FRANK BRENNAN. The origins and incoherence of Australia’s asylum seeker policy

Jun 20, 2017

During Refugee Week 2017, I would like to offer a historical perspective on how we got to where we are in the hope that we might be able to convince one or both of our major political parties to reset their policy, which is needlessly destroying lives, including the lives of children who are proven refugees still living in the no man’s land of Nauru.

I am resigned to the boats from Indonesia being stopped and staying stopped. But I think it is high time to stop the cruel treatment of the proven refugees on Nauru and Manus Island, and to provide a permanent solution for the asylum seekers waiting inordinately in the Australian community. Their treatment is separable from the stopping of future boats setting out from Indonesia. The Commonwealth’s $90 million settlement of the claim brought by asylum seekers on Manus Island should be a wake-up call to us all.

We are a nation of only 24 million people. We are an island nation continent. Over half our population was born overseas or had a parent born overseas. Australia is a successful multicultural nation founded on the dispossession of the Aboriginal people. At the end of the Vietnam War, Australia took in more Vietnamese refugees per capita than did the USA and Canada.

At first, when Vietnamese refugees started arriving by boat in Darwin Harbour, Australia’s political leaders were terrified. The Australian political leaders on both sides agreed Australia should be generous in accepting those refugees, in part because Australians had fought alongside them in a protracted war. But they were insistent that a regional solution be found and that refugees be held in camps throughout South East Asia while Australian officials chose which refugees to accept for resettlement in Australia.

Australia has long prided itself on having a large but tightly regulated migration program, admitting people under three streams: family reunion, business and humanitarian. Refugees are included in the humanitarian program which also includes places for other groups such as women at risk. Australians have been most supportive of high levels of migration when government is perceived to be in control of the program. Though only 2000 Vietnamese arrived in Australia by boat, Australia received an additional 56,000 Vietnamese refugees between 1976 and 1981 who were chosen by Australian officials and usually from the camps in South East Asia.

In 1982, the Vietnamese government agreed to an Orderly Departure Program and Vietnamese refugees came in numbers up to 15,000 pa even when the whole migration program was limited to 70,000 places a year. The Australian public was quite accepting of this refugee flow. By 1989, a Comprehensive Plan of Action was finalised for the Vietnamese and further resettlements were not assured. By this time Australia had received 177,000 Vietnamese refugees but only 2000 of them had come directly by boat.

No sooner had the tap for Vietnamese arrivals been turned off than a few boatloads of Cambodians started to arrived in Darwin Harbour. This was particularly problematic for the Labor government led by Bob Hawke. Hawke’s Foreign Minister Gareth Evans was instrumental in the Cambodian peace process. The government could ill afford to start recognising Cambodians as refugees. The government was afraid that the Cambodians with ready access to lawyers in Australia would be able to commence protracted litigation disputing the rejection of their refugee claims. So the government decided that in future all asylum seekers who arrived by boat without visas would be held in detention until their claims were determined.

“These asylum seekers were not from the region, and they were transiting numerous countries en route to Australia. Australian policy makers decided to take a more legalistic approach, claiming to comply with the letter of the Convention, if not its spirit.”

Australia, being a signatory to the 1951 Refugees Convention and the 1967 protocol, remained committed to the obligations set out in the Convention, especially the obligation not to expel or return a refugee to any frontier where their life or freedom would be threatened, and the obligation not to impose penalties for illegal entry or presence on those refugees coming directly from a place where their life or freedom was threatened and who presented themselves without delay to the authorities on arrival. In the past, Australian officials were prepared to treat all asylum seekers as if they were still in direct flight from persecution, in part because Australia’s immediate neighbours like Indonesia and Malaysia were not signatories to the Convention and because the asylum seekers were coming from countries within the region like Cambodia.

But from 1989, more asylum seekers were arriving from China. And by 2001, they were coming from countries like Iraq and Afghanistan. These asylum seekers were not from the region, and they were transiting numerous countries en route to Australia. Australian policy makers decided to take a more legalistic approach, claiming to comply with the letter of the Convention (if not its spirit), while detaining asylum seekers and offering successful refugee applicants a temporary protection visa rather than a permanent protection visa. The view taken was that these people by the time they boarded a boat in Indonesia were no longer in direct flight from persecution but rather were seeking a more benign migration outcome and a superior form of security and processing for their refugee claim.

