Written by: Jessica C. Tselepy, runner-up in this year's essay competition.
Summary:
The Australian Government has created a Women at Risk program for refugee women resettling within Australia that attracts little praise outside of government sponsored materials. While it is a starting point for greater change, it currently functions in a way that neglects the rights of these women. These individuals remain to be at risk of human rights violations upon resettlement, especially discrimination and domestic abuse, with no effective intervention being currently pursued by the government. Australia’s protection obligations under international law are additionally being inadequately upheld in both national law and resettlement mechanisms. Until the Australian Government ceases to hide behind their empty progressive self-title, practical solutions will fail to be pursued.
War is a gendered affair. Global contexts of conflict are rife with abuses of power from the established strong against subjugated masses. The proliferation of sexual and gender based violence (GBV) in such times of conflict has led to a massive movement of individuals escaping the fear of, or continuation of, grave violations of their human rights[1]. While the proportion of the world’s 65.3 million people forcibly displaced are comprised of women by half, estimates show that current refugee camps around the globe are comprised of women by 80%[2]. The focus of the UNHCR on the heightened risk facing female refugees has led to the implementation of several national ‘Women-at-Risk’ (WaR) programs around the globe[3].
In 1989, Australia established the ‘Women at Risk’ visa (subclass 204) as a subcategory in their Refugee and Humanitarian Assistance program[4]. According to government estimates, this program has directly assisted more than 16,500 women and their families to gain permanent visas to rebuild their lives in Australia[5]. While painted in a positive light by government reports and limited selective statistics, the reality for female refugees resettling in Australia is not as bright.
The goal of this essay will be to critically analyse the essay questions, a) to what extent have the rights of refugee women been protected in Australia, and b) how much does the ‘WaR’ visa program directly contribute to this protection? My thesis statement is this: Australia’s protection obligations under international law are not being adequately invoked within national law nor its resettlement programs. Further, the implementation of the program, both in application requirements and processing standards, renders Australia’s contribution to the international refugee crisis minute.
This will be explored in two main areas. Firstly, examining the explicit problems with the provisions of the visa program to establish both its advantages and disadvantages to any applicant (Learning Outcome 6). Secondly, exploring the ignorance at a domestic level of how WaR visa holders are resettled.
The current international context will then be examined to establish its influence on Australia’s domestic WaR policy, and will further be utilised to explore potential avenues for improvement. A critical analysis of international legislation and comparisons will help elucidate the gaps in the Australian ‘model’ and unfold the implications of complex issues and developments in immigration law and policy (Learning Outcome 4).
Before this, I must firstly provide a brief examination of Australia’s complex pool of migration legislation and relevant judicial materials, to assess the national trends and biases in dealing with female refugees (Learning Outcome 1).
Domestic Legal Context
Through a long history of racial discrimination, Australia has created a reputation for overlooking the special needs of groups most in need of assistance. Our legal framework remains ultimately ineffective in addressing some of the most discriminative circumstances facing female refugees.
One such issue is framing women within the family (private) context. For instance, while both children and women are covered in parts by general national legislation, they are seldom referred to specifically, and are often lumped together as dependents to a male ‘head’[6]. This becomes problematic when attempting to address issues such as domestic violence, where the perpetrator may be present in all aspects of an application. Nonetheless, Australian refugee law has traditionally found persecution within the domestic sphere by non-state parties as being separate from the protections given under international law. While estimates indicate approximately 35% of women worldwide experience violence by an intimate partner[7], they are typically not considered to be a separate group deserving protection from non-state agents, enumerated neither by international nor Australian law.
The first inklings of positive change can be detected more in the judicial context than the legislative one. In Chen Shi Hai v Minister for Immigration and Multicultural Affairs[8], both Kirby J’s and McHugh J’ judgements made explicit reference to the discrimination suffered by female asylum seekers in the form of sexual abuse. This began to affirm the separation of discrimination based on gender. The case of the Minister for Immigration and Multicultural and Indigenous Affairs v Khawar[9] furthered this distinction, where Kirby J extended the consideration of persecution to include non-state actors, where state negligence could be construed as withholding protection.
