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The 747 or the leaky boat

It is difficult to formulate and implement a fair, humane policy for the treatment of boat people in Australia — especially when the number of boats spikes, and most especially when a spike occurs in an election year. Appreciating the complexity of the issues involved, we need to keep a sense of proportion about Australia's woes in comparison with those of other countries seeking to do the right thing by refugees. 

Prior to 2001, the Australian Government took the view that refugees fleeing even faraway countries via Indonesia or Malaysia were 'coming directly' and were thus not to be penalised for their illegal entry or unauthorised presence in Australian territory or waters.

That presumption was abandoned in 2001 with the increased influx of boat people from Afghanistan, Iraq and Iran. The Australian government decided to penalise boat people arriving without a visa by imposing mandatory detention and by replacing the permanent protection visa (which carried the right of family reunion and sponsorship) with the temporary protection visa (which was for three years only and which did not carry the right of family reunion and sponsorship).

The Government also decided to reduce the access for these persons to judicial review of their status determination decisions. The government took the view that these boat people were no longer engaged in direct flight from persecution. Rather they had fled persecution, found a modicum of protection in another country, and then decided to engage in secondary movement seeking a more benign migration outcome.

The Government indicated that if ever there were persons engaged in direct flight to Australia, those persons would be accorded proper treatment under the Convention including the non-application of these new penalties for illegal entry and unauthorised presence. However when a boatload of asylum seekers arrived directly from West Papua, the government applied the same policy.

As well as revising its routine assessment of when persons were engaging in direct flight, the Howard Government created a nexus between the number of successful onshore asylum claims and the number of places available for humanitarian offshore cases. Refugee advocates unsuccessfully argued that even those countries without a net migration program would be required to provide a durable solution for refugees within their jurisdiction, and that therefore there should be no nexus.

There is presently no strong community demand for the nexus once again to be broken. The nexus is judged by the community to be morally acceptable as well as politically expedient. Every successful onshore asylum seeker takes a place which otherwise would have been available to an offshore humanitarian applicant. Offshore humanitarian applicants do include very needy, deserving refugees without access to people smugglers.

The Australian system without discrimination gives preference to three groups of onshore asylum seekers over offshore humanitarian applicants. Those three groups are transparently honest visa holders whose country conditions deteriorate after they have arrived in Australia, visa holders who make less than full disclosure about their asylum claims when applying for a visa to enter Australia, and unvisaed refugees who arrive by boat often having engaged the services of a people smuggler.

Strangely it is only the third group which causes great community angst even though most of that group, unlike the second group who come by plane with visas, are transparently honest about their intentions and their status.

The Rudd Government improved the time lines for mandatory detention claiming that detention was only for the purposes of identity, health and security checks. In fact, detention was to last as long as the refugee determination process took, but with the assurance that it would usually be complete within 90 days. The permanent visa was restored. Boat people intercepted before arrival on the Australian mainland were processed on Christmas Island without access to the courts for the usual raft of appeal procedures.

Those asylum seekers arriving without visas should be detained only for the purposes of health, security and identity checks. Once those checks are successfully completed with a decision that the known applicant poses no health or security risk and if there be too great a caseload for final determination of claims within that time, these asylum seekers should be humanely accommodated while their claim process is completed.

Community groups should be invited to assist with the provision of such accommodation to applicants likely to have a successful refugee claim. Those unlikely to succeed should continue to be accommodated by government or its contractor being assured availability for removal on final determination of an unsuccessful claim.

Given that we are a net migration country, those who establish a refugee claim should be granted a permanent visa, thereby being able to get on with their lives. There should not be any suspension of claims on the basis that a change in country circumstances is confidently expected. There is no reason for delaying the prompt processing of all Sri Lankan claims now, taking into account the recent past changes there including democratic elections and the cessation of civil war. There is no evidence of similar improvement for Hazaras in Afghanistan and neither is any to be expected in the foreseeable future. Australia's leading academic commentator on Afghanistan, Professor Bill Maley, says that any suggestion of improved conditions there 'is frankly bizarre'.

Until the treatment of asylum seekers in transit countries such as Indonesia is enhanced, we Australians must expect that some of the world's neediest refugees will engage people smugglers and come within reach of our authorities. For as long as they do not excessively skew our migration program, we should allow those who are proven to be genuine refugees to settle permanently and promptly so they may get on with their lives and make their contribution to our national life. The suspension of claims is unprincipled and unlikely to achieve any reduction of successful claims. It will simply lengthen the time of detention.

