In this last financial year, “25,145 people have arrived on 394 boats – an average of over 70 people and more than a boat a day” as Scott Morrison, Tony Abbott’s Shadow Minister never tires of telling us. Except for Sri Lankans, most of those arriving by boat come not directly from their country of persecution but via various countries with Indonesia being their penultimate stop. There is an understandable bipartisan concern in the Australian parliament about the blowout of boat arrivals to 3,300 per month. An arrival rate of that sort (40,000 pa) puts at risk the whole offshore humanitarian program and distorts the migration and family reunion program.
Here are the contours for a better approach here in Australia – better than committing to forcibly turning around boats on the high seas, à la Abbott, and better than transporting people to Nauru and Manus Island for processing or to Malaysia to join an asylum queue of 100,000 or permitting people to reside in the Australian community but without work rights and with inadequate welfare provision under the rubric of a “no advantage” test, à la Gillard. We must abandon the ill-defined, unworkable “no advantage test”. It’s not a test at all; it’s not a principle; it’s not a policy; it’s a slogan as unhelpful as “Stop the boats”.
The contours follow the letter and spirit of the Refugee Convention against a backdrop of our providing at least 20,000 humanitarian places a year in our migration program, 12,000 of those being for refugees.
We need to ensure that those risking the perilous sea voyage are in direct flight from persecution being unable to avail themselves adequate protection or processing en route in Indonesia. If they were able to avail themselves such services in Indonesia, the Australian government would be entitled to set up disincentives and to return them safely to Indonesia. If that number were in direct flight from persecution, the Australian government would be justified in setting up measures providing only temporary protection and denying family reunion other than on terms enjoyed by other migrants. But I don’t think that would be necessary. It should be a matter not of taking the sugar off the table but of trying to put the sugar out of reach except to those in direct flight from persecution, and leaving the sugar available to those who manage to reach the table whether by plane or boat, with or without a visa. And that’s because there is always sugar on Australian tables no matter who is sitting with us. And so it should remain. I have never understood why the less than honest asylum seeker arriving by plane, having sought a visa not for asylum but for tourism or business, should be given preferential treatment over the honest asylum seeker arriving by boat who says, “I am here to seek asylum.”
Boats carrying asylum seekers from Indonesia to Australia could legally be indicted by Australian authorities within our contiguous zone (24 nautical miles offshore from land, including Christmas Island). The passengers could be offloaded and taken to Christmas Island for a prompt assessment to ensure that none of them fit the profile of a person in direct flight from Indonesia fearing persecution by Indonesia. Pursuant to a regional arrangement or bilateral agreement between Australia and Indonesia, Indonesia could guarantee not to refoule any person back to the frontiers of a country where they would face persecution nor to remove any person to a country unwilling to provide that guarantee. Screened asylum seekers from Christmas Island could then be safely flown back to Indonesia for processing.
With adequate resourcing, a real queue could be created for processing and resettlement. Provided there had been an earlier, extensive advertising campaign, Indonesian authorities would then be justified in placing any returned boat people at the end of the queue. Assured safe return by air together with placement at the end of the queue would provide the deterrent to persons no longer in direct flight from persecution risking life and fortune boarding a boat for Australia. In co-operation with UNHCR and IOM, Australia could provide the financial wherewithal to enhance the security and processing arrangements in Indonesia. Both governments could negotiate with other countries in the region to arrange more equitable burden sharing in the offering of resettlement places for those proved to be refugees. Australian politicians would need to give the leadership to the community explaining why it would be necessary and decent for Australia then to receive more proven refugees from the region, including those who fled to our region fearing persecution in faraway places like Afghanistan.
The safeguards negotiated in Indonesia and any other country in the region to which unprocessed asylum seekers were to be sent would need to comply with the minimum safeguards set by the Houston Expert Panel when they reviewed the Gillard Government’s proposed Malaysia Arrangement. The Panel said:
There are concerns that relate to the non-legally binding nature of the Arrangement, the scope of oversight and monitoring mechanisms, the adequacy of pre-transfer assessments, channels for appeal and access to independent legal advice, practical options for resettlement as well as issues of compliance with international law obligations and human rights standards (particularly in relation to non-refoulement, conditions in Malaysia, standards of treatment and unaccompanied minors).
(This blog is an extract from Frank Brennan’s Reply to “Get back to where you once belonged!”, a presentation by Jeff Crisp, the Head of the Policy Division and Evaluation Service of UNHCR in Geneva, at this week’s National Asylum Summit at the Hawke Centre, University of South Australia)