The five D's of asylum policy: Deterrence

Deterrence The actions taken to prevent people from applying for asylum onshore in Australia. This includes the navy blocking boats, excision and remote island detention and processing.

Summary
The government?s ?turning back the boats? policy allows for the Australian Navy to intercept boats suspected of carrying asylum seekers on their way to Australia and force them out of our waters, endangering lives and avoiding our international protection responsibilities.? In addition, current excision laws mean that asylum seekers who land in an excised zone are not given the same legal/humanitarian assistance or recognition of rights as other asylum seekers, which undermines their ability to prove their refugee status.? Another consequence of excision laws is the use of off-shore detention centres, where detainees are denied adequate humanitarian and legal support, with limited oversight by the Human Rights and Equal Opportunity Commission, and at a greatly increased cost.

Naval interdiction

Australia must not send people back to persecution or danger
Under international law, Australia is obliged to ensure that we do not return anyone to persecution ? the principle of non-refoulement under the Refugee Convention.

Current border protection policy allows for the Australian Navy to intercept boats suspected of carrying asylum seekers on their way to Australia and force them out of our waters, endangering lives and avoiding our international protection responsibilities. Our navy and coast guard are not required to make sure protection claims are assessed. This results in people who are genuine refugees being removed from Australian waters or barred from entry, who may then face being forced home to persecution.

The methods used to repel boats are inhumane
Naval interdiction involves towing sometimes unseaworthy boats back to international waters and ?persuading? them not to re-enter Australian waters. In some cases, the navy fires guns to scare them away, and in some cases forcibly boards boats to subdue the captain and passengers.

Protecting borders AND Australian values
Australia needs to protect its borders, and the navy plays a key role in this. However, navy personnel joined up in order to protect Australia from danger, not break international human rights conventions. Australia must protect those fleeing persecution and not repel them or unduly push our national responsibilities onto other countries.

Breaks the United Nations? Refugee Convention
Article 32: ?States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.? Small numbers of unarmed asylum seekers do not constitute a threat to Australia?s security.

Regional Cooperation with UNHCR
The Australian Government needs to work co-operatively with neighbouring countries, urging them to sign and abide by the Refugee Convention and work with UNHCR to protect asylum seekers while conflicts in home countries are resolved.? To credibly advocate such human rights standards by our neighbours requires that Australia must fully abide by our own international human rights obligations. Such approaches could minimise dangerous sea journeys on poor quality boats by asylum seekers seeking effective protection. Anti-people smuggling policies need to be focused and proportional in their impact and not punish the asylum seekers themselves.

Case Study???????????
One such case of interdiction was described by ?Ali? when his boat was interdicted by the navy and taken towards Ashmore Reef. The navy told passengers they would be taken to a refugee camp and moved the families to the navy vessel and locked Ali with the other men in the lower deck of the boat for two days while secretly returning the boat to Indonesian waters.

?Because no one was ready to come out of the navy ship the navy people were bringing the children in our boat and beating the men and women so badly if they did not want to come out of navy ship.? By observing this scene some of the navy people were weeping, one even hit his head to the wall of the boat.? Then they broke the engine of the boat, took the oil and generator so we cannot go back to Australia.?

Since then, Ali and the other 240 people were housed in the Lombok Afghan refugee camp in Indonesia. Some were assessed by UNHCR as being refugees, showing that Australia had failed in our obligations to them.

Excision
What are excision laws?
Excision laws allow for processing asylum seekers claims outside of our migration laws. They attempt to remove legal rights and processes that are enshrined in our domestic legal system and constitution.

These laws allow for ?removing? parts of Australia from the Migration Zone, so that asylum seekers picked up in some parts of Australia are restricted from making a valid protection visa application and are not eligible for certain legal protections usually available to any non-citizen in Australia. The laws also allow for the Government to then send people to ?declared third countries? for protection visa processing that is entirely outside of the Australian legal system. Previously this was Nauru and Manus Island, PNG.

UNHCR has criticised Australia?s two different systems for refugee determination created by excision as ?discriminatory? and ?undesirable? [1] . If other countries took this approach to movements of refugees across the globe, the entire system of protection for refugees would break down.

Why were excision laws introduced?
This was another response to the Tampa ?crisis? in 2001 reflecting the Government?s fear at what they perceived to be a large number of boat people trying to reach Australia?s shore ? in fact they are very small numbers compared to refugee movements in Europe and countries of first asylum such as Thailand, Pakistan, Syria and Jordan.

Excision laws are the foundation of off-shore detention policy (including detention on Christmas Island) and are claimed to deter people smuggling rings and asylum seekers from risking their lives in dangerous journeys.

Excision results in returning people to danger
Excision laws mean that asylum seekers who land in an excised place will be assessed offshore with fewer legal rights. In comparison to onshore procedures, those processed offshore are not granted any assistance from a migration agent, and the remote location means they cannot access this on their own. They do not have access to full merits review by the Refugee Review Tribunal (RRT) or any judicial review. Not surprisingly, acceptance rates in offshore locations are far lower than onshore, showing that there must be refugees who have been rejected and inevitably returned to places of danger or persecution.

Working outside the law
Excision allows for government immigration officers to work outside of the law. They are still doing government work, but the legal framework regulating their actions is removed. The premise that laws protecting people from Government officers can be removed when that protection is in conflict with a desired policy outcome is a dangerous precedent to set in a democracy. Other government agencies (such as the Australian Federal Police) who work extra-territorially are still subject to the same laws and requirements as when working domestically.

