Introduction

The Uniting Church in Australia, through its justice and advocacy unit UnitingJustice Australia, welcomes the opportunity to comment on Australia's Humanitarian Program.

The Uniting Church in Australia seeks to bear witness to God's call for the continuing renewal and reconciliation of all creation through its worship, service and advocacy. In the Christian tradition of providing hospitality to strangers and expressing in word and deed God's compassion and love for all who are uprooted and dispossessed, the Uniting Church in Australia has been providing services to asylum seekers and refugees in the community and in detention for many years.

In 2002, the Uniting Church released its Policy Paper on Asylum Seekers, Refugees and Humanitarian Entrants[1] which outlines key principles that we believe should underpin Australia's policies, legislation and practices. These principles reflect the Church's belief in the inherent dignity of all people and our commitment to work for justice.

The Uniting Church advocates for a just response to the needs of refugees and asylum seekers that recognises Australia's responsibilities as a wealthy global citizen, upholds the human rights and safety of all people, and is based on just and humane treatment, including non-discriminatory practices and accountable, transparent processes.

In its Statement to the Nation at its inauguration in 1977, the Uniting Church pledged to hope and work for a nation whose goals are not guided by self interest alone, but by concern for persons everywhere – the family of the One God – the God made known in Jesus of Nazareth (John 10:38) the one who gave his life for others.

In this spirit,
UnitingJustice Australia offers its submission to the consultation on the
Humanitarian Program for 2011-12.

Pubic and media debate on refugee and asylum issues

DIAC Discussion Paper:
How can we promote an informed debate in Australia on refugee and humanitarian
issues?

We believe that, as a matter of urgency, the Government must
work to depoliticise the issue of asylum seekers arriving by boat by
communicating (in as many ways as possible and as often as possible) to the
Australian public that it is not illegal to arrive in Australia by boat and
claim asylum and by continuing to outline the global situation of asylum
seekers and the very small numbers who come to Australia compared with other
countries. It is not enough, however, merely to change the message. We would
encourage the Government to find ways of working with NGOs (Refugee Council of
Australia, for example), faith-based organisations and possibly even high
profile and well-respected people of influence, to counter the misinformation
and misunderstandings which have gained such currency in public debate on this
issue.

A change in message, however, must be accompanied by changes
in policies which reflect a commitment to that message. The Uniting Church was
encouraged by several changes to Australia's policies towards asylum seekers
and refugees after the Labor Party came into government in 2007, however fear
that in recent months, particularly before and during the 2010 federal election,
both major political parties succumbed to trying to score political points at
the expense of vulnerable asylum seekers. The Uniting Church in Australia
believes that the hardening of the public heart towards the plight of asylum
seekers who arrive by boat is an unhealthy development in a decent, open,
stable and democratic society. We are, however, encouraged by the inclusion of
this question and urge the Government to demonstrate a courageous leadership on
this issue both in terms of message and policy change.

Resettling refugees from Indonesia

As part of the change in message and action, we believe it
is also important for the Government to publicly acknowledge that asylum
seekers coming by boat from Indonesia
are not leaving a safe or comfortable life behind. Asylum seekers and refugees
residing in Indonesia and other countries in our region live lives of
destitution, with little prospect of resettlement in Australia or elsewhere for
years, and sometimes decades.

It has been noted that 'recognised refugees find themselves
in a state of limbo in Indonesia until changed circumstances in their country
of origin make voluntary repatriation a possibility or a resettlement place is
found in a third country'[2].
If more resettlement places are not made available for these refugees, they
will continue to engage people smugglers to attempt to cross to Australia.

At the end of 2009, there were 2567 individuals registered
with UNHCR Indonesia – 1769 asylum seekers and 798 recognised refugees or
'people in refugee-like situations'.[3]

It has been reported that Australia's commitment to resettle
500 refugees from Indonesia in 2010 will not be met this year, that fewer than
100 refugees have come to Australia and around 50 more have been cleared to
leave.[4] In
addition to publicly acknowledging the situation of asylum seekers in Indonesia
and the dearth of permanent protection options in our region, a focus on
Australia's responsibility (in terms of a commitment to resettle significant
numbers of refugees) in this area is appropriate.

De-linking the
offshore and onshore intakes

Australia is the only country in the world that has a policy
of reducing its offshore refugee intake for every one person who is accepted as
a refugee after making a claim onshore. This link has contributed significantly
to the perceptions that asylum seekers arriving by boat are "queue jumpers"
taking the place of more deserving and legitimate refugees residing in refugee
camps overseas, that there are no acceptable circumstances in which someone
should be allowed to make a protection claim onshore and that when this does
happen it represents a failure of government to 'secure our borders'.

