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Pragmatic answers to the asylum seeker question


What an honour it is to have with us Jeff Crisp, the head of the Policy Division and Evaluation Service of UNHCR in Geneva. With a refreshingly international and humanitarian lens, Jeff raises three questions:

  • Why has the enforcement and deterrence agenda become so dominant?
  • What have been the consequences of that agenda for refugee protection? 
  • Can alternative (and better) approaches be found?

In my response to these questions, I want to use a national Australian political lens as we all stare down the barrel of a new government likely to be elected in two months time with a commitment and a mandate to stop the boats which are arriving in numbers we Australians have not known before. Pragmatically, and with only limited time, I want to outline the contours for a better approach here in Australia — better than committing to forcibly turning around boats on the high seas, à la Abbott, and better than transporting people to Nauru and Manus Island for processing or to Malaysia to join an asylum queue of 100,000 or permitting people to reside in the Australian community but without work rights and with inadequate welfare provision under the rubric of a 'no advantage' test, à la Gillard. Outlining these contours, I want to defend the Refugee Convention and urge that Australian political leaders of all ilks maintain a commitment both to the Convention and to onshore processing with minimal detention and adequate rights to work and welfare while awaiting processing in the community. Hopefully any changes adopted can be worked against a backdrop of our providing at least 20,000 humanitarian places a year in our migration program, 12,000 of those being for refugees.

We must abandon the ill-defined, unworkable 'no advantage test'. The all party Parliamentary Joint Committee on Human Rights this month noted:

The government has been unable to provide any details as to how the 'no advantage' policy will operate in practice. It remains a vague and ill-defined principle that risks creating a complex framework with insufficient transparency. It has resulted in a confusing array of measures focused not so much on the status of the person as their mode and date of arrival in Australia.

The committee is concerned about the practical consequence of the application of the 'no advantage principle', which would appear to be either a deliberate slowing down of processing applications for refugee status or deliberate delays in resettlement once a person has been determined to qualify as a refugee, inconsistent with the prohibition against arbitrary detention in article 9 of the ICCPR. In this respect the committee notes that as of late May 2013, some nine months after the adoption of the policy, processing of the claims of those who arrived by boat has not commenced in Australia or PNG and that there have been only preliminary interviews of some of those who have been transferred to Nauru. A failure to put in place such procedures for persons held in detention for such periods appears to the committee to constitute arbitrary detention of those who have been held for an extended period.

Given leadership tensions in the Government, Caucus found itself this week unable to debate the 'no advantage' test even though it has been so comprehensively discredited by an all party committee of the Parliament without any dissent from government members. The test is incoherent, unworkable and unAustralian. It's not a test at all; it's not a principle; it's not a policy; it's a slogan as unhelpful as 'Stop the boats'.

Graph shows Australian vs OECD asylum inflows.Jeff's graph of 'Australia vs OECD asylum inflows' you will have noted cuts out at 2011. The rate of boat arrivals has escalated to Australia since then. The red line is now well off the graph. In this financial year, '25,145 people have arrived on 394 boats — an average of over 70 people and more than a boat a day' as Scott Morrison, Tony Abbott's Shadow Minister never tires of telling us. Except for Sri Lankans, most of those arriving by boat come not directly from their country of persecution but via various countries with Indonesia being their penultimate stop. There is an understandable bipartisan concern in the Australian parliament about the blowout of boat arrivals to 3,300 per month. An arrival rate of that sort (40,000 pa) puts at risk the whole offshore humanitarian program and distorts the migration and family reunion program. Thus the need to ensure that those risking the perilous sea voyage are in direct flight from persecution being unable to avail themselves adequate protection or processing en route in Indonesia. If they were able to avail themselves such services in Indonesia, the Australian government would be entitled to set up disincentives and to return them safely to Indonesia. If that number were in direct flight from persecution, the Australian government would be justified in setting up measures providing only temporary protection and denying family reunion other than on terms enjoyed by other migrants. But I don't think that would be necessary. It should be a matter not of taking the sugar off the table but of trying to put the sugar out of reach except to those in direct flight from persecution, and leaving the sugar available to those who manage to reach the table whether by plane or boat, with or without a visa. And that's because there is always sugar on Australian tables no matter who is sitting with us. And so it should remain. I have never understood why the less than honest asylum seeker arriving by plane, having sought a visa not for asylum but for tourism or business, should be given preferential treatment over the honest asylum seeker arriving by boat who says, 'I am here to seek asylum.'