Given that Australia had a well regulated migration program, the policy makers convinced government to change the rules such that every asylum seeker who made it onshore and who was recognised as a refugee would be seen to be taking the place of a hapless asylum seeker or deserving humanitarian case offshore who had no access to a people smuggler and who was waiting their turn with UNHCR and the Australian government, which exercised the option as to which of the tens of millions of displaced persons on the globe would be chosen for resettlement in Australia.

In August 2001, when the MV Tampa picked up 433 hapless souls on the high seas, the Australian government refused the ship captain permission to land on Australian territory and despatched the military to remove the asylum seekers from the container ship and take them immediately to Nauru in the Pacific for processing. The Australian government repeated the mantra often used by their predecessors: ‘We will decide who comes to this country.’ The Howard government was adamant that the Australian public would remain sympathetic to a generous migration program including a steady stream of humanitarian cases provided the government could be seen to be in control of the borders and in control of the program. Government considered a variety of measures aimed at deterring people smugglers in Indonesia and at stopping boats from leaving Indonesia.

“The Australian model could never work in Europe where those crossing the Mediterranean tend to come from Libya. It cannot work anywhere unless the receiving state has on hand at least one mendicant state which is a signatory to the Refugees Convention, happy to warehouse refugees for ready cash. “

Some Australians thought these measures too punitive and that Australia was needlessly exploiting its advantage that it did not have any land borders. When the Howard government was defeated at the 2007 election, the newly elected Labor government led by Prime Minister Kevin Rudd decided to unwind some of the punitive measures in place. This was done with insufficient co-operation with the Indonesians, with the result that the boats started coming again and in numbers never before witnessed in Australia. 50,000 asylum seekers arrived by boat and 1200 perished as sea.

By the time of the 2013 election, our major political parties were equally committed to stopping the boats by whatever means it took. Some boats had come direct from Sri Lanka. But most boats carried asylum seekers from Iraq, Afghanistan and Iran who were transiting various countries, most recently Indonesia. There was no credible suggestion that these asylum seekers were suffering persecution in Indonesia. They were seen as individuals engaged in secondary movement seeking a more benign migration outcome. Thus they were treated punitively.

Even though an expert panel reported to government in 2012 that boats could not be turned back to Indonesia safely and legally, the newly elected government of Prime Minister Tony Abbott started turning boats back in 2013 refusing to disclose information about ‘operational matters’. The residual caseload of proven refugees on Nauru and Manus Island are awaiting resettlement. To date, both the Turnbull government and the Shorten opposition refuse to contemplate resettling them in Australia.

Australia’s ‘merit-based immigration system’ is posited on deterring asylum seekers who are not fleeing directly from persecution in neighbouring Indonesia both from ever reaching Australia and from ever being able to settle permanently in Australia. Politicians are confident that public sympathy for an increased humanitarian caseload is enhanced when government can choose who comes to Australia, having had the opportunity first to screen asylum seekers before the grant of any visa.

The Australian model could never work in Europe where those crossing the Mediterranean tend to come from Libya, a failed state which could provide no assurance whatever that returned asylum seekers would not be refouled. It cannot work anywhere unless the receiving state has on hand at least one mendicant state which is a signatory to the Refugees Convention, happy to warehouse refugees for ready cash. The Australian model is frightfully expensive, and has occasioned great suffering on the residual caseload of refugees waiting on Pacific islands for resettlement and on the 30,000 asylum seekers waiting in the Australian community without access to adequate work and welfare rights.

But it has stopped the boats much to the relief of populist politicians anxious to outdo each other in looking tough on border protection in these uncertain times of increasing terrorist threats. The boats can remain stopped without our continuing cruel and inhumane practices on Nauru and Manus Island and without our leaving lives permanently on hold here on the Australian mainland.

Frank Brennan is CEO of Catholic Social Services Australia and Adjunct Professor of Law at Australian Catholic University. He is the author of Tampering with Asylum.

This article was originally published on Eureka Street on 19 June 2017



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