Refugee Rights and COVID-19

Transcript

That's great. Welcome everybody. Welcome to the third event in the Justice Talks series for this year, tonight focusing on refugee justice. We have a full program of Justice Talks planned for spring, so look out for that as it's revealed.

My name is Paul Redmond and I'm representing the faculty this evening along with Erika Serrano, the LSS Brennan Program Director, and Crystal McLaughlin, our Program Administrator. But most importantly, our special guest and presenter this evening is Dr Anthea Vogl from the UTS Law Faculty, one of the faculty's brilliant young scholars. We're very fortunate to have such a cohort of brilliant young scholars coming through. I also acknowledge the presence of Professor Maxine Evers, the Associate Dean for Education.

If you can bear with me just for a moment to lay out some housekeeping. You'll know all about this from classes, but if you can bear to have it reminded. You've each got the ability to hide and show your camera as well as mute and unmute your microphones. As you will have found in classes, when you're not speaking, please put your microphone on mute. If you find that the event is freezing on your Zoom, please click stop video or hide camera to free up some bandwidth. When you're speaking, we'd love you to show your face to camera if you feel comfortable doing so, so that we can see your friendly face. We expect many Brennan members to come in tonight. You may want to turn your camera off and only turn it on when asking a question during the Q&A time.

Lastly, and a very important request, in order to get your five ROJ points, please list your full name in the chat box as it appears in the UTS system. The Brennan team, particularly Erika and Crystal, will award you points after the event. You can also use the chat box for any other questions during the event—either questions about refugee justice addressed by Anthea, or other Brennan Program related questions generally, and Erika and Crystal will respond while Anthea presents.

Now, after that housekeeping is settled, may I introduce Dr Anthea Vogl.

At UTS, Anthea teaches a wide range of subjects: administrative law, refugee law, migration law, human rights law, legal theory—including a very significant course on justice. She has taught law and literature, and that sub-discipline of law informs her research. In research, she's a very active and influential researcher, particularly in refugee and migration law, and she's also been instrumental in the Brennan Program in creating opportunities for students to contribute to refugee and asylum seeker support, particularly through the Refugee Advice and Casework Service (RACS).

Anthea, thank you very much, now that your marking has just finished, for taking time tonight to share your research.

The format is that after Anthea has spoken, we'll have a Q&A session, which Erika and I will share the moderation of. Since this event is part of RASA month—Refugee and Asylum Seeker Action Month—Erika may want to say some words about other activities in that program so you can be fully involved.

I think that's all I need to say by way of introduction, probably a bit more than even necessary. Anthea, may I invite you now to take the floor and we look forward to your presentation. Thank you again.

[Dr Anthea Vogl:]

Thanks so much, Paul. It's lovely to be here, everyone. Thanks for the generous introduction.

Having taught many of you this session, I think I'm most impressed that we have such excellent numbers showing up for another Zoom session on a Tuesday evening, so thank you all for coming. It's inspiring and exciting as one of your lecturers, but also as a researcher, to realise so many of our students and our student cohort here at UTS are so engaged and, as I've heard from the other Justice Talks that have taken place, have been so closely interested and willing to keep on with their extracurricular and justice activities through the Brennan Justice Talks. So it's very exciting.

What I am going to do is essentially—I was going to share my screen, but I might come to some of my screen images that illustrate some of the things I'm talking about. I might just talk to you face to face for a little while and then share some of the slides that I had prepared either at the end of the talk or we'll send them out to students.

I also wanted to thank Paul and Erika and Crystal for the invitation to speak. It's a real pleasure to contribute to the Brennan Justice Program on all occasions and tonight as well.

I also wanted to, before I begin, acknowledge that I'm speaking on the lands of the Gadigal people of the Eora Nation. I live and work on Gadigal land and I also wanted to acknowledge Elders past and present and, at this particular moment, as will be relevant to so many Brennan Justice students, express my ongoing solidarity with the struggle for Indigenous justice and, as many of you would have seen more recently in the news, the fight to end Indigenous deaths in custody and achieve justice for those who have died in police custody to date and their families.

