An Alternative to Cruelty

A humanitarian and rational refugee policy for Australia

A PDF of this document can be found here.

Summary

An alternative policy to the politics of punishment and cruelty is possible.

The aims of such an alternative policy are:

  • to respond to refugees and asylum seekers in a humanitarian and non-punitive manner
  • to fulfill Australia’s international obligations in dealing with refugees and asylum-seekers
  • to accept a realistic share of refugees commensurate with Australia’s population and wealth
  • to provide, wherever possible, for the safe transport of refugees from transit countries to resettlement in Australia
  • to end the present inhumane treatment of asylum seekers by detaining them in overseas countries while their claims are assessed or they are awaiting resettlement
  • to encourage acceptance of refugees within the Australian community.

 

Policy proposals

In order to achieve these aims we recommend:

  1. A significant increase in the numbers of refugees which Australia accepts.
  2. Rapid and fair processing of applications for asylum in transit countries such as Indonesia by Australian authorities, the United Nations Human Rights Commissioner (UNHCR) or other appropriate international organization.
  3. Regional dialogue with neighbouring countries to allow for facilities and cooperation in assisting the processing of applications of asylum seekers seeking to come to Australia or other countries and to allow for their safe transportation and resettlement if successful.
  4. An international dialogue with other developed countries about increasing their resettlement of refugees.
  5. No discrimination in the processing of applications for asylum based on the manner of arrival of the asylum seekers. Successful claims by boat arrivals should not reduce any quota of refugee places for refugee and humanitarian resettlement set by governments.
  6. No detention of asylum seekers to take place in other countries such as PNG or Nauru. Asylum seekers reaching, or intercepted while attempting to reach, Australia to be brought to the Australian mainland for checks and processing of claims and for resettlement in Australia if successful
  7. The briefest possible period of detention for initial health, security and identity checks, with an absolute maximum of 30 days allowed. Processing of asylum applications on-shore to be carried out while the applicants live and work in the community. The major urban detention centres to be converted to their original function as hostels to provide accommodation and support for those who choose to stay there while seeking more permanent arrangements.
  8. Asylum seekers should have no fewer general legal rights than others in Australia.
  9. ASIO assessment should be subject to independent external review.
  10. No deportations of asylum seekers to places where they face persecution or serious danger. No support for regimes attempting to prevent the flight of asylum seekers.
  11. Support for initiatives that promote peace or conflict resolution in source countries.

 

  1. A significant increase in the numbers of refugees which Australia accepts.

RAC does not call for a specific number of refugee and humanitarian visas to be issued. The numbers will depend, amongst other things, on the need at the time and therefore will be subject to change. But we do argue for a significant increase. Until August 2013, the number of such visas issued each year was just 13,750. In that month it was increased to 20,000 but then subsequently reduced again to 13,750 by the Abbott government. In return for support for his “legacy caseload” bill, Scott Morrison promised to increase it to 18,750 over the next four years if the bill passed but only if the “legacy caseload” of 30,000 asylum seekers was already cleared.

This does not compare well on an international basis. Compared to other countries, Australia is the 62nd on a per capita basis and on a GDP basis, 74th.[1]

The numbers currently being accepted represent only one refugee for every 1,724 people in Australia or 0.058%. They are just 3.76% of Australia’s total population increase in the year to mid-2014 and 6.46% of net overseas migration.[2]

Doubling or tripling the refugee intake would not make any major impact on the Australian population, congestion or on the workforce.

 

  1. Rapid and fair processing of applications for asylum in transit countries such as Indonesia.

In many cases, asylum seekers have taken extraordinary risks to flee their home countries and arrive in countries which do not provide permanent protection. Only then can they apply for asylum. In international law, no one is able to do so within their own country. Yet in countries such as Indonesia and Malaysia, asylum seekers cannot work or have access to education for their children. Even to obtain an interview with the UNHCR – the first small step to achieving refugee status – was reported at the beginning of 2014 to take between 7 and 11 months in Indonesia and the wait in Malaysia is understood to be even longer.[3] They are effectively forced to move on – some choosing the only option left to them – an attempt to reach Australia by boat or continue to exist on the margins of the transit society. But the Australian government does not provide an alternative to that course, as it accepts only a tiny number of asylum seekers from Indonesia as refugees – issuing only 560 visas to refugees in Indonesia between 2001 and 2010.[4]

Processing of refugee applications should take place rapidly and fairly in these countries of transit. This is not a new policy. It was the one which Australia used in the 1970s and 1980s. Although Australia eventually resettled over 185,000 Indochinese refugees, under the system which Australia adopted then, most arrived having been processed in other countries to which they had fled such as Malaysia. They then flew from there to Australia safely. Fewer than 60 boats and a little over 2,000 people arrived in Australian waters during the entire Indochinese refugee crisis.[5]

The current extreme Australian policies of deterrence might prevent asylum seekers from attempting a boat voyage to Australia, but can only divert them into equally or more risky ways to find asylum or force them to languish in places where they cannot settle permanently or live freely.

