Asylum and refugee policy: Why this is primarily a strategic policy issueback to Asylum and refugee policy
Asylum and refugee policy falls within the Australia Defence Association’s independent, non-partisan, public-interest watchdog role for strategic security, defence and wider national security issues for four principal reasons:
- First and foremost it is an issue integrally involved with Australia’s overall strategic security and wider relationships with neighbouring countries. It is not an issue somehow isolated from them as some Australians mistakenly assume or believe.
- Policy and practice concerning asylum and refugees also involve the strategic relationship between international law and Australia’s sovereignty, security and international legal and moral responsibilities in the broader sense.
- Australian governments use elements of our defence force to assist civil law enforcement authorities with some of their border and sovereignty protection responsibilities. The ADA is always vigilant concerning the law, and its execution, when any part of our defence force is used to assist the civil power with domestic law enforcement rather than external defence. Particularly where such assistance might necessitate the application of force by defence force personnel.
- We are also naturally concerned where such operational tasking and the difficult circumstances involved place defence force personnel in undue danger from physical attack, from having to operate in sea conditions across all weathers and other environmental hazards, and from long-term psychological stress due to the working conditions and socio-political controversies involved. Including where such stresses result from inaccurate, unfair, sensationalist or defamatory criticism of defence force personnel when undertaking border protection duties
We need to stop talking endlessly about the recurrent symptoms of the problem and focus instead on the causes and the cures
Asylum and refugee issues are first and foremost a matter of strategic policy because they are just one part of our broader and longer-term strategic relationships with neighbouring countries.
But instead of acknowledging this, the vast bulk of public (and party-political) argument on asylum and refugee matters has long tended to revolve around the recurrent symptoms of Australia’s dilemma, rather than seriously examine and fix its actual strategic, legal and moral causes. This narrow focus on the symptoms, not the causes or the cure, is both ineffective and immoral.
Public and political arguments advanced are also generally dependent on oversimplifications about the nature and scope of the problem.
Or they concentrate on one particular aspect of it (such as natural compassion for refugees, border security, immigration screening, etc) in isolation from all the factors necessarily concerned and indeed needed for informed public debate.
Day-to-day public discussion of asylum and refugee policy is particularly hampered by the common but incorrect assumption that the matter is a domestic policy issue alone and only involves Australia.
This in turn leads to debate being primarily dominated by narrowly-focused and Australia-centric perspectives centred only in domestic party politics, Australian law or human rights matters only as they apply within Australia.
Such approaches do not enable the making of good public policy. Indeed they have the opposite effect.
Asylum and refugee policy must not be considered in isolation from strategic policy
Asylum seeker flows into Australia necessarily involve our broader strategic relationship with other countries.
The strategic implications of Australia's complex geo-political setting are discussed in detail below but key geo-political factors affecting Australian asylum and refugee policy-making include:
- Australia is the world's only island continent and can only be reached by crossing the sea. The 1951 Refugee Convention (which has never been amended or modernised) was instead primarily designed to cope with regugee flows across land borders within a continent (and before 1967 just within the European sub-continent).
- Australia is virtually the only real signatory to the Convention in our near and wider regions and this has a major effect on the 'push" and "pull" factors actually applying, especially the latter. New Zealand is the only other genuine signatory in our region but geography means asylum seekers come here first and, where they are able to exercise some choice, largely come here anyway for socio-economic reasons.
- Australia is one of the few countries in the world with an established political and cultural acceptance of mass immigration. This too has a significant effect on 'pull' factors, not least because:
- the prospect of permanent resettlement and eventual citizenship in Australia is a major incentive for immigration fraud generally and the smuggling of genuine and bogus asylum seekers in particular;
- many Australians confuse our responsibility to provide temporary protection (asylum) to those genuinely needing it with our choice to also offer permanent resettlement to targeted and controlled numbers of those genuine refugees most needing it; and
- some Australians, particularly those with ethnic or family affinities with asylum seekers, put such a short-term priority and narrow focus on helping particular asylum seekers that it detrimentally affects our national sovereignty, long-term strategic security, long-term socio-economic wellbeing overall, and our national ability and community willingness to help genuine refugees generally.
