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Refugee lotto


Malaysia Solution signing ceremonyAn old legal maxim is 'hard cases make bad law'. Maybe complex cases compromise policy. Refugee law and policy is complex and the Malaysian agreement signed this week is another example of a compromise on human rights principles for political expedience.

In May 1992 mandatory detention was made a legal requirement by the then Labor Government. This occurred at a time of legal challenges to detention of Cambodian asylum seekers. Nearly ten years later, the Liberal Government used increasingly harsher policies, from the temporary protection visa to the misnamed 'Pacific Solution' (it was neither pacific nor a solution).

The continued politicisation of 'boat people' and calls to 'stop the boats' shows that policies regarding asylum seekers still bedevil Governments. The Malaysian Solution is the latest policy reaction.

How far will a Government go to 'stop the boats'? Rather than consider ways of ensuring protection of the human rights of refugees not just in Australia but also regionally, political responses are designed to achieve 'border security'. If we are prepared to achieve the political solution of 'stopping the boats' we have to act in a way that does not respect human dignity.

Australia has certain international obligations as a signatory to the Refugee Convention. It is not a responsible solution to move our international responsibilities offshore as was done with Nauru and is part of the Malaysia agreement. Arrivals onshore by boat or air should all have their cases assessed onshore. This approach is not politically likely because it is will not 'stop the boats'.

However, when the politics is so hostile that principles are lost in policy setting, what is the next best option for the refugees?

Assessing cases by Australian officials in Nauru did nothing to improve the protection of refugees in our region. Whereas getting non-signatory countries such as Malaysia to enter discussions with the UNHCR about improving protection for refugees is a small but positive step. Many refugees live in countries that are not full signatories to the refugee convention, such as Pakistan, India and Turkey.

The deal means the 800 asylum seekers transferred from Australia will not end up as part of the 4000 refugees to be resettled. Good if you are in that 4000, not so good if you are one of the 800.

The agreement provides that the transferees should not be detained beyond health and security checks. This is in fact better treatment than they would receive in Australia. They will be able to work and children will have access to education.

There is also a provision to provide some consideration for what is known as 'complementary protection' for those who do not meet UNHCR assessment criteria. This is not currently standard in Malaysia and is a small step forward in protecting the rights of refugees in the region.

Resettling 1000 refugees annually from Malaysia is the equivalent of 1 per cent of the total number of refugees in Malaysian. However it increases Australia's refugee resettlement by over 13 per cent.

Part of the justification is to 'send people to the back of the queues'. This plays into the view that refugees arriving by boat are 'bad' because they 'take' the place of the more 'deserving' refugees. UNHCR has repeatedly stated that the queue does not exist. There are no queues, there never have been. Few are resettled, most wait for the refugee lotto in the hope they might be picked next time.

How someone arrives and makes their application for protection is legally irrelevant to whether they meet the refugee definition.

There will always be far more refugees than can even be resettled and at best, we can help a small number who meet the strict refugee criteria. It is not true to claim that the most deserving miss out thanks to people arriving on boats, because Australia will and does refuse families with health issues, such as a family with a Down syndrome child.

Some of the major reforms in immigration history in Australia have occurred despite adverse public opinion. Consider two examples: the resettlement of non Anglo-Celtic Europeans and Jews after WWII by the Chifley Labor and then Menzies Liberals governments. Then the Fraser Government accepted many thousands of Vietnamese and Cambodians in the 1980s.

These policies were not driven by popular opinion but were able over time to change opinions for the better. As former Liberal MP Bruce Baird stated on the ABC program, Leaky Boats, 'people will change their opinions when they are informed of the facts'.

Still, the last two decades has seen few positive developments for the protection of refugees who arrive by boat.

Australians will welcome around 180,000 new migrants and refugees this year. It is estimated that around 40 per cent of Australians were born overseas or have one parent who was. The notion of the fair go is solidly embedded in Australian culture. However we need bipartisan political leadership which provides accurate information about refugees, not politics that reinforces ill-informed fears. 

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 was recognised by AFR best lawyers survey as one of Australia's top immigration lawyers. 

Topic tags: Kerry Murphy, Malaysia Solution, UNHCR, Pacific Solution, temporary protection visas



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Existing comments

Refugees forced to Malaysia are not going to get education, or health care. The UNHCR are not in any part of this and can't be because it breaks the most basic refugee principal insisted on by Australia in the declaration of human rights. Everyone has the right to seek asylum.

Marilyn | 27 July 2011  

Thanks for this article, Kerry. The Malaysian agreement is a political response to a political problem, not a humanitarian response. I am concerned that despite some possible benefits to protection in Malaysia, the Government is actually undermining the worldwide protection framework. Not assessing asylum claims in Australia is a fundamental breach of our obligations under the Convention. It is a trade in people no matter what is said.

If the politics could be set aside,and if we are able to put our refugee intake into a proper perspective, consideration should be given to increasing the refugee intake (for both offshore and onshore entry), and quite separately, having a specific annual quota within the immigration program to family reunion for refugees. The linking of family reunion under the Special Humanitarian intake to on-shore arrivals is an artificial construct, which deliberately sets up competition for places, and limits the prospects for refugees here to be reunited with family members. A separate quota which allows for a more predictable rate of refugee family reunion would also remove the incentive for family members to seek asylum via the people smugglers route. Many of the women and children who drowned on the SEIV X were trying to reunite with refugee fathers.

We seem to have forgotten the fundamentals of successful resettlement for successive waves of migrants and refugees.

Kate | 27 July 2011  

It would be fantastic if measured and informative articles such as these were 'required reading' for all members of government and opposition - and the wider community. We will surely look back with shame on this period in Australian history. Thank you for alerting us Kerry, so we can never say we did not know.

Ali | 27 July 2011  

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