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Principles for a coherent refugee policy

Frank Brennan |  03 November 2011

Australia island nationIn 2009, I was privileged to chair the National Human Rights Consultation Committee. During that inquiry we commissioned some very detailed research on Australian attitudes. A random telephone poll of 1200 Australians disclosed that over 70 per cent of us think that the mentally ill, the aged, and persons with disabilities need greater protection from violation of their human rights.

Quizzed about a whole range of minority groups, there was only one group in relation to whom the Australian population was split right down the middle. While 28 per cent thought that asylum seekers needed greater protection, 42 per cent thought we had the balance right, and 30 per cent thought that asylum seekers deserved less protection.

By way of comparison, 32 per cent thought gays and lesbians needed greater protection, 50 per cent thought we had the balance right, and only 18 per cent thought gays and lesbians deserved less protection.

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 having ratified the Convention. Indonesia and Malaysia are not parties to the Convention. Since the Vietnam War, there have been periodic waves of boat people heading for Australia seeking asylum. These boat people often pass through Malaysia and/or Indonesia.

Under the Convention, parties undertake three key obligations:

  1. 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.
  2. Not to expel refugees lawfully in their territory save on grounds of national security or public order.
  3. Not to expel or return ('refoule') refugees to the frontiers of any territory where their lives or freedom would be threatened.

Given the wide gap between the first and the third world, it is not surprising that some people fleeing persecution will look further afield for more secure protection together with more hopeful economic and educational opportunities.

Having the status of a refugee has never been accepted as a passport to the migration country of one's choice. Then again, the international community has never been so callous or short-sighted as to say that during a mass exodus one has access only to the country next door in seeking protection even if you have family, friends or community members living in a more distant country.

The responsible nation state that is pulling its weight will open its borders to the refugees from the adjoining countries and also expect some flow over from major conflicts wherever they might occur.

It is no surprise that Afghan and Iraqi refugees have turned up on the doorstep of all first-world countries in recent years. Nor is it surprising that Sri Lankans fleeing the effects of protracted civil war have arrived in countries like Australia.

With the ease of international travel and the services of people smugglers, it has become very difficult to draw the distinction between refugees who are coming directly from a territory where their life or freedom has been threatened and those refugees who, having fled, have already been accorded protection, but have now taken an onward journey seeking a more durable solution or sustainable migration outcome.

First-world governments say they cannot tolerate the latter because they would then be jeopardising their own migration programs and weakening their borders every time there was a refugee-producing situation in the world no matter how close or how far it occurred from their own shores.

This problem is not solved by drawing careful legal distinctions, because one person's preferred migration outcome is simply another person's first port of call where they thought there was a realistic prospect of getting protection for themselves and their families.

The problem cannot be solved by refugee advocates pretending that it does not exist or hoping that it will simply go away. Neither can it be solved by governments pretending that all persons who arrive on their shores without a visa are secondary movers.

When mass movements occur during a conflict, it is necessary for governments to cooperate, ensuring that adequate protection can be given to persons closer to their home country before then closing off the secondary movement route except by means of legal migration.

When countries of first asylum are stretched and unstable, other countries must be prepared to receive those who travel further seeking protection.

In the present debate on refugee policy, many people forget that the Howard Government created a nexus between the number of successful onshore asylum claims and the number of places available for humanitarian offshore cases. Usually we take 12–13,000 humanitarian applicants each year.

Advocates like myself unsuccessfully argued that even those countries without a net migration program would be required to provide a durable solution for refugees within their jurisdiction, and that therefore there should be no nexus.

We need to admit that there is presently no strong community demand for the nexus once again to be broken. The nexus is judged by the community to be morally acceptable as well as politically expedient. This means that every successful onshore asylum seeker takes a place which otherwise would have been available to an offshore humanitarian applicant. Offshore humanitarian applicants do include very needy, deserving refugees without access to people smugglers.

This means that the Australian system without discrimination gives preference to three groups of onshore asylum seekers over offshore humanitarian applicants. Those three groups are transparently honest visa holders whose country conditions deteriorate after they have arrived in Australia, visa holders who make less than full disclosure about their asylum claims when applying for a visa to enter Australia, and unvisaed refugees who arrive by boat often having engaged the services of a people smuggler.

Strangely it is only the third group which causes great community angst even though most of that group, unlike the second group who come by plane with visas, are transparently honest about their intentions and their status.

