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Mexican border reflections on Australian asylum seeker policy


Fr Sean Carroll SJ celebrates mass at Kino Border Initiative

I have been here in the USA for the last month. I am presently spending the week down on the Mexican border at the Kino Border Initiative, which is a Jesuit sponsored cross border project at Nogales. The Jesuit community members sleep on the Arizona side of the border and walk across the border to Sonora each day for work. 

At the comedor (soup kitchen), new deportees from the USA and those coming through Mexico trying to run the gauntlet back into the USA can come for two meals a day. Kino workers document human rights violations. Other NGOs such as the Samaritans and No Mas Muertes (no more deaths) come and provide practical assistance, including a telephone service so those on the run can check in with family and friends back home or across the border. 

The Samaritans include many Arizona residents well used to encountering migrants without visas making their way across the desert on foot. The Samaritans provide food and water, and even Vaseline for the feet of the weary. Their T shirts proclaim 'Humanitarian assistance is not a crime'. Many of them are heading to DC at the end of the month for civil disobedience outside the White House protesting US immigration policies. 

Each day at Kino, Mexican nuns provide spiritual consolation, inviting world weary people in flight to play the sorts of games we all played in primary school, doing contortions with our hands and designs with pieces of paper. 

On Sunday, Fr Sean Carroll SJ, the executive director of Kino, celebrates mass (pictured). Those on the run freely share their heart rending stories. The whole ethos of the place is to provide a humanitarian space for people in desperate circumstances. No matter what walls are built, no matter what draconian push back policies are adopted, there is no way the USA can seal this border. The Congress is deadlocked. Obama has been labelled the 'Deporter in Chief'. Still the people come.

We Australians confront none of the complexities of sharing a land border with a poor neighbour  many of whose family members are citizens of our country. Most Americans, I find, think that Australia has little to worry about when it comes to securing borders. There are three recent Australian developments which Americans generally seem to find morally repulsive and just stupid. They either cannot believe or understand that we routinely lock up children in immigration detention facilities; that we recently held 157 people including over 30 children in detention on a ship in the Indian Ocean for almost a month; and that we are now going to send up to 1000 asylum seekers to Cambodia.

The Americans have had to deal with unaccompanied minors turning up in numbers we could never imagine. In the nine months to 30 June 2014, more than 43,000 unaccompanied minors from lawless Honduras, Guatemala and El Salvador made their way through Mexico and across the US border. Under US law, they are to be screened by US Customs and Border Protection within 72 hours and then handed over to the Department of Health and Human Services where the Office of Refugee Resettlement arranges for the children to be placed in the community with a family member or some other sponsor while their asylum claim is determined. Whatever of any so called magnet effect, the Americans consider that locking up kids without their parents or guardians is just one step too far. Something has dulled the Australian moral conscience on this issue. Americans think it is just not decent. It is unAmerican.

As for keeping people forcibly on a ship for a month on the high seas, and then contemplating sending asylum seekers, most of whom will be proven refugees, to Cambodia, the American litmus test is clear: very indecent indeed. The American reaction has me thinking that we Australians have become too legalistic and morally dulled on these issues. 

The latest US State Department country report on Cambodia's human rights record states: 'Corruption remained pervasive, governmental human rights bodies reportedly were ineffective, and trafficking in men, women, and children persisted. Domestic violence and child abuse occurred, and children’s education was inadequate. The government prosecuted some officials who committed abuses, but impunity for corruption and most abuses persisted.' 

Admittedly Cambodia is a signatory to the UN Refugee Convention. But so what? Cambodia signed every UN human rights instrument as a precondition for independence when the UN administration withdrew after the civil war. The signatures count for little.

Our government's constant refrain is that we are complying with the Refugee Convention whether we are sending people to Cambodia or keeping them incarcerated on a ship in the Indian Ocean. Perhaps the Refugee Convention is something of a straw man.  Key countries in the region are not signatories. Unlike most UN rights conventions, the Refugee Convention does not require signatory governments to make regular reports. There is no complaints mechanism. There is no authoritative international court to interpret the Convention. The Convention to some extent means whatever people want it to mean. Those debating refugee policy go off on one of two tracks. The legal purists think the Convention provides both a comprehensive code for refugee protection and a benchmark for judgment of the political pragmatists who do indecent things. The political pragmatists think it provides a convenient cover for indecent arrangements like holding people for a month at sea or sending them to Cambodia. The Convention provides no adequate legal safety net. We are in the realm of morality and politics, not law. The international law is not helping. It is just providing the warring parties with their own rationale for their intractability, avoiding the need for moral and political engagement. The question is not, 'Is it legal?'. The question is 'What's decent?'