The Uniting Church has been advocating for many years that
one of the most important contributions the Government can make to rectifying
this perception would be to break the link between the onshore protection
program and the offshore resettlement program.

The onshore and offshore programs are designed to serve very
different purposes. As a signatory to the Refugee Convention, Australia has a
responsibility to process the claims of asylum seekers seeking protection in
our jurisdiction. The offshore resettlement program is a voluntary contribution
Australia makes to the international effort to resettle refugees for whom no
other durable solution is available. The
current numerical link between these two intakes also has the potential to
exacerbate divisions and hostility between refugee communities in Australia
(those who have arrived predominately by boat to make protection claims onshore
and those who have arrived predominately through the resettlement program and
are attempting to bring family members from their home country).

Removing this link has the potential to better inform the
Australian public about our responsibilities under the Refugee Convention and
how the international system of refugee protection works, including the
foundational principle of the right to seek asylum. It would also allow DIAC
and settlement service providers more surety in their planning around the offshore
Refugee and Humanitarian Program.

We acknowledge that de-linking the offshore and onshore
programs will be extremely difficult until the issue of asylum seekers arriving
by boat is depoliticised in the public debate but we are committed to contribute
all we can to enabling the shift in public perception that we know would be
required by any government in order to make this change.

Increasing the size of Australia's refugee intake

The Uniting Church
has for many years been calling for an increase in the overall size of the
Refugee and Humanitarian Program.

We believe that a progressive increase to 20 000 places is appropriate, on the
basis of Australia's relative wealth (particularly in relation to other nations
in our region), the improving ability of the UNHCR to identify those in need of
resettlement and a recent decrease in the size of the humanitarian intake as a
percentage of Australia's overall immigration numbers (since a high of 10.5% in
2004-05).[5]
We acknowledge that were the onshore and offshore programs to be de-linked, a
progressive increase to 20 000 offshore
places may take longer to achieve but believe it is still a reasonable target
for Australia.

In 2008 the UNHCR projected that by 2009 there would
be approximately 560 000 people in need of refugee resettlement
internationally. UNHCR has also voiced concerns that "the number of refugees in
need of resettlement is growing without a corresponding increase in the number
of places being made available by States."[6]

Australia has provided a reasonable number of places
for refugees to be resettled from overseas compared to other countries, but it
has a lot less asylum seekers arriving at its borders compared to many
other OECD countries. In 2008 of a total of 88 800 refugees who were resettled
by 'off-shore' programs by 16 countries Australia took 11 000. The US took

60 200, Canada 10 800 and Sweden 2 200. The global
total of places offered was the highest since 2001, when 92 100 places were
offered.

By comparison, Australia only receives small numbers
of asylum seekers who arrive on its shores by boat or plane. In 2009, it
received 6 170 such asylum seekers, while Canada received 33 250, France 41
980, Germany 27 650, Sweden 24 190, the UK 29 840 and the US 49 020. Thus, it
is reasonable that Australia
should offer more places to refugees off-shore.

A report
commissioned by AMP from the National Centre for Social and Economic Modelling
(NASTSEM) in November 2010 noted that Australia's humanitarian migration
program, through which we accept refugees, makes up only around 7% of our total
migrant intake. They noted that among OECD countries, Australia is on par with
the low level of refugees accepted by the USA and Italy, measured on a per
capita basis. Countries such as Sweden, Germany, the UK and Canada accept much
large numbers of refugees per head of population.[7]

Such a commitment
could serve as a significant gesture in the Australian Government's talks
around a regional protection framework, particularly if other nations in the
region are being requested to improve their commitments and standards of
refugee protection.

Regional protection framework

We believe that the
key goal of a regional framework should be its ability to improve the prospects
of a durable settlement option for displaced people in the region.

In August 2010, the Uniting Church
in Australia signed a
statement[8]
from a group of non-government organisations in the refugee advocacy sector
outlining the principles we would wish to see form the basis of a regional
refugee protection framework. This statement has been attached in full at the
end of this submission, and includes the following key principles:

·
There must be no removal of
asylum seekers from Australian territory for processing in a third country.
Australia has an obligation to process claims and provide protection to those
found to be refugees under the Refugee Convention.

·
Australia's refugee and
humanitarian programs and policies must comply with all international human
rights standards.

·
There must be no discrimination
or difference in treatment based on the country of origin or manner of arrival
in Australia.

·
Australia must not fund, or
in any way be party to, the detention of refugees in third countries.

·
Any program that Australia
is party to as part of a regional protection framework must adhere to all human
rights obligations and standards.

