In the end, one of the most divisive immigration battles in Australia’s history was over in less than a fortnight – in a whirlwind of court hearings, protests, diplomacy and two brief stays in a Melbourne immigration detention hotel. The case of Novak Djokovic versus the Australian government drew the world’s eye to Australia’s hard borders. And for a moment, people even looked past the media circus camped outside that hotel to the faces of the refugees also held there.

Through those windows, you might have seen cousins Mehdi and Adnan, who fled persecution in Iran as teenagers and have now grown up together in detention centres. Or Joy, who has survived shark bites, sickness and beatings since he fled Bangladesh but still dreams of opening a restaurant in Australia. Jamal, having left his homeland when his work with Western forces in Afghanistan drew Taliban attention, was driven to such despair after five years in detention offshore that he set himself on fire, but he now looks for the signs of pro-refugee supporters outside the hotel every day, “the people who give me strength”.

About 32 are still detained in the Park Hotel in inner-city Melbourne, most of them recognised as refugees to whom Australia owes protection but with no clear idea why they are being held when others have been released. They are not the only ones. Despite a US resettlement deal struck by the Turnbull government in 2016 to take up to 1250 refugees, and the closure of offshore detention centres such as Manus Island, many refugees and asylum seekers are still in facilities in Australia or monitored in community detention. More than 200 are left on Nauru and in Papua New Guinea. And thousands are also in Australia on bridging and temporary protection visas, including Afghan refugee Zaki Haidari, who calls it a different kind of limbo, sometimes with years unable to work or study.

So, if we “stopped the boats”, why are so many refugees still languishing in the system? What might happen to them? And how does Australia’s hard border policy stack up internationally?

Who are refugees and asylum seekers?

No one chooses to be a refugee. Zaki certainly didn’t. When his mother arranged for him, at 17, to be smuggled out of Afghanistan, these were her options: Zaki’s father, who was their village’s first-ever doctor, had just been taken by the Taliban and Zaki’s older brother beheaded for going to university. The family – part of the persecuted Hazara ethnic minority – were waiting for the Taliban to come for Zaki next. “My mother knew I’d die if I stayed but she was told I’d only have 90 per cent chance of surviving if I went.”

Zaki did survive, after a harrowing three months in the hands of people smugglers (“I’ll never forget my mother’s [joy] when I finally called her from Australia”), but the journey wasn’t over. It was late 2013 and he had arrived just after a crucial policy change in Australia – asylum seekers who arrived by boat could no longer apply for protection.

It was part of the Abbott government’s “stop the boats” deterrence policy that continues today. People are told that if they come by sea they will have no chance of making a new life in Australia, even if they are recognised as refugees.

The government says this has stopped the people-smuggling trade to Australia, saving lives that might otherwise be lost on dangerous crossings. (According to a Department of Home Affairs spokesman, more than 50,000 people came to Australia by sea via people smugglers between 2008 and 2013, and more than 1000 people drowned “on small and often unseaworthy vessels”.) But the UN and other international bodies have repeatedly found that Australia’s asylum-seeker policies breach binding conventions on refugees, and against torture.

Officially, Australia calls refugees like Zaki “illegal maritime arrivals” although seeking asylum – even by boat – is not a crime. Since 1976, about 80 per cent of those seeking asylum in Australia by boat have been found to be genuine refugees, according to analysis by the Refugee Council of Australia.That means Australia cannot deport them under its international obligations. “The cardinal rule”, immigration lawyer Sanmati Verma explains, is not to return a refugee to harm.

An “asylum seeker” becomes a “refugee” officially when they are recognised as having a “well-founded fear” of persecution back home which that country cannot or will not protect them from. This is not a magical declaration, Verma notes. Another country may recognise someone as a refugee even after one state has rejected their claim. And asylum seekers still have rights: “They’re like refugees in waiting.” That’s why, under a binding 1951 refugee convention to which Australia is a signatory, a country must also assess each person’s claim of asylum individually.

Australia’s hard border policy has seen many boats turned back at sea without this due process (a practice decried as dangerous by the UN), and those who have arrived placed in mandatory detention while their asylum claims are processed.

Mandatory detention was not itself new in Australia (it was first introduced by the Keating government in 1992). But by 2013, an initial nine-month time limit was long gone. Now, with visa bans for boat arrivals that can be lifted only by the Immigration Minister, this detention has stretched into years, not months, often in poor conditions. At least 12 asylum seekers have died at offshore sites, a number of them ending their own lives.

As of September 30, 2021, asylum seekers and refugees made up about 19 per cent of those held in Australia’s locked immigration detention network – 278 people. (The remaining 1181 are mostly those whose visas have been cancelled on character grounds due to criminal history, awaiting deportation.)