What are the post-Pacific Solution excision policies?

Although the ?Pacific Solution? has ended, this policy is going to be replicated on Christmas Island ? conditions of detention will improve, but the same legal limbo may apply. Protection decisions under the Pacific Solution were fundamentally flawed due to a lack of independent legal assistance and oversight. To fix this, asylum seekers on Christmas Island must, at minimum, be granted the same migration agent assistance available to others when making an application.

A Just Australia remains firmly against any excision and remote processing of asylum claims. The acceptable standards for practice on mainland Australia must be the acceptable standard practice for all Australian jurisdiction.

Offshore detention and processing

Offshore Policy - Christmas Island

Some boat arrival asylum seekers are held on Christmas Island, a tiny Australian island near Indonesia. Most asylum seekers are processed here under excision laws, meaning they have fewer legal rights but if found to be refugees they are allowed to resettle in Australia. Social services are much more difficult to deliver in this remote location and access by bodies such as the Ombudsman is irregular due to distance.

This policy is promoted as a deterrent to possible future asylum seekers as they do not have access to their legal rights.

Costs
Almost $1 billion has been spent on the Christmas Island and Pacific Solution detention and processing facilities since 2001, for less than 2000 people processed. So far it is over $500,000 per person.

No legal advice
Asylum seekers processed at Christmas Island are not eligible for the government legal advice program (IAAAS.) It is also costly for pro bono lawyers to travel to Christmas Island, and in the past many independent NGOs, lawyers and advocates were refused visas to enter Nauru.? There is uncertainty about future funding and even access to offshore detention facilities.? Advocates insist independent legal advice should be provided to offshore detainees.

Offshore processing keeps the actions of immigration officers hidden from the view of the Australian public, risking that laws can be broken without political repercussions.

Claims processed outside Australian law
Asylum claims are processed by Australian immigration officials but not under Australian law, with no independent scrutiny and no access to review by the Refugee Review Tribunal (RRT) or the courts. Given that the RRT found that for some countries up to 89% of Immigration Department visa refusals have been wrong, this means that many genuine refugees will face being returned to danger. It also sets a bad precedent for our democracy to allow government officials unfettered decision-making powers.

Allows for prolonged processing and detention
DIAC has developed 90 day deadlines for protection visa processing in Australia. These deadlines may not be adhered to in offshore centres, leading to prolonged detention.

Palmer Inquiry Detention reforms do not apply
While much has been made by the government of the reforms introduced for mainland detention centres to satisfy recommendations made by the Palmer and Comrie Inquiries, asylum seeker boat arrivals will not benefit from these reforms. This in itself opens up huge questions as to detention standards, length and accountability and renders much of the reforms meaningless.? The long distance of Christmas Island from Perth, where higher-level medical and psychological services are located, raises doubts about the ability of the Christmas Island centre to overcome the grave concerns identified by the Palmer Inquiry.

Sets a Poor Precedent for Other Countries
After Australia introduced the Pacific Solution, several European countries were encouraged to follow suit, including the UK and Italy, to develop their own versions of the Pacific Solution. Pakistan, which then hosted over two million refugees, cited Australia?s response to minor numbers of asylum seekers as justification for closing its borders to Afghan refugees.

The government?s policy of using off-shore detention centres such as Christmas Island, and formerly Nauru and PNG, has set a negative precedent that could encourage other developed countries to abrogate their responsibilities.? UNHCR stated: ?If this were to happen, it would be an unfortunate precedent, being for the first time, to our knowledge, 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.? [2]

Harms Australia?s International Reputation
During the Tampa stand-off and after, the impression expressed by Australia?s church partners in the Pacific and internationally, was one of Australia lacking compassion and violating international law. Such perceptions could undermine Australia?s efforts to promote human rights, good governance and the rule of law abroad.

Case Study
A major problem with offshore processing is the lack of scrutiny by media, advocates, legal institutions and the general public. This means that the government is free to take actions they would not be able to take onshore due to public outcry.

In the 2001-02 period when Australia was not returning anyone from mainland Australia to Afghanistan due to the ongoing war, the Government quietly returned 32 unaccompanied children from Nauru. These children were ?voluntary returns? as they had been refused refugee visas and simply wanted to be somewhere safe, or home with their families. It is hard to see how the best interests of a child can be met by returning them to an active war-zone.

There is strong evidence to show that decisions by asylum seekers to accept ?voluntary return? from Nauru were made under duress and many were prompted by mass depression following the sudden death of a young detainee. Afghans on Nauru reported that the Australian Immigration Department and the International Organisation for Migration (IOM) told them every week that Australia would never accept them as refugees and if they did not return voluntarily they would be sent by force. They were threatened with injections to aid removal and an officer admitted that poor food quality was being used as being a tactic to encourage returns[3].

One ?voluntary? returnee said, ?Finally I realised that there was no hope that the Australian Government will protect asylum seekers from the problems they have in their own country, especially in Afghanistan.? [4]

AJA's policy proposal has 10 steps to clean up our Migration Act.? The steps that apply to?Deterrence are:

Step 1: No repelliing of boats or other removal without proper review of protection needs

Step 2: No excisions of territory

Step 3: No offshore or third-country processing or detention

To see the full 10 steps see our policy page

Get a printer friendly version of the 5Ds issues brief.

References