No turning back
Michael Gordon
The Age
24 August 2002

One year on, John Howard is confident he was right to reject the Tampa. Will history vindicate him? Michael Gordon reports.

If the absence of leaky boats on the horizon is the yardstick, John Howard has scored an emphatic victory over the people smugglers in the 12 months since he turned back the Tampa.

There has not been a single vessel of asylum seekers in more than nine months - the second-longest stretch without incident since the flow of boat people resumed in 1989 - and the number of potential customers languishing in Indonesia has more than halved.

And grave doubts have now been cast on the credibility of the asylum seeker whose case highlighted the punitive impact of Australia's system on families and children. The Prime Minister was careful yesterday not to make too much of Ali Bakhtiyari's admission to The Age that he spent two years in Pakistan before paying people smugglers to get him to Australia.

But there is no doubt that he saw it as vindication of his government's handling of the case. "I would just invite people who've been so ready to criticise (Immigration Minister) Philip Ruddock... to have a look at this material and just accept that we're not people who are behaving unreasonably," he told 3AW.

There is no doubt, too, that the government believes the policy that helped secure its victory in the November election has achieved all its key objectives. The decision to deny the Tampa permission to unload its cargo of rescued asylum seekers, one year ago on Monday, was the beginning of what Ruddock now calls "the benchmark when it comes to managing borders".

Dubbed the Pacific solution, the policy includes a much tougher legislative regime, the processing of uninvited asylum seekers offshore and increased regional cooperation. Returning this week from a nine-country sweep through Africa and Europe, Ruddock claimed many of these nations were looking at Australia as a model for their own programs.

But if Australia has set the benchmark on border protection, it has also achieved another distinction in the past 12 months. It now runs the harshest system for dealing with asylum seekers in the developed world.

"What makes Australia's detention system so invidious is that it combines the three elements of being mandatory, indefinite and non-reviewable," UN High Commissioner for Refugees representative in Australia, Michel Gabaudan, said last month. "This, in our view, makes it the most severe system to be found in the Western democratic world."

While Ruddock insists there was no criticism of Australia's approach overseas, he is being urged to review key aspects of the policy by his own Immigration Detention Advisory Group at home, particularly those who negotiated an end to the hunger strike at the Woomera detention centre early this year. One member of the group, Paris Aristotle, believes that elements of the approach will eventually be seen in the same way as the forced removal of indigenous children from their families is seen today.

"Probably for all the wrong reasons, officials thought they were doing the right thing, but on reflection we know that was a terrible thing to do - and there are very similar characteristics in how we are dealing with this issue," Aristotle, who is also director of the Victorian Foundation for Survivors of Torture, told The Age.

"If you took the characteristics of dispossession, separation, isolation, trauma, complete lack of power over your lives and a lack of judicial redress, all of those elements exist in how we are dealing with this at this point of time. I think history will judge this path very harshly as a result. That is why I think it's important for the nation that we can talk about this in a different way."

Professor Harry Minas, another member of the group, is the director of Melbourne University's Centre for International Mental Health. He agrees with Aristotle, but does not believe it will take decades to recognise that the balance between protecting borders and human rights has been lost.

"I think in a few years we will seriously be wondering what the hell we were doing and what the hell were we thinking," he says. "I think people will be very puzzled about what was going on. What was in people's minds? What was it that was driving this policy?

"How was it that the very clear advice about the harmful consequences of treating people in the way that we're treating them seemed not to make any substantial impact on either the policy itself or the manner in which the policy was implemented? I don't think that anybody is going to look back on this as a kind of an example of the best that this country is capable of."

These are not the voices at the extreme end of the debate. They are the voices of experts who respect Ruddock and agree with his conviction that the people-smuggling trade threatens the ability of nations to take those refugees who are the most deserving of protection.

But they are convinced that an obsession with sending the message that Australia is not "a soft touch" to the people smugglers and those who are not refugees has blinded the government to the inhumanity of key aspects of its policy.

The stated aim of mandatory detention is to ensure that those with unfounded claims for asylum are available to be removed. But the policy has also been framed to deter others from coming, particularly since the Tampa, and this raises questions of law, morality and ethics.

"This policy that collectively punishes people who are themselves innocent in order to prevent other things occurring is clearly flawed in international law," says Paul Komesaroff, director of the Monash Centre for the Study of Ethics in Medicine and Society.

"But the other profound implication is the extent to which it is damaging to Australian society to embed at the level of public policy a practice that is deeply unethical: punishing individuals in order to achieve an exogenous public policy objective."

Will these views change the public attitude that has strongly supported the government? Maybe not.

Victorian Liberal MP Petro Georgiou told the Coalition party room meeting this week that he believed people were now more concerned about the issue of mandatory detention, particularly because of the number of stories concerning the psychological impact on children.

But that was before the admission by Bakhtryari, the asylum seeker accused of fraudulently obtaining a temporary protection visa, that it had been "many years" since he lived in Afghanistan.

While the admission will fuel doubts about the claims of unauthorised asylum seekers, the fact remains that the overwhelming majority of those who have come by boat have been found to be legitimate.

