University of Wollongong Research Online University of Wollongong Thesis Collection University of Wollongong Thesis Collections 2013 Refugee limbo Ben Hightower University of Wollongong Recommended Citation Hightower, Ben, Refugee limbo, thesis, School of Law, University of Wollongong, 2013. http://ro.uow.edu.au/theses/3876 Research Online is the open access institutional repository for the University of Wollongong. For further information contact the UOW Library: [email protected] Refugee Limbo A thesis submitted for the degree of Doctor of Philosophy Law Faculty/Legal Intersections University of Wollongong, Australia Candidate’s name: Ben Hightower Supervisor: Cassandra Sharp Submitted: 8th April 2013 I, Ben Hightower, declare that this thesis, submitted in fulfilment of the requirements for the award of Doctor of Philosophy, in the Department of Law, University of Wollongong, is wholly my own work unless referenced or acknowledged. The document has not been submitted for qualifications at any other academic institution. Ben Hightower 08 April 2013 Page | ii Table of Contents Title page ............................................................................................................. i Declaration........................................................................................................... ii Table of Contents………………………………………………………………. iii Acknowledgements.............................................................................................. iv Abstract................................................................................................................ v Graduation Statement........................................................................................... v Table of Acronyms and Abbreviations ................................................................vi-vii Contents…………................................................................................................ viii-ix Thesis cover photo: Dante Alighieri, The divine comedy of Dante Alighieri / translated by Henry Wadsworth Longfellow (Articus Publishing Limited, 2006) Canto IV, Plate 11, 29. Page | iii Acknowledgements I would, in fact, be ‘lost in thesis limbo’ if it hadn’t been for a number of people. Firstly, I would like to thank my supervisor Dr Cassandra Sharp for her energy as well as the motivation, direction, and constant support she gave me throughout this thesis. Your advice and encouragement have been greatly appreciated and this thesis would have been so much more difficult without your help and appropriately timed ‘nudges’. I would like to thank Dr Rick Mohr for being the person to say, “I see what you mean” and then guiding me in my attempts to write it down. I also want to express a large amount of gratitude to Rick for making himself available to me for advice even after his retirement and leaving the role of primary supervisor. Your presence has been invaluable. I would also like to recognise my friends and family for their support. In particular, I would like to thank Scott East for his friendship, understanding, and all the sharing. To Renée Regal for asking me about my deadlines, sneakily putting them in her calendar, and then calling me to make sure I had made them. Cheers. I offer very special thanks to Chiara Ridolffi for her affinity, wisdom, and firm but loving hand. I wish to thank and stand in awe of Victoria Brown for her endless passion and recognising and appreciating the passions of others, her encouragement, and showing me the beauty of bees. Finally, much like I do every day, I would like to thank Connor Hightower for simply ‘being’. You constantly amaze and inspire, so I dedicate this work to you. Page | iv Abstract Often times when certain aspects of our world are not easily understood, seemingly unresolvable or appear to be in conflict with another, they are referred to as being in ‘limbo’. The overall impression of limbo is immediately understood. It is in part a type of ‘standstill’, either physical and/or temporal, in which one set of circumstances will not take place until another set of circumstances begins or ends. Limbo is part of the paradigm we have created in relation to our world. To a certain extent, this paradigm stems from theological understandings of the afterlife. Namely, there is a Heaven (or a place of Earth which is like Heaven) and there is a Hell (or a place on Earth which is like Hell). Following this understanding, limbo forms part of that ‘in-between’ area, or even more correctly, that area which is neither Heaven nor Hell and therefore, stands outside both of these realms. When those conflicts that relate to the law come into play, ‘legal limbos’ are said to exist. It is quite often that refugees and asylum