First a little history.

At a 1938 conference in Switzerland, T. W. White, the Australian delegate, misjudged his present and future audience when he said that it would 'no doubt be appreciated that as we have no racial problem we are not desirous of importing one'. When the Universal Declaration of Human Rights was being drafted after World War II, Australia was one of the countries that was very testy about recognising any general 'right of asylum' for refugees. Australia conceded that a person had the right to live in their country; they had a right to leave their country; they had a right not to be returned to their country if they were in another country and if they feared persecution on return to their own country. But, Australia believed, people did not have the right to enter another country without invitation, having exercised the right to leave their own country, even if they feared persecution. In 1948 the drafters of the universal declaration proposed that a person have the right to be 'granted asylum'. Australia was one of the strong opponents, being prepared to acknowledge only the individual's right 'to seek and enjoy asylum', because such a right would not include the right to enter another country and it would not create a duty for a country to permit entry by the asylum seeker.

During the preparations for the 1948 discussions, Tasman Heyes, Secretary of the Department of Immigration wrote:

If it is intended to mean that any person or body of persons who may suffer persecution in a particular country shall have the right to enter another country irrespective of their suitability as settlers in the second country this would not be acceptable to Australia as it would be tantamount to the abandonment of the right which every sovereign state possesses to determine the composition of its own population, and who shall be admitted to its territories.

John Howard was not the first Australian to proclaim that the Australian government would decide who comes here. Australia was on the winning side of the pre-Convention argument and was able to live with Article 14 of the Declaration of Human Rights — that 'Everyone has the right to seek and to enjoy in other countries asylum from persecution.' You could ask for asylum. You were not guaranteed a favourable answer, but if you received an invitation to enter, you then had the right to enjoy your asylum. The matter returned to the United Nations' agenda with the drafting of the International Covenant on Civil and Political Rights. The Australian government's 1955 Brief in preparation for the General Assembly pointed out that the Department of Immigration thought 'any limitation of the right to exclude undesirable immigrants or visitors unacceptable'. In 1960 the Russians proposed a general right of asylum. Australia maintained its resistance. No right of asylum was included in the covenant.

Now let's consider the letter and spirit of the Refugee Convention.

The 1951 Convention Relating to the Status of Refugees does not confer a right on asylum seekers to enter the country of their choice or to choose the country which is to process their refugee claim. In fact it does not confer a right to enter any country. The primary obligations in the Convention when considering proposals for border protection and orderly migration are contained in Articles 31 and 33.

#31 — The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

#33 — No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

So a refugee or asylum seeker may be illegally present or may have entered the country illegally. The issue is whether the government may impose any penalty for the illegal entry or presence for which the refugee or asylum seeker is required to show good cause.

Australian governments (of both persuasions) have long held the defensible view: 'The condition that refugees must be 'coming directly' from a territory where they are threatened with persecution constitutes a real limit on the obligation of States to exempt illegal entrants from penalty. In the Australian Government's view, a person in respect of whom Australia owes protection will fall outside the scope of Article 31(1) if he or she spent more than a short period of time in a third country whilst travelling between the country of persecution and Australia, and settled there in safety or was otherwise accorded protection, or there was no good reason why they could not have sought and obtained protection there.'

Like all other countries, we are rightly obliged not to peremptorily expel those persons arriving on our shores, legally or illegally, in direct flight from persecution. We are entitled to return safely to Indonesia persons who, when departing Indonesia for Australia, were no longer in direct flight but rather were engaged in secondary movement seeking a more favourable refugee status outcome or a more benign migration outcome. We could credibly draw this distinction if we co-operated more closely with Indonesia providing basic protection and fair processing for asylum seekers there. Until we do that, there is no way of decently stopping the boats.

