Australia's Right to Protect its Borders and Secondary Movement
It is well recognised that Australia, as a sovereign state, has
the right to protect its borders and preserve that sovereignty.
The sovereignty of the nation is morally justifiable, however, only
if the nation state discharges its primary obligation to protect
the human rights and uphold the dignity of its citizens.
The right to protect Australia's borders and preserve its sovereignty
must be balanced against these other competing rights as well as
Australia's obligations under international Conventions to which
it is a signatory. There are two key rights and obligations that
must be taken into account in this balancing exercise. The obligation
on Australia under the Refugee Convention not to penalise a person
for their illegal entry or presence in Australia and the right refugees
have to be afforded real protection.
Under the Refugee Convention, Australia must not penalise a person
coming directly from a territory where their life or freedom was
threatened (within the meaning of the Refugee Convention) because
they entered, or are in, Australia illegally, provided they present
themselves without delay to the authorities and show good cause
for their illegal entry or presence.
Even though most of the asylum seekers who have arrived in Australian
territory by boat in the last few years have proved to be refugees,
the government argues that they have not come directly from
a territory where their life or freedom was threatened. In the government's
opinion, most (if not all) of the refugees have had protection available
to them in some other place en route. They continued their journey
not for protection but for a migration outcome, seeking a better
life in Australia. The government therefore claims that it is entitled
to impose penalties such as detention and the provision of a visa
with restrictive and discriminatory provisions because the government
presumes that they have all spent at least seven days in a country
where protection was available.
The Department of Immigration & Multicultural & Indigenous
Affairs (DIMIA) has recently stated:
In the view of the Australian Government, a person to whom Australia
owes protection will fall outside the scope of Article 31(1) if
he or she spent more than a short period of time in a third country
whilst travelling between the country of persecution and Australia,
and settled there in safety or was otherwise accorded protection,
or there was no good reason why they could not have sought and obtained
effective protection there. What amounts to a short period of time
will depend ultimately on the facts of a particular case.
Despite this statement, the government has arbitrarily set seven
days residence in a country as the cut-off for access to a permanent
protection visa, even if protection could have been sought only
through the offices of UNHCR in that country. Further, UNHCR is
generally not involved in providing physical protection to refugees.
Instead it relies heavily on the cooperation of states to assist
in providing this protection.
Does this mean that any refugee who has spent a week en route
in Indonesia waiting for a boat to Australia can be penalised and
denied a permanent protection visa because they could have gone
to Jakarta and joined the queue at the UNHCR office rather than
awaiting a boat in precarious circumstances? Given that Indonesia
is not a signatory to the Refugee Convention and that the country
is not governed by the rule of law, how can it credibly be argued
that boat people should stop their journey in Indonesia and enjoy
real and effective protection?
Australia's unilateral attempts to design punitive deterrents
to prevent secondary movement of refugees have not been welcomed
by UNHCR. Those who have suffered most as a result of Australia's
unilateral action have overwhelmingly been found to be refugees
and no security threat at all.
It is in the interests of the refugees of the world that we address
the problems of secondary movement and as has been suggested by
UNHCR's chief Ruud Lubbers that we "build an effective system
of international burden sharing, where governments are discouraged
from taking unilateral and punitive action, and where refugees are
able to rely on adequate protection and assistance within their
regions of origin. For to take punitive action is to shoot oneself
in the foot. It is not effective, and it only worsens the climate
between North and South."
Adopting a simplistic approach that few of the refugees that arrive
in Australia are deserving of protection because Australia is not
the first possible country in which they could seek protection does
not recognise that the aim of most refugees is to seek real protection
for themselves and that for a certain number of refugees Australia
is the first port of call on the only journey available to them
where they think there is the prospect of real protection.
It is wrong for government to design a punitive deterrent policy
based on the simplistic presumption that few if any refugees reaching
Australia could be seeking real protection at the first available
port of call. In times of crisis, Australia like all countries which
can offer real protection should be expected to pull its weight
in offering proper assessment and protection to those who come seeking
asylum. We should not go it alone in designing more punitive means
for deterring asylum seekers thereby punishing true refugees as
much as the handful of undoubted secondary moving economic migrants.
by Frank Brennan SJ AO.