Australia is a first-world country that shares its maritime borders (and its near region) predominantly with developing countries. Moreover, nearly all these countries (and certainly the larger and/or more important ones strategically) are not signatories to the 1951 Refugee Convention and refuse to sign it or otherwise meet customary international law with regard to refugees. The two or three that are signatories are effectively pseudo-signatories with no real intention or capacity to abide by the necessary responsibilities. All these circumstances have a significant effect on the "push" factors" affecting Australia.
Discussion of asylum and refugee policy is necessarily incomplete if it ignores or downplays these factors — as it often does in Australian public discourse.
It is also incomplete if it ignores the consequence that there needs to be a genuine Asia-Pacific solution involving burden-sharing by all countries in our near and wider regions. And indeed globally.
Including significant pressure on all the burden-shedding non-signatories to the Refugee Convention to become full signatories and implement it in practice — as Australia does. Not just push asylum seekers on to Australia.
Effective consideration of Australian asylum and refugee policy can also only occur if we acknowledge that such policy — and our associated expectations of other countries — are but two of many aspects in our overall strategic relationship with our regional neighbours.
Asylum and refugee matters must also not be allowed to become a defining or persistent problem in such complex strategic relationships.
In terms of broader strategic policy, we must also avoid the potential for regional neighbours to pressure us strategically through threatening or facilitating extra-regional refugee flows into Australia or not.
Or indeed by us effectively having to bribe some of them to meet their asylum responsibilities under customary international law (even where they are not Convention signatories).
What passes instead for public debate mostly revolves around Australia-centric generalities.
"Offshore" versus "onshore" processing, for example, is generally discussed only in narrow terms of proposed solutions dependent on unilateral agreements with neighbouring countries about different types of offshore processing before genuine asylum seekers can eventually enter Australia (and be processed as refugees).
This tendency to discuss offshore processing as an Australian matter alone ignores that any truly effective regional protection mechanism would necessarily involve most or all processing being undertaken outside Australia.
Moreover, the so-called Bali Process and variations of it are not such a proper regional solution. These are Australian initiatives about "orderly arrival" to Australia and are primarily driven by shorter-term, party-political, considerations domestically.
Consequently they simply encourage lip service by our regional neighbours to their responsibilities (and often just further buck-passing to Australia).
Rather than encourage genuine commitments to protecting asylum seekers and refugees or otherwise resolving the regional problem of asylum seeker flows.
Such Australia-centric initiatives also discourage regional countries from acceding to the Refugee Convention or otherwise seriously meeting their responsibilities for refugees.
Strategic basis of general community concerns
The commonplace focus on the recurrent symptoms, rather than the strategic causes and their ramifications, also leads to much public argument on refugee matters ignoring, mis-attributing or even denying the strategic-level basis of deeper community concerns.
Every day we see, hear and read these circular and subjective arguments about the symptoms on television, the radio, newspapers and the Web. Particularly when the same narrow group of activist spokespersons and politicians are interviewed continually, and frequently not objectively.
One key problem, for example, is where asylum and refugee policy is discussed in isolation from broader strategic, immigration and population policy and their effects on wider domestic policy.
And also, consequently, Australia’s strategic security is mentioned only from the narrow perspective of its domestic components. This inadequate approach is discussed further below.
Or, even if or where some mention, say, of immigration or population policy is included in public argument about asylum seeking, five key factors underlying community diversity and community attitudes are not factored in sufficiently or at all:
- Per head of population, Australia takes in more immigrants than any other country in the world.
- Nearly one in four Australians was born in another country. This proportion has risen from one in seven in under a generation with Australian society being far from being “insular” or inexperienced about migration issues as a result.
- Over one in three Australians was either born in another country or has at least one parent who was.
- Such very high levels of mass immigration and consequent community diversity are only possible now — and sustainable over the long run — because commensurate high levels of national confidence in the institutional and public-interest integrity of such programs have been maintained.
- One of the main reasons Australians of all origins support such very high levels of immigration is because Australia is able to, and does, exercise strict controls over the numbers and selection of immigrants to minimise ongoing and potential risks to national security, economic stability, domestic harmony and environmental sustainability.
