What we should do now on asylum-seeker policy

August 04, 2012

There are no easy solutions for asylum-seekers or for policy-makers.There are no easy solutions for asylum-seekers or for policy-makers. Photo: Fairfax archive

ONE of the most troubling aspects of the refugee policy debate in this  country is the almost inevitable reduction of the problem to a  search for  ”solutions”.

Human Rights Activist and Advocate Mr. David Manne

No matter what the argument – processing people in Malaysia, Nauru, East  Timor or Australia – we end up with a contest over who has the best  ”solution”. The mantra is: find a solution, get all the key players to agree  on it, and the problem will be solved. But the stark  reality is that there are  no silver bullets.

Refugee policy is an area of immense complexity that does not lend itself to  quick-fix political proposals of the sort being suggested under the offshore  processing schemes before Parliament. Just as the myth of the orderly refugee  queue continues to be  peddled, the search for solutions perpetuates a gross  distortion infecting the public debate, and ultimately impeding the development  of sound policy.

The  problem with notions of an orderly  queue is that for most of the more  than 10 million refugees worldwide there are no queues, because there is no real  escape from their suffering. They endure  desperate environments in which  health, hope and basic humanity ebb away. Think Syria and Lebanon. Think  Afghanistan and Pakistan. These nations host millions  of people in peril. The  claim that those who come seeking our help should have waited their turn in line  is meaningless.

The debate would be much more constructive if the focus was  on tackling the  root causes behind the flight of refugees: the genuine desperation which pushes  people to take potentially deadly risks to find safety.

One  central factor  driving the search for solutions is the interminable  political jousting, which is largely about who can best stop the boats. This  contest has led to the current policy impasse, and the Prime Minister’s referral  of the issue to an expert panel.  It must be hoped that the panel’s report helps  us to stop talking about solutions and instead focus on the development of a  plan of action – not a perfect plan, but a realistic plan.

Millions  of people in our region are living in inhumane and intolerable  situations. Any plan must be about helping them. It must be about improving  protection and minimising harm for as many asylum seekers and refugees as  possible. And it must  tackle the critical issue of how to save lives at sea.  But the plan cannot be confined to this issue. Any plan must accept  that the  Refugees Convention that Australia has signed does not come with an on/off or  pause button. The simple but central fact is, we have committed to taking  responsibility for the protection of refugees who come here.

Under international law, Australia cannot subcontract out its obligations to  a client state. Asylum seekers cannot be sent elsewhere for processing unless  the same protections exist in law and in practice. Transfers are not outlawed,  but they come with strict conditions.

The same applies under Australian law, as the High Court ruled in the  Malaysia case, finding transfers unlawful  because Malaysia did not provide  protection to refugees backed by law. It’s  not about legal niceties which can  be dismissed as inconvenient or outdated in these trying times. These laws, and  the principles  underpinning them, have been carefully designed to provide real  protection to people in their daily lives.

As soon as we seek to press the pause button on these laws we  risk   seriously compromising the safety of the very people that the laws are meant to  protect. This is precisely the problem with Parliament’s proposals to circumvent  the High Court’s ruling in the Malaysia case to enable offshore processing in  Malaysia or Nauru. They risk violating our international legal obligations and  harming people who have fled from harm. They strip bare the basic protections  under our law so that a refugee could even be sent to  minefields such as   Syria, Afghanistan and Iraq without a requirement to first assess human rights  protections there.

Protections under the Malaysian solution would be no more than a political  promise without the backing of the law. Malaysia has long engaged in severe  mistreatment of refugees. I have seen the scars left on clients from beatings by  Malaysian authorities, including one man bludgeoned for pleading for his baby  boy’s birth to be registered. For me, the Malaysia case has always been about  getting the ordinary protection of the law in to help people when the policy was  about to fail them.

Nauru does not stand the legal test either. Its recent signing of the  Refugees Convention is not enough. Protection has to exist on the ground. It is  likely that the  inhumanity of indefinite incarceration without any guarantee of  resettlement to safety would be repeated.

The policies of both major parties are essentially about deterring asylum  seekers from coming to Australia by boat.  The logic underlying deterrence  policy is brutal: the more painful the penalty, the more effective the policy.  It becomes acceptable, if not necessary, to expel an unaccompanied child to  somewhere like Malaysia with no guarantees to protect their wellbeing or guard  against more abuse.  All that deterrence  does is divert people from our  doorstep to dangers elsewhere.

So what should be done? Australia can and must develop a plan for refugees  that has humanitarian outcomes at its heart. This must start with a focus on the  plight of refugees in our region – not on how to stop them getting here, but on  why they are trying to get here in the first place.  It is clear that we need to  build a better, co-operative system of protection in our neighbourhood – one  that encourages people who have fled their homelands to remain where they are  rather than risk their lives at sea.

Again, there are no off-the-shelf solutions.  And we must shoulder our  responsibilities rather than try to shift them on to our neighbours. Instead of  seeking to circumvent the High Court’s Malaysia ruling, it would be far better  to use its benchmarks to promote improved protection.  We should start by  increasing our refugee intake to at least 25,000 places a  year, with  priority  given to those with family in Australia. These places should not be reduced by  the numbers of those who seek asylum here. In addition, we should improve access  to fair processing of claims in the region, and increase resourcing of the   refugee support agencies through aid programs in countries such as  Indonesia  and Malaysia.

We need to accept that any plan will be far from perfect. It will be  incremental, and even very untidy at times. It will require patience and  persistence, not more knee-jerk solutions. Even if our Parliament doesn’t lay   down its arms over the issue, the expert panel has the opportunity to reframe  the debate away from illusory solutions to an innovative plan  that recognises  that in improving the plight of vulnerable people, we need not and should not  sacrifice the very standards of human rights protection which are designed to do  this.

We must extend a hand of help to those in need, rather than a hand that  shuns.

David Manne is executive director of the  Refugee & Immigration  Legal Centre. Twitter: @david-manne

This piece was originally published here: http://www.brisbanetimes.com.au/opinion/politics/what-we-should-do-now-on-asylumseeker-policy-20120803-23kzq.html#ixzz22UNwIkTg

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Filed under Analysis, Asylum Policy, Human Rights and Refugee Activists

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