I think as we think about some of the things I'll be talking about, we'll see the kind of crossovers in the ways in which race features in questions of justice in Australian law and politics.

So as you know, this evening I'm talking to you all about refugee law, but in particular, the effects and impacts of COVID-19 on refugees and people seeking asylum. Although the pandemic is the focus of my talk, I wanted to note from the beginning that some of the issues of justice and injustice that I'll be talking about have definitely predated the pandemic and so they're not entirely new or unique.

So from the outset I wanted to invite everyone to think about a theme that I think will run through some of the things that I'm talking to you about, which is the way in which COVID-19 has exacerbated and reinforced challenges and inequality and forms of exclusion by particular marginalised and racialised groups, rather than created only new problems—and that's especially true of those seeking asylum and refugee communities.

Of course, the pandemic has certainly had some aspects that are entirely new both in terms of law and justice, and there have been exceptional ways in which refugees and asylum seekers, I think, have forced us to critique the now commonly heard and sometimes sentimental refrain that "we're all in this together" in relation to the pandemic, because refugees and asylum seekers and non-citizens more generally have certainly been systemically left out of many of the pandemic and public health responses, as we'll talk about, in a manner that not only endangers their safety in a very grave way but also the safety of broader communities around them. We are part of those communities insofar as refugees and asylum seekers are here and either have gained protection or are seeking protection in Australia.

So, making sure we have time for questions, I wanted to highlight two areas where refugees and asylum seekers have been affected—they're by no means the only areas. First of all, COVID-19's impact on resettlement and refugee mobility more broadly, and I'm going to follow that by a closer discussion on the effects of the pandemic on those held in immigration detention and quite a local examination of the Australian Government's responses to this.

My talk will focus on Australia, but the dynamics that I'm going to raise and talk about are relevant globally and especially in other states in the global north whose policies are similar to Australia's, insofar as many so-called "refugee receiving states" have adopted policies that deter people seeking asylum or obstruct the rights to protection. In those states we've seen similar problems and issues to those that I'll talk about in Australia.

First, though, some general comments on refugee resettlement.

As many have observed now and as has been written, COVID-19 affects asylum seekers at a most fundamental level: it affects their ability to seek protection in another country. For those of you who have studied refugee law with me—and I see a couple of you who have—the global refugee system is of course built around people's ability to leave their country and seek asylum elsewhere.

So a person can't be recognised as a refugee unless they've crossed an international border, and you certainly can't seek asylum under the formal Refugee Convention from within your own country. Even though we have internally displaced people who are governed by the UNHCR, to meet the definition of a refugee the primary thing you have to have done is to have left your country of origin.

So, on the 1st of May this year, the UNHCR estimated that 167 countries had partially or fully closed their borders to contain the spread of COVID-19, and at least 57 of those countries were not making exceptions for people seeking asylum.

On the 17th of March 2020, the UNHCR and the International Organisation for Migration—two of the international organisations that have primary responsibility for processing refugee applications internationally—announced that they would temporarily suspend resettlement travel, so travel of refugees from their sites of seeking protection to countries willing to resettle them permanently or temporarily.

The UNHCR has said they're suspending such travel for as long as necessary in the context of the pandemic, and most recently they've announced that they will not be meeting their goal of resettling 70,000 refugees in 2020.

I hope that some of you are noticing that number—the UNHCR's own goal of 70,000 is incredibly low in the context of the number of people who have protection needs globally, but even that small number won't be resettled this year because of the pandemic.

Australia, as we well know, has effectively shut its borders to those who are not residents, citizens, or direct family members of Australian residents or citizens. So it has effectively shut down asylum pathways and, again to bring us back to that theme of the way in which the pandemic has exacerbated existing injustices, many of us should and do know that for asylum seekers arriving by boat, Australia's borders have already been long shut. We have a very comprehensive regime of deterrence and boat turnbacks which has effectively shut down pathways for maritime arrivals long before the pandemic.

