Deterring asylum

Australian refugee policy is characterised by confusion and conflict. In its goals it is torn between protecting the world’s most vulnerable, protecting the country’s borders, and protecting political positions. Its treatment of asylum seekers is perceived sometimes as administrative necessity, sometimes as deterrence, sometimes as punishment, and sometimes even as a means to preserve the cultural status quo.

Below I look at the present state of the policy in general, and some of the confused motivations behind it. I will not look at offshore processing at all.


How are we deterring?

1. Detention

Since mandatory detention of boat arrivals began as a temporary measure in 1992, the official justification for the practice has been to enable “health, character and security checks” and ensure that “those who do not have authority to be in Australia are available for removal”. But even at the outset, that mild aim did not gel with the stated intention of the legislation, which then Minister for Immigration, Gerry Hand, described as “that a clear signal be sent that migration to Australia may not be achieved by simply arriving in this country and expecting to be allowed into the community”. Since then the talk has only got tougher.

I’ve visited several detention centres, including the horrific Woomera, and I know that the violence that happened there has been repeated and will inevitably happen again and again, particularly at isolated locations. The structure of the institution itself, and the sheer length of the detention, leads inevitably to brutality. It is simply not justified by the official arguments for why it is needed. It is only justified if we accept that, like judicially-imposed imprisonment, it is meant as a punishment and a deterrent to others. But to impose this without a trial raises intractable legal and moral problems.

The notion of deterrence is borrowed from law-enforcement. But no-one is breaking the law here, except perhaps Australia.

On the several occasions when Australia has been prosecuted before the International Court of Justice over our use of detention (for example, the Shams case), we have tried to argue that the detention is purely administrative, despite selling it as punitive to domestic audiences. The ICJ has never bought that argument, and has ruled that we have violated human rights and international law by punishing innocent people. So far we have ignored these rulings, despite claims to good global citizenship.

2. Coalition policy

The Coalition’s proposed 2013 refugee legislation seeks to retrospectively remove asylum seekers’ access to the courts and any chance of being granted asylum, resulting in greater powers of detention and removal. Retrospectivity is bad enough as a principle, but admittedly has been applied in the past, albeit with distaste. But the more fundamental right of habeas corpus is rarely, if ever, openly compromised by civilised nations. No matter how great a perceived need for deterrence, it violates that fundamental principle to arbitrarily detain and otherwise punish innocent people.

Successive recent High Court judgments in refugee cases have also been increasingly scathing of Government attempts to circumvent fundamental rights. Contrary to popular belief, judges are very conservative and respectful of the parliament’s intentions, but they also feel a deep duty to the rule of law. They have made some tough decisions, for example, even regretfully allowing the government to indefinitely detain stateless persons because the wording of the statute allowed no other interpretation. But they have been impatient with detention as a form of de facto punishment, and have drawn the line at attempts to remove people’s access to the courts. This is why the Coalition’s new policy is likely to collapse at the first legal challenge.

But the more we hack away at the roots of our own civilisation, the more we resemble the cartoon cat in a tree, who tries to escape the cartoon dog by sawing off the branch he himself is standing on.


Why are we deterring?

1. Drowning

This is probably the only thing on which almost everyone agrees: the boat journeys are dangerous and should not be undertaken. But while there are precedents for imposing legal sanctions to deter self-risk, lengthy imprisonment is not among them. There is a limit to what level of deterrence is proportionate to the goal of persuading people to have regard for their own safety, a limit we exceeded long ago. Given that the boats are still coming, it has not been effective. As I will argue later, there are other ways to prevent such journeys.

This motivation for applying deterrence is unique in that it doesn’t suggest wrongdoing on the part of asylum-seekers. Those below, in contrast, are based on a belief that those who receive the deterrence also deserve it as a form of punishment.

2. Queue jumping

This is the view that asylum seekers should wait their turn in UN refugee camps. The common reply that “there is no queue” is a simplification, but it is shorthand for a complex reality: that a queue in which you could wait for a decade and still not be selected is not a viable option. The UNHRC’s queue is need-based, but Australia does not take people on that basis: we have our own criteria for whom we accept including age, skills, family status and health. Consequently some will never be selected.

Further, the Howard government’s decision to subtract boat arrivals from the humanitarian quota could easily be reversed, and the notional queue would disappear in a puff of administrative smoke.

It is often asserted that passing through other countries between the point of origin and Australia is a form of queue jumping, but as far as I know, there is no currently-used route from a source country to Australia which involves passing through a Refugee Convention country.

In any case, It is difficult to see how these concerns are unique to boat arrivals.

3. Economic migration

The claim that boat arrivals are “economic migrants” raises the question of why we receive so few refugees from many of the world’s poorest countries, excepting those affected by war. (To be fair, Russia and China are not war-torn, but they do have persecuted minorities.)

