The Safe Haven Visa Policy: A Compassionate Intervention with Cruel Intentions

Executive summary

• Historians committed to policy revision need to unpack popular assumptions surrounding the history of Australia’s refugee policy.

• Further to my last contribution to Australian Policy and History, broadening the approach to histories on refugee policy involves interventions into government programs which have co-opted refugees into a broader debate about Australian national identity.

• This paper investigates the paradoxical implications of the Safe Haven Visa issued to Kosovar refugees in 1999.

• The Safe Haven program paved the way for the Howard Government’s Temporary Protection Visa, a policy abolished by the Rudd Government in 2008.

• The Safe Haven Visa went from being an indicator of the compassion of the Australian people in 1999 to an instrument used by the Federal Government in 2011 to warn refugees to ‘behave themselves’.

Introduction
There have been three developmental stages in Australia’s refugee visa policy: permanent protection; temporary safe haven; and temporary protection. While the first and last of these three stages have been well documented by historians and other scholars, the second has not. This paper explores the implementation of the Safe Haven Visa policy, shedding light on the ‘turn’ from Permanent Protection Visas (which guaranteed the human rights of refugees) to Temporary Protection Visas (which did not). This ‘turn’ was highly publicised. It was presented to the Australian public as a compassionate response by the Howard Government to the plight of refugees from Kosovo in 1999. As James Jupp commented, the Kosovo refugee crisis not only mobilised the Australian community behind charitable undertakings, it ‘also marked an important shift in refugee policy towards temporary protection rather than permanent settlement’.

The Safe Haven policy was paradoxical and masked cruel intentions. It restricted the refugees’ rights to judicial review, removed human rights protections, and granted then immigration minister Philip Ruddock unprecedented and extraordinary powers to issue or cancel visas. While the Safe Haven Visa was offered to two groups of refugees – Albanian Kosovars and East Timorese – this paper focuses on the experience of the Kosovars. This paper is part of a broader study conducted as part of my PhD research.

An about-face: from permanent protection to temporary safe haven
The North Atlantic Treaty Organisation (NATO) military campaign, waged against Serbian forces inside Kosovo, began on 24 March 1999. It was accompanied by Australian and international news media who extensively portrayed the conflict as a ‘human tragedy’ not seen in Europe since Nazi Germany. Indeed, media content analysis conducted as part of my doctoral research revealed that media coverage had a significant impact in terms of generating public opinion in favour of evacuating the refugees to Australia.

The Australian Government led by then prime minister John Howard initially rejected a request by the United Nations High Commissioner for Refugees (UNHCR) to assist with evacuating Kosovar refugees in early April 1999. Following a highly criticised about-face by the Howard Government, Australia was one of 29 countries to accept Kosovar refugees for temporary accommodation. Australia evacuated 4000 out of some 840,000 ethnic Albanian Kosovars who fled their homeland during the conflict. By 6 April 1999, Howard announced the Safe Haven Visa scheme, stating: ‘This is something where a nation of Australia’s strength and wealth and comparative affluence has an overwhelming moral obligation to play a part in’. Canberra’s program, dubbed ‘Operation Safe Haven’, saw the evacuation take place between early May and mid-June 1999. The evacuation, as Barutciski and Suhrke observe, certainly ‘allowed some governments to score public relations points by appearing “humanitarian” in receiving a limited number of “popular” refugees’.

In April 1999, eight Australian government officials visited the Blace refugee camp near the Macedonian-Kosovo border. The officials had been dispatched to select suitable candidates to be evacuated to Australia on a temporary basis. The refugees, their experiences, and the reasons for their selection were conveyed in the Australian media. Much of the news coverage portrayed the Kosovar Albanians as ‘just like us,’ ‘middle class’, and ‘family’ types, in accordance with comments made by Immigration staff in the media. Many Australians, particularly Albanian communities in Australia, empathised with the refugees and donated money, clothing, and their time to assist them.

The first evacuation flight to land in Sydney received widespread national news coverage. The first group of Kosovar refugees arrived in Sydney on 7 May 1999, where they were formally greeted by the prime minister. As a group the refugees became national celebrities albeit under tragic circumstances. The Kosovars’ arrival provided the news media with an opportunity to celebrate and ‘parade’ Australian national virtue.

News reports throughout Operation Safe Haven commonly reproduced the notion that Australians were the most generous people in the world and their efforts (including charity and the evacuation program) were highly commendable. Throughout their stay, the Kosovars were to be the objects of a heavily mediated public relations campaign co-ordinated by the Department of Immigration’s Public Affairs unit – all this from behind the fences of eight disused army bases that were provided to accommodate them in Holsworthy (or East Hills), Adelaide, Perth, Hobart, Puckapunyal, Singleton, Bandiana and Portsea.

