Blog post by Jazmine Elmolla, a commercial lawyer in Melbourne, Australia. Outside of commercial law, Jazmine has a keen interest in human rights law and has undertaken research at Monash University on the right to birth registration and the right to nationality for refugees and Indigenous Australians. In addition, she volunteers as a migration agent at Refugee Legal in Melbourne, a community legal centre that assists asylum seekers in making applications for refugee status, and in appealing decisions not to grant refugee status and associated protection visas.
The spread of COVID-19 has brought with it an unprecedented array of challenges. The world has grappled with the introduction of social distancing, job losses, feelings of isolation and shortages of food, toilet paper and other essential items. As the news cycle has reported on these challenges, the plight of asylum seekers has been somewhat forgotten or pushed to the sidelines. In light of the vulnerability that asylum seekers face in coming to Australia and seeking protection, this post aims to shine a light on their experience during the COVID-19 crisis. This post focuses on two challenges: the first being getting to Australia to seek protection in light of border closures, and the second being living in indefinite detention during a global pandemic.
Seeking protection in Australia
Over the past few months, the world has undergone a rapid change that has severely limited the movement of people and made the task of fleeing persecution and arriving in a host country to seek protection increasingly difficult, and in some cases impossible. The Universal Declaration of Human Rights (UDHR) was adopted in 1948, at a time when the world witnessed unprecedented numbers of civilians seeking protection from countries other than their own. In recognising this, Article 14(1) provides that:
Everyone has the right to seek and to enjoy in other countries asylum from persecution.
In 2020, with conflicts, instability and violence being witnessed across the globe, from Syria to Myanmar to South Sudan, this need for protection is equally (if not more) important to some of the world’s most vulnerable. However, even historically, providing this protection has not been without its challenges and political obstacles. The importance of border protection and national security is in constant competition with the importance of respecting the universally recognised right to seek asylum, and in the era of COVID-19 where border protection is considered a public health necessity, this could not be more true.
Only a few months ago, the Australian government came to the realisation that the virus would spread outside of China. At first, it banned arrivals from the Wuhan region. And then, it began to ban arrivals from China and other countries with high rates of infection, such as Italy and South Korea. But eventually, the virus spread across the globe and has left us in a situation where travel is hard to come by and coming to Australia can require the support of the government (see more here, and here). This begs the question: how can people seek asylum in Australia if they cannot flee their country of origin, or alternatively, if they are in a transit country and are not yet willing to declare themselves to the authorities and seek asylum? What happens to those who have started their journeys to safety but have not yet concluded them? Perhaps the obvious response is: they should seek asylum in the country in which they find themselves in. But is this fair? And is this legal? For example, an asylum seeker in Malaysia may well be justified in choosing to remain clandestine, given that Malaysia is notorious for failing to provide effective procedure and protection to asylum seekers. This was recognised by the High Court of Australia in its decision to grant a permanent injunction preventing the removal of asylum seekers from Australia to Malaysia (see more here).
Asylum seekers that remain clandestine, either in their home country or a transit country, are at risk of having a number of their human rights compromised. This includes the right to ‘enjoyment of the highest attainable standard of physical and mental health’, as recognised in Article 12(1) of the International Covenant on Economic, Social and Cultural Rights. In the midst of a global pandemic, the invisibility of asylum seekers should also concern governments, who cannot count, control, or treat someone who they do not know exists. Governments should be alert to the fact that their policies and procedures may contribute to the invisibility of an asylum seeker population, and seek to locate and protect such populations, in the interests of both public health and human rights.
Right to health in detention centres
Many asylum seekers that have already sought protection in Australia and are awaiting a decision on their refugee status are currently in detention in Australia, or even on Manus Island. In these situations, the social distancing and hygiene measures that the government’s medical teams advocate for, are not always possible. Detainees are exposed to an increased number of people, such as guards and other service providers that come in and out of the centres daily, eat and drink in communal areas, share bathrooms and sleep in shared rooms. The Department of Health has noted that people in detention are among those at most risk of contracting the virus (see here). The same applies to prisons, where it has been shown that an outbreak can be extremely difficult to control. For example, in one prison in the United States, 73% of inmates tested positive to COVID-19 (see more here).
This is a cause of constant stress and anxiety for asylum seekers that have no control over their surroundings, and in particular for asylum seekers who have underlying medical conditions. Even in light of Australia’s good progress in controlling the spread of the virus, the recent COVID-19 cases in aged care facilities, fast food restaurants and an abattoir, are evidence that outbreaks may still occur and that facilities such as prisons and detention centres should be considered as facilities of concern (see more here and here).
In relation to prisons, human rights lawyers have called for the Australian government to:
- temporarily release people with underlying health conditions;
- release those who are close to finishing their sentence;
- grant parole for those who have been convicted of low level offences and pose a low risk to the community; and
- provide greater access to bail (see more here).
Some of these options do not appear to be available for those in immigration detention who are essentially serving an ‘indefinite sentence’ and therefore cannot be released ‘early’, granted parole or provided access to bail. This highlights the problematic nature of detention for those seeking asylum, but it does little to provide detainees with their right, as granted under international human rights law, to have access to the highest attainable standard of health.
The measures that are being taken by the Australian government to protect detainees from COVID-19 include:
- closing the detention visitor program;
- asking legal representatives to use phone calls, skype or other audio visual tools to communicate with detainees;
- limiting detainee’s contact with scrutiny bodies; and
- restricting all movements for detainees (including excursions) (see more here).
Whilst these measures are arguably justifiable in light of medical advice, they only act to further isolate and punish those seeking asylum, whilst failing to address the increased risk of contracting the virus due to the existence of detention itself. This was recognised by the Subcomittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, which called on government’s to ‘review the use of immigration detention and close refugee camps with a view to reducing their populations to the lowest possible level’ (see more here). Some governments have given serious consideration to this, and taken action to release particularly vulnerable detainees (see for example: the United Kingdom’s response). In Australia, the Human Rights Law Centre has brought a case to the High Court on behalf of a refugee with chronic illness, seeking his release to protect him from infection (see more here), but a decision is not expected in the near future. Until such time, asylum seekers are living with anxiety and with even less rights than they were previously afforded in detention.
The world’s leaders are grappling with serious issues that threaten our health and financial security. There is no doubt that these are unprecedented and challenging times. However, we must pause and consider those whose vulnerability may be compounded during such times. Australia, and governments across the world, should heed the advice of medical professionals and lawyers alike, in order to protect the health and internationally recognised human rights of those who are exercising their right to seek protection.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.