Our sense of belonging is not just rooted in seeing reflections of the same faces in our streets, but in acknowledging that all peoples share the same desire for self-determination, and, to have a place to call home. We chat with Pro Bono Australia 2016 !MPACT25 Winner, Executive Director of RACS, Tanya Jackson-Vaughan on the formidable challenges they face in helping people seeking asylum find refuge in Australia.
On 24 August 2001, an Indonesian fishing vessel overloaded with 433 people seeking asylum from Afghanistan, became stranded in international waters, 140 kilometres north of Christmas Island.
Under the directive of the Australian Maritime Safety Authority, the vessel was rescued by a nearby Norwegian container ship, the MV Tampa.
Tampa’s Commander, Captain Arne Rinnan, changed course for the Indonesian city of Merak, the closest port with facilities to dock such a large vessel. However, some among the rescued allegedly threatened to commit suicide if they were returned to Indonesia and others entered the ship’s bridge, requesting Rinnan to land them on Christmas Island.
The former Howard Government refused. At the time, former PM John Howard said, “I believe it is in Australia’s national interest that we draw a line on what is increasingly becoming an uncontrollable number of illegal arrivals in this country”.
With his new passengers showing signs of poor health, Rinnan made repeated requests to Australian authorities for assistance over the next 48 hours. While Rinnan’s calls were answered, they were not acted upon, so Rinnan entered Australian waters on 29 August. The Howard Government advised Rinnan that he was in ‘flagrant breach’ of the law and dispatched 45 Special Air Service troops to board the ship to prevent it from reaching Christmas Island.
Within days, the Government secured agreements with Nauru and New Zealand. The Royal Australian Navy escorted the people rescued from the MV Tampa to Nauru, from where 131 people were sent to New Zealand. The remaining 302 were processed on Nauru over the ensuing months, with some languishing on Nauru for a further three years.
This became known in Australia as the Tampa Affair, and inspired a series of new legislative frameworks for processing people seeking asylum, which became known as the ‘Pacific Solution’.
This solution included the excision of many of Australia’s offshore islands, including Christmas Island, from Australia’s migration zone. This meant that people seeking asylum had no automatic right to apply for refugee status if they arrived on these islands and their applications for asylum may be processed offshore. The Labor Opposition (Leader Kim Beazley) at the time did not oppose these measures.
While this incident was resolved in just over a week, the Tampa Affair became a major influencer in shaping Australia’s political pivot and discourse, towards a much more hardline stance on immigration and granting protection to people seeking asylum. This was no doubt buoyed by the ensuing tragedy which unfolded in New York City a week later, the terrorist attack on the World Trade Centre, which killed 2,996 people, including 11 Australians. The Howard Government’s strong pivot on border protection during the Federal election campaign proved popular with the hoi polloi, which saw Howard return to power with a two percent increase in votes and a promise to “decide who comes to this country and the circumstances in which they come”.
An Australian Government Press Release and ReliefWeb Report claims the known boat arrivals to Australia totals 30 boats, with 765 people turned back. Under the Howard Government from 2011 to 2013, five boats containing 614 people were turned back. Of the known boat turn backs since September 2013 under Operation Sovereign Borders, the last boat turned around was in March 2017 and contained 25 people.
According to Refugee Advice and Casework Service (RACS) the only pro-bono legal centre in NSW that provides specialist legal assistance for people seeking asylum, the majority of those whom have attempted to enter Australia by boat since 13 August 2012 have been blocked from applying for a protection visa. Those who remain in Australian sovereign territory but have not been cleared through immigration have become known as the ‘Legacy Caseload’.
We unpacked what the Legacy Caseload means for people seeking asylum, and the challenges it presents for the lawyers who advocate on their behalf, with Executive Director of RACS, Tanya Jackson-Vaughan.