When censuring Julia Gillard in Parliament on 14 June 2011 for her Malaysia solution, Tony Abbott asked, 'Why would the Prime Minister send illegal arrivals to Malaysia' 'where they would be detained and tagged','when she can't guarantee the standard and accessibility of medical care’. and 'when she can't guarantee the access to school for the children'? 

He told Parliament, 'The one thing that is absolutely certain about this deal is that this Prime Minister, this minister and this government cannot be sure that boat people sent to Malaysia will be treated humanely. They cannot give that guarantee'. There is no way that Tony Abbott and Scott Morrison can give that guarantee for anyone sent to Cambodia. Given a choice, many of those being sent to Cambodia would prefer Malaysia which has over 120,000 asylum seekers.

The mystifying thing about this new Australian legalism is that it arises from our politicians responding to the High Court decision which struck down the Malaysia solution. In that case four of the majority judges were careful to point out: 'Nothing in these reasons should be understood as expressing any view about whether Malaysia in fact 'meets relevant human rights standards', let alone whether asylum seekers in that country are treated “fairly” or “appropriately”.' 

Both sides of the Australian parliament then agreed to legislate to take away the High Court's capacity to review a ministerial declaration that a resettlement country passed muster for adequate human rights protection. It is now a matter exclusively for the government of the day with no review by parliament or the courts. We are constantly told that the proposed solutions comply with the Refugee Convention, with Scott Morrison claiming on Tuesday: 'Those criticising the (Cambodia) arrangement seem to believe that ­resettlement should be confined to first-world economies — an economic upgrade program rather than a safe-haven program'.

No, it is not a matter of seeking an economic upgrade. And it is not just a matter of the letter of the law. It is a matter of whether any proposal is decent and humane. Keeping lone kids locked up, locking up people on a boat on the high seas for a month, and sending refugees to Cambodia do not pass the smell test of decency. I never thought I would find fresh air down on the US-Mexico border to reflect on my own country's indecency. But in the humane, decent air of the Kino soup kitchen, I carried the stench of these recent Australian initiatives. They do stink.

Frank Brennan

Frank Brennan SJ AO, professor of law at the Australian Catholic University, is currently in the USA as the Gasson Professor at Boston College.

Topic tags: Frank Brennan, asylum seekers, border protection, Kino Border Initiative, Mexican refugees



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Existing comments

Thank you Frank for your insightful analysis of the Australian immigration policies and our own here in the US. You are kinder than I would be regarding the US policies, but of course, I live here and volunteer at el comedor where I had the pleasure of chatting with you. The air of the Kino soup kitchen is indeed sweet, but I'm afraid the stench of decay and neglect is overpowering in our own Congress in Washington, D.C. We've lost our moral compass. Hopefully articles like yours will be a wake up call for both countries.

Peg Bowden | 15 August 2014  

ABC Radio National's Rear Vision programme recently broadcast a report on the crisis of child migrants (unaccompanied refugees) to the US. Readers of Father Frank's column might care to read the transcript at http://www.abc.net.au/radionational/programs/rearvision/is-the-us-child-migration-crisis-its-own-doing/5665068 This report gives a very good account of some of the causes of this tragedy.

Paul | 15 August 2014  

sensible and clear thinking from Fr Frank, as usual; and speaking as an American I am pleased to see someone acknowledging that our immigration debate has many corners nd angles, not just Greedy Residents Telling Innocents to Buzz Off, although there is a lot of that. Also I note with a grin that America is actually getting Fr Frank himself, to Boston College. A pleasure to see that.

brian doyle | 15 August 2014  

Perhaps we need to appeal to President Obama to plead the cause with Mr Abbot for our asylum seekers. I must however give credit to the Government for offering safe haven to Christians under attack in Syria.Even though I do feel uneasy that "Christian" is necessary to qualify it is a small step forward and perhaps the children and those in detention or destined for Cambodia will now receive the same care and assistance. I thank Sr Jan Barnett for their actions for a change of Government policy. Here in Terrigal a small group from various churches have held silent vigil on the beach each Saturday at 3:00 pm. A petition to Mr Morrison is available for signing and many passersby have done that. Anne Chang.

