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Legal and Constitutional Affairs Legislation Committee

CLEMENT, Mr Noel, Head, Australian Services, Australian Red Cross

DE VRIES, Ms Elisabeth, National Manager, Migration Support Programs, Australian Red Cross


CHAIR: I now call the Australian Red Cross, who have made a written submission which we have labelled as submission 164. I welcome Mr Noel Clement, the Head of Australian Services of the Australian Red Cross and Ms Elisabeth de Vries, the National Manager of Migration Support Programs.

These are proceedings of the parliament. Evidence you give is protected by parliamentary privilege. If there is anything you want to say in confidence please let us know about that and we will discuss that then. Otherwise, thank you very much for your appearance and for your submission. If you want to add to or amend your written submission now is the time to do that.

Alternatively, and as well, you could give us a short opening statement and then the committee will ask you some questions.

Mr Clement : Thank you. We welcome the opportunity to speak to you today. As you would probably know, the Australian Red Cross is part of the International Red Cross-Red Crescent movement. We are, as one of our roles, an auxiliary to the public authorities in the humanitarian field. We are also a significant provider of services, particularly to asylum seekers in the community. We monitor the conditions of immigration detention, both onshore and offshore, and we also provide tracing—restoring family links—services and other services for people impacted by migration.

We quite deliberately take a humanitarian focus to this work. Our work is about humanitarian need. We are driven by need, regardless of people's nationality, background, legal status, mode of arrival et cetera. So our concern is about an individual's humanitarian needs.

We are led by migration policy, both at the international level—the International Federation of Red Cross—and nationally the Australian Red Cross has specific policy in this area. Importantly, we are not involved directly in the visa determination process so our comments today are about the humanitarian impacts of the policy, not about the visa determination process or the policy itself. We neither encourage nor dissuade migration, so our focus is not to argue that everybody should be allowed to stay or that everybody should leave. It is about fair process and people's humanitarian needs being met while they go through that process.

We absolutely respect and acknowledge that it is government's role to set policy in these areas. We seek to provide some humanitarian feedback on the consequences of that policy.

This is something that we have been doing for a very long time. In Australia, we are celebrating our centenary this year, and we have been working with people impacted by migration throughout that time, particularly in the last 20 years, supporting asylum seekers in the community, often under department of immigration funded programs.

We currently have about 11,000 clients that we are supporting in the community who are awaiting visa status resolution. We also continue, as I said, to monitor the conditions of detention, and we continue to look at the needs of people separated from family. So the comments that we will make today and have made in our submission are based on our experience, working directly with people who are impacted and will be impacted by changes.

Firstly, I would say that we welcome the resolution of status. One of the key issues that we see at the moment and that we are working with clients around is uncertainty. The impacts of uncertainty on health and wellbeing, particularly mental health, are significant. The fact that people are not having their status resolved at the moment is an enormous issue for people. We have long raised concerns about the impacts of immigration detention on vulnerable people and have been part of solutions to try and move people into community care arrangements. Along with resolving the location of people's care, resolving issues of certainty have just as profound an impact on people's health and wellbeing.

The particular concerns that we raised in our submission and want to bring to your attention do stem from the impact of uncertainty, and, while resolving people's status will bring some certainty to people, it also introduces new uncertainty if people's resolution is of a temporary nature. We are basing this on previous experience of temporary protection visas, the impacts of which, we believe, need to be mitigated—particularly the impact on mental health, as I said, due to that uncertainty; the fear and trauma that comes from what is going to happen in the future; the integration issues that we are aware of from last time, as there is good evidence that people did struggle to integrate into the community if they did not feel they could get on with their lives; and particular issues around employment, both from employers being unwilling to engage with TPV holders and TPV holders themselves being unsure about the pathways and the sorts of supports that they needed to secure employment.

