What next for Australian refugee policy?

Peter Mares
20 June 2003

Peter Mares is author of Borderline: Australia's Treatment of Refugees and Asylum Seekers in the Wake of the Tampa (UNSW Press) 2nd edition, October 2002, ISBN: 0868407895

In this speech to a Victorian Department of Justice Forum on Refugees, Human Rights and the Construction of an Australian Identity, Peter Mares argues that the partial success of deterrence policies in the West won't stop the world refugee crisis from deepening

IT IS my intention to look to the future; to assess the directions that the refugee debate and refugee policy might take in Australia and elsewhere in coming months and years. But before looking forward, it is important to remind ourselves of the point we have reached in Australia. Since late 2001, in the wake of the Tampa, the unauthorised arrival of boats carrying asylum seekers to Australian shores has stopped. Why?

There are many contributing factors: the overthrow of the Taliban in Afghanistan has reversed the flow of refugees out of that tortured country; Indonesia has stepped up its cooperation with Australia to smash a number of major smuggling rackets; and there's the demonstration effect of the boat known as SIEV X - suspected illegal entry vessel X - which went down en route to Australia and took the lives of 353 people, most of them women and children. All these things play a part; but most important in my view, has been the 'success' of the federal government's shift from a policy of 'deterrence by example' to a policy of 'deterrence by force'.

I am drawing here on the writing of Robert Manne, who argues that prior to the Tampa Australia constructed 'the most brutal anti-asylum-seeker policy edifice found anywhere in the West'. In an effort to deter further arrivals it constructed a regime 'harsh enough to wreak havoc on the lives of those it touched' . In other words 'deterrence by example'.

Mandatory detention is a key element of that regime. The current government rarely justifies detention in these terms, asserting rather that detention is necessary for health and character checks and for administrative purposes - to ensure that asylum seekers do not abscond while their cases are being assessed. But there is no doubt that deterrence was the driving motivation when a Labor government establishing the detention system in the early 1990s, when boat people were arriving from countries in Southeast Asia rather than the Middle East. As Tim Fischer once said in a typically colourful if somewhat confused metaphor, it was essential to 'send a message up the bamboo grapevine' that Australia was not a soft touch.

Another aspect of 'deterrence by example' was the introduction of temporary protection visas or TPVs in October 1999. According to the fact sheet on TPVs on the Immigration Department's website, this category of visa was introduced to remove 'the additional benefits that had been encouraging misuse of the protection process by unauthorised arrivals and [encouraging] the use of people smugglers to assist people to travel unlawfully to Australia' . Those 'additional benefits' were such things as the right to be reunited with your immediately family. Again the intention of the TPV was to make Australia less attractive to refugees and asylum seekers arriving without authorisation, to deter future arrivals by placing harsh conditions on those who actually make it here.

But these measures failed to produce the desired effect; and so the government upped the ante - moving from 'deterrence by example' to 'deterrence by force' - using Australia's military to intercept the boats and return them to Indonesia.

This, in my view, is the essential reason why the boats have stopped coming. Think for a moment about the options for asylum seekers who might want to use the maritime route to reach Australia from Indonesia. They basically have two choices: either they must travel in a vessel that is so unseaworthy that it cannot be forced back to Indonesia - and so risk the fate of those aboard the SIEV X - or they must immediately sabotage their boat after reaching Australian waters and render it irreparable, in order to force a rescue at sea by the Australian navy. Under either scenario, the best that they can then hope for is to be despatched to Nauru or Papua New Guinea to face a long and uncertain detention.

Acknowledging that the government has succeeded in cutting off the maritime route from Indonesia does not mean that there will be no more asylum seekers coming to Australia. The majority of asylum seekers in Australia never came by boat in any case; they came on planes, with visas, as visiting students or tourists or business people - and then sought asylum after clearing immigration, or when it came time to go home again. Even at the height of the 'boat people crisis', these 'lawful' asylum seekers outnumbered the 'unlawful' arrivals by at least two to one. They were not detained and lived amongst us in the community; they were rarely a topic of media attention and never a cause for public panic, even though they were, statistically speaking, far less likely to be refugees in need of protection than their counterparts on the boats. But the debate about refugees and asylum seekers in Australia has never been particularly rational because it is driven by fear. The boat arrivals awakened deep anxieties in the collective psyche; perhaps because they remind a settler society of its own roots; remind us that our tenure in this land is not itself built on legal treaty, so much as the weight of historical circumstance. Do we perhaps worry that we could be displaced from this land as easily as our forebears displaced others?

