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Seeking a Christian Response on the Refugee Highway

Frank Brennan SJ

St Hilary's Anglican Church
20 July 2002

Australia is one of the few developed countries which maintains a strong immigration program. The government rightly claims that the program for 2002-3 "will be the largest and most highly skilled in over a decade, with a planning level set in the range of 100,000 to 110,000 places". The winners are those who come in the skills stream which is designed to help business and the national economy. Next year we will take 60,700 new migrants in the skills stream. There is no appreciable increase in the family reunion stream with the result that 58 per cent of our new migrants will come in the skills stream. Before the Howard government came to power, the skills stream accounted for only 29 per cent of our new migrant intake.

Even countries which do not have a migration program have to do their part in offering asylum to those who arrive on their shores (or in their territorial waters) seeking protection, fleeing persecution in their home countries. Countries also have an obligation to do their part in supporting multilateral efforts to provide protection to refugees who have fled from their homes into neighbouring countries which often are just as war torn and impoverished as the countries from which they have fled. Our government has just slashed its UNHCR contribution from $14million per year to $7 million per year, the balance being claimable through a refugee fund with strings attached.

An island continent nation like Australia enjoys the advantage of having secure borders. Given our geographic isolation, very few people turn up on our shores as the first port of call for asylum. But it may still be the first port of call that offers any real hope of secure protection. The present government policy is posited on Australia providing humanitarian assistance to 12,000 persons each year. 4,000 of them will be refugees who have fled their homes fearing persecution because of discrimination meted out to their particular group. If we follow last year's trend, 43% of the successful offshore applicants will be from Europe, indicating that those who get to the head of the off-shore queue are not necessarily those in greatest need or those refugees closest to our shores. Location and racial identity count for something in this lottery. The other 8,000 will be persons, usually with some prior connection to Australia, who are coming from humanitarian disaster situations which affect all residents in the area indiscriminately. The government would prefer that all refugees came through an off-shore assessment program which gives the government maximum flexibility to choose refugees who fit the government's preferred migration outcomes.

It is common ground that it is contrary to international law and immoral to punish refugees on arrival simply because they do not have the requisite national visa. Australia, though a signatory to the Refugees Convention, now takes the view that no one turning up in a boat is here seeking asylum at the first port of call. Everyone who comes by boat is stereotyped as a queue jumper who could have waited in some other country with protection, awaiting their turn. They are then classed not as refugees but as back door travellers seeking a migration outcome or what is now termed a "Convention plus" outcome. The government is anxious to ensure that its commitment to honouring its convention obligations is combined with a hierarchy of privilege which encourages refugees to remain at source. Once the system is working well, refugees at source who are then offered protection in Australia will be granted a permanent visa. Those who apply successfully from a transit country will obtain a five year visa. And those who come ashore in Australia without being previously selected by government will receive only a three year renewable protection visa which does not permit family reunion. The government insists on its generosity to those who come via the front door, claiming that such generosity cannot be maintained if people continue knocking on the back door.

Having done this stereotyping, the government then claims to be justified in punishing and deterring such back door behaviour by taking these persons straight into protracted detention in remote desert locations or even worse, into detention on remote Pacific Islands whose leaders have been attracted to a cheque book solution in breach of their own constitutions. The government is scrupulous to insist that these policies are not designed to be punitive or a deterrent because the High Court of Australia ten years ago in Lim's Case said that such detention would be unconstitutional unless approved or reviewable by the courts. So the word games disguise the actual purpose of policies designed to deter and punish people attempting entry by the back door. Those who get through the back door are eligible only for a temporary protection visa (TPV) which denies them the right to be reunited with their families and denies them the right to travel out of Australia and to return. The result is that wives and children have no option but to get on the next boat and come knocking at the back door. Some of them have husbands and fathers lawfully residing in the Australian community. The TPV holder is offered only three years protection in the first instance.