While the courts have fluctuated in their treatment of female refugees and asylum seekers (notably ruling against Plaintiff M68 despite health concerns related to her pregnancy in Plaintiff M68/2015 v. Minister for Immigration and Border Protection & Ors[10]), it appears the Australian government is still more interested in rulings that support an effectively discriminative status quo. This is demonstrated clearly in the Migration Legislation Amendment Act [No 6] 2001 (Cth) (MLAA)[11]. Women are not mentioned once in the amendment itself. Further, changing section 48 of the Migration Act to prohibit family members from making further visa applications is directly disadvantageous for women. As the principal applicant is usually male, this implicitly maintains a bias that the more ‘valid’ asylum seekers are protective males who are persecuted by the state, and that women should be regarded as their dependents. This passive stance by the legislature works to promote the silence of women in the application process, and maintains gender imbalances in those applications received.
Conversely, the Australian Government has made a few explicit attempts to acknowledge gender issues, through the Refugee and Humanitarian Visa Applicants: Guidelines on Gender Issues for Decision-Makers (1996)[12] and the Guidelines on the Recognition of Sex and Gender (2013)[13]. Such efforts may be aimed in the right direction; however, they remain ineffective on a wide range of issue affecting female refugees. For instance, the 1996 Guidelines are silent on whether women should submit their claims as a dependent or individual. Ultimately, effectively limited the attention has been on creating practical change in processing for refugee women.
Issues with the WaR Program
One of the most seemingly progressive programs introduced by the Australian Government was their WaR program (WaRP). A few leading issues arise upon examination.
a) ‘Burden of Proof’
Gender-based oppression can involve heinous acts committed against women. Unsurprisingly, many women in these traumatic situations may not feel comfortable sharing their experience entirely, if at all. A study by Settlement Services International in 2012 found that not only did many refugee women resettling in Australia feel ashamed of the abuse they underwent, but were also further stigmatised by these experiences within their communities[14]. As one case study articulated, women leaving violent husbands were considered to have “brought shame to her husband”[15].
Rape itself was only recently recognised as a crime against humanity in 1998, and thus grounds for refugee status[16]. Even today, many cases of rape of refugee women are dismissed by officials, judges, and some Australian officials. Findings show that seven out of twenty-two senior male officials in Australia used the phrasing “only rape” to describe the trauma of female refugees, when discussing whether it should be considered a grounds for a WarP referral[17].
Perhaps the most egregious factor of this entire phenomenon is that Australia does not accept any refugees for resettlement who are found to be HIV+[18]. Adding to the burden of trauma is the frequency with which HIV can be transmitted through this unprotected act, and the extra stress this places on women who’ve been sexually abused when applying.
b) IDPs
Outside of the world’s large numbers of refugees and asylum seekers lies the stark numbers of those internally displaced. According to a global report on Internal Displacement conducted in 2016, there are twice as many IDPs as there are refugees in the world[19]. However, any citizen eligible for WaRP must have successfully escaped their home country.
Reaching a camp of refuge within one’s home country does not, however, decrease the frequency of gender-based violence. We Are Women Activists (WAWA) member Hawa Ali Jama stated that, “we are seeing more and more women who have been raped in displaced camps…”[20] She has reported that it is especially common for IDP men to request marriage from women, and when they are refused they rape them. Still, IDP women are blankly rejected.
c) Speed and numbers
Australia has traditionally struggled to fill quotas for WaRP, despite the overwhelming numbers of women in need of assistance. For instance, in the first two years of the program, less than one third of the annual allocation of visas were issued[21]. This is despite that fact that a majority of the numbers projected to be filled in the program include the female refugees’ families, limiting the spaces afforded to these women even more. Hayes and Winton (1991)[22] found that a large contributor to this was that the determination of eligibility was carried out by the country of first origin. These processes were often bogged down by bureaucracy and slow dissemination of information to officers, rather than reflecting the urgency of the situation.