Under the scheme, the Howard Government agreed that it would temporarily relocate a limited number of Kosovar refugees to Australia for three months. The new temporary Safe Haven visa scheme established the first formal policy on temporary protection in Australian immigration history. These changes culminated in the introduction of the Migration Legislation Amendment (Temporary Safe Haven Visas) Act 1999 (Cth) on 11 May 1999.

Extraordinary measures, extraordinary circumstances
The UNHCR was unprepared and overwhelmed by the immediacy with which refugees had flooded across the borders of Kosovo and into camps hastily erected as emergency accommodation. The organisation’s request for Australia to evacuate and temporarily provide a safe haven to Kosovar refugees was extraordinary in terms of Australia’s obligations under both domestic law and international conventions. The procedures did not follow the usual process of referral via which Australia would admit refugees for the purposes of permanent resettlement.

The UNHCR typically administers the process whereby refugees are ‘screened’ before being referred to the Department of Immigration. In this case, however, Australian immigration officials were dispatched by the federal government to the refugee camps in Macedonia to screen refugees themselves for temporary relocation to Australia.

The Australian government implemented significant changes to immigration law in order to accommodate the Kosovar refugees by dividing protection visas into two sub-classes: permanent visas; and temporary visas. The Safe Haven program was defined by the government as a ‘short term humanitarian’ measure, under which 4000 Kosovar refugees were to be given an initial three-month Safe Haven Visa (with a view to possible extension as required by Ruddock as the immigration minister at the time). A ‘sunset’ clause of six months also applied in which an offer of safe haven would expire if not taken up before that time.

Under the arrangements the Kosovars would receive food, accommodation (at eight disused or vacated military bases), health care and other necessities, as well as a weekly allowance of $20 for adults and $5 for children (which later went up to $27 and $10 respectively). Second-hand clothing was donated by members of the public. The lack of financial support from the Howard Government created tensions in the army barracks. The refugees were faced with not having sufficient funds to purchase basic commodities, travel fares, food, clothing, or cigarettes.

The legislation refused the right of the Kosovars to apply for permanent residency or social security benefits, and, initially, they were explicitly prohibited from obtaining paid employment—a decision that changed on 1 July 1999, but only so much that the refugees were allowed to work up to 20 hours per week, which also saw their allowance cut if an income was attained.

Under the Safe Haven program the Kosovars were ‘free to leave’ (as Ruddock suggested) the shelter of the Safe Havens, but faced foregoing the government’s protection and support. The limited weekly allowance, the establishment of control-orientated accommodation, and the location of the Safe Havens (four of which were in remote areas) meant that the Kosovars were highly dependent on the federal government throughout their stay.

Canberra discouraged the Kosovars from residing with friends or family in Australia by tying the allocation of benefits to the condition of staying at the barracks. It inhibited the refugees’ ability to attain any reasonable independence by denying (at first) and then significantly limiting the amount of paid employment they could obtain.

The legislation empowered the immigration minister to shorten, extend, or cancel a Safe Haven Visa at will. It denied the Kosovars the right of appeal in applying for refugee status under the UN Convention on refugees or to obtain any other type of visa. The government was able to use the legislation to force entire Kosovar families to be repatriated at any time.

The Safe Haven legislation granted non-reviewable, exclusive powers to the immigration minister to determine the status of Safe Haven Visa holders, insulating the minister from external judicial review. The visa denied the Kosovar refugees the right to be treated by the Australian federal government with the protection afforded to them under international human rights conventions.

Not surprisingly, such limits generated criticism from the Australian Greens and Democrats in the Senate. The Safe Haven Visa was designed, as stipulated in the Migration Legislation Amendment (Temporary Safe Haven Visas) Bill 1999, so that it could be granted at short notice by Immigration staff working in Macedonia with the UNHCR – in situations where Kosovar refugees had been stripped of their credentials by Yugoslav forces, and more extensive character checking was not possible.

The immigration minister described the Australian government’s Operation Safe Haven on 4 May 1999 as: ‘a program of evacuation to provide safe haven for people where there is an expectation they should be able to return home’. The Refugee Council of Australia said the intent of the operation was very clear from the start. It was the first time in Australian immigration history that refugees had been brought to Australia with the ‘express purpose that it be for short-term respite rather than resettlement’.