Some community concerns about “boat people” are undoubtedly due to misunderstandings and even at times irrational fears.
But claims by some refugee activists and others that all community concerns stem from so-called xenophobic fears are simplistic and grossly exaggerated. Such claims hark back to 1950s attitudes not current community understandings.
Such allegations are also often a deliberate diversion to avoid addressing, or even to deny, the nature and validity of widespread strategic and more specific community concerns. This is discussed in some detail below.
The reluctance of the Department of Immigration to publish up-to-date statistics on asylum claims from authorised and unauthorised arrivals further complicates public debate. Not least because both extremes of the argument tend to use statistics selectively without fear of objective refutation by facts.
Much of the informed concern throughout the Australian community is appropriately grounded in strategic-level, national-interest considerations about our society and protecting our democratic way of life.
Especially regarding the nature and perceived controllability of managing claims for asylum appropriately but compassionately.
Most informed Australians understand there is a potential risk for ever-growing numbers of unauthorised arrivals, if uncontrolled, to compromise Australia's national immigration policy, sovereignty and perhaps eventually — should numbers increase — our domestic economic, social and political stability.
The exact nature, depth or longer-term perspective of such community concerns may not always be clearly expressed by many Australians but this does not invalidate them.
The sometimes inchoate expression of community concerns has, however, led to them being misunderstood, not respected or treated dismissively, rather than addressed appropriately, in much public debate. Especially by single-issue refugee activists and by ideologues and populist politicians of all descriptions.
By definition, the problem of unauthorised arrivals is relatively unpredictable, often difficult to control, and one where the initiative often seems held by those arriving — and those foreign groups and governments facilitating their arrival — rather than by Australian governments.
The intervention of Australian courts and appeal tribunals to over-ride government decision-making (however justified at times) adds to community perceptions of uncertainty, unpredictability and that Australia as a whole may be losing control over the issue.
Excluding discussions below about alleged national xenophobia or whether community perceptions of "queue-jumping" are valid or not — or whether the UNHCR queue exists or not (however imperfectly) — strategic-level community concerns about asylum policy and practice seem largely and legitimately grounded in six particular broad aspects of the problem:
- Unpredictability. The Australian community is concerned at the overall unpredictability of the issue, especially the relative uncertainty as to the strategic outcomes involved over the long run.
- Degree of control by Australia. Most Australians naturally hold concerns about our national degree of control over the issue. Many Australians now seem to consider that there is a growing loss of control or that it might be already lost.
- Intrinsically uncontrollable nature of unauthorised arrivals by boat. The uncontrollable nature of people arriving in Australia unauthorised by boat — rather than the act of claiming asylum itself — remains a common community concern. This differentiation is borne out by the markedly lesser concern about those claimants arriving by authorised means, such as scheduled airline or shipping services, where a much greater degree of control by Australia is possible.
- Risk of sudden or sustained escalation in numbers. The relatively low number of unauthorised arrivals at present is not the problem for many, probably most, Australians. There are, on the other hand, naturally widespread community apprehensions about the potential for the numbers to escalate substantially and/or suddenly (especially when coupled with the preceding three issues). These concerns are exacerbated by apparently growing community unease about the nature of some of the presumptions and demands by asylum seekers before, during and after arrival.
- Australia’s disproportionate burden. Informed Australians are justifiably proud of Australia’s record for sheltering and particularly re-settling refugees since World War II (see below). There is therefore widespread community unease that Australia seems to be bearing a disproportionate share, especially regionally, of what should instead be a widely shared international responsibility for protecting asylum seekers and resettling refugees (and that our record in doing so, especially the latter, is unfairly disrespected or exploited internationally. Informed Australians also object when some refugee activists try to demean Australia’s record by obfuscation, especially by false statistics or apples and oranges comparisons between records for temporarily hosting and actually re-settling refugees.
- Our neighbours are treating Australia as the regional "soft touch". There is community frustration, and perhaps even a growing degree of resentment, that any disproportionate burden-sharing appears to be due in part to a presumption in neighbouring and other countries that Australians are a “soft touch” to be exploited, rather than respected or emulated, in regard to caring for asylum seekers and refugees or in non-discriminatory immigration matters generally.