Name Anne Chang | 15 August 2014  

Keep speaking up . . . what can we DO about the 'stink'?

glen avard | 15 August 2014  

Thank you Frank. This is a clear and insightful piece of writing. I agree with you. Recent Australian Government initiatives do stink.

Julie | 15 August 2014  

Sometimes, Frank, I feel you put your own twist to the facts. None of the people floating around in the Indian Ocean left a country where they were being persecuted and one may well ask, what were they doing to their children to subject them to such an ordeal as they did. Children in Detention! Think of the children in Gaza, in Timor and Africa and then you might recognise the plight of children suffering. Children in detention have their parents with them; they have 3 meals a day and more; they have a roof over their heads, access to medical treatment and education and a good climate and clothes to wear. Compare them to these other children and the question is - what are all you people complaining about. These kids are probably a whole lot better off than our children being fostered in Australia.

shirley McHugh | 15 August 2014  

Could I suggest to Shirley McHugh that, before she makes "ex cathedra" statements such as, "none of the people......left a country where they were being persecuted", that she read Dr Rupert Shortt's recent book "Christianophobia" to become rather better informed about the persecution which DOES occur in many countries which [like the poorly-informed Minister for Immigration] she might be disposed to call "safe". And when that concern is widened beyond Christians to ANY who are religious or ethnic minorities in numerous countries around the world -- including those in our own vicinity -- she might be a little less confident in the rightness of her current prejudice.

John Carmody | 15 August 2014  

Thank you Frank. Australians have been isolated from the problems of rest of the world it seems until now.Our fear of invasion is so strong we rely on the United States as we have with Britain of the past.Where it seems every other 'civilised 'nation has refugees a hundred -fold and accepts a responsibility for past allegiances and political fallout as shared responsibilities, plain good governance and peace-keeping strategies.There is an unspoken law of 'brotherhood'.We have not been exposed to reality,(apart from Bali 2001)and it seems we want to keep our immunity. We need to wake up and belong in Asia and proudly align with our neighbours.Instead,we colonial boat people -'new'Australians have decimated our true indigenous people, and we repeatedly proudly show our red necked ignorance to the world. We should not be so proud! If we learn to be decent and humane again, we become part of the civilised world and will be strong and have allies!

Catherine | 15 August 2014  

So, Shirley McHugh, are you suggesting that we invite children from Gaza, Timor and Africa to come here and live in relative comfort in our detention centres, where they will be better off than in their homelands?

Janet | 15 August 2014  

Parents and families in Mexico sending their children across the desert on their own to enter America illegally? Parents and families with means (including relatives with means in Australia) paying for transport to Australia from countries where their lives have not been at risk, on boats of dubious seaworthiness putting their childrens' lives at risk? And the Australian government is 'indecent'. The indecency towards the children, Frank, resides in the parents and families and the governments of the countries from which these people come. I understand the US problem across its borders is not related to persecution but a desire to make more money and enjoy the good life that America offers). Why aren't those aiding and abetting illegal entrants (I presume that means entering any country on this planet without a passport) charged under the law? What is the basis for the social justice gurus interfering across the border with Mexico? THE 'refugees' we are talking about here have taken deliberate steps to place themselves where they are and are quite a different breed from those we see in the overcrowded refugee camps around the world, in the waterless deserts of northern Iraq and the rubble of Syria.

john frawley | 15 August 2014  

“Indecent and smelly” are the words, Frank. Here in the third biggest supplier of asylum seekers (Afghanistan) the community is bombarded with television advertisements paid for by the Australian government telling them: “if you come to Australia, you will be sent home” – no and, ifs or buts. Nice! It’s interesting hearing the comments of ordinary Afghans who have seen the ads – most of whom have never thought of leaving their country. “Why are we seeing these advertisements?” “Your new Prime Minister is a bad man.” “Bring some of them (Australians) here to see what life is like.” “They are putting people on an island in the middle of the ocean – that’s bad.” So even here, so many thousands of kilometres from Australia, people can smell the stench.

Anthony | 15 August 2014  

Surely Scott Morrison should be charged for imprisoning innocent children? As Abbott has declared war against the asylum seekers, he and his cabinet (including the uber commandant Morrison) should be charged as war criminals.

Alex Njoo | 15 August 2014  

So much for so-called Christian solidarity with the poor, "option for the poor", John Frawley. Do you realise our salvation depends on what do here on earth to ease the plight of the poor? And , no, it's not communism or socialism, but basic Catholic/Christian teaching.