After completing her undergraduate degree with joint honours in History and French at the University of Manchester in the UK, Jackson-Vaughan started her early career in the film industry as an Assistant Director. After meeting her husband on a film set in Australia, Jackson-Vaughan says after the birth of her first child, she had a strong desire to change her career into one that felt “more meaningful and family friendly”. Soon after giving birth to her second child, the Tampa Affair unfolded. This crisis ended up leading Jackson-Vaughan on a career trajectory that would have a profound impact on her own life.
“I had started studying psychology, and then the Tampa incident happened. I was so moved by it. I felt like I needed to do something. I was shocked by what I saw as a very bi partisan approach in giving in to fear mongering. That was really the beginning of my journey. I had language skills and thought perhaps teaching English as a second language to people seeking asylum could be of help. I realised that if you don’t have English skills, you can’t settle or function well in an English-speaking society so I did a Diploma of TESOL at UNSW and volunteered at the Asylum Seeker Centre teaching English. It was a wonderful realization that anyone can make a difference to someone else’s life and how rewarding it is,” says Jackson-Vaughan.
Growing up, Jackson-Vaughan says her parents were staunch human rights defenders, which she believes instilled a deep sense of social justice.
“When I was growing up in England, the apartheid was going on, and my parents were vocally opposed to it. I look at my own children, teenagers now, and I ask myself if this is the world I want my children to grow up in? It’s important to speak out and try to make a difference, otherwise nothing will ever change,” says Jackson-Vaughan.
Since joining RACS in 2011, Jackson-Vaughan has overseen its growth into becoming one of the leading refugee legal centres in Australia, with RACS being a finalist for the Human Rights Award and the Law & Justice Foundation Justice Award for the past three consecutive years.
Given the recent White House leak of a transcript from a call between US President Trump and Australian Prime Minister Malcolm Turnbull on 28 January 2017 published by the Washington Post on 3 August 2017, the problematic of people seeking asylum by boat once again, showed just how politically-charged the Howard-era legislative changes on arrival by boats still is for domestic politics in Australia. PM Turnbull and President Trump discuss an agreement with the former Obama administration which called for the US to admit 1,250 refugees from Manus Island and Nauru, subject to security screening. Here’s an extract below:
PM Turnbull: Yes, but let me describe what it is. I think it is quite consistent. I think you can comply with it. It is absolutely consistent with your Executive Order so please just hear me out. The obligation is for the United States to look and examine and take up to and only if they so choose – 1,250 to 2,000. Every individual is subject to your vetting. You can decide to take them or to not take them after vetting. You can decide to take 1,000 or 100. It is entirely up to you. The obligation is to only go through the process. So that is the first thing. Secondly, the people — none of these people are from the conflict zone. They are basically economic refugees from Iran, Pakistan, and Afghanistan. That is the vast bulk of them. They have been under our supervision for over three years now and we know exactly everything about them.
Trump: Why haven’t you let them out? Why have you not let them into your society?
Turnbull: Okay, I will explain why. It is not because they are bad people. It is because in order to stop people smugglers, we had to deprive them of the product. So we said if you try to come to Australia by boat, even if we think you are the best person in the world, even if you are a Noble [sic] Prize winning genius, we will not let you in. Because the problem with the people —
Trump: That is a good idea. We should do that too. You are worse than I am.
We asked Jackson-Vaughan, how this revelation affected the morale of her team, and the work they do.
“When I heard that I felt very angry. There is no question that some people who arrive on a tourist or business visa may at some point claim protection. Yet we have this visceral fear that people who arrive by boat are ruining our way of life… From a media view it makes a good story, the idea that you can associate ‘illegal’ with boat arrivals, when it is not illegal to come by boat without a visa. It is an easy narrative for politicians to use this to win votes. You only get on a boat and take that risk if you are so desperate to find safety that you have no other choice. We have people sitting in our waiting room, that are just like you and me. They drink tea, joke with their children, they have taken time off work to see their lawyer, they have documents to prove who they are, and they have been waiting for that moment to tell someone who cares why they are here. When one thinks about the arbitrariness of who is in Manus, in Nauru, and who is living in the community – it is fundamentally unjust. That is what really makes our job so difficult because we need to not be angry so we can put their stories forward and be their best advocate. But the injustice…It is a challenge to how we function every day as human rights advocates because this idea around boats is so arbitrary and unnecessary,” says Jackson-Vaughan.