Mandatory detention for onshore boat arrivals

While we understand that the efforts to move families and
unaccompanied minors from detention may ease the pressures in detention
facilities, it remains an unacceptable violation of Australia's
human rights obligations for any person to be mandatorily detained when they
have not committed a crime.

It is the position of the Uniting Church that detention is
only necessary for initial health, security and identity checks, after which
time asylum seekers should be allowed to live in the community while their
protection claims are being processed. We agree with the Australian Human
Rights Commission's assessment that the need to detain a person should be
assessed on a case-by-case basis and a person should only be held in detention
if they are assessed as posing a risk that cannot be addressed in any other
way.[9]

The mandatory detention policy, coupled with the increased number
of boat arrivals in the past year, has led to deteriorating conditions for
detainees in immigration detention.

Christmas
Island

The Uniting Church has a long history of calling for an end
to the use of Christmas Island as an immigration detention facility and a
reversal of the excision of territory from Australia's migration zone.

In February 2010, the President of the Uniting Church in
Australia, Reverend Alistair Macrae, visited Christmas Island with the Anglican
Archbishop of Perth, the Most Reverend Roger Herft. They observed many
challenges for providing adequate services and care for the over 1700 people
who were detained on the Island at the time, including significant levels of
anxiety amongst people who were experiencing delays in the processing of their
cases and a lack of access to recreation and excursions and spiritual and
pastoral care services.[10]

Since their visit, numbers have increased and there have
been a number of reports which indicate that the situation on Christmas Island
has further deteriorated[11].

While we acknowledge that the departmental, SERCO and health
and other support services staff are doing their best under extremely difficult
conditions, the task of providing adequate care for asylum seekers residing in
such a small and remote location is extremely complex. Of particular concern is
the long time periods a significant number of asylum seekers have been held in
detention and the impact this continues to have on their mental health.

Darwin

A number of Uniting
Church members have voiced their
concerns with the living conditions in the Darwin detention facilities, particularly for
those children detained.

Their concerns are consistent with the issues raised by the
Australian Human Rights Commission in its recent report Immigration Detention
in Darwin: Summary of observations from visits
to immigration detention facilities in Darwin[12],
including the availability of physical and mental health care and the physical
conditions of the facilities which create a punitive and prison-like
atmosphere.

Complementary protection

The Uniting
Church understands that
legislation to introduce a system of complementary protection will be
reintroduced to the Australian Parliament in 2011. We strongly support this
legislation. We have been calling for the introduction of complementary
protection for many years, believing that the current system fails some people
who are in need of Australia's protection. In addition, the lengthy process
involved for people wishing to apply for asylum on complementary protection
grounds causes them significant emotional and financial hardship and creates an
unnecessary duplication of work for the Department.

However, we believe that there are a number of amendments
which should be made to the legislation as it was presented for inquiry by the
Senate Standing Committee on Legal and Constitutional Affairs in 2009, which we
believe will make the decision-making process clearer and simpler and ensure
that the legislation is able to best support decisions-makers to make
consistent decision which uphold our international human rights obligations.

These are, as noted in the submission from UnitingJustice
Australia to the Senate inquiry[13]:

·
Remove the requirement that the death penalty
"will be carried out".

·
Replace "irreparable harm" with "serious harm".

·
Examination of Subsection(2B), inserted through item 13 of
the legislation so that it does not unintentionally exclude people from
particular social groups that have not or are yet to be recognised as a social
group under the Refugee Convention, including women and girls at risk of female
genital mutilation.

The Special
Humanitarian Program

The Uniting
Church supports the Special
Humanitarian Program, providing as it does, resettlement opportunities for
people who, while in dire circumstances, cannot access the UNHCR processes. As
the DIAC website states,

The Special Humanitarian Program
(SHP) category for people who, while not being refugees, are subject to
substantial discrimination amounting to a gross violation of their human rights
in their home country.[14]

Family reunion remains one of the biggest issues for
refugees and humanitarian entrants who are in contact with Uniting Church
members and congregations. Given this, we agree that family reunion should continue
to be afforded a high priority in visa processing.

However, we are concerned that SHP places are very limited
for those who have no alternative visa pathway - those at risk of human rights
violations and who are not family and who do not have UNHCR recognition. The
number of places for people who have not been recognised onshore, who are not
split family or other family and who have not been recognised as refugees by
UNHCR would appear to be in significant decline.

One contributing factor to this decline is the linking of
the onshore and offshore humanitarian programs (as discussed above) which has
distorted the intended purpose of the SHP and severely limited the ability of
community organisations, church groups and other individuals to propose individuals
at risk.

