Part 2: Refugee Policy
The current and future global environment for irregular migration is extremely challenging.
Many more people are on the move globally to gain protection from persecution, security from conflict or greater economic opportunity – or a mixture of these things.
The movement of people is being accelerated by growing awareness of the opportunities to move, new communications technology, cheaper transport and active facilitators.
The United Nations High Commissioner for Refugees (UNHCR) states that global forced displacement of some 51 million people (17 million refugees, 33 million internally displaced persons and over one million asylum seekers) is at the highest level since the Second World War. There are many millions more people seeking migration opportunities for employment over and above the forced migration figures.
Australia’s traditional engagement with this issue has been through our offshore humanitarian resettlement program, but over the past 15 years national policy debate has centred almost exclusively on the management of smuggled maritime asylum seekers. Australia experienced a flow of some 10,000 maritime asylum seekers, mostly from outside the region, in the period 1998–2007 and 50,000 in the period 2008–2013.
The debate has divided Australian society and the net result has been the adoption of the harshest possible measures to disengage Australia from this flow of people.
In the context of growing world displacement and people movement, Australia will remain an attractive destination.
Policy responses by successive governments to date have focused on ‘quick fixes’ driven by political and community pressures. A more measured approach will be needed.
One choice, advocated by many, would be to maintain open access for maritime asylum seekers and to accept the consequences. Experience in Australia and Europe indicates that this approach will attract very large numbers of both asylum seekers and economic migrants facilitated by people smugglers. The numbers coming to Australia reached 4,000 people in a single month in July 2013. There is no reason why they could not go much higher. Exploitation and deaths at sea, corresponding to the size of the movement, go with this inherently disorderly and unsafe movement. If significant flows of maritime asylum seekers to Australia resume from troubled developing countries, it is unlikely that many would return to their country of origin, irrespective of whether or not they are found to be refugees.
If Australia does not want to accept renewed flows of maritime asylum seekers, it will need to make a long-term investment in global and regional management of protection and the movement of people. Australia cannot escape the phenomenon of global displacement and must re-engage with it.
Existing solutions, which are heavily dependent on naval interdiction and small Pacific island nations, may not be sustainable in the long term.
The demand for migration opportunities, whether forced or economically based, to Australia and other (developing and developed) countries is unlikely to be satisfied. Priorities will need to be set as to those most in need and how they can best be assisted.
2.2 A Formal Policy on Refugees and Displacement
At a strategic level, Australia needs to develop a formal policy on refugees and global displacement. The policy should integrate our responses to global and regional refugee issues, bringing together foreign policy, aid policy, the offshore humanitarian resettlement program and domestic asylum policy (including for both maritime and visaed arrivals). Interventions under this policy should tackle the root causes of refugee flows as well as their consequences.
The global asylum system is under extreme pressure with host countries in both the developing and developed world struggling to cope. Many refugees are unable to get protection close to home and are subsequently exploited by people smugglers who fill a vacuum left by States. The situation is complicated by mixed flows of refugees and economic migrants.
Australia can play a role at the global level in working with UNHCR and partner countries to develop new, more orderly and effective responses to the modern dynamics of people movement.
At a regional level, Australia needs to be much more active in engaging regional partner countries to better manage the movement of people and develop a sense of collective responsibility in dealing with protection issues. Australian and regional partners should develop habits of routine consultation and action, based on agreed principles, in response to forced migration and other irregular movements of people in the region. This is a long-term task, as few countries in the region are parties to the 1951 Refugee Convention and few have strong national institutions for migration management.
The regional policy aim, in partnership with UNHCR, would be to tackle root causes of displacement as well developing an improved system of refugee protection. An orderly regional system of protection should encourage asylum seekers to seek protection in a secure environment in countries of first asylum, closer to the country of origin, and have their future determined in those countries (whether it be local integration, international resettlement or return home).
The policy should seek to provide protection and migration opportunities for those most in need and, by stabilising those populations, to minimise exploitation opportunities for people smugglers and irregular migration.
In fostering and developing such a system, Australia should look beyond its own immediate interests and be willing to take an active role in solving the displacement problems affecting its neighbours. Australia should also recognise that its regional partners are unlikely to become parties to the Refugee Convention. Cooperative arrangements will need to be based on practical measures consistent with Refugee Convention practices.
The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime has been an important vehicle to date in putting questions of protection, people smuggling and law enforcement on the regional agenda. In the longer term, Australian policy should work towards more targeted regional processes possibility involving ASEAN and/or sub-regional groupings.
The work of government in developing better regional approaches should be complemented by a Track 2 Dialogue involving selected countries in the region and bringing together government policymakers with non-government experts in a “non-official” conversation on these matters. This will provide an opportunity for constructive dialogue and development of new policy approaches in this contested area of public policy.