So the inability of those people to seek asylum in Australia remains, but hasn't necessarily been changed or exacerbated by the pandemic.

That's different for those who arrive by plane, because essentially now the Australian Border Force liaison officers are working at overseas airports and, in conjunction with airlines, they are identifying anyone who shouldn't board a flight to Australia. At the moment, that's anyone who's not a resident or a citizen or related to a resident or a citizen.

So you can see how effectively this means that people who might have been seeking asylum coming into Australia on another visa—such as a visitor visa or a student visa—are effectively unable to do so during this period. That's often how people who might need to flee, say, persecution in Iran—a student who might be fleeing persecution—might come to Australia on a student visa and then activate or make use of their right under international and Australian law to seek asylum here.

Since the UNHCR has also ceased all resettlement travel, this also means that even those who have been recognised as refugees or might have been given permanent resettlement in Australia via UNHCR referrals or our offshore humanitarian program are no longer to be resettled this year and effectively won't be resettled until resettlement begins again.

Interestingly, in a talk that I attended last week on resettlement of refugees and COVID-19, organised by the excellent Kaldor Centre at UNSW, one of the speakers was an Assistant Secretary of the Department of Home Affairs, Sally Pfeiffer, who confirmed that Australia has only really met two-thirds of its resettlement quota to date, and the rest of our resettlement places for this financial year simply won't be filled.

For those of you who keep up with these things, Australia has about 18,700 resettlement places a year, and so even that small number again won't be realised this year because of the impacts of COVID-19.

So that's a very global picture and it gives you a sense of the ways in which refugee law at an international level is being affected by the pandemic and the ways in which states are responding, and then the effects of shutting down the borders—particularly the effects on refugees seeking protection.

I now want to move away from the global and to a much more national issue, and to talk about what I think is one of the gross and grave injustices in how the Australian Government has responded to the pandemic, and that is in relation to refugees and asylum seekers who are already in the country. So these are not people seeking asylum from beyond Australia's borders, but who are here.

I'm going to focus primarily on immigration detention in Australia. Of course, that's again not the only issue, and for those of you who've had a look at some of the readings and the texts that I shared with you before this talk, you will have seen that one of the big issues in Australia is the exclusion of asylum seekers—in particular, and temporary refugee visa holders—from any form of welfare put in place in response to the pandemic.

So people seeking asylum who are often on bridging visas have been excluded from the JobSeeker and JobKeeper programs, and people who have been given temporary protection visas in Australia—so they've been recognised as refugees—are also excluded from those programs.

We can maybe talk about this a little bit more in the question time, but that has created an incredible crisis of welfare and health and the ability to really subsist among those communities, and we can talk about some of the organisations who have stepped in—and I'm involved in some of those organisations—to try and fill the immediate social and welfare needs of those groups.

So, to come back though to detention, some of the work that I'm presenting is also as a result of my research in this area and also the advocacy that I undertake as a national convener of a group called Academics for Refugees. I'm one of the academic conveners of that group at a national level and I work with a couple of other conveners, and we've worked on some of this research together—namely, Professor Philomena Murray from Melbourne University, Caroline Fleay from the University of WA, Claire Loughnan also from the University of Melbourne, and Sara Dehm who is of course at UTS and a colleague of mine here—who are all doing very interesting and important work in this field.

So, when the pandemic hit, the urgent calls for the release of people seeking asylum and refugees and other non-citizens from immigration detention centres began just about immediately. As soon as the scope and scale of the harms of COVID-19 were clear, public health organisations quickly identified detention centres as sites of mandatory and often overcrowded social confinement as extremely high-risk places for both infection and onward transmission of COVID-19.

So in Australia, before the end of March 2020—so you'll remember that that was when restrictions were beginning to come into place—already over 1,100 healthcare professionals and epidemiologists had called for the government to release people from immigration detention. Their letter flatly stated, and I'm quoting now, that "failure to take action to release asylum seekers and refugees from detention will put them at greater risk of infection and possibly death".

