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The quality of asylum seeker processing


The quality of asylum seeker processingThe interception of a group of 83 Sri Lankan asylum seekers by the Australian Navy in late February prompted renewed public discussion about the way Australia should respond to people who arrive in this country in search of protection.

The government initially said it would return the group to Indonesia. The Indonesians said that they would send them back to Sri Lanka. But without a guarantee that they would be safe in Sri Lanka, and after a good deal of deliberation and negotiation, the Australian government decided the group is to have its claims for protection assessed on Nauru.

The handling of the Sri Lankan asylum seekers by the government looked clumsy and ad hoc. More alarmingly, it also looked precariously close to risking the return of a group of people to a situation where they could have been placed in grave danger.

In part, this indicates the flawed assumptions that have underpinned Australia’s response to asylum seekers for the past decade and a half. These assumptions can be summarised thus: asylum seekers – people who are deemed to be of questionable character, particularly because they rely on people smugglers – must be deterred from seeking protection in Australia lest this country be seen as 'soft' and therefore a place where more asylum seekers might seek to come.

In the long term, these assumptions and their policy implications ought to be challenged. Asylum seeker policy and practice ought to be radically altered.

More immediately, there is a need to engage in policy change that allows the existing system to be made more protection-focused while not being so drastic as to frighten policy-makers from its implementation.

I am soon to have a discussion paper published on the APO website which seeks such a compromise. It does not call for the dismantling of the Pacific Solution. Nor does it call for a revamping of the legislative regime that has proven so bankrupt.

What it does seek to do is to identify ways in which Australia’s response to asylum seekers can be better balanced between border control and the obligation to offer protection to those who need it.

In the first place, upon interception, the Sri Lankans ought to have been informed that they would be returned from whence they came unless they had reason to fear returning and then been offered an opportunity to express any such fear. As radical as it sounds, such a practice need not be altogether alarming for policy-makers. Asylum seekers arriving in the United States already have access to a similar opportunity.

Those arriving by air are asked the 'three fear questions': 'Why did you leave your home country or country of last residence? Do you have any fear or concern about being returned to your home country or being removed from the United States? Would you be harmed if you are returned to you home country or country of last residence?' Those arriving by boat are subject to a less rigorous process, but one which is better than Australia’s.

The quality of asylum seeker processingIssuing a statement outlining their legal status and granting unauthorised boat arrivals the opportunity to express any fears would also reduce the possibility of loss of life at sea. Present policy requires the navy to prevent asylum seekers from disembarking from their vessels unless they are deemed unseaworthy. There is a fine line between a barely seaworthy vessel and one that is unseaworthy, and it is a line that might be crossed quickly.

Had the Sri Lankans articulated a fear of returning, they could then have been brought to a safe and convenient place to have their claims for protection processed. In fact, they were brought to Christmas Island, but only for a short time. The decision to transfer the group to Nauru for processing seems expensive and unnecessary.

For the purpose of my argument, however, it matters less where the asylum seekers will be processed – Christmas Island has been removed legislatively from Australia’s 'migration zone' and Nauru is an independent nation – and more the nature of their reception and processing.

The Sri Lankans now ought to be given access to the resources to ensure that they can best articulate their claims for protection. This involves providing the asylum seekers independent, high-quality legal advice and a fair, efficient and transparent protection determination process. They ought to have access to an independent merits review process should their claims for protection be rejected in the first instance.

Further, the Sri Lankans should be provided with medical care, appropriate accommodation, welfare support, counselling and other opportunities to prepare them for the three possible outcomes they will face – asylum, return to their homelands, should their claims be rejected, or resettlement in a third country.

The quality of asylum seeker processingThose found to have valid protection concerns should be given permanent residence in Australia. Those found not to have protection concerns – defined broadly, as concerns about their basic human rights to life and liberty – ought to be returned to Sri Lanka. As far as possible, this should be done with the consent of the failed asylum seekers. Should those without protection concerns refuse to return, it is reasonable that the state enforce their return. This ought to be done in as dignified a manner as possible, by officials of the Australian government – not by employees of private companies or organisations – and under guidelines which dictate the appropriate use of force.

Finally, Australia should establish a returnee monitoring body to ensure that the asylum seekers it does return – to Sri Lanka or anywhere else – are indeed safe, and should establish processes by which those wrongly returned can be properly protected.

By implementing practices of the sort discussed here, Australia’s response to asylum seekers arriving without prior authorisation could better balance the government’s desire to control its borders with the obligation to protect those in need of protection. If the reaction to the Sri Lankans is any indication, there is an ongoing need for policy reform, if not revolution, in this area.



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Existing comments

I actually disagree with a lot of what David has written here and I am quite disappointed in it.

1. There is no such thing as an unauthorised arrival, asylum seekers have a universal right to arrive without asking permission from far away first. If they could ask permission they wouldn't need to seek asylum.
2. The notion of forced return if they are "not refugees" must be finally challenged. There are some 4 million Afghanis still in Pakistan whom it could be argued are "not refugees" anymore but Pakistan is not forcing them to leave. Forcing people to leave breaches the basic tenets of decency and the convention against cruel, inhuman and degrading treatment. Not to mention that David knows from his travels that Australia very often got things terribly wrong. Look at the Bakhtiyari chapter for example.
3. WE have over 50,000 people here without visas every year yet there is never a mention of them being forcibly returned and they have less compelling reasons to stay than any person who ever sought asylum here. Why the double standards here?

I want all the academics who write about this issue to consider what they are saying and what they are advocating.

Marilyn Shepherd | 20 March 2007  

Asylum seeker processing in this country (or outside this country, as it were) is an embarassment. if the US is doing it better, than we need to have a look at ourselves. But i dont agree with you, Marilyn - David is clearly ttrying to 'bridge the gap' with his ideas and recommendations. Some progress and change is better than none. We have endured such a sorry system for such a long time that any improvements should be welcomed.

peter malleson | 20 March 2007  

Peter it is not David's ideas I have a problem with at all, indeed I tried to help him in any way I could with his book in the first chapter if you read it.

It is the language of "unauthorized arrivals" when the refugee convention and Australian law provides for people not to need authorization. As the only authorization required for Australia is a visa the whole notion of going to prosecutors and asking for one is ludicrous and the High Court agree in the case of Al Khateb.

And the notion of forced returns when we have only had 60,000 asylum seekers from all over the world in over 17 years and 17 times that in overstayers who are not forced out of the country.

Other than that I don't have a problem at all with David's outlines.

Marilyn Shephed | 21 March 2007  

Thank for a very comprehensive assessment of the situation! I have been to Nauru several times on my trips to and from Kiribati! it is hardly the place for anyone struggling to find a new beginning!..let alone adequate medical and health assistance! Keep up the good work ..I am right behind you in whole-hearted support!

Geraldine Kearney sgs | 22 March 2007  

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