The Safe Haven program was the product of a rationale and desire expressed by the immigration minister that centred around containment, compliance, and control. The Migration Legislation Amendment (Temporary Safe Haven Visas) Act was designed to control almost every aspect of the Kosovars’ lives. The Safe Haven legislation granted non-reviewable, exclusive powers to the immigration minister to determine the status of Safe Haven Visa holders. The new powers were intended to uphold the integrity of the existing Australian immigration program, and insulate the minister from accountability via external review. They granted the minister the authority to cancel an individual’s Safe Haven Visa, and prevent the Kosovar refugees from attaining more permanent residency in Australia.

Implications for human rights and Australia’s international obligations
The Safe Haven Visa legislation severely diminished refugees’ access to rights afforded to them under the 1951 Refugee Convention, the Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment (CAT), and the International Covenant on Civil and Political Rights (ICCPR). One of the protections offered to refugees under the 1951 Convention, for example, was the right not to be returned (non-refoulement) to a situation where such persons could face torture or other cruel or degrading treatment. These and other aspects of the 1951 Convention did not apply to refugees who had been given a Safe Haven Visa.

From the start, Operation Safe Haven set out to select particular kinds of refugees to be evacuated to Australia that ensured their compliance with the visa program. The refugees signed an agreement saying they understood their evacuation to Australia was temporary, but the Safe Haven program did not provide leeway for circumstances on the ground once the war was over. Michael Head says the Safe Haven Visa legislation had ‘far-reaching provisions to extinguish the legal and democratic rights of unwanted asylum-seekers.’ At the same time, he says, the Immigration Minister promoted the legislation, which passed through both houses of parliament largely unopposed, as ‘a magnanimous and humanitarian offer of haven’.

Challenging repatriation in the High Court of Australia
A peace agreement was reached between NATO and Yugoslavia on 9 June 1999, eleven weeks after the beginning of NATO air strikes against Serbian forces. Although systematic persecution of ethnic Albanians had ceased, the security and economic situation of Kosovo was far from stable when the Australian government began to repatriate ethnic Albanian refugees to the province in July 1999. At this time, the situation remained unsafe for about 800 refugees who had lived in eastern parts of Kosovo before the war, a disputed region that was to become part of Serbia proper as part of the NATO-Yugoslav peace agreement. There was an obvious danger to these refugees if they were to be repatriated by the Australian government.

From a legal perspective, the Kosovars were provided with no protections to challenge being returned home after three months. The drastic implications for their human rights were well known to critics of the Safe Haven legislation from the beginning, as evidenced by debate in the Senate. The temporary Safe Haven Visa imposed stringent limitations on the right of appeal and removed ‘natural justice’. The legislation denied the right of the Safe Haven Visa holder to legally challenge a decision by the immigration minister to cancel that visa and then repatriate them (and their families) from Australia. Ruddock, then, had the power to decide when the refugees were to be repatriated, and ruled solely over whether the refugees were eligible for another type of visa that would allow them to stay in Australia.

By October 1999, the immigration minister began to reduce medical and other types of support previously made available to the Kosovars. The Refugee Council of Australia was concerned about the increasing pressure being applied to Kosovar refugees to leave Australia, stating that Ruddock’s approach amounted to ‘bullying tactics’. The minister described those Kosovars who refused to leave Australia as ‘unlawful non-citizens’ subject to detention and removal. In any case, 90 per cent of the Kosovars had returned home or to the refugee camps of Macedonia by early November 1999.

In January 2000, the UNHCR’s Paul Kessler described the situation on the Serbia-Kosovo border as ‘extremely tense’. He cited multiple incidences of murder, arson and violent clashes between Serbs, Albanians, and Slavs in recent weeks. Kessler stated that the ‘time is not yet right for large-scale return of non-Albanian refugees… security cannot be guaranteed’. The UNHCR had also reported that the influx of returnees to Kosovo was putting pressure on households who were already trying to make room for returning family members. Aid agencies were struggling to match growing housing demands with under-resourced rebuilding programs. More than 60,000 homes had been destroyed in the war. The security situation remained volatile, especially considering the province still did not have a functioning police force, court system, prison system, or even a postal service.

By mid-March 2000, Philip Ruddock began to re-assert pressure on those Kosovars remaining in Australia, most of whom were residing at Bandiana barracks. He ordered refugees with ‘no valid reason to be in Australia to leave’, and to board a chartered flight for home on 8 April 2000. A spokesperson for the immigration minister at Bandiana told media the federal government hoped there would be no need for any forced removals, but threatened chemical tranquillisers would be used on those who refused to leave.