When boats are not turned back, those asylum seekers arriving without visas should be detained only for the purposes of health, security and identity checks. Once those checks are successfully completed with a decision that the known applicant poses no health or security risk and if there be too great a caseload for final determination of claims within that time, these asylum seekers should be humanely accommodated while their claim process is completed.

Community groups should be invited to assist with the provision of such accommodation to those applicants most likely to have a successful refugee claim. Those unlikely to succeed should continue to be accommodated by government or its contractor being assured availability for removal on final determination of an unsuccessful claim.

I continue to concede that their refugee claims need not be subject to full judicial review provided we have in place a process which accords them natural justice and complies with the requirements set down by UNHCR. Given that we are a net migration country, those who establish a refugee claim should be granted a permanent visa, thereby being able to get on with their lives.

Until the treatment of asylum seekers in transit countries such as Indonesia is enhanced, we Australians must expect that some of the world's neediest refugees will engage people smugglers and come within reach of our authorities. For as long as they do not excessively skew our migration program, we should allow those who are proven to be genuine refugees to settle permanently and promptly so they may get on with their lives and make their contribution to our national life.

Let's not forget the honest assessment of immigration detention centres by Professor Patrick McGorry, Australian of the Year: 'You could almost describe them as factories for producing mental illness and mental disorder.'

Community partnerships with government could assist with the accommodation and transition needs of those asylum seekers most likely to succeed in their claims. In hindsight, we know that proposals such as turning back the boats, temporary protection visas for those who will be refugees for many years to come, and the Pacific Solution are not only unprincipled; they fail to stem the tide nor to reduce the successful claims.

We always need to ask, 'Why is it right to treat the honest, unvisaed boat person more harshly than the visaed airplane passenger who fails to declare their intention to apply for asylum?' If the answer is based only on consequences, then ask, 'Would not the same harsh treatment of the visaed airplane passenger have the same or even greater effect in deterring arrivals by onshore asylum seekers?' The Qantas 747 does not evoke the same response as the leaky boat, does it?

The Gillard Government's proposal for a regional processing centre in East Timor was unprincipled and unworkable, as is its proposed Malaysia solution, and as would be a simple restoration of the Pacific Solution by an Abbott government.

The Malaysia solution proposes a serious moral recalibration of the acceptable bottom line, wanting to move us from offshore processing to offshore dumping. At least the bona fide refugee under John Howard's Pacific solution was assured eventual resettlement in a third country, usually Australia or New Zealand. Under the Malaysia solution the bona fide refugee would be sent to the end of a queue which is 95,000 long.

The Abbott Opposition has now conceded that boats can be towed back only with the full cooperation of the Indonesians, and even then there would be serious questions about safety at sea, invoking our obligations under the 1982 UN Convention on the Law of the Sea and the 1974 Safety of Life at Sea Convention. Philip Ruddock has conceded that the Pacific Solution second time around would not be sufficient to deter hazardous boat journeys from Indonesia.

The long term work still needs to be done in Indonesia which is the main transit country to Australia. Both sides of politics know that the vulnerable will continue to arrive on our shores uninvited. Independent scholars need to maintain the faith of Petro Georgiou who told our Parliament in his valedictory speech:

I believed that politics was a tough business. There were two dominant parties, they were in conflict, they had power and they had resources. They were strong and evenly matched. They punched and they counterpunched, and sometimes low blows were landed. In my view, however, scapegoating the vulnerable was never part of the political game. I still believe this.

Let's not forget that it is only because we are an island nation continent that we can entertain the absurd notion that we can seal our borders from refugee flows. All borders are porous in our globalised world. We need to manage those borders firmly and decently.

That is the challenge. At the very least, we must remain committed to processing and resettling those bona fide refugees who reach our shores regardless of the cooperative regional solutions we put in place to deter their arrival in the first place. 

Frank BrennanText is from Fr Frank Brennan SJ's speech 'Principles for a Coherent Refugee and Migration Policy', presented to the Independent Scholars Association of Australia (ISAA), National Library of Australia, 3 November 2011.




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Submitted comments

Secondary movement is as big a crock as the so-called smugglers.

There is no law that says refugees have to stay in one place anymore than there is that anyone else has to stay in one place.

The stupid part no-one seems to get is that those under the hoax humanitarian migration program that are actually secondary movers, not those who still seek asylum.

