Webdiary - Founded and Inspired by Margo Kingston

David Curry is one of Webdiary's volunteer editors. This is his first published piece.

by David Curry

The Howard Government’s bizarre double standard on refugees – those processed offshore good, those processed onshore bad – is about to reach its policy climax. In a knee-jerk response to Indonesia’s criticism of Australia’s decision to grant asylum to 43 West Papuan refugees, the Howard Government has a plan to put all those pesky "unauthorised arrivals" permanently out of sight and out of mind.

The Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, due to be debated in the Senate this week, will see all asylum seekers who arrive in Australia "unlawfully" by boat, processed offshore - principally in Nauru (1). The Bill also deems people who travel most of the way to Australia by sea but travel the last leg by air, to have entered Australia by sea, and therefore subject to the new regime. Effectively, the whole of Australia has been excised from Australia’s migration zone for these people.

According to Immigration Minister Amanda Vanstone (2), the Bill aims to "send a strong message to people who want to risk their lives by travelling to Australia illegally". True to the Howard Government’s form, Vanstone frames the Bill as a "strong deterrent" to people smugglers, although, as with mandatory detention in Australia, it is the asylum seekers – the victims – who will really suffer. Australia’s tough approach to unauthorised arrivals, she adds, would "continue to reflect the Government’s strong commitment to its international protection obligations".

OK, so does it really matter for refugees whether their applications are processed in Australia or Nauru?

In theory, it doesn’t. According to Savitri Taylor, Senior Law Lecturer at La Trobe University and an expert in refugee law, the 1951 Convention relating to the Status of Refugees (the Refugee Convention) focuses more on outcomes than processing procedures. "They don’t have any procedural requirements within the Convention," she says. "It’s an obligation of result, and you may not be able to achieve the right result if you don’t have the right procedures." Therein lies the rub. The desired result – granting asylum to genuine refugees – is often not achieved in Nauru due to the incompetence of DIMA, coupled with a complete lack of independent review.

In Australia, when DIMA rejects a refugee application the applicant has access to independent review, first through the Refugee Review Tribunal (RRT) and then through the courts. Asylum seekers in Nauru, however, will have access to neither the RRT or to Australian courts (despite Senator George Brandis’s fumbling – and retracted – assurance to the contrary on SBS’s Insight (3) ). "It’s a purely administrative regime," Ms Taylor says of Nauru. "One person in the Department of Immigration makes the primary decision, [then] the person is able to make an appeal to another officer in the Department of Immigration - but that’s not independent review."

Ms Taylor says the lack of independent review for asylum seekers in Nauru is of grave concern, because when it comes to DIMA’s assessment of refugee claims, "they’re not very good at it". How bad are they? Between July 2004 and June 2005, the RRT overturned 1,000 DIMA decisions, and 158 decisions by the RRT were overturned by Australian Courts (4).

Think about what that means. That’s nearly 1200 genuine refugees who, without access to a decent review process, would have been forcibly returned – or, when faced with a lifetime in detention, persuaded to go back – to the places from which they fled in fear of their lives. This is a breach of perhaps the most fundamental obligation under the Refugees Convention, which is not to "expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened …" (Article 33) (5).

There is a second reason to be alarmed by the new legislation. Long term Webdiarists may remember with some pride their part in the victory (of sorts) that Petro Georgiou and three other Liberal backbenchers achieved last year over Howard’s indifference to the plight of asylum seekers. Georgiou got Howard to agree to a ‘softer’ approach to mandatory detention, which included:

• holding of minors in detention as a last resort;
• detention of families with children to take place in communities;
• non-enforceable time limits of 90 days on processing applications for refugee protection visas and review by the RRT; and
• a requirement for the Ombudsman to review the cases of those detained longer than two years, and thereafter every six months.(6)

None of these measures will apply in Nauru. "It was never understood at the time of the agreement that people in Nauru would be part of it," Howard said on the ABC’s Lateline (7). The Government argues that because women and children are let out of the Nauru ‘processing centre’ during the day the conditions are reasonable, but evidence shows that any form of detention is harmful, especially for children. In fact, the detention experience on Nauru is arguably worse than in Australia because of the isolation from friends, relatives and supporters in the Australian community (8). (Incidentally, the new regime would also put all asylum seekers beyond any real media scrutiny.)

The third reason to be alarmed about the legislation is that, even when refugee status is granted, the ordeal for detainees won’t be over. According to Vanstone, "The Government’s intention is that people found to be refugees will remain offshore for resettlement to a third country" (9). In other words, the Government will try to find other countries to take in the refugees that Australia, as the country in which they sought asylum, has responsibility for. Perhaps we could ask Pakistan, which hosts almost a million refugees (10), to accept the refugees Australia doesn’t have the will to take.

For the refugees themselves, it will mean even longer in purgatory. Ms Taylor worries that "we might get back into a situation like all those people who are taken to Nauru and PNG in 2001, where it took about three or four years to basically find somewhere, even if they’ve been recognised as refugees. They’re sitting there in limbo."

The proposed new regime for asylum seekers threatens to undermine the UN Refugees Convention. If every first world country adopted Australia’s approach the protection of refugees under the Convention would collapse. As UNHCR put it, the Howard Government’s new measures "would be an unfortunate precedent, being for the first time … that a country with a fully functioning and credible asylum system, in the absence of anything approximating a mass influx, decides to transfer elsewhere the responsibility to handle claims made actually on the territory of the state" (11).

It’s not too late to do something about this. If you care about Australia’s moral duty and legal obligations under the UN Refugees Convention, email, phone, or write to MPs and Senators, in particular Senators Judith Troeth, Steve Fielding, and Barnaby Joyce.

Troeth has expressed misgivings about the legislation, but she will be under enormous pressure to pass it. Let her know she’s not alone.

REFERENCES

1. Offshore Processing Strategy – Nauru. Budget 2006/2007 Fact Sheet.
   
2. Minister Seeks to Strengthen Border Measures, 11 May 2006.
   
3. Insight, 6 June 2006
   
4. Amnesty International submission to the Inquiry into the provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (pdf)
   
5. Convention relating to the Status of Refugees
   
6. Refugee Action Committee submission to the Inquiry etc. (pdf)
7. Lateline, 15 May 2006.
8. Refugee Action Committee submission to the Inquiry p.5
9. Minister Seeks to Strengthen Border Measures, 11 May 2006.
10. UNHCR. Basic Facts.
11. UN News Centre.