June 9, 2021

Asylum seekers

Dreaming of Biloela

By Russell Marks
Dreaming of Biloela

Image via Twitter

Tharnicaa Murugappan versus 30 years of policy

Any prospect of thinking through the problem posed to Australia by refugees, I suspect, became impossible many years ago. This week, we’re confronted with the latest of thousands of tragedies: three-year-old Tharnicaa Murugappan, apparently with sepsis caused by untreated pneumonia, medically evacuated from Christmas Island, where she’s been living with her parents and older sister since late 2019.

A minority of Australians – a very tiny minority, I think – have remained engaged with the unfolding human and political drama of refugees who arrive in Australia without visas ever since 5 May 1992. That was the day Gerry Hand, then Paul Keating’s immigration minister, explained his government’s determination “that a clear signal be sent that migration to Australia may not be achieved by simply arriving in this country and expecting to be allowed into the community”. The Migration Amendment Bill 1992 required all boat people to go into mandatory “migration custody” for a maximum of nine months while their refugee claims were processed. Hand was conscious that this was an “extraordinary” measure, and emphasised that the government intended it to be “an interim measure”. The Democrats and the Greens opposed the bill, but it became law with Coalition support.

Anyone sceptical of “slippery slope” arguments should take heed of what has happened since. Indefinite detention, legislated in 1994 and affirmed by the High Court a decade later, however harsh the detention conditions. Remote detention centres, and then temporary protection visas in 1999. The MV Tampa and John Howard’s election promise in 2001: “We will decide who comes to this country and the circumstances in which they come.” The Pacific Solution and its “offshore” detention centres on Christmas Island, Nauru and Manus Island in Papua New Guinea. Government lies about refugees throwing their children overboard. Interdiction at sea, and secret sabotage in Indonesia. Character tests and deportations under the cover of night, even of men and women who grew up here. The ruthless repeal of the Medevac laws – which prioritised medical opinion when considering whether to evacuate a sick person to an Australian hospital – in December 2019.

And throughout, the relentless human tragedy. Children who don’t eat or speak. Hunger strikes. Assaults. Rapes. Immolations. Suicides. And now a young Sri Lankan family, valued in the small Biloela community where they lived and worked until kidnapped and taken to Christmas Island, being pushed to what must surely be a breaking point by our need to make some kind of example of them. Scott Morrison, Peter Dutton and the current immigration minister, Alex Hawke, are among the many “new conservatives” attracted to the Liberal Party by Howard’s culture wars, and are frustrated by the publicity the Murugappans have attracted, and the human interest stories they’ve provoked, even on commercial television. Governments have gone to great lengths to limit our exposure to these human particulars, presumably to encourage a focus on the general, where it’s easier to reduce humanity to numbers and stereotypes.

In 2001, the Medical Journal of Australia published what it called a “participant-observer account” by an Iraqi doctor, Aamer Sultan, who’d himself been held in Sydney’s Villawood Detention Centre since May 1999, of deteriorating mental states among people who’d been held for long periods in immigration detention. Howard’s government remained silent about the paper and similar studies, so in 2004 I interviewed Amanda Vanstone, when she was immigration minister, for my university newspaper. She claimed to be unaware of these studies, but then promised she’d say something “in the near future” about the “various assessments” that had been made about detainees’ mental health. I’m still waiting, but of course I’d missed the point entirely. Immigration detention is supposed to cause damage. It’s supposed to be so appallingly bad that it’s worse than anything people might face if they just went home. Tharnicaa Murugappan’s lawyers are about to file new evidence of the damage long-term detention causes to children. I suspect it will get similar shrift. “It’s not a prison,” Vanstone told me of immigration detention. “You’re free to leave Australia at any time.”

