A number of categories of asylum seekers currently reside lawfully in the community awaiting a decision on their refugee or humanitarian claim without the right to work, healthcare or welfare-based support. This includes asylum seekers released from detention for medical reasons, and also includes community-based asylum seekers with unique and exceptional welfare needs. A wide range of serious welfare concerns arise for these groups, including the risk to homelessness, the impact on health and overall wellbeing, particularly for child asylum seekers.

This paper identifies these groups, arguing that they should all have access to appropriate health-care, the right to work, and that those with special needs be able to access specialised care in accordance with the Asylum Seeker Assistance Scheme Exemption Criteria . Furthermore, we suggest that this is in accordance with Australia's obligations and is in its national interest to do so.

Categories in need of care:
This working paper explores the minimum standards of care for the following asylum seekers with restricted entitlements :

Asylum Seekers Released from Detention:
1)          Asylum seekers released from detention on a Bridging Visa E under regulation 2.20
2)          Asylum seekers released by Court Order from detention on Habeas Corpus or Interlocutory grounds
Community-based asylum seekers:
1) Asylum seekers ineligible for work rights and healthcare
2) Asylum seekers with unique and exceptional welfare needs

Detention Releasees:
1) Asylum seekers released from detention on a Bridging Visa E
Certain categories of detention-based protection visa applicants may be eligible for a bridging visa if they meet the requirements under regulation 2.20. These categories include:
*Minors with appropriate community arrangements
*Persons over the age of 75
*People with special health requirements
*Survivors of torture and trauma
*Spouses of Australian residents

Asylum seekers released from detention under regulation 2.20, are issued a Bridging Visa E, which denies the right to work, Medicare, and exclusion from the Asylum Seeker Assistance Scheme.

In most cases these releases have occurred as there has been some level of community-based support assured, such as health care and housing. The adequacy and sustainability, however, of these arrangements is significantly reduced in relation to the extent of time a person has been detained and the health or welfare issues involved. For example, the high degree of releasee pharmaceutical dependence and the ineligibility of those individuals for the Pharmaceutical Benefits Scheme, makes it almost impossible for community based groups or individuals to provide appropriate care for these individuals.

2) Asylum seekers released by Court Order from detention on Habeas Corpus or Interlocutory grounds
Court Ordered releasees, such as those on Habeas Corpus or Interlocutory grounds, face similar issues of denial of Medicare, right to work and ASAS, but in addition are denied the right to a visa, leaving them in a vulnerable situation in the community. In fact, their status in the community is unclear, but seems to be 'unlawful non citizen not in detention under court order'. They often have no form of ID or documentation with them, making access to various services difficult, particularly medical services. In addition, the above groups face transitional difficulties in adjustment to life outside an Immigration Detention Centre.

Community-based asylum seekers:
3) Asylum seekers ineligible for work rights and healthcare
Community-based asylum seekers who fail to lodge a protection visa application within 45 days are denied the right to work and Medicare for the entire duration of their claim. In addition, asylum seekers who appeal beyond the Refugee Review Tribunal are issued a Bridging Visa E, which since 1997, has denied the right to the Asylum Seeker Assistance Scheme, and their work rights and Medicare benefits are revoked.

While there are a significant number of Bridging Visa E holders in the community , of particular concern are those who have lodged a protection visa and are awaiting a decision on a protection visa application or a Section 417. Bridging Visa A and C holders in some circumstances may also be without the right to work.

4) Community-based asylum seekers with unique and exceptional welfare needs
Asylum seekers in the community with unique and exceptional welfare needs, such as those listed below, who are awaiting a decision in the judicial or humanitarian stages, are denied the right to work, Medicare and ASAS. These individuals may have had a change of circumstance since a Refugee Review Tribunal decision, such as pregnancy, medical conditions or other welfare issue, or they may have previously been eligible for Asylum Seeker Assistance Scheme due to the Exemption Criteria below:
*Unaccompanied Minor (under 18)
* An elderly person
* A person who is unable to work as a result of a disability or illness
* A person who is unable to work due to the impact of torture and trauma
* Parent/s with dependent children under 18 years of age
* A full-time carer, where the carer is unable to work because of care responsibilities
* A pregnant woman whose baby's health is at risk if she does not receive assistance
* A person who is a spouse, de facto spouse or sponsored fiance of a permanent resident or citizen, whose income is lower than eligible asylum seekers of the same family makeup in receipt of ASAS payments
* A person whose financial hardship has resulted from a change in circumstances beyond their control since arriving in Australia.