Little is to be gained by targeting Tony Abbott and Scott Morrison for describing unvisaed asylum seekers as 'illegals'. Labor leaders, past and present, have used the same term. For example, as The Australian recently highlighted, Julia Gillard has in the past spoken of the AFP disrupting people smuggling thus 'preventing more than 5000 foreign nationals coming to our shores illegally'. Kevin Rudd as Prime Minister spoke of getting 'the balance right in a hardline approach to illegal immigration, and treating the people who we are required to process in a humane fashion.' Kim Beazley, Leader of the Opposition at the height of Tampa crisis in 2001 said: 'We must not allow our immigration policy to be subverted by unchecked illegal arrivals. We must protect our borders.' Sadly, the dog-whistle effect of the label 'illegals' does nothing to enhance the prospect of reasoned dialogue about solutions to very difficult public policy questions.

The unnuanced language of our political leaders needs to be augmented by the fine judicial corrective of Justice Merkel in the Federal court case of Al Masri when he said: 'The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia…. It has always been fundamental to the operation of the Refugees Convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban in Afghanistan and many others, may also be called 'unlawful non-citizens' in the countries in which they seek asylum. Such a description, however, conceals, rather than reveals, their lawful entitlement under conventional international law since the early 1950's (which has been enacted into Australian law) to claim refugee status as persons who are 'unlawfully' in the country in which the asylum application is made.'

Three years ago, Patrick Keane, Australia's newest High Court Justice spoke at Monash University describing the Book of Deuteronomy as 'an example of a shared national morality that inspires its people to be generous, even to strangers. The idea is that we should treat everyone who comes within our borders, including complete strangers afflicted by misfortune, not just with respect and dignity, but with generosity, because we too have — at some time — been ourselves saved, without any particular merit on our part, from the misfortunes which are part of the human condition.' The descriptor 'illegals' does not help.

Let's now consider Jeff's third question: Can alternative (and better) approaches be found?

Boats carrying asylum seekers from Indonesia to Australia could legally be indicted by Australian authorities within our contiguous zone (24 nautical miles offshore from land, including Christmas Island). The passengers could be offloaded and taken to Christmas Island for a prompt assessment to ensure that none of them fit the profile of a person in direct flight from Indonesia fearing persecution by Indonesia. Pursuant to a regional arrangement or bilateral agreement between Australia and Indonesia, Indonesia could guarantee not to refoule any person back to the frontiers of a country where they would face persecution nor to remove any person to a country unwilling to provide that guarantee. Screened asylum seekers from Christmas Island could then be safely flown back to Indonesia for processing.

With adequate resourcing, a real queue could be created for processing and resettlement. Provided there had been an earlier, extensive advertising campaign, Indonesian authorities would then be justified in placing any returned boat people at the end of the queue. Assured safe return by air together with placement at the end of the queue would provide the deterrent to persons no longer in direct flight from persecution risking life and fortune boarding a boat for Australia. In co-operation with UNHCR and IOM, Australia could provide the financial wherewithal to enhance the security and processing arrangements in Indonesia. Both governments could negotiate with other countries in the region to arrange more equitable burden sharing in the offering of resettlement places for those proved to be refugees. Australian politicians would need to give the leadership to the community explaining why it would be necessary and decent for Australia then to receive more proven refugees from the region, including those who fled to our region fearing persecution in faraway places like Afghanistan.

Indonesia would need to enhance its own border protection regime making it more difficult for asylum seekers in Malaysia who are not in direct flight from persecution in Malaysia to enter Indonesia. The safeguards negotiated in Indonesia and any other country in the region to which unprocessed asylum seekers were to be sent would need to comply with the minimum safeguards set by the Houston Expert Panel when they reviewed the Gillard Government's proposed Malaysia Arrangement. These safeguards have not been met with the Gillard government's resurrected 'Pacific Solution'. Paris Aristotle told the ABC Lateline Program when discussing Manus Island in March 2013: 'But the panel was very clear. When we established the safeguards, we didn't say, 'Here's a set of safeguards to mitigate against the risks. If you can do them great; if you can't, go and do it anyway.' We were explicit. We said, 'These safeguards need to be implemented as a part of any offshore processing arrangements.'

Designing a regional agreement in which Indonesia would need to play a pivotal role, all parties would need to have regard to the Houston Panel's observations about the inadequate Malaysia Arrangement:

There are concerns that relate to the non-legally binding nature of the Arrangement, the scope of oversight and monitoring mechanisms, the adequacy of pre-transfer assessments, channels for appeal and access to independent legal advice, practical options for resettlement as well as issues of compliance with international law obligations and human rights standards (particularly in relation to non-refoulement, conditions in Malaysia, standards of treatment and unaccompanied minors).

