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Why Ali fled Afghanistan

21 Comments
Frank Brennan |  07 April 2010

Ali and Frank BrennanOn Monday night's Q&A, Tony Abbott was asked about the recent wave of boat people, including Hazaras fleeing the Taliban in Afghanistan. My ears pricked up, as I had recently been in Indonesia discussing the issue with the Jesuit Refugee Service there. At the end of one meeting, a 15-year-old Hazara named Ali (pictured) came and told me his heart wrenching story.

Ali's father was taken by the Talban, never to be seen again, and his mother has fled into Afghanistan with her children. Ali decided to flee, seeking security not just for himself but eventually for his mother and his siblings. He is presently stranded in Indonesia having spent all his money, hoping one day to reach Australia. Indonesia offers no solution to his plight.

Tony Abbott spoke of people like Ali in these terms:

'... if they are fleeing a well-founded fear of persecution, the first country they get to has a duty to offer them refuge. But ... nearly all of the people who come to Australia have come through other countries first. They've come through Pakistan, where they presumably don't suffer the same fear of persecution. They've come through Indonesia, where they certainly are at no risk of persecution. So the risk of persecution ceases well before they come to Australia.

'Australia is a very desirable destination, let's face it, which is why they don't stay in Pakistan or in Indonesia.'

Australia is a long time signatory of the 1951 Refugee Convention and the 1967 protocol. It is one of the few countries in the region to be a signatory. Indonesia is not.

Under the Convention, Australia has a key obligation 'not to impose for illegal entry or unauthorised presence in their country any penalty on refugees coming directly from a territory where they are threatened, provided only that the refugees present themselves without delay and show good cause for their illegal entry or presence'.

Prior to 2001, the Australian government took the view that refugees fleeing even faraway countries via Indonesia were 'coming directly' and were thus not to be penalised for their illegal entry or unauthorised presence in Australian territory or waters.

That presumption was abandoned in 2001 with the increased influx of boat people from Afghanistan, Iraq and Iran. The Australian Government (of which Tony Abbott was a member) decided to penalise boat people arriving without a visa by imposing mandatory detention and by replacing the permanent protection visa with the temporary protection visa. The government also decided to reduce the access for these persons to judicial review of their status determination decisions.

The Government took the view that these people were no longer engaged in direct flight from persecution. Rather they had fled persecution, found a modicum of protection in another country, then decided to engage in secondary movement seeking a more benign migration outcome.

The Rudd Government improved timelines for mandatory detention, saying detention was only for the purposes of identity, health and security checks. Detention was to last as long as the refugee determination process took, with the assurance that it would usually be complete within 90 days. This has blown out to 104 days on average.

The permanent visa was restored. Boat people intercepted before arrival on the Australian mainland are processed on Christmas Island without access to the courts for the usual raft of appeal procedures. Government officials conduct the assessments and there is a review of unsuccessful claims by a panel of retired professionals.

A successful non-statutory refugee status assessment (RSA) results in the Minister considering that it is in the public interest that he permit the successful asylum seeker to apply for a visa. There might still be some recourse to the courts were government officials purporting to make decisions consistent with the Refugee Convention but without following due process.

The Government claims that the RSA process 'builds in common law requirements of procedural fairness throughout the process'. Its intent is to do whatever it can to create conditions in Indonesia such that the Australian public will be convinced that any asylum seeker landing in Indonesia will be assured humane accommodation and transparent processing of their claim in compliance with UNHCR standards. That is why the Australian Government has been channelling significant funds to IOM (International Organisation for Migration).

But for Indonesia to be rightly characterised as an adequate country for asylum, proven refugees need also to be extended the usual rights of refugees, including work, health, education and social welfare. This is especially true given that Indonesia refuses to provide local integration as a durable solution and the waiting list for resettlement is so long that it takes years for a refugee like Ali to find a new home.

Deliberately, the Australian Government will not consider prompt, wholesale resettlement of proven refugees from Indonesia for fear of setting up a magnet effect. On average, Australia takes only about 50 transit refugees a year from Indonesia. There are 2509 refugees registered with UNHCR in Indonesia according to latest information from the Indonesian Department of Foreign Affairs. More than half of these are from Afghanistan.

