Pearls and Irritations

This is a repost from 23 September, 2013. 

The insistence on onshore processing for all asylum seekers is damaging the case for humane and sensible refugee policies.

The blanket opposition to any offshore processing is understandable but it is just not working. Just look at the election result on September 7. The important issue is not where processing occurs but whether it is just, fair and efficient. Many of the asylum seekers who claim protection in Australia are not in direct flight from persecution. Most transit Malaysia and Indonesia. Some are asylum shopping.

The major political parties  now compete with each other to deter and punish boat arrivals. In the public debate the preoccupation with boat arrivals by both politicians and the media has dramatically reduced support for an increased humanitarian intake and the end of mandatory detention.

For many years I was a strong supporter of all asylum seekers coming to Australia  being processed in Australia. But I have changed my mind as the facts have changed, with over 17,000 boat arrivals in the six months to June this year. In world terms the numbers are small but the political mood has gone very sour which is threating the humanitarian case for generosity. Before the High Court decision on the Malaysian Agreement boat arrivals were about 300 people per month. They quickly quadrupled after the High Court decision and have continued to increase ever since. The High Court decision striking down the Malaysia Agreement undoubtedly gave oxygen to people-smugglers and many desperate people who were prepared to risk dangerous sea voyages. We cannot ignore their human rights.

We need to urgently think again about transfers and regional processing.

The UNHCR in a statement to the Australian Parliament on 30 September 2011 welcomed the transfer and regional arrangements with Malaysia. The Greens and refugee advocates cooperated with Tony Abbott and Scott Morrison to reject amendments to the Migration Act to allow the Malaysian Agreement to proceed. Asylum seekers are paying a heavy price for this unity ticket between the coalition, refugee advocates and the Greens

There is a long history of UNHCR support for transfer of asylum seekers in appropriate circumstances. In 1998, the executive committee of UNHCR recognised that irregular migration, people smuggling and asylum flows are complex matters but concluded that a return to a transit country like Malaysia may occur provided there are appropriate safeguards, accepted international standards and effective protection against refoulement. Whilst such conclusions are not binding in law they do guide the work of the UNHCR and governments in what are acceptable international standards of behaviour towards asylum seekers.

The UNHCR in Australia has just issued a ‘Guidance Note on bilateral and/or multilateral transfer arrangements of asylum-seekers’. It can be found on its website.

Paragraphs 1 and 2,  say ‘It is UNHCR’s position that asylum seekers and refugees should ordinarily be processed in the territory of the state where they arrive or which otherwise has jurisdiction over them. This is also in line with general state practice. The primary responsibility to provide protection rests with the state where asylum is sought. Nevertheless there are an increasing number of initiatives in various regions involving the transfer of asylum seekers from one country to another for the purpose of processing their asylum claims. Such arrangements have typically involved the transfer of asylum seekers either (a) to the state where they first sought (or could have sought) asylum; or (b) to other countries with which the asylum seeker has no previous links. They have also involved both bilateral and/or multilateral (regional) arrangements.’

The Guidance Note then went on to outline the principles against which any transfer arrangements should be assessed.

In a joint article with Arja Keski- Nummi, published in the Melbourne Age on 13 December last year, we outlined a system of ‘practical protection’ that should apply to any transfer arrangements in our region. We set down several steps.

• All countries should commit to the principle of non-refoulement.
• Provide people with a legal status and access to work and education.
• Work to help not only displaced people but also host communities.
• Increase our refugee intake from our region.
• Work with partners in the region in association with UNHCR to create an atmosphere of safety and trust.
• Amend the Migration Act to assert the principle of ‘effective protection’ as outlined above.

We badly need a political compromise based on effective processing whether onshore or offshore. This is necessary if we are to put an end to the political poisoning of the well of public support for asylum seekers and refugees, and to discourage desperate people making dangerous and fatal sea voyages.

We need to rethink our blanket opposition to offshore processing. It is not helping the people most in need of our help. It has played into the hands of those, who for political reasons want the boats to keep coming as thick and fast as possible and in the process encourage us to fear and even hate asylum seekers.

We need to fight harder and more astutely to help those in need of our protection. This is not the time to throw in the towel.

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