The related claim that anyone who can pay for a boat trip is too rich to be a genuine refugee, apart from undermining the previous claim, raises the question of how this purported wealth guarantees immunity from the effects of war or persecution.

Again, it is hard to see how either of these claims apply uniquely to boat arrivals.

It is tempting to reply to these claims with “there’s no such thing as an economic migrant”. Of course, it isn’t that simple.

But imagine you are a member of some group which is discriminated against, and you apply for asylum in Australia. You need to establish a “well-founded fear of persecution”. If the discrimination means you can’t get a decent job, is that persecution? What if the consequence of that is that your children are hungry, is it persecution now? What if it means you or some of your family may become ill or die? What if the discrimination is a deliberate systematic practice by the state? What if nothing has actually happened to you, but some of your peers have protested and triggered a crackdown, is it persecution yet?

My point is that there is a continuum from economic migration to asylum seeking, and no bright line between discrimination and persecution. But it is a stretch to somehow deduce from this that any significant proportion of successful applicants are primarily economic. For that you need evidence.

4. Gaming the system

It is often claimed either that asylum seekers are schooled in how to “game” the system, or alternatively that the DIAC decision process (including the several layers of review) is too soft.

Of course, there is room for rational disagreement on quantitative issues: what proportion of asylum seekers are in fact economic, by whatever definition, and whether that proportion is accurately reflected in the outcomes. This can only be resolved by looking at evidence. But often, allegations of gaming are simply deduced from the success rates of asylum applications.

A high overturn rate at appeal is typical of any judicial system which has legally untrained administrators at the bottom level – like the Magistrates Courts were 20 years ago. If, say, 80% of decisions are overturned, that doesn’t mean 80% of the original decisions were wrong, but 80% of those that went to appeal – presumably they went to appeal for a reason. Nor does it suggest the appellate body is too soft.

DIAC figures show that for non-maritime irregular arrivals, the initial success rates are about 25%, going up to about 45% on final appeal. For maritime arrivals, the initial figure fluctuates wildly – it seems to be subject to varying political pressure – from about 45-85%, but steadies at about 90% on appeal.

Unless we want to argue that the higher levels of the judicial system are less competent than the lower ones, this suggest that if anything, maritime arrivals are gaming a good deal less than other arrivals, whom we hear almost nothing about. (This is not to suggest that a failed application necessarily implies gaming).

While DIAC must meet Australia’s legal obligations, there is plenty of political pressure in the opposite direction. In fact there is clear statistical evidence that the success rate of appeals varies when the Minister changes, when the adjudicators’ contracts are due for renewal, and even in response to Ministerial statements about the success rates.

In short, I don’t see what DIAC’s motive would be for going soft on economic migrants; and I know from experience that they are no hotbed of bleeding hearts.

In the absence of evidence to the contrary, I am more inclined to accept that the decisions are for the most part correct . No doubt mistakes are made in both directions, but I certainly hope the error is on the side of generosity. What I don’t see in any of this are signs that the evidence bar is too low.

5. Jingoism

There are some elements of this debate which I have little patience for. One is the pseudo-militarisation of the issue with jingoistic hyperbole about “border security” and “sovereignty”. The other is the related “culture war” narrative, where refugee issues are conflated with a generalised opposition to immigration from certain countries, based on a conviction that it is alien to Australia’s nature. The range of countries proscribed varies according to how extreme the view is. We’ve now moved beyond facts, through the looking glass into a world of assumptions about ethnicity, culture and nationalism.

My answer to that is a) it is irrelevant to refugee policy, and b) who says what Australia should be in the future? You can’t control a culture except by unacceptable means, for example the old Soviets’ state control of the arts, or Australia’s erstwhile White Australia policy.

I know there are people who hold sincere fears around the issue of religious and cultural integration, but as the history of Australian migration shows, it is an irrational fear which should be acknowledged as such, rather than pandered to.

What I am seeing instead is politically-motivated conservatives praising such attitudes with faint condemnation, or even explicitly fomenting it.

Religion can never be a criterion for migration because we live in a secular democracy. There may well be a tiny handful of Muslims who would like to change that, but they have no chance of success. The nearest thing to any kind of real threat to secularity is the several established Christian groups with political ambitions; some of them even win seats in Parliament from time to time.

Consequently, I reject the “Sharia menace”. It is just another face of the same wrong-headed, irrational fear of immigrants which I have witnessed many times already in my lifetime. It passes.


A global solution

If we succeed in deterring asylum seekers, do they just disappear? If not, where do they go?

I’m not saying “let the boats come”. I’m saying the problem will never be solved by any one country’s domestic policy, least of all by brutal measures that undermine our own values. A coordinated effort is needed, by nations lucky enough to be prosperous and peaceful, to empty the camps we so enthusiastically helped to fill. Empty camps mean no boats, and everybody’s happy except the xenophobes, and they’re never happy. A huge task, but history shows that in the long run we will all benefit.

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