Even if IOM were to provide appropriate accommodation for asylum seekers in Indonesia and even if the UNHCR processes were sufficiently expeditious and transparent for the determination of claims, proven refugees would still languish for years without the provision of basic refugee rights, and failed asylum seekers would still be armed with the knowledge that applicants reaching Christmas Island have a higher success rate.

Though Abbott might claim that these failed asylum seekers and proven refugees resident in Indonesia are not Australia's responsibility, it is in Australia's interests that their concerns be addressed. Otherwise they will end up in Australia, and Australia's responsibility. Many Australians want to extend their concern to these persons before they risk the treacherous sea voyage, in which case we would only avoid responsibility if they perished at sea.

You cannot tell Ali to go home and join the queue: there ain't one. If he makes it here by boat, we should give him full protection without penalty. Part of the price of protecting our borders is honouring our obligations under the Refugee Convention to boys like Ali.


Frank BrennanFr Frank Brennan SJ is professor of law at Australian Catholic University and Adjunct Professor at the Australian National University College of Law and National Centre for Indigenous Studies. He lasted visited JRS in Indonesia in February.

 

 


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Submitted comments

Fr Frank, I'm with you, where there cannot be a queue, then there needs to be different regulations.

The peaceful and stable countries of the world - Australia is surely near the top of the list, could solve the current refugee crisis today, if they wanted too, by accepting the refugees for permanent settlement.

Truly, what problems would it cause, to open our Australian hearts to say 500 000 refugees, over a number of months of course. Why wasn't the stimulus money spent on this cause?

The number of permanent jobs that would have been created, the good relations established with the refugees, much like what happened when Malcolm Fraser allowed the Vietnamese boat people to land in the early 1980's.

Tony Abbott and the Liberal Party, as well as Kevin Rudd and the ALP need to truly lead our nation into something other than a future with imaginary fences around our nation (and our minds). Remember the Emperor with no clothes?

Fr Mick Mac Andrew Bombala-Delegate NSW 07 April 2010

What about those poor people stuck in refugee camps who can't afford to pay people smugglers. What about the poor australians who are economic refugees in their own country.

hugh west 07 April 2010

Hi Father Brennan,
Your advocacy for refugees over the years has been wonderful. You always present such strong arguements. I find your words so very helpful in my thinking. You make me proud to be both Australian and Catholic.

Andrew Teece 07 April 2010

This view will not get you Votes or Elected...BUT...it will allow us to hold our heads up, and move much closer to God. You get my vote Father Frank, and I did not have the benefit of a Jesuit education...only the Marist Brothers.

John M Costigan 07 April 2010

One question I would like to ask, how could a 15 yr old afford the allegedly $10,000 fee the smugglers charge to get from Indonesia to Australia. Also how did he get from Afghanistan to Indonesia?

Colleen Burriss 07 April 2010

Thanks Frank and the Jesuit Refugee Service in Indonesia for bringing the plight of genuine refugees like Ali to our attention. Genuine refugees should be welcomed with open arms by us Australians. A young man like Ali will work hard to secure his future and if possible his families future. What is wrong with us that we need to place huge obstacles in the way of people who are seriously struggling to build new lives?

Peter Igoe-Taylor 07 April 2010

Thanks ES, and thanks Frank, for another of the fine background pieces I have come to value ES for.

Joe Castley 07 April 2010

Colleen:
This story details the lengths and methods that some refugees will go to in order to raise the money to get onto a boat
http://www.theaustralian.com.au/news/nation/desperate-journey-to-call-australia-home/story-e6frg6nf-1225850668148

Hugh:
A. Entering the queue legitimately is difficult for some and impossible for many. Vast numbers of refugees, including Ali who is from Afghanistan, simply do not have access to this process.
B. Many refugees engaged in this ‘legitimate’ process are forced stay in those camps for decades. In some instances, children and grandchildren are born and raised in these camps. If it were me, I would rather die on a boat to Australia then live out my life in a refugee camp.
They don’t want to raise their children in a camp. All they want is a normal life free from persecution. Good on them.