Minister Ruddock has formally advised that the facilities on Manus Island and Nauru "are not detention centres". And yet the recently enacted Migration Legislation Amendment (Transitional Movement) Act 2002 speaks of "the detention of the person in a country in respect of which a declaration is in force (s. 198D(3)(c))". And the bills digest for the Migration Legislation Amendment (Transitional Movement) Bill 2002 speaks of the removal of persons "to a place such as a 'Pacific Solution' detention facility on Nauru or Papua New Guinea". Even the government's robust barrister Senator George Brandis and Mr John Hodges, the Chair of Mr Ruddock's Detention Advisory Group, in the Senate Select Committee on a Certain Maritime Incident, have referred to the "detention centres" in those places and the "detainees" kept therein. In his evidence on 1 May 2002, Mr Hodges said, "Nauru is by far the worst of the detention centres." Given the grave constitutional doubts about the legality of migration detention in those places, the government should provide further elucidation about the legal advice received which assures citizens of the legality of this aspect of the Pacific solution. Presently our government shields itself behind the observation that no constitutional challenge has been mounted in Nauru and the PNG challenge was struck out on 6 May 2002 because lawyers failed to appear. There are still 1443 persons being held in detention in Nauru (1,103) and PNG (340).

Back here on the Australian mainland, there are grave doubts about the legality of the detention of those Palestinians and Iraqis who have been rejected and who have made written application to be removed from Australia, but who must wait in indeterminate detention through no fault of their own. Their indeterminate and unreviewable detention is not for a migration purpose. Given the post-September-11 situation, there is a need for regular independent review of the detention of these persons and for independent supervision of the departmental efforts to remove such persons in security. In Lim's Case ten years ago, the High Court upheld immigration detention in part because the detainee could exercise the option at any time to leave Australia. This fact has also been part of the government rationale for unreviewable detention. Post-September-11, this is no longer the case. Also at the time of Lim, there was a strict time limit on detention. There is a need for periodic judicial review of post-rejection detention, permitting the release of persons on bail provided they have fulfilled health, security and identity checks and provided the court is satisfied that any person bailed is likely to be available for a return to detention immediately prior to removal from Australia.

There are some persons found to be refugees who have been held in detention for an additional six months or more awaiting a character check. This is the case even when the detainee has done all in his power to co-operate with inquiries and after ASIO has made extensive inquiries. One such case was described as a "national disgrace" by a Federal Court judge last month. There should be a time limit on such ongoing detention such that a person is deemed to have passed the character check if authorities are unable to uncover adverse information on a person by that time.

The government continues to claim that "primary decision-makers are extremely well equipped to discharge their decision-making responsibilities. They receive extensive and specifically targeted training on Iraq and Afghanistan". But the statistics tell another story about our determination process which is still very protracted for those being held in detention, the overwhelming majority of whom are proved to be refugees (even conceding that the Afghan approval rate has gone down from 95% to 77% and the Iraqi rate from 90% to 79%). Between 1 July 2001 and 31 May 2002, the Refugee Review Tribunal (RRT) set aside 65% of all Afghan decisions appealed and 87% of all Iraqi decisions appealed. [So far this financial year, the RRT has set aside 114 of the 131 Iraqi decisions appealed and 193 of the 295 Afghan cases appealed.] Meanwhile it has set aside only 8% of decisions appealed by members of other ethnic groups (364 of 4413 cases). If you were an Afghan or Iraqi fronting up for a primary decision, how would you feel? The only explanation offered by government for these intolerable discrepancies is that Afghan and Iraqi cases are more dependent on issues of credibility and linguistic analysis which give rise to more room for legitimate differences of opinion by decision makers. So if you are an Afghan or and Iraqi, it is more like a lottery at the primary decision phase. No wonder Mr Ruddock doesn't want the judges looking at these cases.

The immorality and inequity in world burden sharing resulting from our present "slam the back door" policy is highlighted by a simple thought experiment. Imagine that every country signed the Refugee Convention and then adopted the Australian policy. No refugee would be able to flee from their country of persecution without first joining the mythical queue in their country of persecution to apply for a protection visa. If anyone dared to flee persecution, they would immediately be held in detention (probably for a year or so) awaiting a determination of their claim. All refugees in the world would be condemned to remain subject to persecution or to proceed straight to open-ended, judicially unreviewable detention. The purpose of the Refugee Convention would be completely thwarted. The myopic argument runs that we Australians are entitled to design a sledge hammer to crack this small nut because other countries have not (yet) adopted our policies and because we are prepared to take 4,000 applicants through the front door provided they stay in the queue back in the country of persecution.

