Australia’s controversial asylum policies
Read story at The Diplomat here or below. Published December, 2015.
“For those who’ve come across the seas, we’ve boundless plains to share,” goes the Australian national anthem. This is true, unless you are an asylum seeker. Despite the 1951 Refugee Convention stating that people should not be punished for their method of arrival when seeking asylum, for years Australia has been cracking down on those coming across the seas.
From offshore processing and boat turn-backs to law reforms that let Australia breach its non-refoulement responsibilities and that have chilling implications for potential whistle-blowers, Australia’s policies disrespect peoples’ right to seek asylum and disregard international laws that have human rights and protection for the vulnerable at their core.
An Overview of Offshore Detention
People who arrive by air in Australia with a valid visa such as a tourist or student visa and then apply for asylum are generally granted a bridging visa and are allowed to live within the community while their claims are assessed. Protection visas for those who apply in this way are approved in about 45 percent of cases annually. In contrast, asylum seekers who come by sea are either intercepted and turned back or transferred to Australian-funded detention centres in Pacific Island nations such as The Republic of Nauru or Manus Province, Papuan New Guinea. They will never be allowed to resettle in Australia even if they are found to be genuine refugees. More than 90 percent of asylum seekers arriving by boat are assessed to be refugees.
In 2013, the United Nations Refugee Agency (UNHCR) reported that offshore processing centres, both in Nauru and in Papua New Guinea, “do not provide safe and humane conditions of treatment in detention,” constitute arbitrary detention under international law and do not provide for adequate and timely solutions for asylum seekers. UN special rapporteur on torture, Juan Méndez, has raised concerns about Australia’s violation of the rights of asylum seekers in relation to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; and the treaty body has called for the required standards of protection to be afforded to all people seeking asylum, regardless of their mode of arrival.
The offshore centres have come with a string of tragedies and controversies.
Last year Iranian asylum seeker Reza Barati was murdered, allegedly by security guards. Dozens of others were injured during the same unrest, on Manus Island, that also apparently involved police and locals who entered the camp.
Another Iranian asylum seeker on Manus, called Hamid Kehazaei, died after delays in getting him proper treatment for a blister that turned septic.
Cases of sexual abuse against asylum seekers and refugees, including against children, have surfaced from Nauru. In October, Office of the UN High Commissioner for Human Rights (OHCHR) spokesperson, Rupert Colville expressed concern about reports that Nauru police have failed to take action against alleged perpetrators of sexual violence, including that “impunity for such serious crimes increases the risk they will be repeated.”
A national inquiry into children in detention culminated with a 2014 report, The Forgotten Children. It found that, “Children on Nauru are suffering from extreme levels of physical, emotional, psychological and developmental distress.” The report notes that Australia’s policies are in breach of the Convention on the Rights of the Child and raises concern that detention is mandatory and without a time limit. Latest figures show there are still 92 children at the processing center on Nauru.
The UNHCR said the detention of people seeking protection should be a measure of last resort. Yet, it remains the Australian government’s preferred response – by punishing asylum seekers, in many cases already traumatized people who have fled persecution, with intolerable living conditions it is deterring others from coming. This is the government’s way of “saving lives at sea.”
While no one wants to see people drowning at sea, it’s also clear that Australia’s policies are far from, “The most humanitarian, the most decent, the most compassionate thing you can do,” as former prime minister Tony Abbott has claimed.
Abbott told ABC radio, “As long as people think that if they can get here they can stay here, we’ll have the illegal trade, we’ll have the people-smugglers in business and we’ll have the tragedies at sea. If you want to keep people safe you’ve got to stop illegal migration and that’s what we’ve done.”
A recent change of prime minister in Australia from Abbott to Malcolm Turnbull has seen an ease of the three-word slogans such as “Stop the Boats” but a continuation of the same policy.
Speaking with the ABC in September, Turnbull said, “We’re concerned that people are detained there [Nauru and PNG], naturally it is not an ideal environment, we are doing everything we can to encourage them to return to where they came [from] and the government is actively looking at means of resettling them, whether it is in PNG, or indeed in Cambodia or looking at other options.”
Last year, Australia signed a $55 million deal with the Cambodian government to resettle refugees from Nauru. Under the agreement, refugees must voluntarily choose to take this option. So far, just four have. A Cambodian official recently announced the government is ready to accept more refugees, in groups of four or five. But convincing the refugees to resettle in Cambodia has not proven easy.
Countries that agree to resettle refugees under a deal with Australia must have signed the Refugee Convention, leaving few options in the Asia-Pacific region. The Philippines recently declined Australia’s request, due to lack of capacity. And Kyrgyzstan is on a list of nations reportedly being considered.
What’s Happening at Sea?
Operation Sovereign Borders puts military forces in charge of intercepting and towing or turning boats back to where they came from, often Indonesia (which has not signed the Refugee Convention).
What goes on at sea is veiled in secrecy, with the government refusing to answer questions relating to “operational matters.”