Maiy Azize 07 April 2010

than you Frank. Can you arrange to forward these comments of yours to Tony Abbot - to 'inform' him. He seemed uninformed on sexual abuse comments by Catholic leaders also!

Bev Smith 07 April 2010

Colleen:
This story details the lengths and methods that some refugees will go to in order to raise the money to get onto a boat
http://www.theaustralian.com.au/news/nation/desperate-journey-to-call-australia-home/story-e6frg6nf-1225850668148

Hugh:
A. Entering the queue legitimately is difficult for some and impossible for many. Vast numbers of refugees, including Ali who is from Afghanistan, simply do not have access to this process.

B. Many refugees engaged in this ‘legitimate’ process are forced stay in those camps for decades. In some instances, children and grandchildren are born and raised in these camps. If it were me, I would rather die on a boat to Australia then live out my life in a refugee camp.

They don’t want to raise their children in a camp. All they want is a normal life free from persecution. Good on them.

Maiy Azize 07 April 2010

Dear Father Frank, It is enlightening to hear all the facts of the Refugee problem between Australia and Indonesia and each country's commitments internationally. This total information certainly sheds a different light on what we are told by the Media and our Politicians and I wish more people would have the benefit of such articles from Eureka Street and you. Keep up the good work we need this accurate information so we can make informed decisions and hopefully spread the full facts in our community. Yours sincerely Pam Byrnes

Pamela Byrnes 07 April 2010

Thanks again Frank Brennan. Hugh - there is a long list of 'what abouts'. Life in war-torn and socially ruptured countries like Afghanistan is precarious for many. Not unusual for a family to be threatened by insurgents for backing the 'wrong side' of working for the State or working for foreigners. Security here has gotten worse over the last 4 or so years. Did the GFC hit Afghanistan, you betcha. We all know people here who have, in a twinkling, gone; we hear news of them on the dangerous trail to Europe and wonder when they will ever find a home again. The sheer determination and resourcefulness of these people would make them great additions to the country. Instead ...

jan forrester 07 April 2010

Regarding the comment about how Ali could afford people smugglers, I have heard stories where extended families have given everything to save one member.

However, I believe it was Paul Keating's government that build the detention centres.

Glenys 07 April 2010

Good to hear from more people about the truth of refugeeism. Every Christian is obliged to be empathetic to the people and spread all the good news that some are supporting

Ray O'Donoghue 07 April 2010

But Frank, Jesus would have turned them away so says Tony Abbott. Now as your favourite atheist even I know that Jesus was supposed to be a refugee so I doubt that he would turn anyone away if they needed help.

The rich world could stop warehousing refugees tomorrow if they wanted to and just accept them as they come instead of spending billions trying to keep them out.

Of course it is utterly illegal what we are doing but worse is being mooted.

Now Evans wants to charge anyone in Australia as a people smuggler if they send money to their families to help them escape places like Afghanistan.

It's completely monstrous.

Marilyn Shepherd 08 April 2010

What does it matter who built the concentration camps? Keating used existing buildings in Port Hedland, Ruddock built all the others and Keating presided over them for a couple of years, Howard for nearly 12.

They are disgraceful no matter who does it.

And for the record - DIC's have finally admitted that we have no responsibility for anyone in any camps if they are already registered with protection.

We are paying for people to jump the queue that we have set up on a voluntary basis under the delusion that refugees are migrants.

Marilyn Shepherd 08 April 2010

Maybe Frank Brennan should stand as a candidate at the next State or Federal Election representing the views of Eureka Street and see how many votes he will receive. Fred Nile had the courage to stand as a candidate for the 1981 State Election by representing Christians and he is still there.

Ron Cini 08 April 2010

Thank you Frank Brennan for your clear explanation of the situation. I find Tony Abbott's position and language a total embarrassment for me as a Catholic and as an Australian.

Maurice Shinnick 08 April 2010

It's fun to talk about morality... but morality doesn't win elections.

turbator 10 April 2010

The simple fact is, those people who are prosecuted by either parties can never reach Australian shores.

If you want rescue people, rescue those who are harassed by those warlords that are paid by our allies.

Australian 21 June 2010

Ali is now in many of my classes at school at Xavier College in Kew!

Nick 15 May 2014

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