d) Unclear and deterrent guidelines
The vague requirements listed by the government seem more a political category than aimed at addressing female refugee’s vulnerabilities. Specified as those “in danger of victimisation, harassment, or serious abuse,”[23] women could be technically advantaged, as this technically allows any woman to make an application for this visa. Guidelines that are too specific may in fact be used against such women. For instance, in a Hong Kong refugee camp, a resettlement officer could not understand why any woman should be in a vulnerable position in Hong Kong because under their national laws “women are free to marry…so they should not be without male protection if they want it.”[24] This is based on the specification that eligible women must be single or have partners that are missing.
The open phrasing, however, can also increase the subjectivity of the selections made. This disadvantages women when considering the examples provided by the (then) Department of Immigration and Multicultural Affairs (DIMA) of what may constitute ‘risk’. This includes “societal oppression of women, denial of full participation in civic life, forced marriage, and female genital mutilation.”[25]
To provide some level of restriction to those women eligible, the Australian Government stipulated that assessment should involve consideration of factors including connection to Australia, whether there’s anywhere else for them to go, and whether there is capacity in Australian communities[26]. Such attempts at restrictions are still discouragingly vague and subjective. This is concerning not only for women’s rights, but for the sake of good governance.
Ignorance of Resettlement Problems
Resettlement is not equivalent to a human rights obligation completed. Women who, despite thin odds, have qualified for WaRP and resettled in Australia are faced with a completely foreign culture. While many of the programs the Australian Government has created appear sufficient in their description, there remains a gap in reaching those resettled WaRP visa holders who struggle with low socio-economic status, trauma, and continued risk. There are a few key areas where women resettled under WaRP experience difficulties.
a) Education
Education could be, arguably, the most important avenue of transition for female refugees in Australia. As one woman articulated, “education leads to confidence for women.”[27] Many women arriving under the WaRP have little to no education, low English proficiency, and end up feeling more isolated from their new community. Many women arrive from cultures where their culture may have dictated that they stay at home and receive no education. The harms of this are expressed in a study of Pakistani immigrants in the United Kingdom[28], where it was found that depression was associated with a lack of fluency in English.
The major inhibitor to women receiving education in Australia is arguably their prioritisation of duties: in the post-arrival context, many women prioritise supporting other family member’s education and pursuing financial support for their family overseas. While this may be a systemic problem on ongoing international conflicts and entrenched cultural values, there still remains an evident thirst by women for education. One study found that nearly all refugee women interviewed expressed a high level of motivation for educational opportunities[29]. The avenue for access now needs to be bridged between the education offered and the desire to be educated.
b) Employment
While many women resettled under WaRP have attempted to engage in employment, the pervasive issue of workplace discrimination and racism remains. As one Iraqi woman has expressed, “no one will give us jobs because we do not speak the language well, we do not have qualifications, any experience.”[30] Those that do have qualifications often find they are not recognised in Australia. Frequent cases arise of women turning to domestic work or work in the sex industry, increasing the probability of their rights being violated[31]. This can have flow-on effects to income, accessing services, and mental health.
c) Continuation of GBV
A female refugee’s ‘risk’ is not over once she is resettled. It has been identified that refugee women are especially at risk of domestic violence once resettled[32]. While many women have testified to being more protected from domestic violence than they were previously, many female refugees with WaR visa also find it difficult to refuse unwanted sexual advances by a ‘sponsor’ where they feel indebted[33]. Refugee women have consistently communicated their hesitancy in approaching any authority for assistance, less they are not believed or their violent situation increases[34].