Similar statements were made by organisations that are not usually refugee advocacy organisations, such as the Australasian Society for Infectious Diseases and the Australian College of Infection and Prevention Control, and also 1,100 international academics in an open letter organised by myself and the colleagues that I just mentioned as part of Academics for Refugees, gave expert advice to the government as to why refugees in detention centres, where possible, needed to be released into the community.

What is so significant here—and I think something that we will talk about and can talk about in the discussion—is that despite the Australian Government's willingness to follow, and rightly follow, the advice of public health experts in relation to the broader community, it absolutely has refused to heed the advice of experts in relation to the health concerns for refugees and asylum seekers and non-citizens.

The Australian Government has refused to follow what the World Health Organisation and many other human rights bodies have strongly urged states to do, which is—it's really simple—to immediately implement non-custodial measures and release people within high-risk closed environments where that is possible.

That call for release is even more pressing when detention is administrative. So again, my administrative law students and refugee law students, this should be sounding familiar. The point of detention is not because of the commission of a crime or because there's a threat to community safety if the person was released or security, but the detention itself is administrative. In those circumstances, the urgency of releasing people from detention is not only heightened but there is a much stronger impetus to let people leave closed detention centres.

Why is this so urgent? Some of this should be obvious, but currently there are about 1,400 people in immigration detention in Australia. This includes what we call alternative places of detention, including commercial hotels located in or on the outskirts of Australian cities.

We can talk about why refugees are in those hotels, but there are a number of refugees being held in crowded hotel rooms, not just detention centres. The serious and obvious risks are of course due to overcrowding, and reports received from refugees inside these immigration sites have repeatedly indicated that the staff at these sites have adopted limited or no protective measures, and that those who are detained don't have adequate access to things like hand sanitiser and handwashing facilities.

We've seen the problems that can arise in relation to the behaviour of guards and personnel in relation to the other quarantine hotels, and those risks of course carry over into sites of detention.

One of the big and ongoing issues here for detention centres is the lack of transparency and oversight of immigration detention facilities, which are run by large multinational for-profit operators—in relation to Australian detention centres, that company is called Serco.

For those in alternative places of detention, the hotel chains that are contracted to keep people in their particular hotels are also contracted by the Australian Government and subject to similar privacy and transparency issues.

This has meant there's little to no public information about testing for refugees who might be concerned that they have COVID-19 in immigration detention, or the availability of medical quarantine in immigration detention centres.

This of course leads us to an important question, and that is: what is being done about this? How has the Australian Government responded? And also—and this is a question that I think is really important when we are thinking about marginalised communities—how have the refugees and asylum seekers themselves, who have been excluded from these measures, responded and what actions have they been able to take?

Critically, and for those of you who are following these issues, you will know that refugees and asylum seekers held in detention have, pretty much since the outbreak of the pandemic, been protesting their exclusion from public health measures and from the Australian Government's response to the pandemic.

There are refugees and non-citizens detained in the well-known hotel chain Mantra in Melbourne and in the Kangaroo Point Hotel in Brisbane, and they've engaged in daily peaceful protests and utilised social media campaigns to call for their urgent release into safe accommodation.

Other protests have taken place at the community level and have been organised by those outside of detention centres. In a really interesting intersection between the laws regulating the pandemic and our pandemic response and refugee law and the safety of those in detention, in early April 2020 protesters formed a car motorcade to highlight the conditions faced by detainees held in the Mantra Hotel in a north Melbourne suburb. Those detained at the Mantra Bell City Hotel also protested from within the hotel.

The protesters, of course, were required to comply with the public health orders in force in Victoria at the time, and while they were outside of the hotel, they maintained social distance by staying in their cars at all times—so it was a car procession.

Despite this, police have issued those protesters with $43,000 worth of fines in total for breaching the stay-at-home direction that was put in place by the Victorian Government. The protesters argued at the time that they had left their home for compassionate reasons, which, as many of you know, is a reasonable excuse to travel under the orders both in New South Wales and Victoria, and they're contesting the fines that have been issued to them by the Victorian Police.