Persons who reach Australia whether by boat or by plane, whether with or without a visa, should be detained onshore only for the duration of health, security and identity checks. They should then be released into the community being permitted to work and being eligible for social welfare assistance. Just as Australia has long prided itself on providing a just wage and an adequate welfare safety net for all persons living in Australia, so too we should not drop our standards for those asylum seekers in the community awaiting processing. Just as people living in neighbouring countries do not have an entitlement from the Australian government to the same living standard as the poor and welfare dependent in Australia, Australia has no obligation to provide the same welfare assistance to asylum seekers resident in other countries.

In the short term, Australia should escalate its diplomatic efforts with Indonesia to stem the flow of boats and to win agreement to the safe return by air of all asylum seekers interdicted within the contiguous zone or inside Australia's territorial waters once they have been screened out from having any protection claim against Indonesian persecution. Such efforts would need to include commitments to capacity building, countering corruption, and a review of the aid budget. Both governments need to have an incentive to stop the boats. Australia and Indonesia should then join a regional initiative aimed at:

  • Setting down a regional principle of non-refoulement
  • Setting down regional principles for denying entry and returning asylum seekers no longer in direct flight from persecution to the safe transit country they have just departed
  • Setting down regional principles for processing and protection with certification by UNHCR
  • Setting quotas for resettlement places for proven refugees who are processed in the region.

Then, and only then, might Australia have some prospect of achieving the policy goal of hermetically sealed borders and ordered migration flows, while honouring the letter and spirit of the Refugee Convention in a region where our neighbours are not much interested in signing the Convention but like us are committed to sharing the burden of extending compassion to those in direct flight from persecution. Then, and only then, might we stop the boats once it is known that it is a waste of money to take to the high seas only to be told: 'Please get back to where you already had a realistic opportunity for protection and processing; but if you are in direct flight from persecution, you are welcome here!' There would be no need to try unprincipled, unworkable deterrents like offshore processing in Nauru or Manus Island or offshore dumping in Malaysia. Unless we wrestle with these complexities, we risk a populist response to all asylum seekers, including those in direct flight from persecution: 'Get back to where you once belonged!' Jeff Crisp has done us a service highlighting how barbaric that would be, and how modest is the challenge confronting Australia compared with so many other countries which do not boast the advantages of which we dare to sing: 'Our home is girt by sea; Our land abounds in nature's gifts'; 'For those who've come across the seas we've boundless plains to share.'


Frank Brennan headshotFr Frank Brennan SJ is professor of law, director of strategic research projects (social justice and ethics), Australian Catholic University, adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. He gave this to Jeff Crisp's paper 'Get back to where you once belonged!' at the National Asylum Summit, University of South Australia, on Thursday 27 June 2013.

Topic tags: Frank Brennan, Jeff Crisp, UNHCR, refugees, asylum seekers



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Existing comments

Resettlement options in Australia could include using the existing parish structure. A coordinated procedure could see the Australian Catholic Bishops leading the way in each parish supporting a family for six months. Informal job opportunities may evolve locally. Mercy and justice could be exemplified. Muslims and Christians could meet and sound citizenship be encouraged.We need leadership in this matter.

Molly Moran | 27 June 2013  

We are not allowed to send anyone back to Indonesia because that is refoulement no matter how you spell it out. And it's amazing how this lie of secondary movement invented by Ruddock has been abused, there is simply no such thing Frank. It is never used against those who flew over or through dozens of other countries. I am sick of this nonsense, the fact is that we do not own the oceans, or Indonesia, or the borders of the world so as Richard Towle rightly points out people have a right to enter. And don't forget that in 1992 the convention was added to the migration act and all offences for entering without papers were removed as shown by the high court in Al Kateb. Indonesia is torturing and killing refugees, didn't you read yet another damning report from HRW this week? It is only secondary movement if people have genuine protection from persecution and full rights, that does not happen in any country in our region so that argument has always been nonsense.