Notwithstanding this issue, a possible remedy would be the
creation of a new Humanitarian Family Reunion visa category (focused on
immediate family as defined by the UNHCR[15])
and a refining of the SHP to focus on vulnerability (as suggested by the
Refugee Council of Australia and Amnesty International Australia in their
submissions on the 2010-11 Refugee and Humanitarian Program). This would
signify the priority of family reunion as separate from refugee need, giving it
its own criteria and distinct process within the Refugee and Humanitarian
Program.

Appendix 1

A Regional Refugee Protection Framework

A joint statement by Australian non-government organisations

2 August 2010

Australia's 2010 Federal election campaign has
heightened an already intense national debate about the role of Australia and
its neighbours in responding to the humanitarian and political challenges posed
by the large numbers of refugees, asylum seekers and displaced people within
the Asia-Pacific region. In considering the various options being proposed, it
is important to note that these are international challenges which cannot be
resolved by any country acting unilaterally. There is no singular or simple
"solution" available because there is no singular or simple problem. There is
no quick or permanent fix to the issue of people suffering human rights abuses.
However, of the responses required, the single most critical element must be
the development of an effective and sustainable regional protection framework for
refugees and asylum seekers.

Principles for Australia's overall approach

In considering the options available, Australia must
act in accordance with the following minimum standards:

There must be no removal of asylum seekers from Australian
territory for processing in a third country. Australia has an obligation
to process claims and provide protection to those found to be refugees
under the Refugee Convention.
Australia's refugee and humanitarian programs and policies must
comply with all international human rights standards.
There must be no discrimination or difference in treatment based on
the country of origin or manner of arrival in Australia.
Australia must not fund, or in any way be party to, the detention
of refugees in third countries.
Any program that Australia is party to as part of a regional
protection framework must adhere to all human rights obligations and
standards.

Elements of a Regional Protection Framework

In seeking to develop a regional protection framework,
we must develop a set of approaches flexible enough to respond to ever-changing
international conditions.

1. Constructive and collaborative approach

For a regional and international approach to succeed,
Australia must engage other governments as partners in the process and implementation,
giving attention to their interests and constraints. Australia cannot expect
international cooperation to implement schemes we have dictated that suit our
country but don't give proper consideration to our neighbours' goals and
circumstances. Negotiations to develop a framework must include all parties who
have an important role to play, including Asian countries affected by
significant flows of asylum seekers, current and potential countries of
resettlement, UNHCR and civil society organisations.

2. Processing asylum claims must meet international standards

UNHCR should have a central operational or supervisory
role in claims processing; regard will have to be paid to the international
standards the organisation is obliged to respect, its other global
responsibilities and the resources it requires. This is particularly the case
when considering that UNHCR cannot detain people and does not support
designated refugees being held in detention. The processing options could
include, but should not be restricted to, processing being conducted within a
specific centre or a series of centres.

3. Proper accommodation and service provision

We must examine how best to meet the needs of both
recognised refugees and asylum seekers for food, shelter, physical and mental
health care, pending resolution of their status. Our partners will require
assurances that the resources needed would be made available. Again, the
options that need to be explored should include, but not be restricted to,
people residing within a particular centre or centres. That is no different to
the long-standing situation in Australia, where many asylum seekers live in
private accommodation in the community and are not detained. Most critically,
Australia must not fund the overseas detention of asylum seekers. In addition,
the framework must be sensitive to the circumstances of countries where
processing takes place.

4. Timely resettlement programs

Renewed efforts will be needed to secure additional
and timely resettlement places for those found to be refugees so as to diminish
the need for people to risk their lives on dangerous journeys. Australia will
need the co-operation of other resettlement countries, to ensure that other
countries in the region are not left to provide long-term support to
substantial numbers of refugees. To secure that cooperation and to show how
serious we are about a regional framework, Australia should commit to
increasing our resettlement program to 20,000 places. These additional places
would increase global resettlement options, allowing greater resettlement
options from Asia without ignoring pressing needs elsewhere. Additionally,
there is a need for enhanced programs to expedite the safe return of people
who, after due process, have been determined not to require protection. NGOs
are well placed to assist in developing and implementing safe and appropriate
reintegration programs for people whose claims are unsuccessful and are
required to return home. The International Organization for Migration (IOM) is
also pivotal to any return

and re-integration process.