Of particular concern to us are proposals to not provide family reunion. As I said, we have been reuniting and reconnecting families separated through war and conflict for over 100 years. We are very aware of the impact of not having that contact with families. For people to be granted protection and then have no capacity to reunite with families puts them in the shocking position of often having to make the decision about whether to remain in Australia, safe, themselves, or whether to potentially return to an unsafe situation if they want to be able to reunite with family. We are concerned and aware that there are some families who are in Australia who may be eligible for temporary protection but there will be people in some offshore locations who will not be eligible with family connections, so there will be separation from that perspective. We are also concerned about the impact on unaccompanied minors who are very much in the development stages of their lives and rely on families who may be granted temporary protection but will not be able to reunite with their families.

CHAIR: Sorry—if they are unaccompanied, how do they reunite with their families?

Mr Clement : If they are granted temporary protection, they are not able to. They do not have access, under the proposals as they stand, to be able to seek to bring their families to Australia. They are also, as I understand it, unable to leave Australia to see their families while they are granted temporary protection.

CHAIR: Yes, but I mean: the splitting of the family is not by the government; the family has originally decided to send someone, a minor, unaccompanied.

Ms de Vries : Instead of themselves.

CHAIR: Instead of themselves, yes. Anyhow, sorry, I interrupted and I should not have.

Mr Clement : That is okay. I just have a couple more points.

If the impact of some of the policy decisions is that people may be held in detention for longer, we are particularly concerned that children who are born in Australia may then be in prolonged detention in an offshore situation. We have long argued for community based options for people while they are awaiting status resolution, and, with previous governments and the current government, we continue to work with people supporting them in the community. So we would not want to see an unintended consequence being prolonged detention.

For people who are granted temporary protection, if that is the direction that government takes, ensuring that there are appropriate support services in place will be critical. That includes housing. It includes settlement-type support. To not provide settlement-type support for people who are granted protection will raise all the issues I have already identified around integration, employment, mental health et cetera.

There are two final things. On concerns around procedural fairness, as I said, we do not get involved in the visa determination process itself, but we are aware of issues of why people may not put things on the table in the very first stage of the process. We strongly support the need for education, information and legal advice to be provided early in the process so that people are in the best position to be able to talk about the status of their claims. But we are very aware of the impact of trauma, the impact of deteriorating mental health. Particularly for people have been in the system—and often in detention—for two to three years, who have deteriorated mental health, to then be trying to put their claims on the table in a single process without that legal advice or education is of significant concern to us. We believe there will be a fair number of people who will not be in a position to appropriately represent their claims themselves at the outset.

Finally I just wanted to note that case management is something that has been critical to support people in the past. It is still, as I understand it, part of the system. It will be important when status resolution processes continue in whatever form, just to be able to give people clear advice and information about where they are at in the process. Thank you.

CHAIR: Ms de Vries, do you wish to add anything?

Ms de Vries : No. That is fine.

CHAIR: We very much appreciate the submission and verbal presentation from an organisation as highly regarded over a long period of time as the Red Cross, so thank you very much for that. I understand your comments that your role is not legal processes but the more humanitarian issues. I know your organisation deals with people. You rightly make the point about referring to legal advice. I am sure you are a conduit for many people, or at least give them advice that they should seek advice. I am sure you know those who do pro bono work. My question, though, is: do you ever refer people to their local member of parliament or a senator in the area, who may not be able to give legal advice but they can take a case to the minister for dealing with however the minister thinks fit? Is that something that is regularly done? It seems to me that we are all saying that it is awful that lawyers cannot be paid to help people, but very often members of parliament are there for that sort of thing as well.

Mr Clement : We tend not to get involved directly in the resolution of status of any individual. There have been occasions when particularly humanitarian considerations will mean that we will comment, so we will provide evidence for some of those processes about somebody's situation and our understanding of their situation. But, as you can understand, with 11,000 people we support in the community at the moment, we are fairly careful not to involve ourselves in selectively deciding which cases we will push forward. We quite clearly try to separate the status resolution process from our role in providing care to them while they are going through that process.

