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Victoria: Federal Court hears appeal against ruling granting refugee status to East Timorese asylum seeker.



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MONICA ATTARD:  In Melbourne today, the Federal Court is hearing an appeal by the Commonwealth against a ruling last October granting refugee status to an East Timorese asylum seeker. The decision opened the way for some 1,800 other East Timorese asylum seekers to obtain refugee status. As Damien Carrick reports, the federal government maintains that asylum seekers have a right to citizenship, but in Portugal, and therefore they don't qualify as refugees.

 

DAMIEN CARRICK:  According to the East Timorese community, most of the 1,800 asylum seekers have been in Australia for many years, but because of the legal limbo in which they find themselves, many don't have access to government benefits, the right to work, or the right to HECS-funded university places. According to East Timorese community worker, Etovina Grogan (?), the toll on those affected is enormous.

 

ETOVINA GROGAN:  For 10 years, you don't know where you're going to be tomorrow. Each day you worry about what's going to happen to you tomorrow. That would be a terrible situation because you simply cannot make plans, even for your children. You can't decide which language they should learn because you just don't know what's going to happen to them tomorrow. And that's basically the situation that all the asylum seekers are in.

 

DAMIEN CARRICK: Refugee lawyer, Carolyn Graydon, says the Australian government has simply got the law wrong.

 

CAROLYN GRAYDON:  The Australian government's view is that East Timorese hold dual nationality, that they're Indonesian nationals and they're also Portuguese nationals. To be granted refugee status in Australia, they have to demonstrate they have a well-founded fear of persecution in each of those countries. Now, whilst all of them have successfully shown that they can't return to East Timor or Indonesia, the question is: well, are they Portuguese nationals and can they be sent to Portugal? Last October, Justice Finkelstein said, no, they can't be, they don't have effective protection in Portugal and that there was no evidence to support the government's view that they did. The government has appealed that decision and that's what we're here at court today for: a full Federal Court appeal to determine that issue.

 

DAMIEN CARRICK: Presumably, the federal government has evidence to support its assertion that they can get asylum in Portugal.

 

CAROLYN GRAYDON:  Well, they've looked at Portuguese nationality law; they've obtained an opinion from a professor of law from Portugal; and they've sent a fact-finding mission team from the Department of Foreign Affairs and Trade to Lisbon to find out, from Portuguese officials there, what the situation is on the ground for East Timorese arriving. But none of that addresses the fundamental point, and that is that Portugal has made it imminently clear that they will not accept involuntary deportations from Australia and that Portuguese nationality is not automatically bestowed upon East Timorese by virtue of their birth in East Timor. There needs to be an application made for Portuguese nationality and, most crucially, that application must be voluntary.

 

DAMIEN CARRICK: Why should we provide asylum to people who can go to another Western democratic, affluent country?

 

CAROLYN GRAYDON:  Well, the East Timorese of course have no desire to go to Portugal for good reason. I mean, they are people with an internationally-recognised right to self-determination. To be forcibly assimilated into Portugal is not consistent with that right to self-determination, and that's the basis for Portugal refusing to say: 'We'll take them' - because Portugal's constitution recognises the right to self-determination and they're not going to accept … the Portuguese citizenship laws were intended to have beneficial application, not to force East Timorese into a situation where, you know, once again, their rights in international law aren't being respected and their right to self-determination is being flouted.

 

MONICA ATTARD:  Refugee lawyer, Carolyn Graydon, and she was speaking there to our reporter, Damien Carrick, at the Federal Court in Melbourne.