According to the Department of Immigration and Border Protection, 17,555 visas were granted by the Australian Government in 2015-16, (15,552 offshore visas and 2,003 onshore visas).
Prime Minister Turnbull has pledged that the Humanitarian Program will increase to 18,750 visas by 2018-19. An extra 12,000 visas were issued in response to the Syrian and Iraqi Humanitarian Crisis. These visas are in addition to the 13,750 refugees taken in the annual Humanitarian Program. 22,417 humanitarian visas have been granted to displaced people from Syria and Iraq between 1 July 2015 to 3- June 2017, of these 21,673 have settled in Australia.
There are currently 22,143 refugees awaiting an outcome of their application while living in Australia on a Bridging Visa E. This includes 3,640 children.
There are still 1,262 people seeking asylum living in detention in Australia, 371 in Nauru and 803 in Manus Island, Papua New Guinea (42 are children living offshore and 608 onshore).
According to the Australian Border Death Database, there has been 36 deaths in onshore and offshore detention facilities since 2010, and the total cost (including operations) for Manus and Nauru detention centres to-date is AUD 4.89 billion.
In light of the claim by PM Turnbull that the refugees held in detention in Nauru and Manus have been heavily vetted and were economic migrants, and the recent statements by both ASIO’s Director-General Duncan Lewis and Australian Federal Police Commissioner that there is no link between refugees and terrorism in May 2017, for Vaughan, it is difficult to reconcile the reality of their clients’ situations, against populist discourse and political agenda.
According to Jackson-Vaughan, there are currently 150 unaccompanied minors, whom are extremely vulnerable. Upon arrival, the children were placed into community detention with a Social Worker – either from the Red Cross, Settlement Services International – who lives in a house with the children aged between 12 to 18 years old. Many of these children are RACS clients, and in April 2015, RACS won a Government tender called Primary Application Information Service (PAIS) which provided funding to provide legal support to these kids. RACS also provides legal services to children currently living in detention centres.
The Australian Human Rights Commission (AHRC) says Australia is unique in its treatment of asylum seeker children. No other country mandates the closed and indefinite detention of children when they arrive in Australia.
Unlike all other common law countries, Australia has no constitutional or legislative Bill of Rights to enable the courts to protect children. The Convention on the Rights of the Child is not part of Australian law, although Australia is a party. The Convention is, however, part of the mandate of the Australian Human Rights Commission to hold the Government to account for compliance with human rights. To this end, former AHRC President, Professor Gillian Triggs released AHRC’s Report, The Forgotten Children: National Inquiry into Children in Immigration Detention in 2014. The findings of the report were damning, which stated that, “The overarching finding of the Inquiry is that the prolonged, mandatory detention of asylum seeker children causes them significant mental and physical illness and developmental delays, in breach of Australia’s international obligations”.
Jackson-Vaughan says that for unaccompanied children, their lawyer is really the one person they can trust one hundred percent because the Status Resolution Support Services reports on behaviour to the Department of Immigration; if they see the teenager doing something that goes against any rule. The child’s lawyer is the only person they can feel safe talking to. In some instances, Jackson-Vaughan says the kids may not have told their own parents the horrors of what happened to them so lawyers are an essential part of their lives because they know what they say will be kept confidential.