The profession of community concern is also too often diverted into irrelevancies at times where some do not realise, or understand at first, that the act of unauthorised arrival is not necessarily illegal for genuine asylum seekers (discussed further below), or appreciate why this is so.
But even allowing for this understandable confusion, the frequent involvement of people smugglers and other criminals — and the widely accepted fact that not all unauthorised arrivals do qualify as genuine refugees — naturally exacerbates community concerns that Australian immigration policy, and Australia's longstanding international reputation for toleration and compassion, are being improperly exploited.
The inevitable mix of illegal immigration and asylum seeking among unauthorised arrivals further clouds the issue. As does the growing incidence of conspiracy to perpetrate immigration fraud or faciliate people smuggling among parts of the Australian community.
Public unease about unauthorised arrivals also undoubtedly stems from background concerns about widespread abuses of immigration law even among those arriving by authorised means.
Particularly the longstanding use and misuse of tertiary or vocational study visas as a back-door means of obtaining permanent residence in Australia.
Large and increasing numbers of authorised arrivals (largely tourists and former students) are also illegally staying in Australia after their tourist or student visas have expired (8300 “students” in 2010-11, up from 6800 in 2009-10 and 1800 in 2008-09).
The well-publicised corruption and rorting in the overseas student education industry generally, and exploitation of these students, by many of the commercial “training institutions” involved adds to background community concerns.
In terms of wider population policy and its strategic implications, over the last decade or so net overseas migration has contributed just under half of the increase in Australia’s population (currently 21.7 million).
The most conservative Australian Bureau of Statistics projections indicate that, even with nil net migration (which is highly unlikely), and even with the total fertility rate dropping from its current below-replacement figure of 1.89 to 1.8, Australia’s total population would still continue to grow until 2038 to around 35 million before starting to decrease gently.
Controversy over the optimum population size for Australia, chiefly over perceived economic, social and environmental implications, is also a background contributor to national argument about both authorised and unauthorised arrivals seeking permanent residence.
Based on these fundamental community concerns about difficulties with managing authorised and unauthorised arrivals to Australia, broader community scepticism about asylum and refugee policy seems further sustained by the way the practical and moral complexities of the issue are so often either glossed over, not discussed or even denied in much public debate.
Particularly where squabbling politicians, ideological polemicists and the more narrowly-focused refugee and ethnic community activists address the issue selectively, rather than holistically as a strategic policy issue.
Key aspects of this complexity, and both the community concern and scepticism it engenders, include:
- Loss of life at sea. Estimates by the Department of Immigration and Citizenship in 2011 are that at least four per cent of passengers are drowned when unsafe and frequently overloaded boats sink during their (usually illegal) transits from Indonesia. The large number of deaths from boat sinkings in late 2011 and during 2012 will unfortunately increase this percentage substantially.
- Involvement of organised crime. Although some try (by wrongly ascribing humanitarian or other idealistic objectives), no objective analysis can deny the pervasive involvement of foreign criminals and corrupt foreign officials in the smuggling of unauthorised entrants into Australia on an organised basis. This problem is exacerbated by the perpetrator's contempt for Australian law, Australian national interests and the Australian people — and the fact this is widely resented by Australians.
- Lack of Indonesian co-operation (and worse). The lack of full co-operation by Indonesia in stamping out people smuggling from Indonesia, and the corruption and worse that allows it to thrive, is a major factor in nearly every aspect of the problem (see below). Despite this being ignored by most single-issue focused refugee activists and some politicians. Furthermore, Indonesia is now effectively relaxing, not tightening, visa restrictions for entry into Indonesia from source or transit countries actively targeted by the people smugglers.
- Ineffective prosecutions and costs. Where people smugglers are caught and prosecuted, in both Australia and Indonesia, this mainly involves the lowest rung of the criminal enterprises involved rather than the “bigwigs” planning and organising the trade and reaping the profits. It does not deter or eradicate people smuggling as an international crime, especially in Indonesia, when the vast majority of the people imprisoned are poor, minimally paid, illiterate, often young and apparently often duped Indonesian crewmen from people smuggler boats, not those employing, tricking and exploiting them.