CHAIR: Without labouring this point, with unaccompanied minors who have a temporary protection visa, do you think perhaps the government should make greater efforts to return them to their families?

Senator HANSON-YOUNG: Can I just clarify? If they have been given temporary protection visas, it is because Australia has recognised that they are refugees, so we could not send them back.

CHAIR: I accept that, but then there is the question about not breaking up the family, and one way not to break up the family would be to send the child back.

Senator HANSON-YOUNG: But you cannot send somebody back who is a refugee. They are a refugee because they are going to be killed or tortured.

CHAIR: The minor is?

Senator HANSON-YOUNG: Yes.

CHAIR: But not the parents?

Senator HANSON-YOUNG: Well, who knows?

CHAIR: Excuse us; we are taking your time, Mr Clement and Ms de Vries. But perhaps it is not something you want to make a comment on.

Ms de Vries : Often a minor is sent out from a family because they are in danger themselves, so it is about protecting the life of a member of a family who might pool their resources to make sure that that minor has enough money to get themselves to Australia.

CHAIR: That is one of the problems the government is trying to address. They send out unaccompanied minors in very dangerous circumstances without any support so that they get here, then become subject to Australian law and then can bring the rest of the family out. Whereas there is another way of doing it, and that is for the family to apply for migration, or apply for refugee status, through the normal channels.

Mr Clement : If those channels are available to people. As we know, there is not really such thing as an orderly queue in this process, and in a number of countries there is no safe process for people to be able to seek that protection.

CHAIR: But people in Australia can nominate relatives and avoid the $20,000 going to people smugglers. Anyhow—

Mr Clement : If they have the resources and if they have somebody here who is able to do that, yes.

CHAIR: Most people must have had the resources to get here—I am talking about illegal maritime arrivals, of course.

Mr Clement : Often for an individual family member, often the family is indebted or has sold everything that they have. Often people will arrive and their family is then owing a debt somewhere, in our experience—they are the anecdotal stories that we hear.

CHAIR: I appreciate and accept that.

Senator REYNOLDS: Thank you very much for your evidence and also thank you for the work that your organisation does—I am a huge fan, and you do an amazing job. This is a particularly challenging area to work in, I know, and there are many different aspects about what the humanitarian approach to this policy issue is. People on both sides of solutions are very passionate about that and do not always see eye to eye.

I just wanted to pick up this issue of children first. I understand that there is no international obligation in relation to family reunions. While I accept that there will be some circumstances that you have described, I also understand that a very common thing for people smugglers to offer is that they will advise people to send the child and not themselves, because it is a draw. If you send the child then you have a much better chance of having a family reunion. For me, it is a terrible outcome because it is encouraging people to send children on an inherently dangerous—to experience not only the boat trip but all the transit countries and possible death at sea, but also the experiences that you are talking about here. How do you see that as a policy in terms of the outcomes of having children coming here? It is obviously not a very desirable thing. What are some of the consequences of that that you see?

Ms de Vries : Rather than comment on the politics of it, I would rather comment on the humanitarian impacts of it.

Senator REYNOLDS: That is all I am asking you to do—the implications and the impacts that you see.

Ms de Vries : To me, the two most vulnerable groups, if you like, are the children, the minors that have come on their own, and also the men who have come here who have wives and children back home. To me, this proposed legislation actually creates a level of cruelty that I think is quite distressing in terms of offering people a temporary visa but with no sense of being able to have family connection. If I could, I would like to give a quote of a voice from an asylum seeker, from some research we did last year. This man from Afghanistan said: 'I wish that my boat had drowned, that I wasn't living anymore, that I wasn't going through all this pain and struggle. And you know I have my youngest child is born, so whenever I call home I call late into the night so that she is asleep. If she is awake she keeps asking me, you know, "Daddy, why are you not coming? Why are you not coming back to Afghanistan? Why are you not bringing us to you? When are you going to come back?" So they cry on the end of the phone and I cry on my end of the phone.' I use that as an example of so many stories that we hear from our caseload of 11,000 asylum seekers, many of whom are children, are men separated from families. I personally do not see how you can live separated from your family, even if you have some short-term certainty of a three-year visa. So I think this is a big issue.