seekers around the world are referred to in relation to some sort of limbo. That is, that they are somehow ‘outside’ the ‘normal’ order of things; physically, socially, and/or legally. However, the fact that limbo – in all its forms - is a ‘man-made’ device seems to get less recognition. Little research has been conducted in relation to colloquial understandings of ‘limbo’, even more so as it relates to the law. Yet, there are many questions regarding limbo. This thesis seeks to pick apart limbo through several different methods. Given the breath of our understanding of limbo and its influence in our society, aspects of literature, religion, theatre, and metaphor are all utilised in the analysis presented in this thesis. Graduation Statement A thesis on limbo which considers the intersections among law, literature and religion in relation to refugees. Page | v Table of Acronyms and Abbreviations AAT – Administrative Appeals Tribunal AIC – Australian Institute of Criminology Anti-People Smuggling Act – Anti-People Smuggling and Other Measure Act 2010 (Cth) AHRC – Australian Human Rights Commission ASIO – Australian Security Intelligence Organisation ALHR – Australian Lawyers for Human Rights ASIO Act – Australian Security Intelligence Organisation Act 1979 the Bali Process – The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime the Convention – United Nations Convention against Transnational Organized Crime DASSAN – Darwin Asylum Seeker Support and Advocacy Network DDA – Disability Discrimination Act 1992 DIAC – Department of Immigration and Citizenship DIMIA – Department of Immigration and Multicultural Affairs DNA – Deoxyribonucleic acid the excision legislation – Migration Amendment (Excision from Migration Zone) Act 2001 Page | vi FECCA – Federation of Ethnic Communities' Council of Australia HIV – Human Immunodeficiency Virus IDC – Immigration Detention Centre IMA – Irregular Maritime Arrivals the Migration Act or the Act – Migration Act 1958 MEK – Mojahedin Khalgh Organization MOC – Medical Officer of the Commonwealth NESB – Non-English Speaking Background NICC – National Intelligence Coordination Committee OIC – Overseas Information Campaign Refugee Convention – United Nations Convention and Protocol Relating to the Status of Refugees RPBV – Removal Pending Bridging Visa the Smuggling Protocol – Protocol against the Smuggling of Migrants by Land, Sea and Air Supplementing The United Nations Convention Against Transnational Organized Crime TPV – Temporary Protection Visa the Trafficking Protocol – Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children Page | vii Table of Contents Chapter 1 Introduction: Looking at Limbo p1 1.1 Objective: The Question of Limbo 3 1.2 Background: What is limbo? 5 1.3 Structure: Themes of inquiry into Limbo 10 Chapter 2 Limbus Incognitus p16 2.1 Picking at the seams 17 2.2 Fashioning the border 22 2.3 Limbus Hereafter 23 2.4 Limbo Theatre 26 2.4.1 Pay a People Smuggler and You’ll Pay the Price 30 2.4.2 Sri Lankan ‘Street Drama’ 38 2.4.3 Social Media Campaign – ‘No To People Smuggling’ 41 2.5 Conclusion 50 Chapter 3 Camp Limbo (or The Age of Limbo) p51 3.1 The ‘Age of the Camps’ 53 3.1.1 What is a ‘camp’? 56 3.2 The Omnipotent State and the power to decide 61 3.3 The camp: from exception to rule 62 3.4 The Australian Camp 67 3.5 From Camp to Limbo 72 3.6 Humiliation in an Age of Limbo 74 Chapter 4 Legal Irreconcilability and a Life in Limbo p79 Page | viii 4.1 Background 81 4.2 People Smuggling: key features and irreconcilability in Australia 85 4.3 Smuggling vs. Trafficking 96 4.4 The case of Ali Al Jenabi 101 Chapter 5 Refugee Limbo in the media p113 5.1 Background: Refugees in the Australian media 116 5.2 Media Analysis 121 5.3 The ‘where’ of limbo: media representations of physical spaces 122 5.4 Legal Limbo: media representations of legal ‘conflicts’ 135 5.5 Psychological Limbo: media representations of mental and bodily states 142 5.6 Conclusion 149 Chapter 6 The Refugee Limbo p151 6.1 The Play Element 152 6.2 The ‘Game’ of Limbo 156 6.2 The Limbo Line 163 6.3 The Limbo Bar 168 6.4 Under the Bar 174 Chapter 7 Great Southern Purgatory p179 7.1 Prepurgatory and ‘Pre-protection’: Mandatory Detention 187 7.2 The Seven Australian Purges 191 7.2.1 Australian Values Statement 192 7.2.2 The Health Requirement 195 7.2.3 DNA Testing 199 7.2.4 Controversial Application Concerns 201 7.2.5 The Character and Penal Clearance Requirement 205 Page | ix 7.2.6 Security Test 213 7.2.7 Citizenship Test 217 7.3 Australian Eden 220 Chapter 8 Conclusion: Beyond Limbo p223 8.1 Conclusions on Limbo 223 8.2 Cosmic fear and Homo Limbus 230 8.3 Beyond Limbo 233 Page | x Chapter 1 Looking at Limbo Lasciate ogne speranza, voi ch'intrate!1 How many times