International Obligations
In a time of ‘asylum fatigue’, female refugees increasingly face the risk of being excluded from international protection. This can both be a result of Australia acting in contravention of their international obligations, and international obligations which are not comprehensive enough.
a) Contravention
The Australian government have taken a somewhat preferential approach to international refugee law. They have argued that, “People resent the fact that the regime for the protection of refugees is established by international laws which constrain the operation of Australia’s domestic law.”[35] For example, in response to the increase in ‘boat people’ in the late 1990s, Australian officials even contemplated putting all international treaties “on hold.”[36]
The most notable, though ‘arguable’, contravention of international refugee law by Australia was the Tampa fiasco. The government swiftly passed through the Border Protection Act 2001 to excuse its actions[37]. However, introducing any such laws violates the principle of customary international law, under Article 27 of the Vienna Convention on the Law of Treaties (VCLT)[38], that a state may not evade its international obligations by adopting conflicting domestic legislation.
Despite this violation, arbitrary demarcations, such as the law adopted in 2001 to define islands within a 12-mile zone as outside the ‘migration zone’, continue to proliferate. This in itself directly violates Article 29 of the VCLT[39], pursuant to Article 2, paragraph 1 of UNCLOS[40], to implement the Refugee Convention in all sovereign territory.
Australia has also manipulated the interpretation of ‘genuine’ asylum seeker to be ‘law abiding’ rather than just fulfilling the conditions stipulated by the Refugee Convention to seek asylum. Australia has increased stopping immigrants who have been refused or granted asylum in another country[41]. By framing asylum seekers as ‘security threats’ and responding accordingly, Australia is technically failing obligations to protect refugees.
b) Lacking Comprehensiveness
Nonetheless, international law is not perfect. A discomforting number of international conventions and agreements exclude reference to the specific problems of female refugees. This is arguably associated with the fact that gender specific harm is not enumerated under the 1951 Refugee Convention[42]. This includes family violence, forced marriage, honour killings, female genital mutilations, and sexual violence. Australia has therefore made an ostensibly progressive step in specifying FGM as a special condition for WaRP eligibility (although exact figures of how many women with FGM have been targeted is not readily accessible). Further, they have made special, though rare, exceptions to recognise women as a social group (as described in the court cases above).
However, when this exception is not made, rape, a leading tool of oppression and abuse against women, is not considered as cause for application. A refusal to acknowledge sexual abuse and domestic violence as special circumstances affecting female refugees could be construed as a contravention of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which defines discrimination against women as “any distinction, exclusion or restriction made on the basis of sex,”[43] as well as the UN Declaration of the Elimination of Violence Against Women, which “requires state parties to pursue by all means appropriate and without delay a policy of eliminating discrimination against women”[44]. Australia is a party to both.
Recommendations
International comparisons, as well as seeking to fulfil international obligations more clearly, are useful contexts to explore potential avenues for improving WaRP. I make the following recommendations:
a) International Legislation and Refugee Camps
· Update the definition of refugee, and all relevant international legislation, to reflect the special group status of women at risk, particularly those subject to any gender based violence, including rape.
· Require all refugee camps to involve women, through the construction of women’s committees, in the distribution of basic goods. Additionally, such committees may appoint official spokespersons for consultation with external agencies, so that women do not have to consult men, especially when seeking justice for sexual crimes. Camps which have adopted this practise have found significant decrease in sexual harassment[45].
b) Data collection and Reporting
· Increase data collection that reflects the refugee experience by gender, including more statistical data available on the reasons for fleeing their home country. Additionally, increase documentation of human rights and international law abuses by Australia.
c) Application Process
· Require all family members who are claiming asylum to complete individual application forms and be interviewed individually, with a female interviewer and interpreter if requested. This has been introduced in New Zealand and Canada, and allows women to freely express hardships that may be present within the private context[46].
d) Domestic Education and Training
· Education and training programs should incorporate resources for any relevant ethnic group, emphasising the importance of Elders and community leaders in assisting new families where appropriate. These leaders may be useful representatives in conflict resolution and negotiated settlements where a woman may not feel comfortable to do so.
· Create a government sponsored public education program calling for the protection of full gender equality for refugee women, encouraging all Australians to reject cultural relativism when it intervenes with women’s fundamental rights, while respecting the right of refugee women to re-establish cultural norms they believe promote wellbeing. This is practised in Sweden and inspired by the Council of Europe’s Parliamentary Assembly 2005 Report on the Integration of Immigrant Women in Europe[47]. It is aimed to ease the transition of refugee women into traditionally biased communities.