CHAIR: But there is a solution to that.

Senator REYNOLDS: And the child just said that: 'Dad, why aren't you coming home?' And if the family is living there and the child—I agree, that is heart-wrenching—but the answer may lie in that if this person has invested so much time and money and effort to get here, he wants to stay here, but the child has just implored him to come home.

Ms de Vries : But we are giving him an impossible choice—

Senator HANSON-YOUNG: You are missing the point that these are people who have been found to be refugees.

Senator REYNOLDS: If you'd like to give testimony, Senator Hanson-Young—

CHAIR: It is not your turn yet, Senator Hanson-Young. You can ask questions later.

Senator HANSON-YOUNG: May I ask for clarification on the question? I would like clarification of the question. Is the question in relation to people who have been given visas?

CHAIR: Senator Hanson-Young, I will come to you shortly.

Senator REYNOLDS: In light of that, we have 30,000 people—I think that is the latest advice from the department—whose cases, under current processes, it will take up to seven years to clear. Even if it is slightly quicker it may take five or six years. From your testimony, surely the cruellest outcome of all is to keep them in limbo. So aren't efforts of fast-tracking to give people certainty—either for staying or leaving—the most humane possible solution?

Mr Clement : We would absolutely argue for a process that is timely that gives people resolution of their status but also a process that is fair—that means that people have had the opportunity to put their claims fairly, and that has appropriate safeguards in place so Australia is not refouling people. It is absolutely a difficult thing to balance. We accept that. We also accept that family reunion is not going to be an option for everybody. So we are not arguing that everybody who arrives here will be able to access family reunion. We know that there are a lot of humanitarian entrants that already struggle to reunite with family. So it is not something that we are arguing Australia can do for everybody. But it is a hope. Often people have some hope that there is some future to be able to reunite with their families. The policy as it is proposed at the moment takes any sense of hope away from people.

Often people will hold onto some hope, 'Maybe I will be the one who is able to reunite with my family.' It may mean that it is a long-term thing but it is often something that people will be able to hold onto.

Senator REYNOLDS: If the answer after seven years was going to be no, surely it is better for them to get the answer now that it is going to be no, so that we can find a resolution and not keep them in limbo for seven years.

Mr Clement : If people are not owed protection, we have never argued that people should continue to fight. In fact, we work with people all the time in understanding what different outcomes might mean for them. So we do help people prepare for different outcomes but there are often, in our experience, other humanitarian reasons that people may continue to argue that they need to remain in Australia, even if they are not convention grounds.

CHAIR: Senator Hanson-Young, bear in mind that we have to go at 11, and we have another group here.

Senator HANSON-YOUNG: Very quickly, can I clarify your position and the testimony you have given today in relation to family reunion. No family reunion is being offered under the visa.

Mr Clement : Yes.

Senator HANSON-YOUNG: That is right. So this whole argument about the fast-tracking process is irrelevant. You are arguing that if a person is found to be a refugee the ban on family reunion for that person who has a refugee visa is a problem.

Mr Clement : We are arguing that they should have the same access that other humanitarian entrants have.

Senator HANSON-YOUNG: Absolutely. For the record, I would just like to clarify Senator Reynold's comments that Australia does not have obligations of family reunion. That is plainly false. We do. We have obligations under article 23 of the ICCPR that go directly to family unity. I am happy to move on.

CHAIR: Mr Clement and Ms de Vries, thank you very much for your written submission that we can look at more closely than we have time to talk to you, unfortunately, with these constraints. Thanks very much, and keep up the good work.