Some form of “administrative detention” for people without valid visas is common around the world but “it’s designed to be temporary”, says Refugee Council of Australia head Paul Power, who has also advised government on refugee resettlement. It’s “a holding pattern while you get an answer on your visa status”. There are alternatives to being locked in a facility, he says, such as being released on temporary bridging visas (as typically happens for asylum seekers arriving by plane).

People are detained on average 48 days in the US and 24 in Canada while 90 per cent in UK’s immigration system are held less than six months. As of September 2021, Australia’s own average is almost two years (689 days). That’s about the highest it’s ever been, says Power, and, when you exclude other visa cases from the numbers, asylum seekers and refugees have been detained even longer.

“I do not know of any country consciously and publicly taking this deterrence approach.”

Erika Feller, former Assistant High Commissioner at UNHCR

Most of those in the hotel in Melbourne have been held for more than nine years, since the 2013 policy change. Former assistant high commissioner at the UN refugee agency the UNHCR Erika Feller, calls them a “forgotten legacy of history”. “They’d been buried in the whole morass of reporting on COVID, unfortunately. That is, until [the Djokovic saga].”

So, why are those men in the hotel?

Human rights lawyer Alison Battisson helped the Afghan women’s soccer team escape the fall of Kabul last year, and now represents half a dozen refugees in the Park Hotel, along with others scattered throughout Australia’s wider detention network, including another hotel in Brisbane. They are part of a cohort of about 200 who came to Australia on medical transfer under the since-repealed medevac (medical evacuation) laws, which gave doctors rather than immigration officials the final say on where patients were treated.Advocates say only 65 of that group are left in locked detention and there appears to be no rhyme or reason as to why they haven’t been released with the rest. There’s no apparent difference in circumstances, and they’ve all been security cleared, Battisson says.

“We managed to get people without visas on planes at Kabul but we still can’t get them out of a Melbourne hotel,” she sighs.

Battisson and her clients in the hotel now fear they are being made an example of.

While the department says all detainees in its detention facilities have access to outdoor areas, lawyers, advocates and the refugees at the Park Hotel report there are no balconies, and only one small, heavily guarded outdoor area for smokers.

“The hotels are the worst of the lot,” Power adds. “Even in a detention centre people have some fresh air and a chance to walk the grounds. I can’t believe it’s gone on so long. But it will finalise at some point.”

Park Hotel refugees “are all in various stages of the pathway to where they will ultimately be located.”

Prime Minister Scott Morrison on January 19

Since 2013, refugees who arrive by boat may be released from locked detention into community detention or on a bridging visa at the government’s discretion. That’s already happened for many. But, even when recognised formally as refugees, they have to be invited to apply for a temporary protection visa by the minister personally, otherwise they remain ineligible.

“Six years I’ve had people wait for an invitation” after already waiting for their asylum claim to be processed, says Battisson. “There’s been families with kids in detention waiting four years.” Lawyers can file to compel decisions on the grounds of unreasonable delay but “COVID has stuffed that up a lot”.

Visits to those in detention have also been restricted during the pandemic. When she flew into Melbourne recently to see her clients, Battisson stood out the front of the Park Hotel and waved at them as they talked on the phone.

The government says that “transitory persons” temporarily in Australia will return to an offshore processing country “as soon as reasonably practicable”. That means Nauru and Papua New Guinea, among the few countries in our region to have also signed on to the refugee convention, Feller says, and where we established offshore processing centres. Here they can make a life, but they are countries beset by their own problems such as poverty and conflict and, as the government also noted, some refugees have filed legal action against their planned return.

“Everyone asked us how Djokovic was treated, what food he got, but for nine years we’ve been shouting about this and most people don’t hear.”

Jamal, refugee detained in the Park Hotel

”We’ve had to lodge protections against some going back to PNG and Nauru because of the violence and the hatred to refugees there,” says Battisson. “I don’t know a single one I act for who hasn’t been assaulted there. It’s dangerous to practise Islam, even illegal to be LGBTIQ. If someone’s original asylum claim is because they fled gay persecution in their homeland, they cannot tell that to the PNG government.”

Home Affairs says: “Australia’s border protection policies remain steadfast; persons who travel to Australia illegally by boat will not permanently settle here. Transitory persons are encouraged to … take steps to start the next phase of their life, including to resettle in a third country or voluntarily return home or to another country in which they have a right of entry.”

What about US resettlement? Are there other options?

