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Forward with fairness for asylum seeker policy

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Kerry Murphy |  17 April 2009

The tragic death of several asylum seekers on a boat while being towed to Christmas Island again shows the dangers for people coming to Australia by boat. This may be used to support arguments for tougher border controls, presented as protecting people from the risks of boat travel to Australia. However this incident, tragic as it is, does not justify a return to the harsh policies of the past.

Several boats have arrived in the north west frontier of Australia's sea borders in the last few months. The numbers involved are still small, around 40 or so on each boat, but it was enough for some to ask whether Labor's more rational approach to unauthorised boat arrivals was 'going soft on people smugglers'.

Australia is involved in regional meetings in Bali to discuss this very issue. Foreign Minister Smith's recent interviews on ABC Radio before the Bali meetings show that his approach will not be driven by the same populist rhetoric of the previous government. When asked specifically about recent arrivals he said:
Well there are a couple of factors here. Firstly, we know there are increased so-called push factors which are driving or displacing people from countries further to our north. And Sri Lanka is an unfortunate example in that respect. Secondly, we also know that the people smugglers are becoming much more adept, much more savvy, using ... better enhanced techniques and we need to combat that.

The recognition that push factors are a major cause why people flee their countries is a significant change in the focus of Australian governments in this area.

Under the Coalition, the rhetoric was about 'border control', 'people smugglers' and 'illegals'. On one hand the Coalition were sending troops to deal with conflicts in Iraq and Afghanistan, yet when people came from those countries seeking protection they were treated as if they had been involved in criminal activity and sent to isolated places such as Nauru with little recognition that they were in need of protection.

Now we can see a shift in the language which reflects a more reasoned approach to the issue.

This is a welcome change not just in rhetoric but in policy. Trying to limit people smuggling is a legitimate role of government. However this should not be at the cost to the 'smugglees' — the asylum seekers who believe they are in danger.

Most of the recent boat arrivals have been Afghans, Iraqis and some Sri Lankans. All three countries have major internal security problems resulting in many civilians being targeted. Any rational approach to dealing with the forced movement of people needs to recognise that the people are coming because they have genuine fears for their safety. Smith has recognised this, as does the current approach of refugee assessment for such cases.

In a world where there are serious internal conflicts, there will be people who flee their homes seeking protection elsewhere. As a good international citizen, Australia needs to play its part by treating these people with dignity, as well as seeking ways to resolve the conflicts.

Returning to the harsh systems of the past should not be considered as a serious policy approach — in the past we failed to treat people with dignity. There can always be improvements in the system and hopefully serious policy debate will focus on how to improve, rather than regress.

ADDENDUM: Illegal or unlawful — what is the difference?

The recent tragic events in the Indian Ocean have continued to feature in the media. One of the potentially confusing aspects is the terminology used — 'unlawful non-citizen', or the more populist 'illegals'. The term 'illegals' is being used less in the media, a good thing given that it is inaccurate and has such negative connotations. Nevertheless, the less understood term 'unlawful non-citizens' is more accurate but more technical.

In the Migration Act, there is a distinction between people who have a visa to live in Australia (lawful non-citizens) and those who do not have a visa (unlawful non-citizen). The term 'unlawful' does not mean the person has broken the law, just that they do not have a visa.

It is not a criminal offence to not have a visa. There is no offence of being 'illegal' or even arriving without a visa. In fact, the term 'illegal' is not used in this context in the Migration Act.

It is an offence to attempt to bring five or more people into Australia without a visa. This is part of the anti people smuggling legislation. However, people who arrive without a visa have committed no offence. They are detained in administrative detention. It is not like a person convicted and sentenced to prison, nor even a person on remand awaiting trial. This is a civil administrative procedure, not a criminal one.

People seeking protection who arrive without a visa are really subject to the same legal test for refugee status as those who arrive with a visa and then apply for refugee status. Whether someone has a visa or not is not usually relevant for refugee status. At most, having a valid passport and visa may give rise to adverse inferences about whether someone has a well founded fear of persecution. This will be assessed in the interview process.

Australia is a signatory to a number of international conventions and treaties that deal with human rights. However Australia has rarely implemented these international human rights provisions into domestic law. One of the better known of these conventions is the Refugee Convention. Australian law has implemented parts of that Convention domestically.

In the Refugee Convention, article 31 provides that a receiving country cannot impose penalties on persons arriving without authorisation. Arguably, the temporary protection visa with its many restrictions, is a breach of this provision. There is no domestic remedy to enforce article 31.

Current policies of detaining for the purposes of security, medical and identity checks is internationally accepted practice. What is unwarranted is the further limitation of a temporary visa with restrictions on sponsorship of spouses or children, and travel restrictions.

The balancing of border security and respect for human rights can be difficult to reconcile. By all means we can debate what are appropriate policies or practices in this area, but the debate should be informed, and should not use inaccurate and emotive terms such as 'illegals' for human beings seeking our protection.


Kerry MurphyKerry Murphy is a partner in the firm D'Ambra Murphy Lawyers where he represents clients at all stages of the Australian immigration process. He is a student of Arabic, former Jesuit Refugee Service coordinator, and one of Australia's top immigration lawyers recognised by last year's Australian Financial Review Best Lawyers survey.

 

 



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Submitted comments

Kerry, Minor point - the vessel was not being towed but under control of Austalian Navy HMAS Albany.

I wonder also whether it was diesel engined yet Mr Barnett stated petrol was splashed around. Hopefully the contradiction will be investigated fully.

Terry O'Brien 17 April 2009

This is a no win situation for Asylum seekers. My question... "What about those "poor" refugees who cannot afford to pay the price of "people smugglers" awaiting in refugee camps for their opportunity to come to Australia? I do not hear many advocates for these "poor".

Dennis B 21 April 2009

Dennis B you must not be listening to many refugee advocates who work on behalf of those in refugee camps. Kerry Murphy being one of the leaders of them. These are not rich people they have sold all to get somewhere safe. So why don’t they wait their turn in the "queue" for resettlement in Australia or another safe country? Why do they take such risks? Getting a visa for a refugee is more akin to a lottery than a queue. With around 50 million refugees and persons of concern worldwide and around 100,000 refugee places offered worldwide each year (the primary countries being the US, Canada, Sweden, Denmark, Australia and New Zealand) that’s a 0.002% chance of getting resettlement.

Mary K 22 April 2009

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