Recently in the Sydney Morning Herald, Rear Admiral Smith refuted allegations by Margo Kingston in the following terms:

She accused (the navy) of deliberately turning their backs on people in peril, which is unfair. The Royal Australian Navy is a highly professional service which places the highest importance on the safety of life at sea and, whenever we are able, we will always respond to those in distress.

This is a laudable general policy which is difficult to square with the log of the HMAS Adelaide tabled in the Senate on 21 February 2002:

6 October:

  • 1813 (AEST 2113) First warning given to master of vessel.

7 October:

  • 0153 (AEST 0453) Second warning issued.
  • 216 Boarding party ordered by Commanding Officer to prepare to board SIEV 4 when vessel enters Christmas Island Contiguous Zone.
  • 258 Adelaide made close pass down SIEV4 starboard side.
  • 335 Adelaide directed by CJTF to conduct a positive and assertive boarding .
  • 402 Warning 5.56 mm (cannon) shots fired 50 feet in front of vessel.
  • 405 Warning 5.56 mm shots fired 75 feet in front of SIEV4.
  • 409 Warning 556 mm shots fired 50-100 feet in front of SIEV 4.
  • 414 Boarding party advised by CO that if 50 cal machine gun warning shots do not stop vessel, boarding party is to aggressively board SIEV 4.
  • 418-420 Twenty-three rounds of 50 cal (20 rounds of automatic fire) fired in front of SIEV 4 .
  • 430 Close quarters manoeuvering by Adelaide, SIEV passed close astern to Adelaide port quarter and reduced speed/took way off momentarily.
  • 432 Boarding party issued final warning (to SIEV) indicating that if they did not allow boarding party to board, Adelaide would not let them enter Australian waters.
  • 442 Boarding party effected a conducted non-compliant boarding of SIEV4.
  • 445 Boarding party in control of SIEV 4.

Since 1989, 259 boatloads of asylum seekers have landed on our shores. There was a sharp increase in 1999. 122 of the 259 boats have arrived since our intervention in East Timor. The two may not be unrelated. But now there have been no boats land on our shores since August last year. Since 1989, we have had 13,475 unauthorised boat arrivals - 1,000 a year, not quite an invasion or a threat for that matter, though admittedly the number went up to 4,000 pa prior to the Tampa incident.

If seeking to implement a Christian Response on the Refugee Highway, we might contemplate the present Australian version of the parable of Dives and Lazarus: (Lk 16:19-26 with a contemporary Australian gloss)

There was once a rich man, who dressed in purple and the finest linen, and feasted in great magnificence every day. At his gate covered with sores, lay a poor man named Lazarus, who would have been glad to satisfy his hunger with the scraps from the rich man's table. Even the dogs used to come and lick his sores. One day the poor man died and was carried away by the angels to be with Abraham. The rich man also died and was buried, and in Hades, where he was in torment, he looked up; and there, far away was Abraham with Lazarus beside him. "Abraham, my father," he called out, "take pity on me! Send Lazarus to dip the tip of his finger in water to cool my tongue, for I am in agony in this fire. And remember that I overlooked Lazarus at my door only because there were many other people on the other side of the world who were in even greater need. I wanted to dispense charity and justice in an orderly way, not rewarding queue jumpers like Lazarus who is now with you." But Abraham said, "Remember, my child, that all the good things fell to you while you were alive, and all the bad to Lazarus; now he has his consolation here and it is you who are in agony. But that is not all: there is a great chasm fixed between us; no one from our side who wants to reach you can cross it, and none may pass from your side to us."

If detention is to remain a cornerstone of Australian border protection and front door immigration entry, there is a need for alternative arrangements to render the present detention policy more humane and effective. Given the modesty of the problem confronting Australia, we would do well to ensure compliance with the standards set by other countries receiving far more asylum seekers across porous borders than we ever have. I propose three simple questions: Given that we have the advantage of geographic isolation, why don't we try to be just a little more decent rather than less decent than other countries with the same living standards when it comes to our treatment of those who arrive (whether with or without a visa) invoking our protection obligations? Or if that is judged too naïve, how about we aim to be just as decent as those who receive ten times more asylum seekers than we do? Or if that is too much to ask (given the fear driven mandate of the recent election), how about we limit our indecency to our treatment of adults, ensuring that never again are kids put in the line of batons and tear gas in the name of border protection, as they were at Woomera this last Easter?