Many refugees in the hotel (and elsewhere) have applied for US resettlement. About 1000 refugees have been resettled so far under the deal. But it’s been slow. Joy applied in 2020 and has yet to hear whether he’s been accepted. Jamal has been told his formal interview for the process should happen in the next month or two, when US officials come to the region to do another round.

Pressed about the refugees in the hotel this month, Prime Minister Scott Morrison said: “They’re all in various stages, various stages of the pathway to where they will ultimately be located.”

But even Labor, which Power says has historically followed the Liberal’s hard line on refugee detention, is calling for all remaining detainees to be released into the community in the meantime – which would save millions of dollars in taxpayer funding.

“I haven’t seen my family in 12 years. I’ve never met my son.”

Alex, refugee recently released after 12 years in detention

Mehdi and his cousin Adnan, transferred to the mainland in 2019 after years of trauma on Nauru, have now both been approved for US resettlement but are yet to hear when they will be leaving. In Mehdi’s mind, it’s still an “if”. “Everything is so uncertain, so random,” he says.

Meanwhile, although the cohort had all been prioritised for medical care, they report medical attention is often slow. Mehdi says he’s had an untreated toothache for months. In October, a COVID-19 outbreak ripped through the hotel, infecting about half of those detained, and many report long, feverish hours passing without access to medical attention, even, initially, Panadol. Joy was so sick he tried to call an ambulance himself. “I was shaking, I couldn’t stand up. Still, they made me wait six hours for the Panadol and that’s all I got. My life is a room. We can’t breathe in here anymore. ”

Jamal, who does receive treatment for his burns, also speaks of long waits for medical attention during the outbreak. “It’s hurting me,” he says of his detention. The windows of his room don’t open and he can only faintly hear the rain outside. “I was young and I get old here.”

Home Affairs said people in its detention facilities “are treated in accordance with human rights standards” and COVID protocols are being followed. “The health care and range of services provided to detainees ... is broadly commensurate with healthcare available to the Australian community through the public health system. This includes public health system waiting times when referred for specialist care.”

Refugees who don’t make it to the US can try for Canada. “The US system has got some quirks in it, restrictions on certain nationalities brought in by Trump,” explains Power. But a Canadian program allows its citizens to privately sponsor a refugee for resettlement, provided they can fund the person’s first year of living expenses (after which the refugee can receive government benefits).

About a dozen have already been resettled in Canada this way.

In late 2021, the Australian government announced its own pilot sponsorship program, which Power says looks likely to be both easier for community groups to fundraise for and less expensive than the Canadian program (as refugees in Australia are already eligible for benefits). Over the first four years, 1500 resettlement spots will be available for private sponsorship. “So we’re gearing up for that too when [more detail is released and] it starts,” says Power. “That’s very welcome.”

The department confirmed those 1500 places will “initially be drawn from within Australia’s existing humanitarian program numbers”, with priority given to refugees referred through UNHCR and without an existing connection to Australia. Refugees already in the Australian system who came by boat after the 2013 resettlement ban, such as those in the hotel or on bridging or temporary protection visas, are not eligible.

Meanwhile, New Zealand has had a longstanding offer to take 150 refugees on the table since 2013, but it’s never been used by Australia. The Home Affairs spokesman said Australia appreciates the resettlement offer and was “engaging with New Zealand, but remain focused on the US resettlement arrangement at this time”.

How does this policy fit with international and human rights laws?

Countries control who crosses their borders. So, while Feller stops short of calling Australia’s policy itself unlawful, she stresses it is inconsistent with international law. (The UN has taken the rather extraordinary step of demanding Australia rewrite its Migration Act to comply.) It’s “perfectly reasonable” for a state to try to combat people smuggling, Feller says. But Australia stands out in the developed world for making this the main driver of its refugee policy – essentially, turning the problem into one of “migration management” rather than the humanitarian responsibilities that Australia owes those seeking asylum. The international convention “cannot just be sidelined”, she says, and it has no criteria for the manner of arrival. “I do not know of any country consciously and publicly taking this deterrence approach.”

By and large, Power says, the principle of not sending refugees back to harm has been upheld by Australia. But Verma and Battisson say time has been weaponised by the system too, setting the conditions for “constructive refoulement” (where a person is coerced to leave rather than outright deported). “You can delay the process so much that it’s practically torture and they go back anyway,” says Verma. “You break their spirit.”

Mandatory detention has even been imposed on children, something the Human Rights Commission says conflicts with both international and Australian law that children must only be held as a last resort. (All children have now been moved out of locked detention.)