“We have kids in detention who are so ashamed of their life. It is completely inhumane. It just goes to show, that when we dehumanise people with language, that even a civilized country like Australia can allow this to happen. If we reflect on the past, people in the 1940s had to wear stars on their arms, and that mentality ended in imprisonment and death. When Government’s use words like ‘illegal’ when referring to human beings, it is wrong and inaccurate. The derision and name-calling that has been going on since 2001 has allowed people like you and I, to be treated in the most disgusting and inhumane way. When you listen to the men of Manus being interviewed, it’s devastating. They are young men who needed to flee for safety and they are now destroyed by what our Government has done to them…I would like to think that there would come a time that we would feel a collective shame. I grew up during the apartheid, and there were so many countries that were accepting of it because they wanted to play rugby against South Africa or wanted to trade…Nelson Mandela was called a terrorist, and now he is a hero – as he is. It’s people like him that gives me hope that we can get to a point and understand this is so wrong. I studied history… the same mistakes keep happening. The rhetoric around citizenship, on Lebanese migrants etc, it is very frightening and doesn’t bode well for a multi-cultural rich country to survive,” says Jackson-Vaughan.
Since the Tampa Affair, Jackson-Vaughan believes the politics of fear of the ‘other’ in Australia has proven to be effective in galvanising political support. This is interesting given the results from the 2016 Census, published by the Australian Bureau of Statistics which showed nearly half (49%) of all Australians were either born overseas (first generation) or have at least one parent born overseas (second generation). The remaining 51% were at least third generation – born in Australia to Australian-born parents.
“In a country where voting is compulsory, elections are decided in marginal electorates. It’s a lot easier to persuade people to vote out of fear, than to persuade them to vote for something – which requires conviction. Fear is primordial and instant. It requires no logic,” says Jackson-Vaughan.
With the challenge in overcoming this fear, given that 1 in 2 Australians are now a first-generation migrant, we asked Jackson-Vaughan what kind of counter-narratives would encourage voters – the fifty percent undecided – to feel more at ease?
“Rather than being antagonistic towards the people who are scared, we are trying to understand where the fear comes from and encourage people to recognise everyone as human beings. We need to talk about what we have in common and not use the word ‘Australia’ in this context – as it whips up emotive responses. Having a values-based conversation rather than an exchange of ideas, helps,” says Jackson-Vaughan.
Since RACS was established 25 years ago, it had received bi-partisan support, receiving 100 percent of Government funding. On the 21 August 2013, RACS lost this support; the coalition pledged to remove funding for ‘illegals’ if it won the election. It made good on that promise.
“When RACS lost funding, I will never forget where I was when I heard the news. It was an existential crisis for our organisation. I had to go in and say to the staff, don’t worry we can fundraise, but, it was a massive psychological U-turn for the staff. The management committee were academics and people who cared, not seasoned fundraisers. We had to become more vocal about what we do. We managed to secure funding from the community and won the PAIS tender worth AUD 3.6 million, which is 50 percent of our funding. However, next year will be 75% fundraising and the following year 100% funding from fundraising,” says Jackson-Vaughan.
Remarkably, despite some heavily stacked odds, Jackson-Vaughan has managed to grow RACS from 9 employees to 30, despite funding cuts. However, for Jackson-Vaughan, funding challenges aside, the greatest pressure on both the RACS team and its clients, is the continual changes in policies relating to client applications – particularly for the Legacy Case Load applicants.
The legacy case load relates to people who arrived between 13 August 2012 and 1 January 2014. This group came by boat during a period that saw a significant upswing of arrivals. The Opposition accused the Labor Government for having moderate policies, but Jackson-Vaughan argues that there was a lot of civil unrest, war and persecution going on during this period – of which 24,000 people arrived during this time. Julia Gillard announced that if people arrived by boat seeking asylum, they could not seek protection and were left in a legal limbo – unable to apply for protection visa, unable to work, unable to study. People were just stagnating.
Once Kevin Rudd took the mantle, he declared anyone who arrived after 19 July 2013, was destined for Manus and Nauru, and will never settle in Australia.
When the Coalition Government came to power, on 1 September 2013 they removed funding for legal services to people seeking asylum, as promised in part of their pre-election pledge and introduced temporary protection visas because it did not want to offer people coming by boat, residency. Eventually, they fast tracked legislation and in December 2014 the ‘Legacy Caseload’ group was sent letters granting them permission to apply for one of two types of temporary protection visas: a three-year Temporary Protection Visa or a five-year Safe Haven Enterprise Visa.
