The price of a disproportionate response

Marissa Ram

By Marissa Ram

Marissa is a Human Rights Center Fellow and Berkeley law student. She is interning with the New South Wales Council for Civil Liberties, helping to provide legal representation to refugees subject to Australia’s controversial “mandatory detention” policy.

The glass-enclosed visiting room in Silverwater Prison is awfully bleak. Four young men walk in wearing white jumpsuits clearly too big for them. I shake one’s hand and he gives me a shy smile. We’re the same age, but his hair has started to turn gray since being taken from Villawood Immigration Detention Center to Silverwater Prison’s maximum-security unit about three months ago.

Protesters with banner on roof

Asylum seekers erect banner on the roof of Villawood Immigration Detention Center, pleading for help. (Source: The Special Broadcasting Service (SBS).)

He’s anxious, thanking me repeatedly for visiting him. The sides of his fingers have self-inflicted cuts. He mentions to an advocate from Balmain for Refugees that he is worried about his mother, sisters and brothers back home. International calls from the prison are expensive; he could only afford to talk to his mother once for five minutes since coming here.

These young men were allegedly involved in the Villawood riots several months ago.  On the morning of April 20, 2011, two asylum seekers climbed on the roof of the main building. Distressed after the Australian Department of Immigration and Citizenship rejected their applications for permanent protection visas, they protested the lack of information and the length of the decision-making process. Eleven others joined them. During a six-day protest by up to 100 people, a fire damaged nine buildings. (One hunger strike/rooftop protest lasted 11 days).

More protestors on the roof

Asylum seekers continue to stage rooftop protest at Villawood. (Photo by Justin Lloyd, The Daily Telegraph)

A lack of context in mainstream media reports coupled with the political demonization of the protesters led to public outrage. Some had been in detention for two years or more. One had watched his mother, brother and sister receive asylum, while his own reviewer rejected his claim twice. Previous peaceful protests and hunger strikes had gone on for months at various detention centers, but these pleas for help were ignored. Living in a detention center indefinitely without certainty of the future intensified asylum seekers’ already-present trauma and hopelessness.

Few politicians were interested in addressing the underlying causes of violence in the detention centers — places referred to as “mental illness factories”. (See news reports here and here.)  Numerous Villawood detainees not involved in the violence explained that while they didn’t approve of the actions, they understood the protesters’ feelings of desperation that genuine claims were not being processed in a fair or timely manner.

Several weeks after the Department of Immigration and Citizenship transferred 22 asylum seekers to Silverwater’s maximum-security unit, the Australian Federal Police finally charged seven of the men with actions related to the riots. Charges ranged from “affray” to “damaging Commonwealth property” to “destroying or damaging public property by means of fire during a public disorder.”

'Are we not your neighbor' banner

The sign reads, "Are we not your neighbor. Don't mistreat the foreigner." (Photo by Nick Moir, The Sydney Morning Herald)

With such a negative public perception of asylum seekers, particularly those involved in the Villawood riots, it was easy for the Australian Senate and House to pass an ex post facto (retroactive) law on July 4, (which now just awaits “royal assent” from the queen’s representative). In order to receive a visa in Australia, applicants traditionally had to prove they were of “good character,” by meeting a character test. The bill strengthens the test, allowing the minister for immigration to refuse or cancel an Australian visa for anyone convicted of a criminal offense, including legally recognized refugees.

This “Migration Amendment (Strengthening the Character Test and other Provisions) Bill 2011” is quite significant. It applies law related to the strengthened character test to events that happened on April 26, 2011, over two months before its passage was even announced by Parliament.*

If convicted of causing affray or damaging property, these seven asylum seekers may be punished by a denial of permanent protection in a safe country, even if they can prove that their home country is too dangerous for return. The vast majority of submissions to the Government criticized the bill, including the United Nations High Commissioner for Refugees and the Commonwealth Ombudsmen. UNHCR insisted that, “The fact that a refugee may, out of impatience or frustration caused by his/her predicament in detention, [commit] a criminal offence, does not of itself go to the core issue of that person’s character and suitability for a permanent protection visa.”

Moreover, the Migration Act already enabled the Government to consider past and present criminal conduct for the character test. The Department of Immigration and Citizenship admitted that the current law was sufficient, but that the amendments were necessary to “demonstrate the Government’s capacity to respond to violence in immigration detention.”

The four young men with their polite manners and their too-big jumpsuits look strikingly out of place in this room filled with physically imposing, tattooed inmates. This is the only time they mix with the general prisoner population. According to Silverwater management, the detainees need to be separated from other prisoners. The other inmates share the general population’s hostile views towards asylum seekers and would likely attack them.

I hear four names in quick succession over the loudspeaker. Visiting time is over. One by one, each young man is sent back to his cell. If convicted, they will likely face a lifetime of uncertainty. Unlike the jail time other citizens would face, denying someone a permanent protection visa may have lifelong consequences. The harm these men allegedly caused seems trivial compared to the damage government policy causes to asylum seekers.

*The bill amends the Migration Act 1958 to: (1) enable the minister to refuse to grant, or to cancel, a visa where a person fails the character test because the person has been convicted of any offense committed while they are in immigration detention; and (2) increase the penalty for the manufacture, possession, use or distribution of weapons by immigration detainees from three to five years imprisonment. (Senate Committee Report, June 2011).

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2 Responses to The price of a disproportionate response

  1. Ali says:

    Marissa, this article has an obvious slant to it, but I was wondering what you thought of this part: “Australia is one of the most generous of developed nations in taking resettled refugees, and despite all of our current economic fears, can undoubtedly afford to take more. Moreover, history shows that humanitarian refugees over time become, in most cases, exemplary citizens and contributors to our prosperity.”

    He also says, “What a party of government must do, therefore, is put the right kinds of incentives and disincentives in place to convince desperate individuals not to make a bee-line for Australian shores.”
    “But not if the flow is uncontrolled.”

    I think we definitely see a similar sentiment in the U.S., where the notion of the “American dream” is infused into every cultural moment possible. But then it’s met with this overwhelming hostility- from both sides of the aisle- claiming political, social, and economic threats to American citizens. Moreover, does Australia automatically come across as more benevolent toward refugees because of this article’s juxtaposition with Malaysia?

    You are giving a voice to so many people who are made to feel ashamed for their personal tragedies, so thank you.

    • JB says:

      As Marissa points out in her series of blogs, the Australian government is already actively imposing the “disincentives” in order to “convince” asylum seekers not to come (as Mr. Burgess puts it).

      Their message is abundantly clear: men, women and children, if you try to come to Australia, we will do everything in our government’s power to abuse your basic human rights and civil rights. We will deport you to a country that historically has no issue torturing U.N.-recognized refugees (Malaysia refugee swap arrangement). We will first charge you with nominal criminal acts, then punish you later in accordance with penalties that were not even legally enacted at the time you committed those acts (Migration Amendment/ex post facto law). Or even better, we will put you in prison and keep you there amongst violent criminals, indefinitely, until we get around to actually charging you with something.

      And that barely even scratches the surface of the inhumane conditions people are subject to on a routine basis in detention centers.

      I doubt that any Australian lawmaker or Department of Immigration and Citizenship official could stomach even a day of what these detained refugees go through as a matter of course (for causing no real harm to anyone). If the people in the Australian government had any sense of reality or moral decency, their “disincentives” might actually achieve something other than displaying to the world their ignorance, racism, and intolerance.