At the national policy level, Australia should draw on a range of policy tools in its interventions in global displacement.
Foreign policy and development assistance can play an important role in tackling root causes of displacement as well as the willingness of countries in the region to stabilise displaced populations in first asylum or transit mode.
The Humanitarian Program, which has been Australia’s traditional contribution to durable solutions, should be increased to a base, ongoing program of 20,000 places a year, reflecting growing global displacement and the need for Australia to do more. This would represent about 10% of Australia’s total annual permanent migrant intake. The program should be operated flexibly, allowing for significant one-off increases from time to time to deal with acute global crises or regional displacement of particular significance to Australia.
The resettlement program needs to be accompanied by measures that foster good employment and integration outcomes for refugee arrivals.
Each cohort of people moving in the region is different, reflecting protection needs, security from conflict, economic pressures or a combination of all of these. Australian government responses need to reflect the unique circumstances of each national group.
Australian government policy should involve targeted use of other available tools to promote orderly migration, as appropriate, such as alternative migration pathways, “in-country humanitarian programs” and “orderly departure” arrangements from selected source countries.
Asylum decision-making and review processes, whether for asylum seekers who are irregular maritime arrivals or those who arrive with visas by air, should be regularly reviewed and evaluated to ensure that they remain fair, quick and efficient. They must be tailored to deal appropriately with new protection issues that arise and the unique circumstances of different cohorts of asylum seekers.
Irregular movements of asylum seekers by sea, following journeys across vast distances, facilitated by smugglers for commercial gain, are not in the interests of asylum seekers because of the inherent exploitation and danger. Nor are such movements in the interests of regional states. Australian policy should continue to discourage irregular movements by sea (except in the most limited circumstances where Australia is the logical first asylum country) and promote an orderly asylum system.
Regional policy measures should help to provide satisfactory protection alternatives for asylum seekers, but the maritime people smuggling option cannot be allowed to remain open in parallel.
Firm, but humane, action is needed here. The preferred approach would be for the Australian government to negotiate readmission agreements, under acceptable conditions, with transit countries such as Indonesia and Malaysia, which enable any people reaching Australia by sea to be safely returned to a transit country by air and have their future determined from that location. Acceptable conditions would include asylum seekers being permitted to remain in the community of the transit country, with asylum claims considered by UNHCR, and a pathway to local or international durable solutions for refugees. Such arrangements would be safer and more desirable than use of small Pacific countries and boat turnarounds on the high seas. If these mechanisms were seen to be effective, they would rarely need to be used.
2.3 Legacy caseload from 2008–2013 maritime arrivals
Australia has a continuing responsibility to resolve the future the some 30,000 people who sought to arrive in Australia by sea in the period 2008-2013 and have not yet had final decisions on their refugee claim or resolution of their long-term immigration status.
The first priority is to resolve the situation of the 1707 people in PNG and Nauru most of whom are in detention in extremely difficult circumstances.
The Australian government should work with local authorities in PNG and Nauru to expedite decision-making on asylum cases with a fixed deadline to finally decide all cases. Apart from those few people found to be refugees who may be able to settle effectively in PNG and Nauru, the Australian government should negotiate resettlement in third countries or, as a last resort, Australia. The assistance of UNHCR should be sought in final resolution of the caseload.
A fixed deadline should also be set for primary and review decisions for the remaining maritime asylum seeker caseload in Australia. For those found to be refugees, the Australian government should recognise that it is unlikely that political conditions will improve in source countries in a way that will enable refugees to return home within the foreseeable future. It should therefore set a defined pathway to permanent residence and Australian citizenship.
As noted in Part 1.6, the use of detention as an immigration tool should be minimised except for short periods for specified purposes. The Australian government should use its influence to ensure that detention facilities are of an acceptable standard in PNG and Nauru and that agreement is reached with those countries to enable the equivalent of Australian community detention arrangements while asylum cases in the regional processing centres remain unresolved.
The Australian government should make arrangements for the repatriation of those found not to be refugees (or in need of complementary protection). Such returns are necessary to maintain the integrity of the protection system. Returns should be voluntary where possible, supported by reintegration assistance. In some circumstances involuntary returns will be necessary and these should be supported, where necessary, by written agreements with source countries.
Peter Hughes is Visiting Fellow, Crawford School of Public Policy,
Visitor, Regulatory Institutions Network, Australian National University
Arja Keski-Nummi was formerly First Assistant Secretary of the Refugee, Humanitarian and International Division in the Department of Immigration and Citizenship 2007-2010.
John Menadue was Secretary of the Department of Immigration and Ethnic Affairs, 1980-1983.
 Department of Immigration and Border Protection, Immigration Detention and Community Statistics Summary, 31 March 2015