Wednesday 15 December is now another date on the calendar of refugee tragedy. We remember the SIEV X catastrophe in 2001, and the explosion on the boat in April last year. The deaths off Christmas Island on Wednesday are a reminder of the dangers faced in coming to Australia by boat. Yet still people come. We might learn some of the reasons by listening to the refugees.
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Over the last 20 years, politicians from both sides promoted the fiction of 'good' and 'bad' refugees. Good refugees are plucked by the Government from 'camps'. They wait in the 'queue' and calmly accept that if they are lucky, they will be offered resettlement. Bad refugees are those who take the initiative and risk of fleeing in order to seek resettlement and 'take the place' of a good refugee.
WikiLeaks recently released reports of both major parties seeking political advantage from the treatment of asylum seekers.
Some people will risk their life in a boat seeking asylum. Others will come by air. The lucky few will win the refugee lotto and be picked from their temporary home, which may be a camp or a small flat in a city in Asia or the Middle East (nearly half the world's refugees now live in cities).
All who meet the definition of a refugee, are refugees. How someone arrives should not affect how we treat them.
For a while under the Coalition there were five different types of visas for refugees, depending on how they arrived. It is not a matter of saying 'they should all stay', but there needs to be a transparent process that is fair and abides by the rule of law.
Some will not meet therefugee definition. However, we need to give those who do, and their families, a real chance for their future.
Resettlement is the least favoured option for refugees. Refugees want to go home, see their family, live in a country where the language and customs are familiar, where they can safely bring up their children and live their lives.
Sadly, it takes years, often decades for people to be able to return home. Some never feel safe enough, even after 30 years. Some experience exile for generations — such as the Palestinians, Tibetans, Burmese ethnic groups and many others.
Those who are unable to return home need some certainty for their future. You cannot expect people to live on a temporary visa with no certainty to plan for their family and work. The idea that refugees should be given only temporary protection so they can be sent home when the time comes fails to understand the serious psycho-social consequences of years of living with uncertainty.
Such policies did not prevent the SIEX X disaster and would probably not have prevented those who joined the boat that sank off Christmas Island from doing so.
Refugees have told me about the stress of separation from their family for years whilst they sat out their time on temporary protection visas. Some could not wait and went home, and some of those experienced the persecution we were supposed to protect them from in the first place. Others saw relationships end, with families divided for years.
It was no surprise that many women and children started coming on boats after the introduction of the TPV. This brought with it great risk. But what would you do to be with your family?
According to some, the 'good refugee' accepts it when their case is refused, and promptly goes home. However if you genuinely believe you are at great personal risk, and you do not have the chance to properly present your case, would you simply accept the refusal?
We should seek to improve the system, the quality of decision makers, and the availability of country information. Critics say it is the fault of refugees when their cases are inadequately assessed; that they did not present their case well.
Is it their fault if the interpreter is inaccurate? if the decision maker has not understood what is happening in their home country? when the case is refused by a decision maker who incorrectly applies the law? Why should refugees be forced to accept a faulty second rate assessment process?
The right to protection from persecution is a basic human right, yet politicians on both sides want to prevent refugees from having their cases heard in a fair and transparent process — a process that provides for proper review and applies the rule of law.
Australia will only ever be a small player regarding resettlement of refugees and receiving asylum seekers. In the 1980s we accepted 20,000 people each year. In the last 20 years, this has dropped to around 13,000 or so people, while the number of refugees in the world increased.
The suggestion we increase our intake to 20,000 is a laudable proposal of the Refugee Council. This will help prevent some risking their lives on boats.
Refugee policy is often driven by a reactive response. This is a political matter. The terminology people use hints at their politics. Even the phrase 'the refugee problem' is problematic. Is the 'problem' the refugees, or is it how we non-refugees treat them? Policy is commonly framed from the response of resettlement countries. Rarely would the views of refugees themselves be heard.
Every week I listen to the stories of refugees. Some show resilience, courage and determination. Others express severe trauma and fear. Universally they show relief when their visa is granted. They look to the future and want to make new lives in a new country. Maybe if we listened more to the refugees before drafting policies, we would be able to really help them.
Meanwhile, let's hope Wednesday's tragic events are not exploited for political advantage. We remember those who died and offer prayers and condolences for their families. For the living, they need to be treated with dignity.
Kerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers. He is a student of Arabic, former Jesuit Refugee Service coordinator, teaches at ANU and was recognised by the AFR Best Lawyers survey in 2009 and 2010 as one of Australia's top immigration lawyers.