In addition, individuals may be at risk of homelessness or may have no family or relatives in Australia or may be unable to find or access employment. Particular concern is raised for single mothers, vulnerable families and children at risk.

Hotham Mission research findings in 2003 found that ineligible asylum seekers live in abject poverty with virtually no mainstream supports available to them. The impact of these issues, coupled with the long waiting period and the prolonged passivity of this group, included high levels of anxiety, depression, mental health issues and a general reduction in overall health and nutrition. High levels of family breakdown, including separation and divorce, were also recorded. The impact of the Bridging Visa E category on asylum seekers was felt particularly by single mothers, young asylum seekers and individuals and families who have lost the right to ASAS under the existing exemption criteria. The burden to support this group has been left to under-resourced community and church groups and is unsustainable, particularly for detention releasees with high level needs.

Minimum requirements for all asylum seekers
Certain minimum standards should be in place for all asylum seekers awaiting a refugee or humanitarian decision in the Australian community. These standards should include:
*The right to work
*The right to adequate health-care

This will mean in practice:
* The right to work and health-care should be extended to the final 417 decision process
* The 45 day rule needs to be removed.

Currently, there are two health-care options for 'eligible' asylum seekers. Firstly, Medicare for those with a valid tax-file number and work rights, and secondly, the General Health Scheme for asylum seekers 'eligible' for the ASAS program, but 'ineligible' for Medicare. This scheme allows access to GP & Specialist care, without charge, as part of an ASAS approved service provider list. Either of these two health-care options could be extended to ensure all asylum seekers in the community have appropriate health-care.

A number of options have been raised in the past in relation to the right to work. For example, allowing one family member the right to work, or limiting the hours an individual is able to work. Equally, the possibility has been raised that to ensure that the right to work is not abused with the protection visa application process, individuals must first prove financial hardship, based on an income assessment. While these options could all be explored, it is important to note that current Australia policy requires the person to hold an active tax-file number in order to access to Medicare. Thus any system limiting the access to work rights or a tax-file number, would need to consider the impact on the access to health care, and consider the expansion the General Health Scheme to all individuals seeking Australia's protection.

Additional requirements for vulnerable asylum seekers
In addition, certain groups of asylum seekers require additional support in terms of casework and income support. Three distinct groups of asylum seekers stand out as having differing needs in this regard:
* Asylum seekers released from detention on a Bridging Visa E under regulation 2.20
* Asylum seekers released by Court Order from detention on Habeas Corpus or Interlocutory grounds
* Community-based asylum seekers with unique and exceptional welfare needs

Casework and income support
The federally funded program, the Asylum Seeker Assistance Scheme, administered by the Red Cross, was established as a safety-net for certain limited categories of asylum seekers. ASAS has been crucial in providing income support to those who would otherwise have been left destitute in the community. However, there are gaps in this program. Currently, the program provides income support to community-based asylum seekers who have awaited a primary decision for more than six months, and who have not appealed beyond the Refugee Review Tribunal . The program does not extend to asylum seekers who have been in detention or to those at the final stages. Also, it is not funded to provide casework assistance, which is crucial, particularly for long-term detainees and asylum seekers requiring urgent social work assistance for health, housing, legal and other primary welfare concerns.

The idea of providing casework and basic entitlements to vulnerable asylum seekers living in the community is based on a professional human services response to the unique issues they face. Provision of these services recognizes that the government also has a duty of care responsibility for this group of people while they await a final decision.