In addition, the coalition changed the refugee definition to be an Australian definition, not an international definition aligned with the refugee convention. In April 2015, people seeking asylum were finally able to apply for protection.
“The Government started sending letters out for people who arrived in August 2012, of which the last letter wasn’t received until October 2016. It took 18 months to send everyone a letter that granted them permission to apply for protection. The reason this is important to know is because the messaging from Peter Dutton is these people have been here for five years and done nothing, that they aren’t genuine refugees, but rather, economic migrants. The reality is these people were not allowed to do anything for three years,” says Jackson-Vaughan.
Once clients could apply for protection, the forms, in English, were 40 pages long, and took 9 hours for a fully qualified lawyer to help a client complete the application.
“We had been in regular communication with the Department for the past 2.5 years, established volunteer clinics with pro bono lawyers from top tier firms, we have community lawyers queuing up to help people with statements, form filling and migration advice, but we cannot afford the AUD100 per hour to pay an interpreter. Our requests for the Department of Immigration to provide access to their Translating and Interpreting Service, TIS were declined. We have a waiting list that is 12 months long. Thousands of people waiting for help, but we don’t speak Farsi, or Arabic so we can’t complete the application forms. We had sent them the names of the people on the waiting list so they would not get hassled by the department for not loading their application in time. In January 2017, they started sending letters to people who hadn’t applied, threatening them that if they don’t apply within 60 days, all services will be cut. We protested this, and kept requesting interpreting support,” says Jackson-Vaughan.
The problem intensified when Minister for Immigration and Border Protection Peter Dutton, announced his lodge or leave mandate on 21 May 2017.
“It has been a massive panic. The people who haven’t yet applied are the most vulnerable. We have families with young kids and little literacy in English. Just last month, we were given interpreting support – three minutes to midnight. In NSW, we are the only legal centre that does this work. In Victoria there are two legal centres. Our team works 7 days a week and most nights…” says Jackson-Vaughan.
The Department of Immigration has advised that if a person does not lodge by the 31 October 2017 deadline they will be deported back to their country of origin.
“We witnessed families being split apart, because of these changes, for no other reasons than politics. It makes no sense…we argue that when people arrived, they arrived on Christmas island and everyone was interviewed by an Officer, therefore their situation gives consideration to protection claims. We wished people understood that it is a complicated process. People don’t get on boats for a richer life. They do because there is no other option. I would like people to know that by the grace of God, today it is not you or me. This could happen to anyone, and we could end up in the same situation in a matter of hours, have to pack a small bag and run away. The people we help have families overseas. It is extraordinarily sad, that the law changed, while they were in transit, not knowing that they would never see their family again,” says Jackson-Vaughan.
One way that Jackson-Vaughan says will help to bridge the gap in understanding, and compassion between the community and people seeking asylum, is to seek out community support services group gatherings – simply get to know a refugee and chat with them about their experiences.
“The Cumberland Council runs a great initiative called Refugee Camp in My Neighborhood. This is where tour guides with a refugee background take you on a journey of the refugee experience, from living in a refugee camp to being on a boat. Listen to people share their stories,” says Jackson-Vaughan.
Despite seemingly perpetual opposition, combating mis-information, jumping shifting road-blocks and human tragedy, we wondered how Jackson-Vaughan and her team manages to stay chippy.
“I’ll be honest. It’s been a very hard six years. You feel like you can never work hard enough. I have stopped listening to Q&A. I’m very careful about what I read. I don’t bring work home. I used to talk about how awful things were, but you can’t live in a constant state of anger. I focus on the little wins. I go to work, see a family waiting to tell someone who wants to hear their journey, and they have such hope in their eyes…that moment is enough to keep us trudging on,” says Jackson-Vaughan.