We call for the Australian government to allow for the rapid processing of asylum applications in transit countries such as Indonesia and Malaysia. In the 1980s Australian immigration officers were appointed to Embassies and Consulates for this task. Australian Embassies and Consulates would almost certainly require increased staffing levels to process these refugee applications. Similarly Australia would need to increase its pledge to UNHCR as also occurred in the 1980s. However, such funding would be a small fraction of the huge costs of offshore detention, estimated for 2013–14 to be some two-thirds of the ‘entire UNHCR spend in the last financial year assisting tens of millions of refugees and asylum seekers worldwide’.[6]

 

  1. Regional dialogue with neighbouring countries to allow for facilities and cooperation in assisting the processing of applications of asylum seekers seeking to come to Australia or other countries and to allow for their safe transportation and resettlement if successful.

Increasing the applications dealt with in Indonesia and other transit countries can be done immediately by Australian Embassies and Consulates there. More permanent facilities funded by Australia and established with the agreement of the host country would make the process much more efficient and humane. In conducting this processing Australia should take advantage of the assistance of the International Organisation for Migration and the United Nations High Commissioner for Refugees – both of which should be the recipients of increased Australian funding. The establishment of an Orderly Departure Program (ODP) – such as that engaged in by the Australian government in the 1970s and 1980s – would facilitate such cooperation. This proposal has already been made by the Australian Catholic Migrant and Refugee Office in 2012 and by many other organisations and advocates.

While the policy adopted under the Fraser government was by no mean perfect, it did provide a safer pathway for resettlement for many asylum seekers.  We cannot ever be sure that people will not get on boats to find refuge with us. Those fleeing Sri Lanka at the moment are an example and the attempt to prevent this happening by force must be rejected. Alongside the provision of alternative arrangements as suggested above, those people who feel forced to take such a difficult journey should be accepted as genuine asylum seekers and have their refugee claims processed in Australia and if successful be granted resettlement in Australia. Otherwise Australian policy will descend again into the unnecessary recent and present cruelty and inhumanity to those who seek assessment of their refugee claims.

 

  1. An international dialogue with other developed countries about increasing their resettlement of refugees.

The developing countries of the world adjacent to the places from which asylum seekers are fleeing are the most likely to host them at present. But these countries – such as Jordan and Pakistan – are among the least able to support them. Australia must push for a broader increase in the number of asylum seekers accepted in the developed countries. But, of course, this is not possible while the internationally reviled, inhumane and ungenerous policies currently in existence in Australia remain. Under the ODP at least 650,000 Indochinese refugees were ultimately resettled to developed economies such as the US, Canada and Australia.

Such a dialogue could occur under the auspices of the UNHCR.

 

  1. No discrimination in the processing of applications for asylum based on the manner of arrival of the asylum seekers.

Since mid-2013, the policy of both Labor and Liberal governments has been that no asylum seekers arriving by boat will ever be resettled in Australia, whatever the merits of their claims or the perils they face at home. This is unprecedented both in Australia’s dealings with refugees and internationally. The international Convention Relating to the Status of Refugees, to which Australia acceded in 1954 and its subsequent 1967 Protocol (see Article 31), makes no distinction between different methods of arrival in its provisions for how signatories should treat those seeking asylum. Successful claims by boat arrivals should not reduce any quota of refugee places for refugee and humanitarian resettlement set by governments. The whole of Australia’s current asylum seeker policy, from mandatory detention and offshore processing to reduced rights of asylum seekers to merits review, is built on a refusal to abide by Article 31 of the Convention.

 

  1. No detention of asylum seekers to take place in other countries such as PNG or Nauru. Asylum seekers reaching, or intercepted while attempting to reach, Australia to be brought to the Australian mainland for checks and processing.

Apart from mandatory detention, until 2001 and the introduction by John Howard of the infamous “Pacific Solution”, the policy we propose was the norm in dealing with asylum seekers arriving or attempting to arrive by boat. Today Australia is the only country in the world to send asylum seekers to another country and pay for their detention there. The Italian Navy has reportedly rescued as many as 150,000 asylum seekers attempting to reach Europe. None have been sent to other countries or “towed back”. Under the current policy so-called “off-shore processing” is not about processing. It is forced and internationally illegal incarceration in poor countries under appalling conditions. While these actions continue, Australia will continue to breach international law and to inflict serious harm on those fleeing persecution and serious harm elsewhere

Off-shore detention must end.