- Statistics from the Commonwealth Director of Public Prosecutions show that in 2011/12, only three of some 208 prosecutions for people smuggling offences have involved alleged organisers.
- Furthermore, the costs of such prosecutions have risen significantly with the rise in unauthorised arrivals: $A1.6 million in 2009/10, $A6.2 million in 2010/11 and $A14 million in 2011/12.
- Recent activities by Australia-based people smugglers who have themselves masqueraded as refugees to gain asylum and residence further highlight the legitimacy of community outrage.
- Violence and even loss of life when apprehended. The violence and loss of life through sabotage of some boats by asylum seekers and people smugglers when lawfully intercepted by Australian authorities is increasing. As are the dangers to Australian naval and Customs personnel during such interceptions. These aspects are also increasingly coupled with what are commonly perceived by Australians as presumptuous demands and outright ingratitude from some arrivals. Including wrongly blaming our navy when boats sink or are deliberately sunk (see below).
- Numbers and frequency of unauthorised arrivals. The numbers of unauthorised arrivals by boat — and in terms of community consciousness the frequency (because it is perceived as a control issue) of boat arrivals in particular — are major contributors to community concern.
- Over the last few years such boats have been arriving at an average rate of around two per week.
- The average increased to four or more in the last quarter of 2011, increased again to almost daily in the second quarter of 2012 (with the numbers aboard each vessel tending to be higher too) and by the third quarter of 2012 averaged 2-3 each day. December 2011 was only the second month on record where the numbers of arrivals exceeded 1000 (1080 by Christmas) but this was the norm by May 2012.
- The number in June 2012 was 1732 and believed to be the largest number on record — exceeding the previous record of 1643 in August 2001 which was unusually boosted by the 433 on board the Tampa when it was diverted to Australia (see below).
- The month-by-month unauthorised arrivals for 2011 and 2012 are shown in Tables 1 and 2 respectively.
- Comparative figures for previous financial years from 1989/90 to 2012/13 are shown in Table 3.
- The countries of claimed nationality during 2011 are in Table 4 but have changed significantly as 2012 progresses.
- Numbers in immigration detention. Over recent years the number of unauthorised arrivals in immigration detention of some sort has hovered around 5-6000.
- On 31 May 2012, for example, there were 4906 unauthorised arrivals detained, comprising 991 on Christmas Island and 3915 people detained around mainland Australia.
- A further 1624 were on release in the community on bridging visas.
- As the tables show, the move to on-shore processing (and community rather than isolated detention) in early 2012 resulted in a sharp increase in arrivals.
- Such market trends in people smuggling are discussed further below. This year this trend has ocurred is despite the onset of the cyclone season in the Arafura Sea and another consequent tragic spike in deaths at sea.
- Duration of immigration detention. Natural community compassion means concern arises about the lengthy periods some asylum claimants spend in immigration detention, and the conditions they experience, while their claims are verified. Even when the longer duration is increasingly due in at least some cases, and probably many, to those involved deliberately making their claims difficult to refute. At 30 September 2011, 2035 people of the 5597 detained at that time (around 35 per cent) had been in detention for 12 months or longer.
- Stress during detention. The levels of stress, mental ill-health and suicides (six in the last year) among those detained in immigration detention centres is also a matter of considerable community concern.
- Violence, riots, destruction of property and self-harm protests. There is also natural community concern and sometimes outrage at the violence, destruction of public property and perceived immoral blackmail (through bogus and even genuine self-harm protests) by some of those lawfully held in immigration detention centres. This especially applies to violence and riots from detainees who have not qualified for asylum or refugee status rather than those still undergoing assessment. Actual or threatened self-harm incidents have increased from 90 in 2009/10 to 1132 in 2010/11. Even allowing for the surge in detainees, there has been a significant increase in such incidents or threats.
- Post-facto legal determination of who is an asylum seeker and who is an illegal immigrant. The inevitably time-consuming and post-facto legal and practical situation caused by an unauthorised arrival who claims asylum not becoming an illegal arrival or illegal immigrant unless and until their claim for asylum is found invalid causes both confusion and frustration in the community. There is no effective alternative to this post-facto legal deliberation but it naturally arouses strong concerns, especially in the case of bogus asylum applications from those seeking an immigration outcome improperly and usually illegally.