Bright kids such as Mehdi have had almost no access to education and proper health care, Battisson says, another breach of the binding international convention on the rights of children. Zaki was treated as an adult when he landed in detention at 17, and couldn’t go to school. “My grandfather couldn’t go to school as a Hazara,” he says. “My dad was the first generation to go but here I was in a country that prides itself on human rights and suddenly, I couldn’t go to school again, even when [later released on a bridging visa] I was offered a scholarship.”

“A stranger paid for my train fare. The government hasn’t been kind but the people of Australia are. When they know you, they try to help you.”

Zaki Haidari, refugee and advocate

“We are worse than Trump’s America,” Battisson says, pointing to severe examples of trauma and abuse in detention – suicides, riots, even cases of “resignation syndrome” (first detected among children falling almost catatonic in detention in Sweden). Though he has committed no crime, Jamal says he is treated worse than a prisoner, without a fair trial. “Everything is at the whim of the minister.”

Legal experts have warned that, as Australia’s immigration system has become increasingly opaque and secretive, so too have its powers grown. Until recently, Alex (who is using a pseudonym for safety reasons) was one of the longest detained refugees in Australia’s history, held for 12 years. For a long time, Verma, his lawyer, feared that his detention would become indefinite as he ran up against the immigration minister’s so-called “God Powers” to veto (or grant) visas.

In 2009, Alex fled a bloody civil war in Sri Lanka, having survived kidnapping and mutilation. He pitched in with others he knew to buy a boat, but it was his name on the purchase, and when he landed in Australia he was charged with people smuggling, despite being a refugee himself. Alex’s conviction was eventually quashed, but his visa applications were rejected on character grounds by the minister until Verma managed to get that decision set aside (as Djokovic’s lawyers attempted to do unsuccessfully this month) and then compelled another decision. This time it was a reprieve from detention – release under a five-year safe haven visa. But Alex hasn’t seen his family in 12 years. When he made the dangerous journey to Australia, his wife was four months pregnant with his son and his daughter just three, and he had hoped to get them out through safer channels. “I’ve never met my son,” he says. “I just want to get them here safe with me.”

How does Australia’s border policy stack up internationally?

There are 1.5 million refugees in need of resettlement worldwide this year, according to UNHCR, most of them struggling in low-income countries. Resettlement countries, including Australia, take about 80,000 refugees a year between them through official programs, Feller says.

Liberal governments have branded those who try for asylum in Australia in other “irregular” ways “queue jumpers” – a term Feller says distorts reality. “That assumes there’s a place for them. There’s no orderly queue. This is about conflict.”

Australia’s official program may not be quite as generous as the government claims, Power and Feller say, but is still reasonable, with good support for those who come. Still, the cap on annual resettlement numbers has shrunk to 2013 levels (from a high of 18,750 to 13,750). And Power says less than half the available positions have been filled for the past two years.

Home Affairs said that reflected “the impacts of the pandemic” and a focus on “migration to support economic recovery”, adding that COVID had also caused logistical problems for both assessing and bringing out refugees.

“We just want freedom like the people right now I can see walking outside. What’s so different between them and me?”

Joy, refugee detained in Park Hotel

Battisson argues that turning back boats is abdicating responsibility for the world’s refugee crisis, it’s not solving it. “You can’t stop people needing asylum.”

“If we really cared about stopping boats we’d put more resources into helping support refugees elsewhere in the region,” adds Power.

Feller, now a professor at the University of Melbourne, led a UNHCR push for greater regional cooperation on refugee protection in 2011 that won the support of Australia’s then Labor government but has since dropped off the agenda. This time, Feller says Australia shouldn’t let the asylum seeker issue slide out of the spotlight again.“We need a fair onshore process, less of a sledgehammer. And it has to accept that some boat refugees will be Australia’s responsibility.”

Countries in Europe have faced much bigger waves of refugees and imposed some restrictions but still kept reasonable processing times and “human decency”, she says. “Germany has less space and a much bigger population than us. They get 100,000 asylum seekers a year and they’re also in a complicated region with all the concerns Australia has”, such as people smuggling and deaths at sea on dangerous crossings.

Some African nations such as Uganda and Tanzania have also been praised for their refugee policies.

But facts are not necessarily what determine outcomes, Feller says. “Politics is a huge part of the picture.”

Still, Zaki is hopeful that the past two years of pandemic lockdowns – and now the spotlight from the Djokovic saga – may have started to change the minds of Australians, who have historically been supportive of hard borders. “Everyone’s had some sort of experience of not seeing their family, being stuck. Refugees have been stuck for almost 10 years.”

Jamal thinks of the people who gather regularly outside the hotel to protest refugee detention, or advocate for those inside, the ones who saw them even before a world number one tennis player showed up for a stay.

“One day soon [more of] the good people are going to come.”

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