Refugees: Australia back to drawing board
By Alexander Casella
The recent ruling by the Australian high court prohibiting the Julia Gillard
government from moving to Malaysia illegal immigrants arriving in Australia by
boat was not only a major blow to Canberra as such, but also a new stumbling
block in Australia's attempt to set up a coherent asylum and refugee policy and
stem illegal migration.
According to what had been qualified as the "Malaysian Solution", an initial
group of 800 illegal immigrants who had arrived in Australia by boat would have
been moved to Malaysia where they would have undergone screening in order to
determine if they qualified for refugee status. In exchange, Australia, would
not only have accepted for resettlement those among the group
determined to be genuine refugees but would have done the same for another
group of 4,000 qualified refugees currently in Malaysia.
Australia has a yearly quota of some 13,700-refugee admissions, which, in
proportion to its population, is one of the highest in the world. This quota is
divided into two components. One component seeks to provide resettlement slots
to refugees in dire need either in refugee camps throughout the world or who
apply for resettlement at Australian embassies overseas.
The other component provides resettlement slots for asylum-seekers who claim
refugee status from within Australia, where they have arrived either legally or
illegally by boat. With the resettlement quota of 13,700 being preset, the more
refugees resettled from onshore Australia the less the slots available for
resettlement of refugees from offshore.
While within Australia there is a general consensus regarding both the
country's overall asylum policy and the necessity to decisively deal with
illegal migration, the question of how to deal with the latter has become a
major bone of contention within the Australian political system - not to say a
toxic issue that has bedeviled every successive Australian government.
The root cause of the politization of the issue has been the slow but steady
migration of the two main Australian political forces, Liberals and Labor,
towards an overall more centrist position. With increasingly fewer issues to
differentiate them, the two sides have increasingly tended to turn into a
political football any concern that came their way and the illegal migration
question thus assumed a dimension totally unrelated to what was really at
Compounding the migration dimension of the movement was the fact that
practically every illegal migrant would apply for refugee status upon arrival.
If granted, this enabled the holder to permanently settle in Australia, thus
giving an added asylum dimension to a migration issue. The problem was then
further compounded by the emergence of a "human rights" industry made up of
publicity-seeking non-governmental organizations (NGO) all striving for
visibility and all aiming to out-bid both the government and each others as the
supreme refugee advocates and human-rights defenders.
In a country in which society is essentially law-abiding, illegal migration
carries a particular stigma, and one that all successive Australian governments
have attempted to discourage for a complex but interrelated number of reasons.
According to international procedure, a refugee is defined as a person who is
forced to flee his habitual place of residence in order to escape persecution
for political, religious or ethnic reasons. There is however a fundamental
difference between a refugee who is in dire need of a place of asylum and a
refugee who has already found a location where he is safe from persecution but
wished to move on for personal convenience or reasons unrelated to a flight
While it is generally recognized that a refugee is entitled to move illegally
or using false papers in order to reach a location where he will be safe from
persecution, he is not entitled to move onwards unless within the framework of
existing immigration regulations.
Given its geographical location, the illegal caseload moving to Australia, even
if it is made up of refugee is not composed of refugees seeking or needing
asylum but rather of refugee who already benefit from asylum elsewhere but wish
to emigrate in violation of Australian laws.
This movement - qualified as "secondary movement" - has essentially three
First, all foreigners entering Australia need either a visa or an Electronic
Travel Authorization. While the procedure to obtain either is deceptively
simple in many cases, the computerized security check that it entails is
extremely thorough and ultimately the authorities have a pretty good idea of
the background of any foreigners entering the country legally.
This verification process obviously does not occur in case of illegal entry,
which means that if the individual concerned after entering Australia then
applies for refugee status he has to undergo two investigative procedures; one
to determine what is his real identity and background and one to establish if
he qualifies for refugee status. Given the propensity of the illegal immigrants
to lie about their backgrounds the identification process can become a
bureaucratic nightmare requiring years of investigation and even more so when
security considerations come into play.
Second, with Australia's asylum quota set at a fixed annual figure, every
illegal migrant-cum-refugee arriving in Australia takes up an asylum slot which
should normally be reserved for a desperate refugee in dire need or in a
refugee camp elsewhere in the world who is waiting to come to Australia
legally. It is therefore the needy and downtrodden who pay the price for what
is in effect queue jumping by those who can afford to do so.
Third, illegal movement fuels a worldwide industry devoted to people smuggling.
This is made up of multinational organizations, which, for a fee, will ensure
comprehensive movement including transportation, the provision of false
documents and the bribery of border control officials from countries of origin
such as Iraq, Sri Lanka or Pakistan all the way to Australia.
The collection area for the illegal immigrants is Malaysia, from where they are
transported in batches onwards to Australia. Some 10 years ago, people
smugglers used large ships but as these were relatively easy to identify and
intercept the preference today is for an increased number of smaller boats.
Thus, in 2010 a total of 82 boats were identified carrying an average of 47
illegal immigrants for a total of 3,934 passengers. With the cost of illegal
movement to Australia estimated at between US$5,000 and $10 000 per person,
these, by the standards of the region were the super affluent who could afford
the expense and the queue jumping that it provided. As for the smugglers,
illegal movement to Australia is conservatively estimated at providing them
with a net profit of some $20 to $30 million per year.