Having said that, the fact that the boats have stopped arriving, means that visceral fear is reduced - and it may open the way for more reasoned debate. It also means that the focus has shifted from preventing new boat arrivals to resolving the fate of those refugees and asylum seekers who are already here. I am thinking of three groups in particular - refugees from Afghanistan who no longer fear persecution by the Taliban, refugees from Iraq who no longer fear persecution by Saddam Hussein, and asylum seekers from Iran whose claims for refugee status have been rejected.

This raises a number of issues and dilemmas. On the one hand, refugee advocates must acknowledge that the return of non-refugees to their homeland will at times be necessary to maintain an international system of refugee protection. If everyone is allowed to stay, refugee and non-refugee alike, then the 1951 Convention on the Status of Refugees is rendered meaningless - it is nothing more than a back-door for migration. On the other hand, if returns are to take place, it is essential that they are carried out with respect for the dignity, welfare and fundamental rights of the individual.

The government has made clear that it wants to send home as many people as it can, as quickly as it can. It hastened to declare post-Taliban Afghanistan 'safe' for returns and we can only anticipate the same eagerness to make a similar declaration in respect of Iraq.

But it is important to distinguish between whether or not an individual is a refugee, and whether or not it is safe for them to return home. Philip Ruddock may be technically correct in asserting that refugees from the Taliban no longer fear persecution in Afghanistan, or that refugees from Iraq no longer fear persecution by Saddam Hussein. But this is not the same as saying it is safe for them to return. A refugee is a person who fears persecution on the basis of their race, nationality, religious belief, political views or membership of a particular social group; the general threat posed by such things as land-mines, unexploded ordinance, armed criminal gangs, lawlessness, political upheaval and drought does not amount to persecution but it does make life unsafe.

In Australia we have an all or nothing refugee determination system. An applicant either meets the Convention definition of a refugee or they do not; and if they do not then they are out. In most comparable jurisdictions there is a fallback humanitarian category, that allows a person to stay for other than convention reasons; and the lawless tribal gun-culture of Afghanistan might provide just such a circumstance. In Australia, as we now know only too well, ministerial discretion under section 417 of the Migration Act provides the only safety net for the protection of non-refugees who nevertheless face risks on return to their homeland and the current questions about the use of ministerial discretion only serve to highlight this gap in Australia's protection mechanisms.

While the Minister has looked favourably on 105 visa applicants from Lebanon since 1999, some 260 'failed' asylum seekers from Iran have been unable to invoke his discretion. These Iranians have all been detention now for at least two years, and the Minister says he has struck a deal with the leaders Iran's theocracy to allow their forced return. Radio National's Background Briefing program asked the Immigration Minister whether he would seek assurances from Iran that those returnees would not be subjected to arrest, detention or other abuses; he answered that it would be 'highly offensive' to require such assurances of any country. Nor was it necessary to monitor what happens to those returnees once they get back home .

Let's reflect on this for a moment; the assertion that it is unreasonable to ask a country to provide guarantees about the safety of its returning nationals, and unnecessary to monitor people after their return. Cast your mind back to one of the great human movements of recent times - the flow of boat people out of Indochina, and in particular Vietnam. The resolution of that crisis came about through the so-called Comprehensive Plan of Action, an international agreement that included at its core, the return of non-refugees to their homeland from detention centres and camps in Hong Kong and South East Asia. Fundamental to that agreement were two things: Vietnam's public promise not to persecute returnees and a monitoring program carried out the United Nation's High Commissioner for Refugees to ensure that the promise was kept. Is the regime of the Mullahs in Tehran really so much more benign than that of the Communists in Hanoi that returns to Iran can be carried out without any such safeguards, without any such public guarantees?

Surely the lesson of history is the opposite; the lesson must be that return agreements are possible and can work, but that they need to be constructed carefully and transparently and cooperatively. It could even be argued that negotiating the Comprehensive Plan of Action contributed to the process of drawing Vietnam out of its diplomatic and economic isolation, engaging it with the international community and its neighbours and so added to the security and stability of South East Asia. Perhaps a serious attempt to engage with Tehran to construct a multilateral, supervised return agreement might prove to have similar diplomatic spin-offs.

So along with continued concern about those still in detention after two years or more, the immediate future of the refugee debate in Australia looks set to focus on the question of returns of failed asylum seekers and temporary refugees who are deemed to be no longer in need of protection. Howard Glenn, national director of the refugee advocacy group, A Just Australia, anticipates a scenario in which we will see picket lines surrounding churches providing sanctuary to families facing deportation. We can expect to see increased use of chemical and physical restraints to ensure that people go quietly. It could get quite ugly.