And let's not forget the assessment of immigration detention centres by Professor Patrick McGorry, Australian of the Year: 'You could almost describe them as factories for producing mental illness and mental disorder.' Proposals such as temporary protection visas and the Pacific Solution are not only unprincipled; they fail to stem the tide or to reduce the successful claims.

As the election lather on the issue commences, let's always ask, 'Why is it right to treat the honest, unvisaed boat person more harshly than the visaed airplane passenger who fails to declare their intention to apply for asylum?' If the answer is based only on consequences, then ask, 'Would not the same harsh treatment of the visaed airplane passenger have the same or even greater effect in deterring arrivals by onshore asylum seekers?' The Qantas 747 does not evoke the same response as the leaky boat, does it?

Frank BrennanFrank Brennan SJ is professor of law at the Australian Catholic University and Adjunct Professor at the Australian National University. This is an edited excerpt from his address to the Public Policy Institute at Curtin University, Perth, on 17 June 2010, the UN International Day in Support of Survivors of Torture. Full text

Topic tags: Frank Brennan, refugees, asylum seekers, temporary protection visa, sri lanka, afghanistan, christmas



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Existing comments

It's all based on the lie that refugees in other countries have the right to come here when it is quite the opposite.

"The reality is that only a small proportion of asylum seekers are registered with the UNHCR:
UNHCR offices registered some 73 400 applications out of the total of 861 400 claims in 2008. This number has decreased compared to 2007 (79 800 claims). The office’s share in the global number of applications registered stood at 9 per cent in 2008 compared to 15 per cent in 2006 and 12 per cent in 2007. As the overall number of applications has continued to rise, states are increasingly taking responsibility for refugee status determination.19
Once registered with the UNHCR, many refugees seek resettlement to a country such as Australia. Refugees do not have a right to be resettled, and states are not obliged under the 1951 Refugee Convention or any other instrument to accept refugees for resettlement. It is a voluntary scheme co-ordinated by the UNHCR which, amongst other things facilitates burden-sharing amongst signatory states. Resettlement therefore complements and is not a substitute for the provision of protection to people who apply for asylum under the Convention.

Marilyn Shepherd | 20 June 2010  

While I have every sympathy for anyone desperate enough to risk life and limb to enter Australia by sea, I am surprised at Frank Brennan's comparison of a 747 jet with a 'leaky boat'. It goes to the heart of due legal process with which he would be more familiar than most others.

As he rightly notes, the 747 flier carries a visa and, hand in hand with that, all other required documentation that would also identify his/her/their likely place of abode; income and/or support sources which means that relevant authorities can trace them at any time if they are suspected of overstaying their visas or contravening any other Australian laws.

The sad reality is that the piteous figure from the 'leaky boat'does not...cannot...provide such documentation which...in practical terms..means that if he/she is landed on some part of the Australian
mainland he/she could disappear from public view...which is of course the reason why people traffickers choose to bring them in by boat.

This is a critical debate and it isn't helped by indefensible comparisons by those who do know better.

Brian Haill | 21 June 2010  

Marilyn, Marilyn. That's not where the lies are.

Harsh treatment of asylum seekers is unprincipled and cowardly. Tony Abbott would lead us back to the days of the SS St Louis and Kevin Rudd seems willing to slide back there.

People smugglers rotting in hell? more likely cowardly politicians.

Jim Jones | 21 June 2010  

Marilyn certainly fires from the hip, if she can fire a bazooka that way. As a shepherd she is not like the bloke we know as "the Good Shepherd" who told the ethically cogent story of the good Samaritan.With her mindset she would have told the Samaritan not to care for the wounded man because he had no legal right to be helped.Nonetheless, he did have a real right to be cared for. Just as refugees have real rights to be refugees.

I hope she can welcome some of them into her home or just go surfing with Tony Abbot and refugees when he meets them that way.

Gerry Costigan | 21 June 2010  

People smuggling in dangerous boats must be stopped at any cost. It is not only very dangerous; it also helps criminal smuggling gangs to prosper. I am not talking about the poor fishermen from Indonesia, I am talking about the shady figures organising the smuggling rings. I feel people in Australia supporting people smuggling are directly guilty for the high number of dying trying to come here.

I feel it is disgusting that people pretending to be Catholics are trying to advocate a “better treatment” for boat people. The image that Australia is a “soft target” for people smuggling will lead to more people trying to enter Australia via “leaking boats”. There is only one way people should be allowed to enter Australia, the safe legal way.

Beat Odermatt | 21 June 2010  

What a great summary! It says it all. Could not agree more!