On 7-10 April 2000, some 81 refugees challenged the federal government in the High Court of Australia. The refugees’ counsel argued that the group should be exempted from repatriation because, in accordance with international refugee conventions and UNHCR guidelines, they feared returning home, had witnessed atrocities, and their homes were in areas now dominated by Serbs.

The High Court found in favour of the federal government. A week later, the Bandiana barracks Safe Haven was reclassified as a detention centre, preventing all non-government staff from entering the barracks. The refugees had no access to legal counsel, and the media was prevented from talking to them. Most of the remaining Kosovars at Bandiana were flown home shortly after. The Australian government’s handling of the situation was a serious breach of the UNHCR’s repatriation criteria, which stipulates the importance of ‘voluntariness’ (an absence of physical, psychological or material pressure) in the returning of refugees.

Others who refused to leave voluntarily were sent to Port Hedland detention centre. On 29 May 2000, having personally considered individual circumstances, Ruddock announced that 28 Kosovar families (121 people) had been allowed to apply onshore for permanent protection.

Canberra had successfully defended its legislation in the High Court. If anything, the case demonstrated how the Safe Haven Visa was designed to control the Kosovar refugees and allow the immigration minister to dictate their terms of residence without being subject to external checks on those powers. Effectively, the Kosovars had very little economic incentive or legal right to remain in Australia under the terms of the Safe Haven Visa, nor any capacity to challenge their repatriation. Furthermore, the Australian government potentially contributed to instability in the Balkans by repatriating the Kosovars without normative legal restraint and a sense of precaution.

From Safe Haven to the Temporary Protection Visa
The Safe Haven Visa can be viewed as a metaphor for reasonable control and compliance within a humanitarian context. The implications of the visa reveal darker aspects of Australian immigration, promoting the idea of safe haven under the rationale of temporary protection. The Safe Haven policy and the temporary protection regime that was constructed thereafter must be viewed in the context of the broader restructuring of the Department of Immigration with respect to the processing of refugees.

Under the Howard Government, the Humanitarian Program (which accepted refugees via United Nations referral) remained the main program under which refugees gained access to Australia. Yet, the Immigration Department was increasingly tasked with more punitive roles that transformed it into an agency more concerned with border protection. While the Howard Government was not the first government to implement changes in immigration law that enhanced the department’s border protection responsibilities, it was instrumental in popularising the notion that refugees were to be automatically regarded with a degree of mistrust and scepticism.

The Temporary Protection Visa (TPV), introduced five months after the Safe Haven Visa, was permeated with similar xenophobic connotations. This visa, which has been criticised and analysed by many scholars from a range of disciplines, was issued to those entering Australia ‘illegally’. Asylum seekers on a TPV were granted (usually) only three years protection, with no right to seek permanent protection. In 2004, the Human Rights and Equal Opportunity Commission’s National Inquiry into Children in Immigration Detention found that TPVs had negative impacts on asylum seekers, particularly in regards to the welfare of children. The Commission recommended against a clause that prevented family reunion rights for asylum seekers. The TPV was abolished by the Rudd Government in August 2008.

Conclusion
The parallels between the TPV and Safe Haven Visa, particularly the restrictions they imposed on the human rights of refugees, must be viewed alongside the re-emergence of popular xenophobia within Australian society in the Howard era. One Nation party leader David Oldfield reinforces the point, commenting that John Howard’s decision to accept the Kosovar refugees on a temporary basis was a ‘direct application’ of One Nation’s immigration policy.

In April 2011, current federal Immigration Minister Chris Bowen stated he was considering reintroducing TPVs and Safe Haven Visas after asylum seekers had protested at Villawood detention centre in Sydney. It was intended to be a warning to asylum seekers. The Safe Haven Visa has thus come full circle. It has come a long way from supposedly embodying the compassion of the Australian people in 1999, to an instrument used by Canberra in 2011 to threaten refugees to behave themselves.

The evacuation of the Kosovars to Australia was co-ordinated alongside a dramatic new direction for Australian refugee policy based on the rationale of temporary protection. Paul Kelly commented on the significance of these changes, describing the Safe Haven program as ‘a significant and historic change in Australia’s immigration policy, which, presumably, was neither recommended by Ruddock or his department’. The editor of The Australian aptly described the implementation of the Safe Haven program at the time as ‘policy on the run’, as the Howard Government scrambled to formulate a strategy that would regain public favour.

Further Reading

Barutciski, M. and Suhrke, A., ‘Lessons from the Kosovo Crisis: Innovations in Protection and Burden-sharing.’ Journal of Refugee Studies 14(2), 2001, pp. 95-115.

