It's time to dispel the myths surrounding Australia’s asylum babies
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Version 0 of 1. It starts with a knock on the door before dawn. Men, women and children are called forward by their detainee number and given five minutes to gather what meagre belongings they have before being herded into a car and taken to the airport, bound for Nauru or Manus Island. Remaining families can only guess that their friends have been taken when they wake in the morning and find their neighbour’s bunk beds empty. People live in fear that each night when they head to bed, they may be next to get that knock on the door. Last month I travelled with a colleague to Christmas Island to meet with asylum seekers who have given birth to children since arriving in Australia. These are people who arrived after 19 July 2013, when the Rudd government changed the law to classify anybody who comes to Australia by boat after this time as an "unauthorised maritime arrival" (UMA). UMAs cannot apply for protection in Australia under the United Nations refugee convention or complimentary domestic instruments. Furthermore, regardless of whether they are found to be refugees, they cannot be settled in Australia and they must be taken to a regional processing centre – currently either in Nauru or on Manus Island, Papua New Guinea; possibly soon Cambodia. The Abbott government recently began transferring families with young children, including Australian-born babies, to Nauru. As their lawyers, we argue that there is no legal basis for the transfer of these infants as babies born in Australia are not UMAs. Not surprisingly, the Abbott government disagrees with us, and we’re taking the department of immigration and border protection to court over the issue. Until the court has had an opportunity to consider the correct status of these newborns, we argue that the government must hold off on transferring these Australian-born babies to Nauru or Manus Island. The Migration Act 1958 defines an UMA as anyone who entered Australia "by sea". A person is considered to have entered Australia by sea unless they arrived by an aircraft. On a literal reading, I can be classified as a UMA, despite the fact I was born in a Melbourne Hospital – as could numerous Australians, including the prime minister. How can a baby born in an Australian hospital be legally or logically considered to have arrived by sea? These babies are not your average asylum seekers. Born in Australian hospitals, with two guards standing by their mother’s bed 24 hours a day, these children have spent every day of their life behind wire. Christmas Island is no place for children. Health care for newborn babies is basic at best. Any complex medical treatment requires transfer to the mainland, which often takes months to arrange. Many of the babies we met were suffering from heat rash, skin problems and insect bites – some from the Island’s poisonous centipedes. Fifteen doctors who work on the Island recently published their grave concerns regarding pediatric care available for children of asylum seekers, describing services as inadequate and poorly managed. As challenging as Christmas Island is for these new parents and their babies, Nauru is certainly no alternative. The UN has described Nauru as harsh and unsuitable for minors and has called on the government to halt the transfer of children from Australia offshore all together. Shortly after our visit, the government confirmed that three asylum seekers detained in Nauru had contracted dengue fever. Less than one week later, an un-detonated wartime bomb was uncovered in the section of the detention centre that holds children and pregnant women. A common response to this action is skepticism that asylum seekers try to become pregnant in the hope that it will increase their chances of staying in Australia. This is a myth. All of the clients we met with were pregnant well before they arrived on Australian soil – in some cases, heavily so. One woman’s waters broke as her boat began to sink off the coast of Darwin. It makes perfect sense that the pending arrival of a child, for those living in a country where they are suffering persecution, is a powerful catalyst to risk a dangerous journey in search of safety. For some, the pregnancy itself is the cause for persecution, such as the case of one underage client who conceived out of wedlock. She fled alone after family members with strong links to the ruling repressive government attempted to have her killed. One couple openly wept as they told me of their attempts to become pregnant before they arrived here. Their hope was that the arrival of a new baby would help ease their grief following the death of their 18-month old son on their way to Australia. He survived for five hours in the water after their boat capsized off the coast of Indonesia. They held his body for the remaining three hours it took them to swim to shore. They tell me the arrival of their 10 day old daughter helps a little. But nothing will ever fill the void left by the death of their first-born. The idea that having a baby will somehow allow people to "cheat" the system by enabling them stay in Australia is also a myth. A successful result in our court action will not mean these babies and their families can automatically stay. It will merely mean that they are entitled to apply for protection in accordance with standard procedure and have their claims for asylum assessed and determined. By being correctly recognised as eligible to apply for protection in Australia, it may argued that a successful outcome in our case will result in our clients being able to merely engage in a process that they should be entitled to engage in in the first place, in accordance with the spirit of the Convention and Australia’s obligations as a signatory. Following negotiations upon our return from Christmas Island, the department of immigration and border protection agreed that it will hold off on transferring the 24 babies we met to Nauru or Manus Island, at least until their status is determined by the court. This is a good, albeit short-term reprieve for these babies and their families. But it is not good enough. The minister must agree that no Australian- born baby will be transferred offshore until this important question is resolved. There are currently other Australian born babies in detention centres around the country that remain at imminent risk of transfer. And every night, their parents go to bed fearing that they will be next to wake to that knock on the door. |