Further protests at the APOD sites are currently taking place in both Melbourne and Brisbane, and those who are there continue to protest the failure of the Government to extend the same public health safety measures that they extend to the broader community to them, and many are using Facebook and Twitter to document their protests and conditions.

I think it's a particularly telling incident in the Australian Government and the State Government's response to the pandemic, insofar as they are issuing fines at the site of a protest which is essentially the asylum seekers calling for their ability to social distance and their ability to abide by and respect the public health and government advice around the pandemic.

A couple of other things—and again we can talk about them in the discussion—that we have been tracking: some more legal strategies to respond to the ways in which refugees and asylum seekers have been treated in this period. There was a High Court case launched by the Human Rights Law Centre on behalf of a refugee who had underlying health conditions in detention, arguing that the Australian Government had breached its duty of care or was breaching its duty of care to the asylum seeker who could not socially distance and maintain safety in immigration detention during COVID-19.

There have also been submissions made to the Joint Parliamentary Committee into COVID-19 in relation to people held both in prisons and youth detention centres and, of course, in immigration detention centres.

Even though I've talked a little bit about APODs—the alternative places of detention—of course all of the things that I've mentioned apply to detention centres, so sites that you will be more familiar with in terms of where refugees and asylum seekers and non-citizens are currently being detained.

So, to conclude briefly and open up to discussion, I think it's very clear and it's useful for us to reflect on the way in which the virus and COVID-19 certainly isn't a social leveller as has been claimed by some of the early reports, and the very current and live issue of the lockdown of the Housing Commission towers in Melbourne at the moment really reminds us or invites us to consider the uneven effects of the way in which the pandemic has been managed.

I think the Government's response to COVID-19 really illustrates for us some of the persistent inequalities and discrimination faced by those who are not deemed worthy of inclusion generally and therefore have not been included in the public health response.

The experience of COVID-19 for those in immigration detention is also a reminder of the importance of researchers and academics and those of us interested in justice to trace COVID-19's disproportionate impact on people seeking asylum and refugees and other non-citizens.

I think the pandemic has really exacerbated existing inequalities, and some of those inequalities relate to socio-economic precarity and access to health, but for refugees and asylum seekers they have shut down the very pathway that refugees require in order to seek protection and asylum.

[Q&A session begins]

Thank you very much, Anthea. That was amazing in the range of things you covered and the clarity with which you presented them. We've got lots of time now for questions and discussion. Erika and I will share the moderation, but Erika, perhaps I might invite you to take the lead in relation to calling for questions and comments.

Just a reminder that if you have a question, please signal your interest in doing so and put your video on so that we can see your smiling or your intelligent and questioning face.

Erika, do you want to invite questions and comments?

Okay, we have Preeti who has raised her hand. Everyone feel free to either raise your hand or put your name in the chat box or wave in your camera. We'll be monitoring all three.

Thanks, Preeti. If you want to go ahead.

Yeah, I think my question was: if these migrant refugees have been contributing to the economy and paying taxes, why have they been excluded from the JobKeeper payment? In fact, that budget for the JobKeeper payment has been overestimated. So why isn't the government then allocating these funds to the people who rightly need it?

Yeah, Preeti, I think that's a very good question, and particularly in relation to the overestimation—the budgetary mistake that was made around JobKeeper. The government's initial response was to say there are about a million people in the Australian community who are on temporary visas at the moment, and they said that they had to draw the line somewhere, as if it was an arbitrary line.

I think it's certainly not an arbitrary line when we look at the ways in which certain migrants have been excluded. They said that's where they drew the line, and part of it was a budgetary concern, but they then didn't have a very good answer when the overestimation came through and some of that reasoning came undone.

They have maintained the idea that the budget required them not to include everyone in this response. But alongside your point about them paying taxes—so temporary migrants of course pay tax into the Australian tax system, bridging visa holders who are working pay tax, all temporary and permanent refugee visa holders pay tax.

