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Immigration control versus human rights

Brisbane Sunday Mail

Once again the coalition is inflaming passions about what is actually an insignificant number of people arriving in Australian waters and claiming asylum. The numbers arriving this year are more than last year, but given the global movement of people, the numbers are insignificant — and always have been.

Even at the height of Tampa story in 2001, the numbers of asylum seekers arriving in Australian territory compared to other countries was small. Given our isolation, this is likely to be the case in the foreseeable future.

The excision of Christmas Island and other territories in 2001 was part of the legal fiction to prevent asylum seekers obtaining access to onshore review mechanisms. This was justified by the Coalition in Government as needed because the onshore review mechanisms were too fair! They still think that a fair system of review is not what asylum seekers deserve. The use of excision is not justified legally and creates a false situation of people offshore being assessed in a way which relies on Ministerial discretion, not legal criteria.. 

Back in 2001, most of the arrivals were from Afghanistan and Iraq. At the time Saddam Hussein was in power in Iraq and the Taliban were in power in Afghanistan. In 2010, Australian forces are fighting the Taliban in Afghanistan, and the situation in Iraq spiralled into extremely violent sectarian conflict some time after the US lead invasion. Now there are still many Afghans, but an increased number of Tamils from Sri Lanka. Given the serious human rights issues still occurring in Sri Lanka, it is not surprising that the number of Tamils has increased.

Unfortunately the Government is getting caught up in this debate because it insists on maintaining the excision and Christmas Island Centre. 

A recent article in the Brisbane Sunday Mail about some asylum seekers being taken to a shopping centre to get basic food items was presented as refugees receiving some form of special treatment. They were buying food for their families, a visit arranged by Immigration, under supervision. The newspaper even printed what they bought. So what? Why is treating people with dignity so hard and why do the opposition continually push to treat people unfairly and without dignity?

The temporary protection visa (TPV) system was an extremely onerous system. It kept families apart for years, created an underclass of people who had trouble getting access to English courses and was also a contributing factor to why so many women and children were on boats from late 2000. Many of my clients were traumatised by the system, let alone what happened to them beforehand.  The TPV was rightly abolished by the Labor Government, but like Banquo's Ghost, it is reappearing — in an election year. 

Policies for asylum seekers will always be a balance between immigration control and human rights. Whilst some would prefer more emphasis on protection of human rights and treating people with dignity, others focus on control.  The focus is still strong on control as asylum seekers intercepted in boats are processed outside the Migration Law, in a system relying simply on Ministerial discretion.  The balance back towards human rights and dignified treatment still has some ground to make up.

Kerry MurphyKerry 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 is one of Australia's top immigration lawyers as recognised the Australian Financial Review Best Lawyers survey in 2009 and 2010.

Topic tags: border protection, temporary protection visas, pacific solution, asylum seekers, refugees, boat people



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Existing comments

Spot on, Kerry.

And to the fear mongers, shame, shame, shame.

Erik H | 29 March 2010  

Thanks Kerry for a detailed account of the issue. Its good to see it in perspective.

Gavin | 30 March 2010  

Spot on, Kerry.

And to the fear mongers, shame, shame, shame.

Erik H | 30 March 2010  

But refugees have nothing to do with border security, the conventions are anti-border protection.

It's bizarre that the refugee laws have existed for 56 years yet in this country we pretend they have not been invented yet.

Marilyn | 01 April 2010  

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