15 May 2011

Turning away refugees

Australia is now in the business of turning away refugees.

Consider the opening paragraphs of Melissa Fyfe’s news item, Times up: latest boat arrivals to be diverted, in today’s (15 May 2011) edition of The Age – see here:

The Gillard government’s tougher refugee policy came into full force yesterday, with the Immigration Minister saying the latest boatload of asylum seekers will be refused processing and sent away to a yet-to-be determined country.

The government has flatly rejected the asylum seekers before finalising two of its major new options for refugee processing: the so-called Malaysian ‘‘swap’’ and a new assessment centre on Papua New Guinea.

The 33 asylum seekers, picked up early yesterday morning in the Timor Sea, will undergo basic checks and be temporarily held in detention on Christmas Island before removal to a ‘‘third country’’.

…yesterday he said Australia would not  accept  any asylum seekers who arrive by boat. ‘‘The people aboard the boat will be processed not for refugee assessment but for removal from Australia.’’

Be in no doubt that this means we are turning away refugees. The 1951 United Nations Convention Relating to the Status of Refugees and the accompanying 1967 Protocol (see here) defines a refugee as a person who:

owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Note that under this definition the state of being a refugee is intrinsic to the person concerned: they are a refugee the moment they take flight “owing to wellfounded fear of being persecuted ...”, not because some government official in a far-off land taps them on the shoulder with his sword and says, “I dub thee a refugee. Arise, Sir Refugee”.

This means that the process of “processing” refugees is conceptually, and in any decent practice, not a matter of establishing which people are refugees, it is a matter of identifying any who are making a false claim and hence are not entitled to the benefits that refugee status confers as of right.

To illustrate by an analogy that is not too strained, you are not ill because a doctor says you are, you present yourself for medical assistance because you have a well-founded fear that you are ill.

This raises an issue akin to the presumption of innocence. Since the state of being a refugee is intrinsic to the individual(s) concerned, it is important to assume that everyone who makes a claim for asylum be treated as such unless and until the contrary is established.

The difference is important. It means that we should not withhold the benefits of refugee status from every asylum seeker until the merits of their claims are established. It means that, in a preliminary and precautionary way at least, we extend them to everyone and subsequently withdraw them from those found not to qualify. This approach does not preclude a preliminary period of detention to enable identity and health checks to be carried out, not does it preclude requiring asylum claimants remaining in touch with the authorities until all procedures have been completed and a right of permanent residency is granted.

I would go on to argue that our obligations under the Convention and Protocol, and on the basis of human decency (the old-fashioned notion of doing what is right, which rarely enters into our political discourse these days) are engaged the moment an asylum seeker comes face to face with an Australian naval or customs craft and says “I am a refugee”.

Forget all the fancy legal cleverness about excising bits of Australian sovereign territory (parts of our far-flung oceanic and island territory which we regard as fine for claiming fishing and mineral rights but are less enthusiastic about acknowledging as the basis for the various responsibilities that go with sovereignty), and about offshore processing as a way of deeming people not to have arrived in Australia. An Australian warship is a floating piece of Australian sovereignty, and a person who communicates with it is communicating with the Australian state.  John Howard seems to understood that – that is presumably why in a notorious incident he would not let an Australian frigate take refugees on board until their boat had actually sunk and the people on board had to be rescued from the water.

Sadly, in the race to the bottom that characterises the politics of immigration generally these days, we are no longer saying to refugees “You are not welcome here” – we have been saying that ever since Paul Keating introduced mandatory detention, contrary to one of the fundamental provisions of the Convention, under which detention is a last resort. We are now saying, “You may not come here” (unless of course your circumstances are such that you can purchase a ticket on an aeroplane).

We should hang our collective heads in shame that we have allowed matters to come to this.


Space Kidette said...

The very thing that makes boat arrivals difficult (as opposed to other means of arrival) is that people are willing to risk their lives on leaky boats to get to Australia.

Many boat arrivals were dying in tryng to get here. Far too many were risking not only their lives, but their childrens lives, by taking the boat route.

It had to stop from the safety perspective.

From the humanitarian perspective, does the solution mean these people are not going to be processed. No. What it does mean is that they will not have a choice as which country in the region they are processed in.

Does it matter? I don't know yet, but if it saves lives, I am prepared to at least give it a go and fine tune as the shortcomings emerge.

Does it have legal implications? I am not totally sure that last year's High Court decision has been fully tested so I don't think anyone is really sure about that either.

What I do know that I would much prefer that Australians simply embraced these people. But that option was taken off the table by Howard and his protege, Abbott.

Their shrill noise built such fear and loathing amongst voters that this problem will not be solved with anything like commonsense.


Space Kidette

Don't be misled into thinking that politicians on either side are motivated by concern for the safety and welfare of asylum seekers. There is nothing in their behaviour that supports that view.

If they were concerned for safety they would not have excised the "bus-stop" at Ashmore Reef from the migration zone. This makes it a much longer journey across dangerous waters to reach a point at which asylum can be claimed, and hence reduces asylum seeker safety.