· Increase the creation and dissemination of literature, translated into all relevant languages of newly arrived refugee women, that covers the basics of Australian culture, money management, dealing with Australian institutions, and an overview of our major justice systems. This will allow women to begin their education process, while they may prioritise supporting family at home or seeking employment first.
Conclusion
The Australian Government has created a program under WaR that attracts little praise outside of government sponsored materials. While it is a starting point for greater change, it currently functions in a way that still neglects the rights of refugee women. This group is still at risk of human rights violations upon resettlement, especially discrimination and domestic abuse, with no effective intervention being pursued by the government. Australia’s protection obligations under international law, especially the 1951 Refugee Convention and the VCLT, are not being adequately upheld in national law nor in resettlement mechanisms. Until the Australian Government ceases to hide behind their empty progressive self-title, practical solutions will fail to be pursued. It is hoped that these few recommendations may contribute towards the impetus needed for effective change.
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[1] Manderson, Lenore, Margaret Kelhar, Milica Markovic and Kerie McManus, ‘A Woman without a Man is a Woman at Risk: Women at Risk in Australian Humanitarian Programs’ (1998) 11 Journal of Refugee Studies 267.
[2] United Nations High Commission for Refugees (UNHCR), Figures at a Glance, (20 March 2017) < http://www.unhcr.org/en-au/figures-at-a-glance.html>.
[3] Australian Government: Department of Social Services, Getting Settled: Women Refugees in Australia (2013).
[4] Ibid.
[5] Department ofImmigration& Border Protection, Australia’s Refugee and Humanitarian Program (20 March 2017) <http://www.border.gov.au/about/corporate/information/fact-
sheets/60refugee>.
[6] Freedman, Jane, ‘Gendering the International Asylum and Refugee Debate’ (2015) Springer 120.
[7] World Health Organization, ‘Global and regional estimates of violence against women: prevalence and health effects of intimate partner violence and non-partner sexual violence’ (2013) 2.
[8] [2000] HCA 19.
[9] [2002] HCA 20.
[10] [2015] HCA 14.
[11] Migration Amendment Bill (No. 6) 2001 (Cth).
[12] Australian Government, Australian Government Refugee and Humanitarian Visa Applicants: Guidelines on Gender Issues for Decision-Makers (2013).
[13] Australian Government, Australian Government Guidelines on the Recognition of Sex and Gender (2013).
[14] Bartolomei, Linda, Rebecca Eckert, and Eileen Pittaway, ‘What happens there... follows us here: Resettled but Still at Risk: Refugee Women and Girls in Australia’ (2014) 30.2 Refuge: Canada's Journal on Refugees.
[15] Ibid, 10.
[16] Canning, Victoria, ‘Who's human? Developing sociological understandings of the rights of women raped in conflict’ (2010) 14.6 The International Journal of Human Rights 849-864.
[17] Pittaway, Eileen, and Linda Bartolomei, ‘Refugees, race, and gender: The multiple discrimination against refugee women’ (2001) 19.6 Refuge: Canada's Journal on Refugees.
[18] Correa-Velez, Ignacio, Sandra M. Gifford, and Sara J. Bice, ‘Australian health policy on access to medical care for refugees and asylum seekers’ (2005) 2.1 Australia and New Zealand health policy 23.
[19] Internal Displacement Monitoring Centre, ‘Global Report on Internal Displacement’ (2016).
[20] Akua-Sakyiwah, Beatrice, ‘Somali Refugee Women’s Perception of Access to Services in the UK’ (2012) University of York.
[21] Hugo, Graeme, ‘From compassion to compliance? Trends in refugee and humanitarian migration in Australia’ (2002) 56.1 GeoJournal, 40.
[22] Hayes, Diana, and Sylvia Winton, ‘An Evaluation of the Women at Risk Scheme’ Australian National Consultative Committee on Refugee Women (1991).