While all successive Australian governments have tried, in one way or another,
to combat illegal immigration they all knew their options were limited and that
under a different veneer all they could do was to create conditions that, while
abiding by a minimum of humanitarian standards, would make illegal migration as
unappealing as possible.
One approach, which still endures, is to place illegal migrants, including
those who apply for asylum, in detention in the Woomera center while their
status is established. Subsequently, those qualifying for refugee status are
expected to be released and those who do not, repatriated at least on paper.
However, with most of the detainees lying about their background and origin,
the detention center has become a nightmare to manage with rioting the rule and
demonstrations by fringe groups demanding the unconditional release of the
The other approach was to deny the illegal immigrants access to Australia
proper and to implement a policy by which their claim to refugee status and
thus to asylum would be determined offshore.
It was in line with this principal that in 2001, the John Howard government
adopted the so-called "Pacific Solution"; all illegal arrivals would be
intercepted at sea by the Australian navy and transported directly to the
island of Narau. There, they would undergo a Refugee Determination Procedure
and those who qualified would be eligible for resettlement in Australia. The
upshot of the "Pacific Solution" was practically instantaneous. Illegal
arrivals, which had totaled 5,516 in 2001, fell to one in 2002 and did not
significantly pick up in the years after.
In December 2007, the Labor government came to power and with great fanfare the
"Pacific solution" was consigned to the bin. The consequences were not slow in
coming. By 2009 illegal arrival resumed and reached the figure of some 2,700
escalating to 3,934 in 2010.
With public opinion increasingly concerned by the number of illegal arrivals,
the Gillard government came under strong pressure to act decisively and the
result was a carbon copy of the "Pacific Solution" albeit under a different
label namely the "Malaysian Solution". Under this provision all illegal
arrivals would be moved for screening to Malaysia. In addition, Australia would
increase by 4,000 its annual intake of refugees with this quota essentially
allocated to Malaysia.
With the "Malaysian Solution" no different from the "Pacific Solution" in
substance, few foresaw any obstacles to its implementation when Australia's
High court struck. On August 31, following an appeal orchestrated by a number
of NGOs, the High Court overturned Gillard's "Malaysian Solution" arguing that
it contravened Australia's administrative law due to the fact that Malaysia was
not a party to the 1951 Refugee Convention and there were therefore, legally,
no guarantees that asylum claims would be properly adjudicated.
While the High Court's decision sent a shock wave through the Gillard
government, internationally it was received with amused disbelief. In
substance, the Refugee Convention has essentially two basic provisions; that
any individual requesting to be recognized as a refugee - an asylum seeker - be
given a fair hearing and that any person recognized as a refugee not be sent to
a country where he might be subject to persecution.
The first of these provisions has been overtaken by events. With practically
every illegal immigrant claiming refugee status in order to starve off
deportation or benefit from social welfare, industrialized democracies have set
up considerable safeguards so as to ensure that manifestly unfounded cases do
not clog refugee procedures. The second provision however is acknowledged as
With both these conditions being met by Malaysia the fact that it has not
technically adhered to the convention is of little relevance. India is not a
party to the convention either but as it expels no one it can be argued that it
is one step ahead of them. Japan is a party to the convention, but its
procedure is so restrictive that since 1982 it has accepted an average of some
18 refugees per year.
Conversely, while Malaysia is not a signatory to the convention, during the
boat people crisis tens of thousands of Vietnamese had their refugee claims
adjudicated in the country and no significant fault was found in that
procedure. And as regards social services, not only would none of the asylum
seekers, which Australia planned to move to Malaysia, be kept in detention but
they would also enjoy the full spectrum of assistance required.
And as for their claim to refugee status, this would be adjudicated by the
United Nations High Commissioner for Refugees, the UN refugee agency, rather
than by the Malaysian authorities. The end result is that moving the asylum
seekers to Malaysia would provide them with a better social and legal
environment than if they had been moved to a country like Yemen, which has
adhered to the Refugee Convention but lacks both the means and the will to
Why would the Austrian high court hinge its decision on the legalistic concept
of adhesion to the Refugee Convention rather than how the principals embodied
in the convention are implemented is a matter of conjunction? And so is the
question as to why no group in Australia brought the Howard government to court
over the "Pacific Solution" whereas action was taken when the Gillard
government sought to implement the "Malaysian Solution".
Ultimately, given both the social and procedural guarantees embodied in the
"Malaysian Solution", it seems obvious that what is at stake is not so much a
humanitarian issue as rather a fratricide war between Australia's left and
Australia's extreme left.
The end result is a political defeat for the Gillard government, which has been
sent back to the drawing board as regards an asylum-cum-migration policy. But
beyond politics, the real losers are the genuine refugees who will have lost an
additional 4,000 asylum slots to Australia. The winners are the affluent who
can afford to pay people-smugglers to help them jump the cue; and, last but not
least the people smugglers themselves for whom it will be business as usual
until Australia comes to terms with a coherent policy.