5. Involvement of non-government organisations

The principal consideration in obtaining the support
of non-government organisations (NGOs) is to ensure that they are genuinely
included in the design, development, implementation and monitoring of any such
initiative. Active engagement in service design and delivery will build
confidence and foster collaboration. It is possible to draw on NGO expertise to
assist with several key elements of operating a regional framework particularly
for service provision. These would include organisations that provide legal
services, health and welfare, and international aid. NGO involvement will be
critical for proper oversight of any ongoing program, ensuring the highest
possible standards are met.

Next steps

We recommend that, as soon as possible after the
August 21 election, the newly-elected Australian Government establish an expert
working group to lead the development of specific, detailed ideas which would
be the subject of consultation with governmental, intergovernmental and civil
society stakeholders domestically and internationally. The group should be
given clear timeframes for completing its work. It should undertake its
activities in an open, non-political manner, though a certain measure of
confidentiality will be essential particularly in communications with other
governments and intergovernmental bodies.

This statement has been endorsed by:

Act for Peace – National Council of Churches in
Australia

Amnesty International Australia

Asylum Seekers Centre of NSW

Asylum Seekers Resource Centre

Australian Council for International Development

Brotherhood of St Laurence

Caritas Australia

Coalition for Asylum Seekers, Refugees and Detainees

Edmund Rice Centre

Federation of Ethnic Community Councils of Australia

Foundation House – The Victorian Foundation for

Survivors of Torture

Hotham Mission Asylum Seeker Project

International Detention Coalition

Jesuit Refugee Service Australia

Oxfam Australia

Refugee Council of Australia

Refugee and Immigration Legal Centre

Refugee and Immigration Legal Service

Settlement Council of Australia

Uniting Church in Australia

World Vision Australia

[1] available:
http://www.unitingjustice.org.au/images/pdfs/issues/refugees/assembly-resolutions/refugeepolicy_july2002.pdf

[2] Taylor, S. and B. Rafferty-Brown (2010), 'Waiting for
Life to Begin: the Plight of Asylum Seekers Caught By Australians Indonesian
Solution', International Journal of
Refugee Law, Vol. 22, No. 4, p.561

[3] UNHCR (June 2010), 2009
Global Trends: Refugees, Asylum-Seekers, Returnees, Internally Displaced and
Stateless Persons, available: http://www.unhcr.org/4c11f0be9.html

[4] Tom Allard (16 Dec 2010), Sydney Morning Herald,
'Years of waiting and misery ended here', available: http://www.smh.com.au/national/years-of-waiting-and-misery-ended-here-20101215-18yao.html

[5] Humanitarian entrants accounted for 6.97 percent of
the total number of new permanent arrivals in 2009-10 Department of Immigration
and Citizenship, Immigration update 2009-2010,
available:
http://www.immi.gov.au/media/publications/statistics/immigration-update/update-2009-10.pdf

[6] UNHCR (Executive
Committee of the High Commissioners Programme) (2008), Progress Report on Resettlement, available:
http://www.unhcr.org/refworld/pdfid/4864e3872.pdf

[7] Miranti, R., Nepal, B., and
McNamara, J. (2010) Calling Australia
Home. The Characteristics and Contributions of Australian Migrants. AMP.
NATSEM Income and Wealth Report, Issue 27. November

[8] available:
http://www.unitingjustice.org.au/images/pdfs/issues/refugees/position-papers/100802_regionalprotectionframework_statement.pdf

[9]
Australian Human Rights Commission (2010), Immigration
Detention in Darwin: Summary of observations from visits to immigration
detention facilities in Darwin, available:
http://humanrights.gov.au/human_rights/immigration/idc2010_darwin.html

[10] The full report from the delegation's visit to Christmas Island can be found on the UnitingJustice
Australia website at http://www.unitingjustice.org.au/images/pdfs/issues/refugees/resources/christmasisland_reportfinal.pdf

[11] see, for instance, Amnesty International Australia's
recount, 'An uncertain future: inside Australia's
detention facilities' (10 November 2010), available:
http://www.amnesty.org.au/refugees/comments/24020#Christmas_Island

[12]
available :
http://humanrights.gov.au/human_rights/immigration/idc2010_darwin.html

[13] available:
http://www.unitingjustice.org.au/images/pdfs/issues/refugees/submissions/complementaryprotection_senlegalconstitutional_unitingjustice.pdf

[14] http://www.immi.gov.au/visas/humanitarian/offshore/

[15] The UNHCR's Resettlement Handbook states that "the
concept of dependant should be understood to be someone who depends for his or
her existence substantially and directly on any other person, in particular for
economic reasons, but also taking social or emotional dependency into
consideration." [Chapter 4 – 'UNHCR
Criteria for Determining Resettlement as the Appropriate Solution', p. 27,
available: http://www.unhcr.org/3d464db54.html]