Fundamentally, casework would mean ensuring specialized welfare care and support for asylum seekers. In a practical sense, this assistance would include housing establishment, accessing medical and mental health services, and overseeing the overall welfare of the client. In addition, casework would play a pivotal role in preparing, supporting and empowering asylum seekers throughout the determination process. While not responsible for implementing immigration decisions or providing legal advice, the caseworker would play a key role in case coordination, including liaising with lawyers and DIMIA/Minister's office.

With post-detention releasees, it is important that a proper welfare and psychosocial assessment is carried out pre-release by the agency or appropriate independent community service (eg mental health service, welfare agency). It is also essential that relevant information about the case be provided, with client consent, to ensure a continuation of duty of care. This information would include medical and psychological reports and assessments, medications received, educational and detention history and future needs.

There have been previous cases where income support has been provided to 'ineligible' asylum seekers in the community who are experiencing unique and exceptional welfare circumstances. DIMIA has used their discretionary powers to continue to pay certain asylum seekers "special payments" post-RRT. The discretionary 'special payments' provision enables DIMIA to pay people who have special needs, and protects vulnerable clients falling into a worse situation due to having no regular financial assistance. For someone with mental health issues, or a sick or disabled child, 'Special Payments' recognize that people's problems will be aggravated by further financial stressors being placed on them. If this discretion exists, no laws or regulations have to be altered to extend this payment to asylum seekers post-RRT or post-detention.

The needs of asylum seekers whether on a community-based BVE, or detention releasee on a BVE under regulation 2.20 or Court Order, may vary, but the underlying vulnerabilities exist in all categories. Therefore, casework provision and an ASAS equivalent payment should be upheld as a minimum standard to vulnerable asylum seekers when released from detention, as well as to vulnerable community-based asylum seekers.

Eligibility for specialist care
The basis of any specialized care for asylum seekers should be seen as service delivery based on client need. Not all asylum seekers would require income support or ongoing casework. The existing DIMIA approved ASAS Exemption Criteria stand as a clear indicator for eligibility to income support and could be applicable to both detention releasees and community-based asylum seekers. Assessment under these criteria could be extended to include the three categories of asylum seekers raised above, and for the period from lodging a PV application through to the final Section 417 decision.

Proposed Asylum Seeker Specialist Care:
Modeled on the existing ASAS program, the following are seen as minimum requirements for the specialist welfare care of asylum seekers:
* Criteria for programs based around similar or existing exemption criteria
* ASAS equivalent payments
* Assessment and ongoing casework provided by ASAS caseworkers involving referral, advocacy and counselling support.

Proposed Asylum Seeker Casework Load:
Three stages of work with detention release BVE:
1.          Pre-release work: assessment and case planning. The worker would be involved in intensive work coordinating the involvement of different organizations, workers and volunteers.
2.          Release work: introduction to the community and orientation; intensive work by caseworker
3.          Ongoing casework; see below.

Ongoing casework capacity is based on the groups of asylums seekers mentioned above:
Detention releasees on a BVE/Court Order:
* Full-time caseload: 12 - 15 Cases
Eligible community-based asylum seekers:
* Full-time caseload: 20-25 Cases

International obligations and Australia's interests
The provision of minimum entitlements to work, health care and welfare support for asylum seekers are embedded in Australia's international obligations but are arguably also in Australia's interests. The International Covenant on Economic, Social and Cultural Rights highlights appropriate and suitable healthcare, housing, and income support, which do not exclude asylum seekers.

These rights would allow:
* A degree of self-sufficiency for individuals able to work
* Access to healthcare and the Pharmaceutical Benefits Scheme
* Access to income support and casework for vulnerable asylum seekers.

