The human consequences of re-introducing the 45-day rule

As part of its 2010 immigration election platform, the Liberal Party announced that it would reintroduce the ‘45-day rule’ for onshore protection applicants.

The 45-day rule (which came into force in 1997 and subsequently abolished by the Labor Party in 2007) required asylum seekers who had arrived in the country legally by plane and on a valid visa to apply for protection within 45 days. Where they did not, the right to work and access to Medicare was refused while their application was being processed.

The impact of widespread, and often protracted, denial of the right to an income and health care was devastating on the physical and mental well being of asylum seekers. Consider the case of Elsa, a single mother with two young children from the Horn of Africa who was refused the entitlement to work and access to Medicare. This was a source of extreme anxiety for her because, as a report prepared for the Network of Asylum Seeker Agencies Victoria in 2005 discovered:

Her youngest son (2 years old) was prone to viral infections, and one Sunday night, he was extremely unwell with a high fever. She presented to the local medical centre but was turned away because she did not have a Medicare card. Elsa also suffered serious gynaecological issues due to female genital mutilation in her home country. Despite a referral from a GP, she was refused an appointment with a gynaecologist as she did not have a Medicare card.

Far from being an isolated case, in its 2006 submission to the Department of Immigration, the Asylum Seeker Centre reported that the consequences of a lack of access to work rights and medical care commonly resulted in acute poverty; homelessness; malnutrition; untreated illnesses; deteriorating health; family breakdown; plummeting self-esteem; skills attrition; chronic depression; and in severe cases suicidal ideation. In one notable case, they reported that:

A three-week old baby was denied a renal ultrasound because her parents were unable to demonstrate their capacity to pay for the procedure… On another occasion, these same parents were relentlessly pursued by debt collectors for costs associated with the ambulance passage of their five-year old son to hospital.

Ostensibly, the justification offered by the government for the introduction of the 45-day rule was to prevent visitors or other temporary visa holders (i.e. students) from disingenuously applying for onshore protection in order to gain work rights and access to Medicare which they would ordinarily be ineligible for.

While the experience of numerous support groups found no evidence of large numbers of disingenuous applicants in the refugee system, a parliamentary report in 2007 did find that there existed many legitimate reasons why a typical asylum seeker would lodge an application after 45 days. These included a lack of English and poor understanding of application procedures; inaccurate advice from migration agents or friends; an intent to lodge an application as a measure of last resort while awaiting improvements in their home country, hoping they would be able to return and unaware of the 45-day rule; and being fearful of presenting themselves to authorities due to their experiences of persecution.

It is worthy of note that in November 2005 the House of Lords overturned a comparable UK system under which asylum seekers deemed to have not lodged their claims as soon as practicable after their arrival, were denied work rights and state supports, on the grounds that it constituted “inhuman or degrading treatment,” and as such contravened the British Human Rights Act as well as European Union and international human rights laws – including the Convention Against Torture (1984) and International Covenant on Civil and Political Rights (1966).

It was estimated that around 35-40% of community based asylum seekers had no work rights or access to medical care from the time the 45 day rule was introduced until it was ended by the incoming Labour government in June of 2009. Its reintroduction would spell a return to some of the worst health and welfare crises for asylum seekers. The government cannot claim ignorance to its consequences. We know what to expect this time round; there can be no excuses.

References

Anne McNevin (2005), Prepared for the Network of Asylum Seeker Agencies Victoria (NASA-Vic), Seeking Safety, Not Charity: A report in support of work-rights for asylum-seekers living in the community on Bridging Visa E, http://www.ajustaustralia.com/resource.php?act=attache&id=158

Department of Parliamentary Services (2007), Research Brief: Asylum seekers on Bridging Visa E, http://www.aph.gov.au/library/pubs/rb/2006-07/07rb13.pdf

Asylum Seeker Centre (2006), Submission to the Department of Immigration and Multicultural Affairs (DIMA) Review of Bridging Visas, http://www.asylumseekerscentre.org.au/images/stories/resources/submissions/submisson_dima_bridging_visa_review.pdf