[23] Department of Immigration and Border Protection, ‘Woman at risk visa (subclass 204)’ (2016) Australian Government < https://www.border.gov.au/Trav/Visa-1/204->
[24] Manderson, Lenore, Margaret Kelhar, Milica Markovic and Kerie McManus, ‘A Woman without a Man is a Woman at Risk: Women at Risk in Australian Humanitarian Programs’ (1998) 11 Journal of Refugee Studies 267.
[25] Ibid.
[26] Refugee Council of Australia, ‘Recent Changes in Australian refugee policy’ (2016) < http://www.refugeecouncil.org.au/publications/recent-changes-australian-refugee-policy/>
[27] Rees, Susan, and Bob Pease, ‘Refugee settlement, safety and wellbeing’ (2006) Melbourne: Immigrant Women’s Domestic Violence Service 7.
[28] Bhugra, Dinesh, and Oyedeji Ayonrinde, ‘Depression in migrants and ethnic minorities’ (2004) 10.1 Advances in Psychiatric Treatment 13-17.
[29] Watkins, Paula G., Husna Razee, and Juliet Richters, ‘‘I'm Telling You… The Language Barrier is the Most, the Biggest Challenge’: Barriers to Education among Karen Refugee Women in Australia’ (2012) 56.2 Australian Journal of Education 126-141.
[30] Manderson, Lenore, Margaret Kelhar, Milica Markovic and Kerie McManus, ‘A Woman without a Man is a Woman at Risk: Women at Risk in Australian Humanitarian Programs’ (1998) 11 Journal of Refugee Studies 267.
[31] Parreñas, Rhacel Salazar, ‘Servants of globalization: Women, migration and domestic work’ (2001) Stanford University Press.
[32] Menjívar, Cecilia, and Olivia Salcido, ‘Immigrant women and domestic violence: Common experiences in different countries’ (2002) 16.6 Gender & society 898-920.
[33] Manderson, Lenore, Margaret Kelhar, Milica Markovic and Kerie McManus, ‘A Woman without a Man is a Woman at Risk: Women at Risk in Australian Humanitarian Programs’ (1998) 11 Journal of Refugee Studies 267.
[34] Kagan, Michael, ‘Is truth in the eye of the beholder-objective credibility assessment in refugee status determination’ (2002) 17 Geo. Immigr. LJ 367.
[35] Crock, Mary, Ben Saul, and Azadeh Dastyari, ‘Future seekers II: Refugees and irregular migration in Australia’ (2006) 2 Federation Press 174.-
[36] Ibid.
[37] Peyser, Emily C, ‘Pacific Solution? The Sinking Right to Seek Asylum in Australia’ (2002) 11 Pac. Rim L. & Pol'y 431-795.
[38] United Nations, ‘Vienna Convention on the Law of Treaties’ (1969) 1155 United Nations Treaty Series, 331.
[39] Ibid.
[40] UN General Assembly, ‘Convention on the Law of the Sea’ (1982).
[41] Heywood, Philip R., and Hannah Stanley, ‘Rights and wrongs of Australian government asylum seeker policy’ (2015).
[42] UN General Assembly, ‘Convention Relating to the Status of Refugees’ (1951) 189 United Nations, 137.
[43] UN General Assembly, ‘Convention on the Elimination of All Forms of Discrimination Against Women’ 1249 (1979) 13.
[44] UN General Assembly, ‘Declaration on the Elimination of Violence against Women’ (1993).
[45] Buscher, Dale, ‘Refugee women: Twenty years on’ (2010) 29.2 Refugee Survey Quarterly 4-20.
[46] McKay, Leanne, ‘Women asylum seekers in Australia: discrimination and the Migration Legislation Amendment Act (No 6) 2001 (Cth)’ (2003) 4 Melb. J. Int'l L. 439.
[47] Vink, Maarten P, ‘Limits of European citizenship: European integration and domestic immigration policies’ (2005) Springer.