Last month, the Australian Navy sent a boat of asylum seekers that came within 200 meters of Christmas Island (Australian territory) back to Indonesia. According to media accounts, the boat ran out of fuel off the Indonesian coast before eventually washing up on a beach. A police officer who assisted the asylum seekers told Fairfax Media, “They could’ve died if they sunk or if no one found them.”
A recent report by Amnesty International details evidence that Australian officials intercepted a boat heading to New Zealand and paid the crew to take its passengers back to Indonesia. Amnesty International interviewed the men who received the money, as well as the passengers, in Indonesia. Local police, the report says, showed Amnesty the approximately $32,000 they confiscated from the crew. Australian government ministers dismissed the evidence.
Earlier this year, contentious legal changes – the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 – came into effect. Among a range of measures, the legislation increases the government’s powers to detain people at sea and to return them to other countries, while limiting avenues for judicial review. Australia is party to multiple treaties that codify its international obligations, including the fundamental obligation of not returning anyone to a country where their life or freedom would be at risk. This is known as non-refoulement. The changes included removing references to the Refugee Convention from the country’s Migration Act and inserting new paragraphs that authorize violation of non-refoulement obligations, including that it’s “an officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen…irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.”
Executive manager of the Kaldor Centre for International Refugee Law, Frances Voon, told The Diplomat that, “it is not open to Australia to devise its own idiosyncratic interpretation of its obligations under the Refugee Convention.”
“This is contrary to the requirement that States interpret their treaty obligations ‘in good faith’. This legislation authorizes the removal of a person from Australian territory even where this is in breach of Australia’s non-refoulement obligations, presenting a significant risk that Australia may return people to persecution or significant harm.”
The UN Committee Against Torture shares this concern, saying turning back boats could see asylum seekers sent to countries where they face a substantial risk of torture. Last year, Australian authorities intercepted a boatload of Sri Lankan asylum seekers and handed these people over to the Sri Lankan Navy after an “enhanced screening” process at sea. Media reports indicate the asylum seekers were asked just four questions via teleconference with officials in Sydney and Melbourne.
Voon said there is very little information available to the public about how such screening is carried out, due to the government’s policy of not commenting upon “on water matters.”
“In any event, UNHCR has stated that as a general rule, the processing of asylum claims at sea is not appropriate due to the practical difficulty of ensuring compliance with relevant international standards in such circumstances.”
Border Force Act
Earlier this year, the government introduced a law called the Border Force Act that threatens contractors, including doctors, with two years prison if they speak out about abuse discovered while working for the immigration department. Australian barrister and human rights activist Julian Burnside described the “chilling effect” this creates, “It is fairly clear that all this is intended to discourage people in the detention system from speaking out.” There is a defense for the disclosure of information done for the purpose of “lessening a perceived serious threat to the life or health of other detainees.” However, human rights lawyer George Newhouse said to determine whether they will be covered by the defense provision, “whistleblowers have to make complex legal assessments about whether their disclosure has been ‘adequately dealt with’ under internal review procedures before they can speak out.” Furthermore, the whistleblower protection does not cover workers outside of Australia, such as in Nauru or Papua New Guinea.
The UN special rapporteur on the human rights of migrants, Francois Crépeau, recently cancelled his visit to Australia because of the risk the Border Force Act poses to service providers who disclose “protected information.” He said the threat of reprisals was unacceptable. “The Act prevents me from fully and freely carrying out my duties during the visit, as required by the UN guidelines for independent experts carrying out their country visits.”
And now, in an effort toward transparency, and to circumvent the Border Force Act, Greens and Labor politicians have established an inquiry into offshore detention centers that will allow whistleblowers to disclose information under the protection of parliamentary privilege.
Restricted Media Access to Nauru
In 2014, the Nauruan Government hiked its media visa application price from AUD200 to AUD8000 ($147 to $5862), which is non-refundable in the case of rejection. This is an increase of 4000 percent.
Visa requests, to enable reporting from Nauru, by media organizations such as Al Jazeera and the ABC have been refused, while the Guardian’s inquiry for information about obtaining a visa was ignored. The ABC’s Ginny Stein said even before submitting her application she was informed that it had been rejected.
However, in October, the first foreign journalist in 18 months was granted access. In one piece, associate editor of The Australian, Chris Kenny criticizes foreign media outlets for airing complaints from asylum seekers in Nauru without actually being on the ground to verify them, while at the same time acknowledging that he is the first foreign journalist to be allowed to the island nation in almost two years. Kenny mentions that his support for strong border protection policies may have contributed to his application’s success. News Corp declined to reveal to the Guardian whether it paid the $8000 visa fee.
Not only are journalists barred from accessing Nauru but their questions to its government are also met with resistance. In an October press release, Justice Minister David Adeang said the reason the government refuses to answer many of the “ridiculous” questions posed to it by Australian journalists is because, “Nauru has no obligation to answer to Australian media…They do not show us the respect of a sovereign nation and in return we have little respect for them.”
In April, the Nauruan government enforced a ban on Facebook citing its power to: “disrupt, embarrass, destroy one’s reputation and to create instability.”