Marilyn Shepherds 05 November 2011

Australian policy is stuck in a ground-hog day when it comes to asylum seekers. The problem is not the genuine refugees but the differentiation between bona fide and non-bona fide refugees, which has its origins in the Fraser government's establishment of the Determination of Refugee Status Committee in 1978. We can continue spending millions and even billions of dollars keeping out people who are not genuine refugees but who have made their way here in order to provide a better future for their families and themselves or we can start to talk about opening the borders to all. Only when the issue of admitting non-genuine refugees is confronted will we be able to move on.

Fr. Brennan - and the Greens - keep us in ground-hog day once they commit to policy based on distinguishing between genuine and non-genuine seekers of a new home. Above all else, the ground-hog situation will continue to cause massive and avoidable human suffering and even death.

Barry York 05 November 2011

Thank you Frank for such a reasoned statement of principles that could/should be adopted in dealing with asylum-seekers. However, I am surprised that you 'continue to concede that [the processing of?] their refugee claims need not be subject to full judicial review provided we have in place a process which accords them natural justice and complies with the requirements set down by UNHCR'. It seems to me that both bitter experience and common sense suggest that departments like DIAC and agencies like ASIO cannot be trusted to provide natural justice without the threat of being subjected to judicial review. I'd appreciate you response.

Ginger Meggs 06 November 2011

We could try something radical and just obey our own laws.

Marilyn Shepherd 06 November 2011

Actually Barry, they are refugees so your whole premise is wrong.

Marilyn Shepherd 06 November 2011

Thank you for these words of reason. Most overstayers, illegal residents have arrived by plane, not desperately by leaking boat. The small numbers involved indicate Australia did not, and does not, have a problem in this matter. We Australians were made to look, before the international community and all reasonable people, mean, selfish and even ridiculous by Howard's island-fortress mentality. There is no need to appeal to compassion, charity, generosity, social justice or any other principle within the Christian tradition - a simple,intelligent realisation of what is happening across the world with the movement of peoples (for a variety of reasons, war, economy et alii)would be sufficient.

John Nicholson 07 November 2011

I, for one, have always maintained that there are people in the community who would be willing to house and care for a person seeking asylum in OZ.I know there are others.

Judy B 07 November 2011

I believe that most normal Australians would have no compunction in helping genuine refugees in this country.

But the people who are in gravest danger of terrible painful and prolonged death are those New Australians who are in the womb. What sort of country allows about 100,000 of these most vulnerable to be executed legally?

Could you not put some of your time and talents towards stopping the mass murder of our own children?

Trent 07 November 2011

Marilyn, the great majority of asylum seekers are found to be refugees but the 'problem' are those who are found, by the same determination processes, not to be refugees (ie, not to be genuinely fearful of persecution in their homeland). My point is that we need to move beyond this approach (which distinguishes genuine from not genuine reufgees as defined by the 1951 Convention) and open the borders. Any other solutions have meant continuation of an unjust status quo. The Greens and Fr Brennan both operate within this paradigm.

Barry York 07 November 2011

Barry we are talking about 2-5% of 6,000 people. Even if they all stayed so what? 50,000 people stay here for decades without anyone giving a toss. And if people are "found not to be refugees but can't go home", that simply means the department got it wrong. They told us that almost no Afghans were refugees in 2010, except that when the cases were reviewed the department had been wrong 86% of the time.

Marilyn Shepherd 07 November 2011

Marilyn: all the more reason to drop the distinction in policy between genuine and non-genuine refugees. This distinction is based on the definition of a refugee in the 1951 convention. That distinction, in my opinion, is what causes the problems and the suffering. Sarah Hanson-Young believes in deporting people who are found not to be genuine refugees. I have heard her say so on television. 'Open borders' urgently needs to become part of the national conversation and debate. If Australia had a left-wing party, it would be advocating this.

Barry York 07 November 2011

Thanks Frank, current processing system is already flawed but the gov still backs its DIAC relies on inconsistent ASIO's suggestions. Now about 50 genuine refugees including 3 stateless Burmeses have been languished in up to two years. In deed they might be accessed through our judiciary system and any remoaval order should be drew legitimately. So, dealing with the power with puppet policy should be investigated immediately.

James 09 November 2011

Thank you Frank. As usual a very well reasoned article which gives me much food for thought and s premise for addressing our justice and compassionate stance.

Peter Hardiman 11 November 2011

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