 

  1. Processing of asylum applications on-shore to be carried out while the applicants live and work in the community. The briefest possible period of detention for initial health, security and identity checks, with a maximum of 30 days allowed. The major urban detention centres to be converted to their original function as hostels to provide accommodation and support for those who choose to stay there while seeking more permanent arrangements.

The mandatory detention of people arriving in Australia seeking asylum was not introduced until 1992. This was in response to a very small number of boats arriving – just 18 between November 1989 and January 1994 – carrying mostly Cambodians, Vietnamese and Chinese.[7] Under the system before mandatory detention was introduced, there was provision for people to be arrested for illegal activity. But until mandatory detention, asylum seekers were not generally detained and when they stayed in government facilities, these were normally unfenced.

In contrast the people currently held under Australia’s mandatory detention regime are imprisoned indefinitely behind razor wire. Yet they have committed no crime, they have been charged with nothing nor have they been sentenced to any period of incarceration.

This detention has been shown to be extremely deleterious to mental health and has led to numerous instance of self-harm and a number of cases of death in detention.

The system of detention centres – both in other countries – PNG and Nauru – and in Australia is extremely expensive. The Australian Churches Refugee Taskforce calculated that the costs to the Department of Immigration and Border Protection for off-shore detention alone (excluding the costs to other Departments such as Defence and DFAT and commercial-in-confidence contracts) for 2013-14 were at least $3.28 billion. That amounted to $1.3 million for every person incarcerated on Manus Island or Nauru.[8]

The same report pointed out that in that year, 2013-14 Australia would spend “almost two-thirds as much locking up in detention a few thousand people seeking asylum, as the entire UNHCR spend in the last financial year assisting tens of millions of refugees and asylum seekers worldwide.”[9]

By contrast, the costs of processing refugee applications while asylum seekers live in the community – as once happened – are massively lower. People living in the community while on bridging visas cost the Australian taxpayer at most one-tenth of the cost of those being held in any kind of detention.[10]

Reasonable reporting requirements for asylum-seekers have been shown to be effective and followed by the great majority of asylum seekers while their claims were being processed.[11]

 

  1. Asylum seekers should have no fewer general legal rights than others in Australia, together with at least the economic, social, cultural and human rights of asylum seekers and refugees set out in the Refugee Convention and other international obligations.

Recent (2014) legislative changes reducing the Refugee Convention’s application to asylum seekers and refugees in Australia, and drastically abridging the availability and quality of administrative review, should be repealed. Free independent legal advice should be restored for initial decisions and reviews. Unreviewable Ministerial discretions should be reduced to a minimum.

The legal rights of asylum seekers under Australian law are totally unsatisfactory and their legal situation is becoming worse. They are denied the ordinary legal rights of Australian residents and visitors, in contravention of Art. 31 of the Refugee Convention which mandates that States should not impose penalties on asylum seekers who enter or are present in the country without “authorisation”.

Since 1992 the Migration Act has required the mandatory detention of everyone who has arrived “irregularly”, in effect those coming by boat without a visa. They are detained without the order of a court, without having committed any criminal or civil offence, and their detention is not subject to review by the courts. Many of the obligations in the Refugee Convention in relation to the standards of refugee/asylum seeker rights (Articles 2–34) are not met by Australia.

The Minister has too many personal discretionary powers that are not compellable or reviewable in any way, and these have been expanded under the Coalition to allow wide powers that cannot be challenged in the courts.

Recent legislation[12] has also now drastically reduced the scope for those claiming refugee status to establish their cases in accordance with the Refugee Convention, in particular by replacing the Convention’s definition of “a refugee” with a much narrower, and highly unsatisfactory, code in the Migration Act. This will almost certainly result in return to situations of persecution and danger (refoulement) of many asylum seekers who would be recognised as refugees if processed under the definition in the Convention. The new statutory definition is expected to be used in offshore processing in Nauru and Manus Island (PNG).

While it is not possible under the Australian Constitution to prevent judicial review of decisions which involve significant legal error, the change to the definition of “a refugee” used in Australian decisions will make many reviews by the courts futile. In addition, with the recent legislative provision that the power to remove persons under the Migration Act is no longer subject to Australia’s fundamental obligation of non-refoulement to persecution (Art 33(1) of the Convention), the High Court will have no power to prevent unlawful removals.

