A number of asylum seekers in Australia who are living in the community and do not meet certain criteria specified by the Government are given a Bridging Visa E (BVE) while their cases are reviewed. The BVE may deny them the right to work or to access education, health services or welfare. They are therefore dependent on friends, family or non-Government organisations, sometimes for considerable periods.
Australian policy concerning asylum seekers, particularly the mandatory detention regime, has been much discussed for more than a decade; there is one aspect, however, little publicised or understood, the operation of the Bridging Visa E (BVE) regime, under which some asylum seekers are placed in a position of enforced poverty. The objective of this article is: to explain the process by which some asylum seekers are deprived of fundamental rights; to determine their number, and the means by which they are able to survive; to consider the rationale of the policy and of its critics; and to reflect on the role of welfare agencies in this context.
While there are detailed analyses and recommendations by support and advocacy groups, (1) the challenge is to bring clarity, precision and a critical perspective to an issue which is veiled by complexity and lack of government accountability.
The complexity of regulations, the range of Temporary Protection Visas and categories of Bridging Visas (A to F), is an issue itself worthy of attention. At least three factors, each with a degree of validity, are relevant. First, the varied background of asylum seekers, international conventions and international law necessarily bring complexity to the issue. The government is dealing with complex human and legal issues.
There are, however, other elements to be considered. The complexity denotes a legislative and regulatory framework which has been developed piecemeal, often in response to immediate needs, in contrast to a structure that is developed coherently on the basis of mature policy or has undergone a process of codification and simplification.
It is also the case that complexity can serve the purposes of a government seeking to limit access to asylum and to limit criticism. The less that legislation and regulations are understood the less open they are to asylum seekers and the more options for manipulation by government and the public service to achieve desired ends. The provision of discretionary power to the Minister provides an avenue for determinations in favour of individuals, but also adds another layer of potential confusion, capriciousness and lack of consistency to the system. Those questioning this reality may reflect on the venerable record of bureaucracies. For the last years of the White Australia policy, for example, there is surviving documentation of deliberate obfuscation. The refusal to provide precise information on the number and circumstances of Bridging Visa E holders, discussed below, is a further illustration.
ACCESS TO AND DENIAL OF FINANCIAL ASSISTANCE
Financial assistance is available to eligible Protection Visa applicants living in the community who are unable to meet their most basic needs for food, accommodation and health care. This aid is offered through the Asylum Seeker Assistance Scheme (ASAS). The Scheme is administered by the Department of Immigration and Multicultural Affairs (DIMA) through contractual arrangements with the Australian Red Cross Society and provides up to the equivalent of 89 per cent of the Centrelink Special Benefit ($155-380 per fortnight, depending on age and family structure). (2) ASAS includes provision of health care through free access to general and specialist medical practitioners, selected from an approved service provider list. In 2002-03, the Scheme assisted 1,865 clients at a cost of $9.6 million. (3)
There are, however, some categories of Protection Visa applicants who do not qualify for ASAS, and are left without basic entitlements. The entitlements denied are the right to obtain paid work, the right to Centrelink (unemployment, disability or special) benefits and access to Medicare. Where a person obtains paid work, contrary to the rules, they may be placed in detention. Adults may be denied access to tertiary education unless they pay full fees, an effective denial of access. There is no access to settlement services funded by DIMA, no access to federally funded English language programs, translating and interpreting services, no access to government housing and related assistance. (4) There are three categories for such denial.
The first category (impacting on the largest number of asylum seekers) covers those who fail to apply for asylum within a specified period. Those in this category comprise asylum seekers who arrived with valid papers, for example tourist, student or business visas. After their arrival they lodged an asylum application, but failed to do so within 45 days. The 45 day rule was introduced in 1997. (5) DIMA Fact Sheet 62 'Assistance for Asylum Seekers in Australia' states that:
no work rights are available to people who have been in Australia 45 days or more in the 12 months before their PV [Protection Visa] application is made. They can only be granted a bridging visa with a no work condition attached. Such a person is provided with a BVE without work rights while their application is assessed. If there is no primary decision after six full months on the BVE, he or she may qualify for assistance under ASAS. (6)
The second category covers those released from detention on a BVE, pending assessment of their application for asylum. They are typically people who arrived without valid papers and include a relatively small number of asylum seekers.
The Migration Act 1958, regulation 2.20, provides that release from detention may be granted on the basis of a special need relating to mental or physical health or relating to previous experience of torture or trauma. Others who may be released comprise minors, people over the age of 75 and spouses of Australian residents. Release is conditional on satisfying the Minister for Immigration that there are adequate arrangements in place to support the person in the community. (7) In many cases, the proposed arrangements are put forward by family or friends of the detainee. In some cases, where there is no such family or friend, welfare agencies and other organisations undertake to provide support.
The third category covers asylum seekers who fail to obtain a favourable primary decision. They have the a right to seek merits review from an independent tribunal, either the Refugee Review Tribunal (RRT) or the Administrative Appeals Tribunal (AAT), depending on the basis for refusal. A case may be also taken to the Federal Court, to the original jurisdiction of the High Court, or to the Minister for Immigration, who may exercise discretion in the public interest under section 417 of the Migration Act. Applicants rejected by the RRT (and who have no other legal...