Responding to the ban, former Nauruan President Sprent Dabwido was quoted in the Guardian saying: “We’ve seen what he’s done [president Baron Waqa] to our local media by taking away its independence and turning it into his personal mouthpiece.” Adding, “When he finds he can’t do that with outside media, he refuses them entry, or simply won’t respond to their telephone inquiries.”
A group of refugee teenagers and children, using proxy servers, recently launched a Facebook page called “Free the Children NAURU” which attracted more than 24,000 likes in just 48 hours. A post from November reads, “We are very tired and now they are building new accommodation and we think they want to tell you that it is good now. But it’s not good because all of Nauru is like a gaol.”
Kenny, in his reporting from Nauru, writes, “Too many children are choosing to stay in the centers in the day rather than leave to attend school. It is not the children being detained that strikes me as the pressing welfare problem, but their refusal to take daily opportunities to leave.”
This contrasts starkly with an ABC account that, “Many asylum seeker and refugee children do not go to school on Nauru, complaining about teaching standards at local schools and harassment from other students.”
The Diplomat contacted the Free the Children NAURU group, via email, and was given information by someone who has worked with the children and is considered a “trusted adult” by their parents. They asked to remain anonymous due to possible repercussions.
Among an extensive list of reasons for the children not going to school, including language barriers and water restrictions, they wrote that children had experienced sexual harassment and discrimination while attending the local schools. After reporting an incident of inappropriate touching to the principal, a girl was allegedly threatened by the accused boy with a knife. The asylum seeker and refugee children have relayed to the source that teachers do not intervene when they witness such incidents. Others have complained of taunts such as, “this is not your country,” “you are ugly refugees” and “we don’t want you here.” The contact said in the beginning attendance of children from the processing center at the local schools was about 80 percent and this is now down to about 10 percent. “Chris Kenny’s comments could not be further from the truth. Aside from freedom, the asylum seekers and refugees parents and children place education as the opportunity they value the most,” the source said.
Australia’s human rights record was recently reviewed at a UN Human Rights Council session, where it drew resounding criticism from a sizeable list of countries. Sweden’s delegate said Australia was the only country in the world that used offshore processing and mandatory detention. Speaking about the review, Professor Sarah Joseph from the Castan Centre told the ABC “it was manifestly clear that we are not role models on issues of asylum. We are pariahs.”
When it comes to human rights Australia is limiting itself to a “do what I say and not what I do” approach to regional leadership. Australia is compromising its ability to call out the abuses of other states, not only for being hypocritical, but also because the government needs the cooperation of states such as Indonesia, Sri Lanka and Cambodia to ensure it can carry out its strict asylum policies.
Last year, Human Rights Watch reports, Australia opposed the Council’s resolution to establish an inquiry into series human rights abuses in the Asia-Pacific region, “including the deaths of up to 40,000 civilians in the final months of Sri Lanka’s civil war.” New prime minister Ranil Wickremesinghe later said, “Australia’s silence on human rights issues was the price it paid for Sri Lanka’s assistance in preventing ethnic Tamil asylum seekers fleeing to Australia.”
And while Australia’s policies do not make sense from a humanitarian point of view, they also appear irrational from an economic perspective. The national commission of audit report shows it costs more than AUD400,000 per year to keep one person in offshore detention. A Guardian article notes that letting the same person live in the community would cost less than AUD40,000. The article also details research by the International Detention Coalition, highlighting that Australia pays more than three times the amount of countries such as Austria and Canada, per day, to keep asylum seekers in immigration detention. This is attributed to the high cost of running detention centers in remote places.
Director of legal advocacy at the Human Rights Law Centre, Daniel Webb said, “We’re currently spending $1 billion a year detaining asylum seekers offshore. That’s more than five times the United Nations refugee agency’s entire budget for all of South East Asia.”
And while Australia cruelly and wastefully spends time and money exporting its refugee protection responsibilities to other, less well-off, nations it has also slashed the foreign aid budget by about 20 percent in 2015-2016. The largest cut ever.
Changes on the Horizon?
A glimmer of hope comes in the form of an amended Senate bill, championed by the Greens, which, if passed through the House of Representatives, would require all children (on the Australian mainland) to be released from immigration detention, allow media to access detention centers, and reverse the Border Force Act. Unfortunately, this does not help the children on Nauru. But, if passed, the bill would at least go some way in bringing transparency back to a controversial system that is cloaked in secrecy.
Australia’s policy of “keeping people safe” by stopping “illegal migration” involves turning their boats back at great risk and sending individuals to places that are inadequately equipped to process, protect and integrate them. These policies vilify people seeking asylum as “illegals,” dehumanizing them, making harsh policies more palatable to the Australian public. But is it really a choice between deaths at sea and draconian style policies that cause immense human suffering and despair? Greens politician Adam Bandt has called for finding a more humane solution, “We can find a better way that allows people to come here, through safer pathways, so they don’t die at sea and so we don’t lock them up and destroy lives.” As prominent barrister and refugee advocate Julian Burnside has said, “It is shameful that we are now trying to treat asylum seekers so harshly that they will be deterred from seeking our help at all.” He offers alternatives here.