In addition, existing merits review procedures are being savagely cut back. Until recently, refusals to accept a claim for refugee status were subject to review “on the merits” by the Refugee Review Tribunal (RRT) which decided the matter afresh on the basis of all information available at the time of the tribunal’s decision.[13]

Now those arriving by boat after 13 August 2013 (apart from those who have been towed back or otherwise repelled under “Operation Sovereign Borders”, who have no external review rights) will be subject to a new and entirely inadequate “fast track” process by a less independent “Immigration Assessment Authority” with limited powers to conduct a watered down review on the papers that were before the primary decision maker. Even this drastically reduced form of review is subject to virtually unlimited Ministerial exclusions from it of individuals or classes of persons.

Furthermore, other legislation[14] has made it almost impossible for many asylum seekers to succeed even in the existing RRT, in particular by relieving the Minister from all responsibility to assist in establishing claims, and by introducing unreasonable new burdens on asylum seekers in relation to presenting all claims and evidence at the outset of the assessment process, and prohibiting the RRT from granting protection visas where an applicant fails to present identity documents, or provides false ones, in the absence of an undefined “reasonable explanation”. Further, the RRT is obliged (rather than simply allowed) to draw unfavourable credibility inferences in relation to new claims or evidence that were not provided at the original decision.

The present Government in 2014 also removed free legal advice for those making refugee claims in Australia, at the same time as it enacted far greater legal hurdles for applicants to surmount.

 

  1. ASIO assessment should be subject to independent external review.

Unreviewable and potentially indefinite administrative detention of recognised refugees under the Migration Act should cease.  Genuine dangers to the Australian community should be dealt with under the criminal law.  Adverse security assessments by ASIO of recognised refugees should be subject to  meaningful and independent external review in which the applicant, or counsel appointed to assist the applicant (such as the Special Advocate proposed by Professor Ben Saul) is aware of sufficient details of the assessment to enable a meaningful challenge to be mounted.  If  a policy of administrative detention continues in these circumstances, recognised refugees should be subject to meaningful periodic reviews by an independent external authority with power to determine that the refugee be released with or without conditions.

The potentially indefinite administrative detention of those assessed to be refugees who are subject to an adverse security assessment, who cannot be returned to potential persecution in their country of origin and whom other countries won’t accept, is contrary to Australia’s obligations under the International Covenant on Civil and Political Rights (ICCPR).  In July 2013 the United Nations Human Rights Committee found that Australia’s conduct in detaining 46 recognised refugees was in breach of Articles 7 (cruel, inhuman or degrading treatment or punishment) and 9 (liberty of the person, including prohibition of arbitrary arrest or detention) of the ICCPR, amounting to ‘cruel, inhuman and degrading treatment, inflicting serious psychological harm on them’.

 

  1. No deportations of asylum seekers to places where they face persecution or serious danger. No support for regimes attempting to prevent the flight of asylum seekers.

The most basic of obligations which Australia has to asylum seekers under the agreements which it has signed is to refrain from returning asylum seekers to places where they face persecution – the principle of non-refoulement. Yet, shamefully, Australia has returned such people – both to Afghanistan and to Sri Lanka. In each case, there is evidence that these same people have been imprisoned and tortured.[15]

The Coalition government has also changed the Migration Act to make the issue of non-return to persecution (non-refoulement) irrelevant in making a decision to remove a person from Australia to another country. RAC advocates the repeal of that provision.

Furthermore, Australia is now cooperating with regimes such as that in Sri Lanka from which asylum seekers are fleeing, to prevent them doing so. Although Sri Lanka has been internationally condemned for human rights violations – especially against the Tamil minority – Australia has provided support to the Sri Lankan government in the form of patrol boats to prevent these persecuted people leaving.[16] This is, of course, contrary to Article 12(2) of the International Covenant on Civil and Political Rights, to which Australia is a party, which provides: ‘Everyone shall be free to leave any country, including his own.’

It must be an absolute principle of Australian foreign and immigration policy to protect the rights of asylum seekers by allowing them to leave places in which they fear persecution and to refuse to return them to such places.

 

  1. Support for initiatives that promote peace or conflict resolution in source countries.

In the Australian context, warfare and civil violence are significant ‘push’ factors for many asylum seeker arrivals. The repression of minorities and ethnic conflicts are major factors present in all of the main countries from which asylum seekers come.[17] As well as supporting people who have already become refugees and asylum seekers, Australia should support efforts to promote peace and conflict resolution in source countries. Australian foreign policy and Australia foreign aid should be directed, as far as possible, to peaceful and just resolution of such conflicts in order to mitigate the circumstances which cause people to flee.