- Rate of bogus asylum claims. The rate of genuine to bogus asylum applications varies widely with this generally driven more by people smuggling market trends (see below) rather than other factors such as the incidence of overseas conflict or the numbers of genuine refugees registered with the UNHCR across the world. There will always be strong community concern when Australians feel their tolerance and compassion for genuine refugees is being exploited by immigration fraud.
- Effect of prolonged legal appeals. Some community concern arises from the seemingly automatic, prolonged, expensive and often vexatious legal appeals in many cases where it is determined that asylum is not warranted. More concern stems from the lengthening of the processes involved and the resultant clogging of the Federal Court and now State courts with immigration cases.
- Coaching, circumvention of the law and criminal conspiracy. Community concerns naturally arise when many unauthorised and authorised arrivals are now coached extensively by people smugglers and Australian contacts in exactly what to say to Australian immigration officials after arrival and which sympathetic Australian lawyer to ring. Where this involves conspiracies to circumvent Australian law (see below) such community concern can swiftly turn to outrage.
- Destruction of identifying documentation. Great community scepticism about the validity of asylum claims is aroused by the growing number of unauthorised arrivals (around four out of five in 2010/11) who now claim to have no identifying documentation to prove their claim. This scepticism arises because it is so contrary to Australia's considerable experience of sheltering genuine refugees over six decades, it occurs despite widespread UNHCR efforts to provide such documents to genuine refugees, it greatly complicates the verification of identity and asylum claims, and it simplifies the ability to construct a fraudulent claim or a claim of apparent higher priority to genuine refugees who cannot get to Australia by employing people smugglers.
- Sudden and dramatic increase in asylum claims from those claiming to be "stateless". The growing number of unauthorised arrivals who claim to be stateless, and therefore generally unable to be deported even when their asylum claims fail, adds to community concern that the compassion of Australians is being exploited by fraudulent asylum claims . The number of claims from supposedly "stateless" arrivals has risen from 5 in 2008/09 to 172 in 2009/10 and 521 in 2010/11.
- Inability to deport failed asylum claimants. A major factor in community concern, and even outrage, is the internationally inequitable and unfair inability to deport all unauthorised arrivals who do not qualify for asylum and are therefore illegal immigrants in practical terms.
- In 2010/11, for example, of the 2816 people released from immigration detention only 78 asylum seekers who failed to qualify as refugees could be deported as illegal immigrants.
- Only some two per cent of unauthorised arrivals are now successfully deported even though Australia's rate of approvals, for both unauthorised and authorised arrivals who claim asylum, far exceeds approval rates by the UNHCR and most other countries.
- In 2011, for example, some 78 per cent of Iranian unauthorised arrivals were duly assessed as not qualifying for asylum. However, Iran, and the countries they have been living in before journeying to Australia, often for many years, refuse to take them back and there are naturally serious concerns about sending them back to Iran anyway.
- Inability to deport even criminals or security risks. Community concern naturally arises at our general inability to deport even those unauthorised arrivals found to be dangerous criminals or serious risks to Australian security, whether technically refugees or not, (and a growing inability to deport even authorised arrivals who are criminals or security risks). This applies, for example, to the 40 or so Sri Lankan Tamil asylum claimants who were or are members or significant supporters of the UN-proscribed terrorist organisation known as the Liberation Tigers of Tamil Eelam (LTTE). Former armed belligerents in a conflict also do not generally qualify for protection under the Refugee Convention on those grounds.
- No alternative to eventual release into the community of detained criminals and other security risks. Many, probably the vast majority of Australians, are naturally concerned at the absence of an effective alternative to indefinite administrative detention of criminals, former belligerents, terrorists and other security risks. By January 2012, some 54 immigration detainees had been deemed security risks by ASIO and therefore ineligible for Australian residency under the Immigration Act. This naturally results in eventual pressure to release them for residence in the Australian community on humanitarian grounds. Despite this undermining the principles and operational integrity of the Refugee Convention, encouraging further immigration fraud and, in some cases, causing community security risks and incurring long-term policing or counter-terrorism surveillance difficulties and costs.