Time for an amnesty
From Griffith REVIEW Edition 10: Family Politics
© Copyright Griffith University & the author.
Written by Ann Coombs
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Anne Coombs' biography and other articles by this writer
In 2002, a young Russian mother still breastfeeding her baby was separated from the child and locked up in the Villawood detention centre. The image of a woman being taken from her infant and being put under threat of imminent deportation was shocking and confronting. It was the first indication for many people of the reach of Australia's harsh migration laws. They could be applied not just against boat people from the Middle East or Asians working here illegally but against a European woman who had a child with an Australian man.
Three years later, and after the Cornelia Rau and Vivian Alvarez Solon cases, we are much wiser about the workings and culture of the Department of Immigration. At the time the plight of the Russian woman was becoming known, Alvarez Solon had already been deported to the Philippines. And since then there has been a cavalcade of examples; families being separated, detained and deported. Almost weekly, a new case emerges, each one harrowing for the people involved, each administratively complicated. The ones that reach the media are generally the desperate cases, the ones where public exposure and, hopefully, public outcry are the last chance for good outcomes. On the whole, the supporters of these families – the teams of advocates, lawyers and migration agents, try to work with the department and the courts behind the scenes. Going to the media is the last resort.
It was the sight of three-year-old Naomi Leong, stateless, and held in Villawood detention centre all her young life, which finally galvanised public opinion and put the government's policy of holding children in detention centres in the spotlight.
The cases caught up in Australia's increasingly vigilant compliance and deportation system are, typically, not from the Middle East but from our own region – Malaysia, Fiji, China, Tonga, Bangladesh, India, Korea. Some are asylum seekers, believing that if they return to their countries of origins they will face persecution. Most are "visa overstayers", people who have been in Australia a long time, have built lives here, have had children here, but with whom the Immigration Department has finally caught up.
Visa overstayers are usually not asylum seekers and the distinction needs to be kept clearly in mind. The fragile lifeline of asylum has been drawn so taut by this government that it seems constantly on the verge of snapping. It has failed many people – some who have ultimately been found to be refugees and others who have been sent back to their countries of origin only to disappear or be imprisoned. The asylum system is a matter of life or death for refugees. It is too important to be weakened by thousand of visa overstayers claiming to be refugees.
But what overstayers and asylum seekers have in common – along with the thousands of refugees granted temporary protection visas – is separation from family. The Australian Government's refusal to treat immediate members of a refugee family as one unit has been one of the most outrageous injustices in a system that is full of cruel and arbitrary acts. Mothers and children are kept locked up while fathers are given visas, and vice versa; teenage boys are detained while their younger siblings are released.
More instances of this cruelty are coming to light in the government's handling of visa overstayers. The government's undertaking to release children and primary carers from detention means that some families have been reunited. But there are still potentially thousands of instances where parents and children are in danger of being separated because of the department's determination to deport non-citizens, regardless of their family ties or responsibilities. While they are awaiting a decision or removal, they may be given Bridging Visa E, a visa becoming notorious for the hardship it inflicts, and be abandoned to penury and continual uncertainty.
This government's readiness to separate families, regardless of international conventions, goes back a number of years. For example, in 1999 it was party to a United Nations agreement on the Protection of the Refugee Family, which emphasised protection of the family unit and reunification of family members separated as a result of refugee flight. At that time, the Government was locking up asylum seekers and separating visa overstayers and refugees from their families. Two years later it was still busily separating families – sending women and children to Nauru when the husbands and fathers were already in Australia with visas.
One of the most tragic outcomes of this readiness to separate families was the death of hundreds of women and children aboard the SIEV X. It has always seemed to me that the Federal Government's complicity in their deaths did not hinge on whether the government, through the Australian Federal Police, was somehow involved in that tragedy. Even without that, Immigration Minister Philip Ruddock and Prime Minister John Howard were complicit because of the introduction of temporary visas, which prevented husbands from bringing their families to Australia legitimately. It was no accident that most of the 453 people who drowned on the SIEV X were women and children – the only way they could join their husbands and fathers in Australia was by getting on a leaky boat.
THERE ARE OFTEN VERY GOOD REASONS VISA OVERSTAYERS should be allowed to remain. One is the interests of the children involved. This was the position taken by Justice Mary Gaudron in the High Court when she said that the best interests of the children needed to be considered when deciding whether a non-citizen parent should be deported: children who were Australian citizens should not be separated from a non-citizen parent. This is not an attitude that has been embraced by the government.
The concept of citizenship is like that of family – it is about belonging and allegiance. It is also about exclusion – excluding those who do not belong. We have had no qualms in excluding the non-citizens in our midst from the Australian "family". But in its dealings with non-citizens, a state has a choice. It can see such people firstly as members of the human community and therefore as having inalienable individual rights. Or it can treat them as mere numbers, to be made to behave according to the rules on the statute books.
The current government cares more for rules than for rights, and this can be seen clearly in the culture of the Department of Immigration. It is a department that has historically had a double function: welcoming people and looking after them on one hand and controlling and expelling them on the other. Its officers need to be able to judge this fine balance between compassion and compliance. In recent times, it has come down heavily on the "control" side. Senior departmental officials appear to have been ready to take on the government's agenda.
Citizenship is not only about the right to enter the country; it is also about rights within the country. Non-citizenship is about being excluded from those rights. In Australia, non-citizens are excluded from many of the rights that citizens take for granted. A non-citizen is a subject – subject to the whims of a state that feels no need to deal with them fairly because it is not responsible to them. A non-citizen does not vote; a non-citizen does not exist as far as democratic governance is concerned. Detention and deportation – without recourse to the courts or any higher authority – are publicly acceptable for non-citizens, it seems, but not for citizens.
The term "citizen" is not mentioned in the Constitution. It only came into being with the Citizenship Act of 1948. The term "alien" is defined neither in the Constitution nor in legislation. Nonetheless, for a century and a half we have been building up layers of law and convention that protect us and give us rights as "citizens". Simultaneously, a whole series of court decisions, going back in the states to before Federation, has enshrined the idea that it is okay to exclude "aliens" – not just from our territory but from much of the legal protection offered to citizens. An example: in 1996, the Federal Court held that asylum seekers did not have the right to be told about their rights. In other words, the common-law right to procedural fairness had been deliberately removed from non-citizens by an Act of Parliament.
It is easy now to see how the treatment of Cornelia Rau and Vivian Alvarez Solon and a couple of hundred other cases came about. Presumed to be non-citizens, they had no rights. The outrage over the Rau and Alvarez Solon cases was because they were Australian citizens. What happened to Citizen Rau and Citizen Alvarez was terrible but it would have been just as terrible had they not been citizens.