These rights are also vital to ensure children have access to essential health services and income support as required in accordance with the Convention on the Rights of the Child (CROC) . CROC is very clear on special provisions being made for asylum seeker children: "States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties." CROC article 22(1)

The recommendations of the recent Senate Select Committee on Ministerial Discretion in Migration Matters stated, 'The Committee recommends that all applicants for the exercise of ministerial discretion should be eligible for visas that attract work rights, up to the time of outcome of their first application. Children who are seeking asylum should have access to social security and health care throughout the processing of any applications for ministerial discretion and all asylum seekers should have access to health care at least until the outcome of a first application for ministerial discretion. (Recommendation 10, paragraph 5.44) This paper argues that in addition to these recommendations, asylum seekers in judicial review should have access to work rights, health care and welfare support.

Furthermore, in 2002, Australia signed the ExCom conclusions which stated "reception arrangements can be mutually beneficial where they are premised on the understanding that many asylum-seekers can attain a certain degree of self-reliance, if provided with the requisite opportunities" (recommendation vii). The conclusion also states that "asylum-seekers should have access to the appropriate governmental and non-governmental entities when they require assistance so that their basic support needs, including food, clothing, accommodation, and medical care, can be met." (recommendation ii)

It is arguably in the national interest to provide basic rights to asylum seekers, such as the right to income and healthcare. Such rights ensure a stable, managed on-shore program is in place and is more likely to ensure asylum seekers are in a position to respond to immigration decisions appropriately. Research on this issue has outlined the positive role appropriate welfare and casework support plays in preparing, supporting and empowering asylum seekers throughout the determination process, and its impact on higher levels of voluntary repatriation and lower levels of absconding .

These rights will also ensure community stability, the preservation of families and caring for the needy as part of Australia's tradition of being inclusive and fair. Having individuals left destitute in the community is neither in Australia's nor the asylum seeker's best interests.

Conclusion
The needs of asylum seekers whether on a community-based BVE, or detention releasee on a BVE under regulation 2.20, or Court Order release, may vary, but the underlying vulnerabilities exist in all categories. A wide range of serious welfare concerns arise for these groups left in the community with no right to work, healthcare or welfare-based support. This includes the risk to homelessness, the impact on health and overall wellbeing, particularly for child asylum seekers.

While minimum standards of duty of care and service provision exist throughout the Australian community in various legal and organisational frameworks, community-based asylum seekers have, on the whole, been denied such basic standards. Australia's international obligations, including the Convention on the Rights of the Child and the International Covenant on Economic, Social and Cultural Rights, highlight appropriate and suitable healthcare, housing and income support, which should be extended to the reception of asylum seekers in the community.

This paper has argued that it is not only an international obligation to ensure access to healthcare, housing and income to asylum seekers, but it is also in the national interest to do so by ensuring a stable, managed on-shore program.

Providing essential supports to asylum seekers in the community is not a difficult undertaking. Firstly, allowing work rights and health-care for all asylum seekers, by reversing the 1997 amendments to the Bridging Visa E category, including the 45 day rule, would ensure access to work rights and Medicare during the judicial and humanitarian stages.

Secondly, a federally funded income support program already exists for community-based asylum seekers. This could be extended to other categories of asylum seekers with particular welfare needs, such as:
* Asylum seekers released from detention on a Bridging Visa E under regulation 2.20
* Asylum seekers released by Court Order from detention on Habeas Corpus or Interlocutory grounds
* Community-based asylum seekers with unique and exceptional welfare needs for the entire duration of their determination claim.

Discretion already exists for DIMIA to allocate funds for community-based asylum seekers post RRT. Extending the ASAS program and including casework support to the groups listed above, using the existing exemption criteria, would maintain a uniform and consistent approach for all community-based asylum seekers. The tight perimeters of the exemption criteria mean that only those with welfare issues of concern would be eligible. This would exclude the bulk of Bridging Visa E holders who would be able to support themselves if they had work rights, thus keeping the program manageable. With the bulk of the 1,200 East Timorese asylum seekers now off the ASAS program, it would be unlikely that the new client numbers would reach these figures, thus not dramatically affecting the DIMIA budget.

More importantly, a provision of basic services and supports for these vulnerable asylum seekers in the community would ensure the Commonwealth's duty of care to this group is upheld.

Asylum Seeker Project
Hotham Mission
5th May 2004