

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

International legal materials

C v Australia Communication No 900/1999 (UN Human Rights Committee, 13 November 2002)

Convention Relating to the Status of Refugees, 28 July 1951, [1954] ATS 5, entered into force generally and for Australia on 22 April 1954

Francis v Jamaica Communication No 606/1994 (UN Human Rights Committee, 3 August 1995)

International Covenant of Civil and Political Rights, 16 December 1966, [1980] ATS 23, entered into force generally on 23 March 1976 and for Australia on 13 November 1980

International Covenant of Economic, Social and Cultural Rights, 19 December 1996, [1976] ATS 5, entered into force generally on 3 January 1976 and for Australia on 10 March 1976

Jegatheeswara Sarma v Sri Lanka Communication No 950/2000 (UN Human Rights Committee, 31 July 2003)

Johnson v Jamaica Communication No 588/1994 (UN Human Rights Committee, 5 August 1996)

Mariya Staselovich v Belarus Communication No 887/1999 (UN Human Rights Committee, 24 April 2003)

Protocol Relating to the Status of Refugees, 31 January 1967, [1973] ATS 37, entered into force generally on 4 October 1967 and for Australia on 13 December 1973

Quinteros v Uruguay Communication No 107/1981 (UN Human Rights Committee, 21 July 1983)

Second Optional Protocol to the ICCPR Aiming at the Abolition of the Death Penalty, 15 December 1989, [1991] ATS 19, entered into force generally and for Australia on 11 July 1991

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