AURELIUS | 15 August 2014  

Thank you Fr Brennan (and John Carmody for his apt reply) for your insight and compassion, and telling us about the never-ending hope and help in Mexico. How has our Australian government managed to get away with such cruelty to people legally seeking asylum? And why are ordinary people like us (in Australia, Iraq, Gaza, and wherever there is bigotry, discrimination, land-grabbing and genocide), powerless to protect civilians - especially the women and children. It's also a sad state of affairs when people in detention prefer to be dead than live in despair. What can we do to make people see that, regardless of nationality or religion, we all deserve love, respect and the means to enjoy a decent life? Will voting in a new government make any difference at all if our ministers are powerless too?

Annabel | 16 August 2014  

Australia's treatment of asylum seekers is shameful. We no longer have the international reputation as a compassionate, welcoming people. That's gone. We are a disgrace. It's like we've gone back to the White Australia Policy of the 1950s!

Louw | 16 August 2014  

an atavistic jailer mentality? is there any other country on earth other than the usual 'democratic peoples republics' that treats its foreigners so cruelly?

walter komarnicki | 16 August 2014  

The Australian government makes the best use it can of our geography and topography. Whether or not the asylum seekers are processed on or off-shore, they are invisible to most of us, and very difficult to access for all of us. The shared border in the US allows their 'illegal' immigrants to be both visible and accessible to those who wish to help. It's not the governments' policies that are so different - it's the ability of people of good will to be there for those desperate people. Wonderful work - thank you, Frank, for reminding us of our obligation to keep pushing the boundaries of what's possible..

Joan Seymour | 16 August 2014  

In a way, the majority of Australians voted for the current treatment of asylum seekers - whether it's Liberal or Labor. Are we ready for Green government?

AURELIUS | 17 August 2014  

Frank a good analysis of the systems in US and Australia . I find the most horrible aspect of our terrible treatment of asylum seekers is that the minister responsible for cruel actions is also responsible for the care of children.he is there father! Iwell remember the arrival of Vietnamese refugees welcomed by Australians .

Diana Batzias | 17 August 2014  

While pontificating about the “moral stench” of children in captivity perhaps the asylum-seeker lobby should consider the following: 1) How many dead children are among the 1200 asylum-seekers who died while trying to come to Australia over the last five years? 2) To what extent are their deaths the direct result of the ASL efforts at successfully getting scrapped the Howard Government policies for keeping asylum-seekers out? 3) What sort of parents are they who are prepared to risk their children’s lives by sending them unaccompanied on dangerous sea voyages so they can eventually get their family “a berth” in Australia. 4) How much longer must genuine refugees rot in hell-hole refugee camps such as in Jordan, Turkey, Somalia and Kurdistan because the AS lobby have helped “their” asylum-seekers to get into Australia first? And while the AS lobby is considering these questions perhaps some intrepid journalists should begin a forensic examination of this lobby. Who has been getting what, when, where and how by pushing such disastrous AS policies onto Australia? Apart from a large component of politically correct luvvies, who are the main operatives that drive this lobby? Such an inquiry might reveal some interesting information.

dennis | 18 August 2014  

John Frawley, one of my more regular and more civil critics, might be interested in the recent statement by the USCCB (US Conference of Catholic Bishops) re the classification of the children crossing the US-Mexico border in such numbers. Most of the unaccompanied minors who are crossing are not from Mexico. They are from countries like Honduras, Guatemala and El Salvador where criminal gangs are out of control. The kids are transiting Mexico, into the US. The USCCB says: “Since 2011, the number of children arriving in the United States has risen dramatically, with over 13,000 in FY 2012 and 24,000 in FY 2013. This year, 52,000 have arrived in the United States since the beginning of the fiscal year in October, with an expected 90,000 to arrive by the end of the fiscal year September 30. Moreover, 39,000 women and children have arrived since the beginning of the year. This phenomenon has received increased media attention across the country, with some claiming that the children are coming to receive immigration benefits while others, including the USCCB, are claiming that the majority of children are fleeing persecution from organized crime networks in their countries.” Shirley McHugh, taking exception to my moral outrage at the behaviour of the Australian government continuing to keep some unaccompanied minors in detention asserts: “Children in detention have their parents with them.” Shirley, some do, but by definition those who are unaccompanied do not. And the government refuses to publish figures of the numbers of unaccompanied children still in detention, while conceding there are some. I suspect even you, Shirley, would be perturbed at government in your name keeping children without parents in detention.