But it does not have to be that way - and I return here to the arguments of Robert Manne. As he has pointed out, the original policy of deterrence by example 'lost its purpose at the moment the government replaced it with the idea of naval deterrence at the border', replaced it with 'deterrence by force'. In other words, the government could afford to be magnanimous and allow those 9000 or so refugees on temporary protection visas to stay permanently in Australia, without jeopardising its policy of border protection. It could also release from detention those non-refugees who nevertheless cannot be returned to their homelands, and those asylum seekers whose claims are still being processed. It would be a decent and humane thing to do, and it might also spare this country a great deal of trouble, expense and social conflict.

TO CONCLUDE, I want to turn from the domestic situation in Australia, to the international scene, because in many ways Australia has been setting the pace on new approaches to questions of refugee protection. While Australia is a step ahead of other developed nations, it is not necessarily out of step with them. Attempts to 'deter' asylum seekers and 'contain' the refugee problem can be discerned around the world.

Right now, in a village about 50 kilometres from Zagreb, workers are putting the finishing touches to a 'camp' designed to hold up to 800 people. Construction is being funded by the European Commission, and Britain had hoped to use the camp to hold asylum seekers from the Balkans and Eastern Europe who arrive at British ports and airports. Instead of having their applications for refugee assessed in Britain, the asylum seekers would be sent to this new 'transit processing centre' in Croatia. Britain wanted the International Organisation for Migration to manage the camps, and it wanted the UNHCR to process the refugee applications. You might call it 'The Balkan Solution'. Opposition within the EU, from countries like Sweden and Germany, has blocked for the plan now but it is likely to resurface. Britain intended the Croatian camp to be the first a network of 'transit processing centres' set up in countries outside the EU's borders, creating a 'buffer zone', where asylum seekers can be detained and processed .

In Denmark, the first country to sign the 1951 Refugee Convention, a new conservative government has introduced changes similar to Australia's temporary protection visas - delaying the right of refugees to seek permanent residency, restricting access to welfare and curtailing family reunion .

The present push to force 'failed' Iranian asylum seekers back to their homeland can be seen as part of a concerted effort by Australia (in league with some other western nations like the UK), to introduce a much more tougher and more rigorous system of refugee management worldwide. Other countries, hosting much larger numbers of displaced Iranians, are watching intently to see what happens. This coincides with general pressure on the UNHCR, to participate in the process of returning non-refugees to their home countries.

Another measure being sought is the establishment of a central database, which would be used to store biometric information such as iris or retina scans, to identify every refugee registered with the UNHCR, around the world. (Iris recognition technology has already been trialled on refugees returning to Afghanistan). A central database could be used to prevent so-called 'secondary movement', when a refugee moves on from a country of first asylum to seek protection further afield (often in a developed country like Australia). They would be identified on arrival and immediately returned.

In the words of Philip Ruddock, people who engage in secondary movement seek 'a migration outcome' and 'jump the queue' of refugee protection. He says that countering secondary movement is an essential part of maintaining the international system of refugee protection and that such an approach 'saves lives' because 'it removes the incentive for people to leave places of protection and risk their lives in dangerous journeys with people smugglers.' Secondly, he says, it 'saves space' in the resettlement system, for 'refugees who have no capacity to move' .

These arguments are not without substance; refugee advocates and government critics must confront the issue of people smuggling and where we stand in relation to it. Are we happy for the refugee protection system to be run largely by criminal syndicates who exploit and endanger vulnerable people for massive profit? We must acknowledge that while unauthorised movement enables some persecuted people to seek safety, it is not a 'fair' system for protecting refugees.

Nevertheless, the enthusiasm of developed nations for controls on secondary movement does not spring from a desire to ensure that protection is meted out in just and equal measure to vulnerable people around the world. It is the product of a drive to deter asylum seekers from seeking protection in rich countries and contain the refugee problem to the developing world (where it is already far more acute than in the West).

The push for such things as controls on 'secondary movement' reflect the intensified focus on abuse of the international protection system by some asylum seekers, rather than the abuse of fundamental rights by some nation states. The UNHCR is being pressured to redefine its role. Rather than a primary responsibility of providing care and protection to displaced people, there is a growing expectation that the UNHCR should also act as the world's refugee policeman, patrolling the actions of refugees and asylum seekers and restricting their movements.

Unless rich countries like Australia are willing to take significant countervailing measures - such as increasing our resettlement quotas, boosting support for countries of first asylum, and increasing migration opportunities generally - then the world's refugee crisis is only likely to deepen and become more confrontational.

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