Amal Hassan Basry is one such person. She is one of seven survivors of the SIEV-X tragedy that claimed 353 lives last October to be offered a five-year protection visa by Australia because she had a family link to this country. Her husband has a temporary protection visa that will expire next year.

At her new home in Broadmeadows this week, she told her story to The Age, describing in near forensic detail how almost 400 people were coerced into boarding a small, unsafe and ill-equipped boat: the trip in five buses with curtains drawn to the apartments where they prepared for the voyage; the demand that the women and children board first, apparently to ensure the men followed; the refusal to return mobile phones surrendered the previous week; the attempt to plug a hole with material from a pair of jeans; the decision of the men not to let on that the engine had failed and could not be repaired; the sound of women screaming as the boat sank; the two mysterious lights in the distance as she clung on to the body of a drowned women; the rescue by Indonesian fishermen alerted when they saw floating luggage and bodies.

After saying all this through an interpreter, she looks at me intensely and says in English: "I was like a camera. I remember everything."

It was only as we are about to leave that she breaks down and cries, explaining that one son was still in Iran and feared being forcibly returned to Iraq to an uncertain fate.

At a mainland detention centre, I meet a man who had been on Nauru since his boat was intercepted at Ashmore Reef last November. He is there on medical grounds and is classified a "transitory person" under the government's post-Tampa legislation, with no right to seek a visa.

He is among several hundred Afghans who are awaiting the final decision on their appeals after their claims for refugee status were rejected, largely because of changed circumstances after the defeat of the Taliban. Almost 240 of them are from the Tampa.

He describes his own ordeal and states his case for the chance of a new life in Australia. "I'm always thinking if they send me back I will be killed or starve and if I remain for four or five years in detention it will also be difficult. We'll turn crazy," he says.

Dealing with those on Nauru and on Manus Island is the first of several challenges facing the Howard Government, though Ruddock exudes a quiet confidence that all of them will be managed.

So far, 74 of those on Nauru, seven survivors of the SIEV-X and 60 who were on Manus Island have come to Australia, almost certainly including some who were on board the boat known as SIEV-4, who were falsely accused of throwing their children overboard during the election campaign.

In total, 578 of those on Nauru and Manus have been found to be refugees and 911 have had their claims rejected, a success rate of 39 per cent. Of those rejected, almost 700 are Afghans whose final appeal decisions are imminent. Of the Afghans on the Tampa, 150 have resettled in New Zealand and another 22 have been accepted for resettlement. Not one has set foot on Australian soil.

While a significant number have remained in detention for months after being found to be refugees, Ruddock says this is simply the result of needing to check family connections with possible placement countries.

Potentially more problematic is how the government will respond to the cases of those whose appeals fail. Here, Ruddock expects most of the Afghans will take up the government's repatriation offer of financial incentives to return.

And those who refuse? "Well, it is the same as for Afghans here," he says. "We will wait until the international community says that forced returns are appropriate." And when might that be? "Our view is that consensus in the worst case is six or seven months away. That's worst-case scenario."

This timetable is news to the Afghan ambassador to Australia, Mahmoud Saikal. "We do not see the situation in black and white. We see it in grey," he says, adding that continuous dialogue and engagement will be required to achieve a "dignified solution for all of us".

Clearly, the prospect of those who fled a war-torn country being forcibly returned in the first year of a new government would not constitute a dignified solution.

The second and perhaps biggest challenge Ruddock faces is to decide how to deal with about 800 temporary protection visas (TPVs) that will begin to come up for a decision from November.

This system is another aspect of Australia's approach to border protection that distinguishes this country from other Western democracies. Those selected in the offshore program are offered permanent visas. Those accepted through offshore processing on places like Nauru are eligible for a permanent visa after their five-year visa expires.

But those, post-Tampa, who make it to Australia will only ever be eligible for a temporary visa, with all the constraints that implies: no family reunion, no right of overseas travel and limited government support.

This uncertainty is the cause of continuing anxiety and separation for those on TPVs. "I need a permanent visa to feel safe, secure and stable," says Amal Hassan Basry.

Harry Manis is convinced the TPV system will make it immeasurably harder for these people to settle successfully and "is setting up a problem that will be with us for a long time".

But Ruddock maintains the system is very deliberately weighted to encourage people to make claims in countries of first asylum. The diminished rights that flow from attempting an unauthorised arrival have to be weighed against "the potential loss of life of encouraging people to get in boats and try and get here".

The logic of this position is disputed by refugee advocates who say the refusal to allow spouses to reunite is an incentive for those still overseas to risk all by paying people smugglers.

A third challenge is to deal with those who have exhausted all appeals but cannot be returned to their country of origin.

The Federal Court's recent decision to order the release from detention of a Palestinian asylum seeker has raised the prospect that others will argue that their detention is punitive and seek release.

But Ruddock, who has worked hard to secure agreements for the return of those refused asylum, is confident that most, "if not all", of those in this situation will leave Australia.

While the minister hints at changes at the margin to make the system less severe, his bottom line is simple: there will be no turning back.

Michael Gordon is The Age's national editor.


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