Marilyn | 28 June 2013  

Mr Towle—Yes. Senator EGGLESTON—One of the things I noted in the material we have before us is that article 31 of the 1951 United Nations Convention relating to the Status of Refugees prescribes the entitlements of: … refugees who— are— JOINT Wednesday, 15 October 2008 MIGRATION coming directly— note the word ‘directly’— from a territory where their life or freedom was threatened in the sense of article 1 … Many of our unauthorised arrivals are Muslims who come through Malaysia or Indonesia. What is the legal situation then under this article 31 in terms of coming directly from an area of persecution—say, Afghanistan or Iraq? Mr Towle—It is a very important question. There is an assumption that asylum seekers should really apply for asylum at the first reasonable opportunity. It is not a legal principle at all:: In our region we are the first opportunity Frank so why muddy the waters. We would have to convince all the neighbours to do what we can't be bothered doing and sending them to Indonesia that is not our country is ridiculous. Not one global court case has upheld such nonsense.,

Marilyn | 28 June 2013  

Marilyn quotes the evidence by Mr Ric Towle, the UNHCR representative, to an Australian parliamentary committee on 15 October 2008 (when the stream of boats was nothing compared with what it is today). Later in his answer, Towle said: "UNHCR fills the gap a little in Indonesia, as you know, and in Malaysia, but those countries do not have any regulatory framework at all to protect refugees. The problem for us is how we keep the gates open here for those who need it but also encourage states further up the people movement chain, if you like, to do the right thing there. That is something that is a long- term work in progress for us. Article 31 hints at those kinds of issues." That's what we are all wrestling with now. Bob Carr wrongly classifies most of those 25,000 who arrived by boat this past year as economic migrants. Marilyn treats most of them as refugees engaged in direct flight. I think most of them are refugees and that those who are refugees could properly be classed as being engaged in secondary movement if there was adequate UNHCR supervised protection and processing for them in Indonesia. If there were, we would be entitled to fly them safely back to Indonesia for that protection and processing, then being committed to doing our share in the region with resettlement of proven refugees processed in places like Malaysia and Indonesia.

Frank Brennan SJ | 28 June 2013  

But refugees in Malaysia and Indonesia are tortured and just because the UNHCR is there doesn't mean protection. And there is legally no such thing as secondary movement, Ruddock made that up. Because if such a thing existed no refugee would ever get past the 1 country and that is not the reason for the refugee convention. IN NAGV and NAGW the high court made it plain that jews didn't have to go to Israel just because they were allowed to.

Marilyn | 30 June 2013  

Frank, there are 8 million refugees in our region, we think we can accept 20,000 and then pretend we can fly them back and forth like we own them. Don't be so absurd.

Marilyn | 30 June 2013  

Fran Kelly gave me plenty of time to make my case on regional solutions on this morning's ABC Breakfast program, joining issue with Bob Carr's frightful classification of refugees as economic migrants, and distinguishing my Indonesia proposal from Tony Abbott's unsafe turn back the boats rhetoric. Listen at http://mpegmedia.abc.net.au/rn/podcast/2013/07/bst_20130702_0821.mp3

Frank Brennan SJ | 01 July 2013  

Many thanks Frank, for your very considered response to my presentation, which, I should underline, was targeted at the industrialized states generally and not at Australia specifically.

Jeff Crisp | 04 July 2013  

I understand completely Jeff. Your general challenges to industrialised states resonated strongly with your Australian audience. It is reassuring to note the joint communique today from SBY and Kevin Rudd: "As co-chairs of the Bali Process, the two Leaders reaffirmed their commitment to continue to develop a regional solution, involving countries of origin, transit and destination which covers elements of prevention, early detection and protection, to combating trafficking in persons and people smuggling and other related transnational crimes. They stressed the importance of avoiding unilateral actions which might jeopardise such a comprehensive regional approach and which might cause operational or other difficulties to any party. The Prime Minister of Australia welcomed Indonesia’s initiative to invite key origin, transit, and destination countries to a conference to explore concrete operational and policy responses, including regional approaches and efforts to enhance border security, in addressing irregular movement of persons. "

Frank Brennan SJ | 05 July 2013  

Would I be right in thinking that Frank Brennan's "Indonesian solution" suggested above is similar to the Government's "Malaysian solution"?

Peter Hanley | 13 July 2013  

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