Frank Brennan SJ | 18 August 2014  

Great article, Frank. What a sad tale it is in Australia. You, and others, might like to read a recent post I made on my daily blog: KIDS IN CUSTODY - A BLOODY DISGRACE: http://clancytucker.blogspot.com.au/2014/08/5-august-2014-kids-in-custody.html

Clancy Tucker | 18 August 2014  

No Clancy it’s firstly a “bloody disgrace” that parents are prepared to send their children alone on long dangerous sea voyages in the hope that they – and their families back home – will eventually get asylum in Australia. And if they arrive safely to be thrown in with adult male strangers in detention centres. Secondly, it’s a disgrace that the AS lobby keeps pushing for the restoration of onshore detention that has lured 1200 of them, including hundreds of children, to their deaths. It’s thirdly a disgrace that the AS lobby pressured the Labor Government to scrap border protection policies that stopped these deaths and thousands being detained for years while their claims are processed. Fourthly, it’s a disgrace that this lobby wants to scrap these policies AGAIN knowing that hundreds more asylum-seekers (and children) will probably die each year trying to enter Australia. Fifthly, it’s a disgrace that that this lobby has ignored genuine refugees rotting in Middle East camps, preferring instead to support well-heeled economic migrants trying to enter Australia illegally. The AS lobby’s selective compassion, and moral confusion never ceases to amaze. One wonders what drives it, apart from deluded idealism. A thorough examination of this lobby might reveal agendas that would not pass Frank’s “smell test of decency”.

Dennis | 19 August 2014  

Our first indecency is the lazy claim that resettlement is an obligation when it is a miniscule voluntary migration program but only for the best off, best educated refugees who we will accept if we are the country of last resort. Morrison has only accepted 3226 refugees under that program and is charging Syrians $30,000 which is why only 196 of the richest got here. The refugee convention here is domestic law, now Morrison pretends it is not and as Frank points out this is due to Gillard and Roxon wanting to get around the high court, except the high court has decided not to be silent. Morrison today said he has to dump children on Christmas Island and Nauru so that no other children will ask us for legal protections under the refugee convention, the ICCPR, the CAR and the CROC - his cut of 6250 so-called places immediately got that many more refugees killed. .

Marilyn | 20 August 2014  

Marilyn, what points are you trying to make? In 2012/13, 12,500 of 20,000 people granted residence in Australia under our humanitarian program, were refugees (mainly through the UNHCR) and 500 were special offshore humanitarian cases. The remaining 7500 were onshore asylum-seekers. The former would have been penniless refugees who would have had little if any money to go anywhere. I would think that such destitute refugees are accepted into Australia and other Western countries for free. And what’s this about 6250 refugees being killed/ending up dead because of Morrison’s decisions etc?

Dennis | 22 August 2014  

Dennis, Morrison dropped the so called humanitarian program by 6,250. That means all those people who has applied here are now dead, missing, in prison or being jailed and tortured. He claimed he didn't want boat people so he could help more so he helps 6,250 less and calls it more.

Marilyn | 22 August 2014  

And that's the message that you have to share, Frank, that it is NOT us doing these dreadful things to asylum-seekers and the children who are among that number - it is a clique of lying scoundrels who have, in fact, no mandate for any of this - in cahoots with thugs in other countries (Sri Lanka and Cambodia and PNG - and companies such as G4S) and forcing our Navy to become complicit in their criminality. Tell your friends across the seas that the citizens of Australia will not forget the people now suffering - nor those causing the suffering - and that their day of reckoning will come (with appropriate sentencing) - along with the national apology and just compensation for their victims. If only that compensation could come from the estates of those responsible. Now there's a thought!

Jim KABLE | 22 August 2014  

Marilyn: Now that the Abbott government has stopped the boats, cutting the refugee intake from 20,000 to 13,750 is not justified. With the vast and growing numbers of refugees in Syria and now Iraq the quota should be restored to 20,000. This is also much easier to do now because the $2.5 billion per year that will saved from stopping the boats, makes it much easier to resettle an extra 6250 refugees. This is what the asylum-seeker lobby should be fighting for, not allowing self-selecting economic migrants to illegally enter Australia. A “Raising the quota” call by this lobby would win it far more support from the Australian people than the policies they have been advocating since Tampa in 2001. We should always help as many genuine refugees as possible. That’s always been my position.

dennis | 25 August 2014  

Denis there is no such thing in the world as a refugee quota except in thet minds of our parliament and immigration department because every person on the planet has the right to seek asylum.

Marilyn | 26 August 2014  

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