Curren, Liz, ‘Hordes or Human Beings?; A Discussion of Some of the Problems Surrounding Australia’s Response to Asylum Seekers and Possible Solutions to Those Problems’, Catholic Mission for Justice, Development and Peace, Melbourne, Discussion Paper 8, March 2000.

Head, M., ‘“The Kosovar and Timorese; Safe Haven” Refugees’. Alternative Law Journal, December 1999, Vol. 24, No. 6., pp. 279-283.

Jupp, James, From White Australia to Woomera, Cambridge University Press, Cambridge, 2006.

Jupp, James (ed.), The Australian People: An Encyclopedia of the Nation, Its People and Their Origins, Cambridge University Press, Cambridge, 2001.

King, Jackie, ‘Australia and Canada compared: the reaction to the Kosovar crisis’, Australian Journal of Human Rights, No. 15, 2003. URL: <http://www.austlii.edu.au/au/journals/AJHR/2003/15.html>. Accessed 3 June 2009.

Margetts, D. and Bartlett, A., in ‘Migration Legislation Amendment (Temporary Safe Haven Visas) Bill 1999; Second Reading’, Senate: Official Hansard, Commonwealth of Australia Parliamentary Debates, 29 April 1999, pp. 4553-4559.

Marr, D. and Wilkinson, M., Dark Victory, Allen and Unwin, Crows Nest, 2003.

‘Migration Legislation Amendment (Temporary Safe Haven Visas) Bill 1999’, Senate: Official Hansard, Commonwealth of Australia Parliamentary Debates, 21 April 1999, p. 3966.

McKinnon, Michael, ‘81 Kosovars win reprieve from return’, The Daily Telegraph, 8 April 2000, p. 16.

Neumann, Klaus, ‘Remembering Refugees’, Australian Policy and History, August, 2010, p. 3, online at https://www.aph.org.au/ files/pdfs/neumann_Refugees.pdf, cited 10 October 2010.

Persian, Jayne, ‘Displaced Persons and Public Memory’, Australian Policy and History, April 2010, online at https://www.aph.org.au/files/articles/displacedPersons.htm, cited 10 October 2010.

Pickering, Sharon, ‘Common Sense and Original Deviancy: News Discourses and Asylum Seekers in Australia’, Journal of Refugee Studies, Vol 14, No. 2, 2001, pp. 169-186.

Refugee Council of Australia (RCOA), ‘KOSOVO SAFE HAVENS: Views from the Community Sector’, January 2000. URL: <http://www.refugeecouncil.org.au/docs/resources/reports/kosovo-safe-havens.pdf>. Accessed 4 February 2009.

Wazana, Richard, ‘Fear and Loathing Down Under: Australian Refuge Policy and the National Imagination’, Refuge, Vol. 2, No. 1, March 2004, pp. 83-95.

Refugee Council of Australia (RCOA), ‘Position on the Return of Kosovar Evacuees’, 5th November 1999, online at http://www.refugeecouncil.org.au/docs/resources/ppapers/ pp-kosovar-rtn-nov99.pdf, accessed 6 February 2009.

Ruddock, Philip, as cited in McKinnon, Michael ‘Kosovars to go in April’, The Daily Telegraph, 16 March 2000, p. 7.

Ruddock, Philip, as cited in Gee, S. and Skotnicki, T., ‘Mire ce vini ne Australia (That’s welcome, in Albanian)’, The Daily Telegraph, 4 May 1999, p. 6.

Taylor, Savitri, 2000, ‘Protection or Prevention? A Close Look at the Temporary Safe Haven Visa Class’, UNSW Law Journal, Vol. 23 (3).

York, Barry, ‘Australia and Refugees, 1901-2002: An Annotated Chronology Based on Official Sources’, Information and Research Services, Department of the Parliamentary Library, Canberra, 16 June 2003.

‘Milosevic shows his hypocrisy…as refugee policy is made on the run’ (editorial), The Australian, 8 April 1999, p. 12.

Howard, John, as cited in Farr, M., ‘SANCTUARY – Australia to accept 4000 from Kosovo’, The Daily Telegraph (Morning Edition), 7 April 1999, p. 1.

Kessler, Paul, as cited in ‘Kosovo killings keeping Serbs out’, The Australian, 19 January 2000, p. 9.

Kelly, Paul, ‘Knee-jerk response to Kosovo crisis’, The Australian, 7 April 1999, p. 13.

Oldfield, David, as cited in Garran, R. and Green, P. ‘Agreement remote on housing refugees’, The Australian, 8 April 1999, p. 1.

Citation: Robert Carr, The Safe Haven Visa Policy: A Compassionate Intervention with Cruel Intentions. Australian Policy and History. October 2012