Pat | 21 June 2010  

An asylum seeker is a person who applies in another country for refugee protection. Once that protection is granted they are not allowed to decide to apply for protection in another country.

An asylum seeker who arrives here and asks for protection does so because they are not refugees in other countries.

I don't make the law but I do get tired of the crap that only those "over yonder" are entitled to come here while those here are not when it is the opposite.

And they don't need papers to apply for asylum. If that was a requirement the refugee convention would be rendered nugatory as Article 31 forbids the sort of punishment we inflict on innocent people.

Would you walk over a rape victim on the road or knocking on your door because someone 6 streets away might have been raped because that is the lunatic principal being espoused.

Marilyn Shepherd | 21 June 2010  

"Love thy neighbour as thyself"... Where does the harsh treatment of people who have aleady been traumatised (the vast majority of those seeking asylum) fit with that profound message? And why the fortress mentality in relation to the handful who come by boat? What hypocrisy.

Patricia | 21 June 2010  

My advice to church groups has been: “It is only because of the overcrowding of Christmas Island that the government is contemplating bringing some people on shore prior to the finalisation of their claims. Those brought on shore should be those more likely to have successful claims. Of those brought onshore, those entrusted to church care should be primarily those persons who would be most adversely affected by ongoing detention - family groups, unaccompanied minors, and those in need of special care for past trauma and stress. Before a church group provided assistance to an unaccompanied minor, there would be need for formal clarification of who is guardian and the guardian's consent would be required for any activity proposed for the minor. If churches were to provide accommodation to persons other than those meeting the above criteria, there could be questions about material co-operation in evil, namely augmenting a policy which kept those meeting the above criteria in offshore detention, when they would not be so kept but for the church co-operation.”

Frank Brennan SJ | 21 June 2010  

The whole issue of illegal migration looks to me like fighting to decide who is getting a band-aid. I feel the Government should have a far tougher policy on illegal migration. The current soft policy is not helping to cure the cause. Most of the refugees come from countries where corruption rules every level of society, where tribal, racial and religious intolerance create conflict and civil war. It remains very difficult to address these issues. The UN has its hands tied, as too many countries feel threatened by tougher international actions against war crimes and inhuman treatment of their people. Very few resources are allocated to find, arrest and prosecute war criminals. The support by the major nations such as the USA, Russia and China for the effective control of human right abuse is almost non-existing. It seems only a small number of European countries have an active foreign policy to fight corruption and human right abuse. In the end, it is up to the people in countries with internal conflict to learn that peace and tolerance is always a better way then to maintain intolerance, armed conflict and intolerance. I am sure that the support of rural development and education in these countries provides “more bang for buck” then spending hundreds of Million of Dollars on customers of human trafficking rings.

Beat Odermatt | 21 June 2010  

In your final paragraph you describe the unvisaed boat person as "honest". This person has just thrown passport and all means of identification into the sea. I find it hard to see such a person as more honest than a 747 passenger with passport and visa.

Tenner | 22 June 2010  

Tenner, the nonsense about papers drives me crazy. If they had papers they might have a chance of a passport.

I just posted the information that papers are not required.

Marilyn Shepherd | 22 June 2010  

Marilyn your numerous feedback comments show your intense seriousness about this issue. Your detailed explanation of the legal requirements is thorough. Well done.

Let's acknowledge that the vast majority will be accepted as genuine refugees. My comment was on the issue of honesty as Frank raised it in his last paragraph. Your response overlooks the fact that large numbers of our boat people arrive in Indonesia by plane with a passport, which has disappeared when they are picked up at sea. Surely they, at least, are no more honest than the visaed 747 arrivals?

Tenner | 24 June 2010  

If the honest, unvisaed boat person is truly treated more harshly than the the visaed airplane passenger then why do so many asylum seekers chose to complete the last leg of their journey to Australia by boat.

We know they have money, it costs much more to come by boat than airplane, we know they have passports, they enter Indonesia and Malaysia on these passports, so why do they chose to come by boat.

It is because there is an incentive to do so. If they arrive by boat they don't need to produce, and in fact don't, produce their travel and other documents.
This gives them a distinct advantage in refugee assessment and explains why a much greater proportion are accepted.
While that advantage exists many asylum seekers will chose to come by boat, calculaing that the risks of death and the certaintity of detention are outweighed by the greater prospect of sucess.
An understandable choice for many asylum seekers, but good policy?
perhaps another question is why should asylum seekers who can afford the money and are prepared to take the risk to come by boat get such an advantage over airplane arrivals.
it is a difficult policy area, good intentions are not enough, as sometimes good decisions have bad consequences.

jack | 25 June 2010  

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