A part of me continues to want to believe that this isn’t really Australia, that majorities have been hoodwinked by politicians selling fear and their supporters in the right-wing media. Or, alternatively, that “border control” is the trade-off neoliberal governments have offered us after ending our other certainties. Is it a coincidence that mandatory “migration custody” was created by the same government – Hawke-Keating Labor – that floated the dollar, sold the Commonwealth Bank, smashed import tariffs and company taxes, and dismantled centralised wage-fixing? After all, by the time Gerry Hand unveiled his Migration Amendment Bill in May 1992, unemployment – a product of Keating’s inevitable recession, itself brought about by his insistence on austerity following the stock market crash – was 10.6 per cent and rising.

But the economic link is too cute. Australians have always been anxious about immigration, especially the unauthorised kind. Federation was barely six months old when the new Commonwealth parliament began debating the Immigration Restriction Bill, whose passage formed the central plank in the White Australia policy. Contrary to myth, Australians were anxious about the 2000 Vietnamese boat people who reached these shores between 1976 and 1982. Mandatory detention was a response to the resumption of the boat arrivals – this time from Cambodia – in the early 1990s. We’ve never been particularly exercised about where people are coming from or why they fled, even when – as in the case of Afghanistan and Iraq in the early 2000s – we were at war with the very regimes people were fleeing.

I and those on what is called the “left” of this debate that’s divided Australia like perhaps nothing else this century are perennially focused on the legal and moral rights of individuals – to seek refuge, to determine their futures, to be treated fairly and humanely. The “right”, on the other hand, weighs these individual rights against the need to uphold the rules, the wishes of the Australian majority, and the moral necessity to deter people from making the perilous journey to Australia’s north coast in rickety, overcrowded tubs. More than 1100 people did lose their lives trying to make it here when Kevin Rudd’s government temporarily dismantled the Pacific Solution.

Coalition governments and their media friends have used that statistic (they typically push the figure up to 1500) as a trump card in the debate ever since, and Labor has found no answer to it. Rather, Labor has targeted some much lower-hanging fruit: it supported The Greens’ Medevac amendments in 2019, and it now wants the Murugappans off Christmas Island and back in Biloela. But it’s been careful to avoid extrapolating from the Murugappans’ Channel 9-friendly, human-interest plight to make any broader point about the desirability of maintaining the offshore system it re-established in 2011–12. What is never asked, now, is whether preventing even the deaths of 1100 people seeking freedom from persecution justifies stripping the freedoms of those who made it here.

In the Murugappans, the right sees a family repeatedly rejected as refugees by Australian courts, whose lengthy detention is purely a consequence of its continuing abuse of Australia’s procedural generosities, and which is being exploited for political ends by a “human rights cabal” that includes Federal Court judges. That last claim is psychiatrist and serial plagiarist Tanveer Ahmed’s, writing in Spectator Australia in September 2019. In that month, Justice Mordecai Bromberg issued an injunction preventing the family’s removal after lawyers lodged an urgent application while the family was already on the plane. In April last year, Justice Mark Moshinsky ruled that Tharnicaa hadn’t been afforded procedural fairness. The Home Affairs department had asked the then immigration minister, David Coleman, to “lift the bar” to allow her to make an application for a protection visa that wasn’t otherwise open to her (because she was an “unauthorised maritime arrival” who had applied while in Australia). Coleman made no such decision, and – importantly – the department never told Tharnicaa’s parents that Coleman hadn’t lifted the bar. So, legally speaking, it was the department that had extended Tharnicaa’s detention. The government appealed Moshinsky’s ruling to the Full Court and lost in February.

Given that Australia’s courts have rejected the asylum claims of Tharnicaa’s parents and sister, it’s difficult to imagine that they’ll ultimately uphold hers. But her lawyers plan to advance new evidence that courts have never considered, so who knows? Voluntary return to Sri Lanka has always been available to the Murugappans, but they’ve chosen instead to endure more than 1000 days (so far) on Christmas Island. Does this count for nothing? Why anyone would make that kind of choice, if indeed they had any other option, is well beyond my capacity to comprehend. Another Australia – the one I keep hoping exists beneath the fear and the politics and the tabloids – might have conceded that the Murugappans deserve a “fair go”, after everything, and given them a bloody visa.

Russell Marks

Russell Marks is a lawyer and an adjunct research fellow at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

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