 

[1] Figures based on UNHCR statistics and reported in the SMH 20th June.

http://www.smh.com.au/federal-politics/political-news/number-of-displaced-people-worldwide-exceeds-50-million-un-report-20140620-3aizd.html

[2] Calculated from 3101.0 – Australian Demographic Statistics, Jun 2014

[3] Antje Missbach , ‘Asylum seekers stuck in Indonesia’, The Jakarta Post, Fri, April 04 2014 http://www.thejakartapost.com/news/2014/04/04/asylum-seekers-stuck-indonesia.html#sthash.gHysiiq5.dpuf

[4] Elibritt Karlsen, “Refugee resettlement to Australia: what are the facts?” Parliamentary Library of Australia Background Note, 6 December 2011, 13, http://parlinfo.aph.gov.au/parlInfo/download/library/prspub/1276913/upload_binary/1276913.pdf;fileType=application%2Fpdf#search=%22Background%20Note%20%28Parliamentary%20Library,%20Australia%29%22 accessed 12 September 2014

[5] Boat arrivals in Australia: a quick guide to the statistics, Janet Phillips, 23 January 2014

[6] Misha Coleman in The Drownings Argument: Australia’s inhumanity: Offshore processing of asylum seekers, Labor for Refugees, ed Robin Rothfield, page 32.

[7] Janet Phillips and Harriet Spinks, Immigration Detention in Australia, Parliamentary Library, March 2013. http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/

pubs/BN/2012-2013/Detention#_Toc351535439

[8] Department of the Treasury 2014-15 Pre-Budget Submissions

Recommendations for the Federal Budget, Submission: The Australian Churches Refugee Taskforce, pps. 4-5. http://www.australianchurchesrefugeetaskforce.com.au/wp-content/uploads/2014/02/ACRT_Pre-BudgetPolicySubmission_2014-15.pdf

[9] Ibid. p.4

[10] See National Commission of Audit 10.14 Illegal Maritime Arrival costs, http://www.ncoa.gov.au/report/appendix-vol-2/10-14-illegal-maritime-arrival-costs.html and

UNSW, ‘Commission of Audit reveals offshore processing budget blowout’

02 May 2014, http://newsroom.unsw.edu.au/news/law/commission-audit-reveals-offshore-processing-budget-blowout

[11] There are alternatives, A handbook, International Detention Coalition, La Trobe Refugee Research Centre, http://idcoalition.org/wp-content/uploads/2013/08/There-Are-Alternatives.pdf

[12] See Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. See RAC’s critiques of the Bill in its submission to the Inquiry by the Senate Legal and Constitutional Affairs Legislation Committee, available on the Committee’s website at: www.aph.gov.au .

[13] From 2010–11 to 2012–13, the RRT overturned between 72% and 83% of decisions it reviewed, the rates for some countries ranging from 80% to 100%: Jane McAdam and Fiona Chong, Refugees: Why Seeking Asylum is Legal and Australia’s Policies Are Not, UNSW Press, 2014, p 43 and notes at p 193.

[14] Migration Amendment (Protection and Other Measures) Act 2014, passed with the support of the ALP. For RAC’s critique of the leglisation see its submission to the inquiry on the Bill by the Senate Committee referred to in note 1 at: www.aph.gov.au .

[15] See http://www.smh.com.au/national/asylum-seekers-say-they-were-raped-and-tortured-after-australia-sent-them-back-to-sri-lanka-20140930-10oct9.html ; http://www.abc.net.au/news/2014-10-27/calls-to-stop-deporting-failed-asylum-seekers-to-afghanistan/5845544; See also Edmund Rice Centre, Deported to Danger: A Study of Australia’s Treatment of 40 Rejected Asylum Seekers, 2004 and Deported to Danger II: The Continuing Study of Australia’s Treatment of Rejected Asylum Seekers, 2006.

[16] See the statement by the newly-elected Sri Lankan President Wickremisinghe that Australia had agreed with the previous Rajapaksa government that it would not criticise Sri Lanka’s human rights breaches in return for it preventing asylum seekers from fleeing: see article Agence-France Press, 23 February 2015, 15:26.

[17] Destination anywhere? Factors affecting asylum seekers’ choice of destination country Department of Parliamentary Services, Parliamentary Library Research Paper no. 1 2012–13 Harriet Spinks, Social Policy Section, 5 February 2013, PDF version [542KB]