I think there's a question about how it damages the government's response to COVID-19, because if people are essentially left without an income, they will work in circumstances where they might be unwell and should be staying home, but also they are absolutely unable to access the forms of support and welfare that people need in terms of the sickness that they might face.

Troublingly, even people on bridging visas—some people haven't had their bridging visas renewed in a timely way, and what that has meant is they don't have access to Medicare. So you can start to see the layers of the injustice around why have they been excluded in the first place, but then questions around how is this damaging the way in which the government is articulating its response to COVID-19.

Thanks, Anthea. That's okay.

Now we've also got Monica who's raised her hand. Monica, did you want to turn your video on?

Hi. My question was about what you said towards the end there, Anthea, about how in Flemington and in Melbourne there has been public housing that's been shut down and how that imposes on people's freedoms. I guess my question for you was, given that they are public housing, do you think the government's exercising their right to lock down in a positive way? In private houses they can't force us into lockdown as they can in Victoria. Would you say that this is a necessary kind of taking away of those freedoms, or do you feel that it is done in a way that doesn't really acknowledge that?

Yeah, I think that's a good question, Monica, and it raises a range of issues that connect to some of the themes around refugees and asylum seekers, about the unevenness of the government's response to some of the risks of COVID-19. As you say, there are a range of other areas or other parts of Melbourne that have been presented as similar hotspots and have raised similar threats, including other high-density living sites, but it's the public housing site that has been shut off.

I think one of the major concerns about how that has taken place is the government's lack of planning and foresight around how that should be managed, but I think the biggest problem with it is the way in which—and this is something that has carried over into the general response to the pandemic—the utilisation of the police force in a way that doesn't necessarily orientate towards health and welfare, and instead has been used in a way that, as the public health residents have reported in the last couple of days, made them feel fearful, intimidated, not part of the public health response, but blamed for behaviours even though the residents have reported attempts to comply and improve public health and safety within those towers.

So, of course, we need to think about effective ways of managing the pandemic, but I think the big critiques around the shutting down of those public housing towers is, again, the orientation towards a criminalising or an exclusion of particular communities, rather than their inclusion in the response, and alongside the concerns that you've raised.

Thanks, Monica and Anthea. We also have a question from Serif.

Hi, Serif. Hi. So my question is broadly, basically, how do you not lose hope as an academic or lawyer? Because the more and more with what's going on now with the refugees, people in housing commission, and even all the rallies that are going on, I think I'm losing hope in systemic change from within. Even the letter that you spoke about, that's amazing, but the Australian Government didn't really do anything. I just find it really depressing, for lack of a better word, to feel motivated as lawyers or lawyers-to-be that we can actually do anything. So I wanted to know, what do you think we can actually do from our position, or do you think direct action is the only thing?

Yeah, it's a big question, and I think one that attaches to all kinds of social justice work, whether it be academic work, advocacy work or legal work. All of the lawyers that I'm in contact with are at the forefront of that. I think for many of us who work in this field, the creation and existence of communities—actually like the Brennan Justice student community—is so crucial to the way in which you keep on working and you are able to sustain, I guess, hope and also energy to do the research that we do or do the advocacy that we do, because there are so many people around you doing incredible and effective work.

Even though the government—I definitely showed the ways in which the government hasn't responded—there are moments of small wins or the ways in which the community can operate outside of how the government sets a particular agenda that are incredibly important and inspiring.

The community and NGO organisations that have stepped in, for example, in the absence of welfare support and in the exclusion of those asylum seekers from JobKeeper and JobSeeker, is actually mind-blowing. They're organisations that provide legal advice, welfare, healthcare. I think it's working with people who have similar goals and who are driven by similar values, and for lawyers, similar orientations towards the law and how it should be operating and what you would like it to be doing, is the way in which you sustain yourself.

Working in this field, it's also through having contact with and working in solidarity with the people who are be