– by Sanmati Verma
On 8 November, the government introduced the Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 in the House of Representatives. It was passed in the House on 10 November, and introduced to the Senate on the same date. At the moment, the fate of the Bill depends on the proclivities of eight Senate cross-benchers who are listening in to public hearings on it as we speak.
The Bill attempts to introduce a “lifetime ban” on the making of any visa application by any person deemed to be ‘unauthorised maritime arrival,’ who was transferred to a ‘Regional Processing Centre’ (RPC) after 19 July 2013, and was over 18 at the time of that transfer. It would apply to people, whether or not they now remain on Manus or Nauru, have subsequently been transferred to Australia or find themselves anywhere else in the world.
The Bill achieves its purpose, primarily by expanding two existing ‘barring’ provisions in the Migration Act – under sections 46A and 46B. Existing s 46A imposes a bar on anyone deemed an ‘unauthorised maritime arrival,’ and prevents them from validly making any visa application while they are in Australia. The second, existing bar under s 46B prevents anyone considered a ‘transitory person’ – being a person who has been transferred from an RPC to Australia for a “temporary purpose” – from validly applying for any visa while they are in Australia.
The Bill proposes to expand the ambit of both those provisions. Sections 46A and 46B are already draconian enough, creating an extra-legal status for anyone who came by boat while they are in Australia. But as they stand, they apply only in Australia. The Bill proposes to extend their operation beyond Australia, so that any person who was ever on an RPC, wherever they end up, could never be proposed for a Humanitarian visa, sponsored as a partner, parent, child, remaining relative, or return on any other visa.
The ‘ban’ is the most recent in a series of policy proposals that is intended to achieve almost as much by way of horrifying spectacle as it will in practice. It is a message to people on Nauru and Manus, and to those who have been transferred to Australia from those centres, to give up. It is the final death of any concept of the ‘queue’ – of an orderly migration and humanitarian system into which people must be forced at any cost. It is gratuitous and symbolic cruelty.
There are currently 1,296 people on Manus Island and Nauru, having been held in the ‘regional processing centres’ in those places. The overwhelming majority have been found to be refugees – in the case of Manus Island, roughly 98 percent, or 541 of the people there. Practically speaking, what the ban means for people on Nauru is an interminable state of limbo on a series of rolling ‘temporary permits,’ which permit neither the ability to travel nor to sponsor family members overseas to join you. For the men on Manus Island, the ban means an indefinite state of uncertainty while Australia continues its failed negotiations with PNG to actually re-settle people. It means a final and dramatic departure from the fantasy of the humanitarian ‘queue,’ as those on Nauru and Manus will no longer be able to be proposed for humanitarian visas by Australian family or community members (which was being explored as an option on behalf of a number of people).
And then, there are the 370 or so people who have been transferred to Australia from the RPCs for emergency purposes – termed “transitory persons” under the Migration Act. The bar has a uniquely cruel effect in their circumstances.
Most of the people transferred to Australia from Nauru or Manus Island have not had access to refugee determination in either of those places, given that “processing” on the centres commenced relatively recently. Because of the existing bar under s 46B of the Migration Act, and because of the government’s commitment to never ‘lifting’ that bar in their circumstances, none of those people have had access to refugee determination or anything of the like in Australia.
For the moment, ‘transferees’ from Nauru and Manus cannot be returned to those centres, subject to undertakings made by the Minister for Immigration in a series of Court proceedings that now involve the majority of people from those centres. Because of the protracted nature of their legal proceedings, and the fact that most people have incredibly complicated and long-term medical needs due to the effects of detention in the offshore centres, most ‘transferees’ have now been released into the community under community detention arrangements.
The ‘ban’ is a particular signal to these people. It is a message that reminds them that there is nothing they can take from their release into the community. That, if the practical cost of their transfer from the government’s perspective was that they could not be returned to Nauru or Manus, then the offset will be that they will never meaningfully be able to make lives in Australia.
Necessarily and inevitably, people who have been transferred from the RPCs and released into the community have formed relationships. They have gotten married or begun to live with their partners. They have found voluntary work or potential employers. What the permanent ‘ban’ ensures is that these connections and relationships can never be allowed to come to anything – that the state of isolation experienced by people transferred from RPCs follows them into the community as an ongoing state of detention.
In this way, the Bill should also be understood as a tactic aiming to pressure people towards return – particularly those who are now in Australia. By nationality, the significant majority of the people stuck in the RPCs, and who have now been transferred to Australia, are Iranian. For years, the Iranian government had refused to facilitate the involuntary return of its own nationals into the country. Over the past few days, the Minister has become increasingly explicit in linking the Bill to the desire to compel people to return. The following exchange took place during a doorstop interview with Dutton on 8 November:
What deterrent could this law send that the policy simply couldn’t?
Because at the moment when you speak to people, particularly…I’ll give you the example of an Iranian male who has been found not to be a refugee. The Iranian Government policy is that they will take people back if it is on a voluntary basis, but they will not issue travel documents, they will not accept that person back to Iran in any circumstance if it is not done voluntarily. Now so of course that Iranian male who is in Manus or Nauru at the moment will say, ‘well look I am not going to accept the $10,000 that you are offering me, I am not going to accept the support that you are offering to provide to help my family establish a business or to get accommodation or education in Tehran.’
What the Bill lays bare, once and for all, is that there was never any ‘queue’ of imagined order in the migration system, where people are assigned a number and wait quietly for their merited outcome. There is no “orderly migration” to fall back on, even as an empty rhetorical device in small-target arguments. At the border, there is just executive fiat, and resistance to it.