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The Expert Panel on Asylum Seekers: A Response to the Response

Thursday, 30 August 2012  | Graeme Swincer

In commenting on the recently adopted recommendations of the ‘Expert Panel on Asylum Seekers’[1], I can do no better than borrow unashamedly from an article by Alex Pagliaro, of Amnesty International Australia[2]. Of course there is some subjectivity about any of our assessments, but I tend to endorse her analysis and affirm it from an avowedly Christian perspective.

For those who have been working with asylum seekers, many of us as volunteers, the report caught us by surprise. We did not think it possible for the lessons of experience and the advice of genuine “experts” to be so blatantly ignored. The Senate Joint Select Committee on Australia’s Immigration Detention Network[3] (report published April 2012) drew 154 submissions which almost universally condemned current and previous policies and called for new approaches based on honesty, humanitarian concern and understanding of the reasons behind people fleeing for their lives and then embarking on risky boat journeys.  Many of those contributors again had their say in July, being among the 137 who were consulted, and the 54 organisations and 320 individuals who sent submissions to the Expert Panel. Again there is little evidence of their key concerns being heeded.

Yet not all of the Panel recommendations were bad. We had the good, the bad and the ugly – and also the inadequate and the unconscionable.

The Good

Increasing our annual Humanitarian Program to 20,000 (from 13,750)
About time! Even better is the suggestion of increasing the intake to 27,000 by 2018.  “Now that’s Australia pulling its weight.” (Amnesty)

Increasing resettlement among both traditional and emerging receiving countries
This would mean giving financial assistance and exercising skilled diplomacy. While increasing Australia’s resettlement numbers is helpful, it must be remembered that there are 15 million refugees in the world – and even by the toughest criteria 800,000 of them desperately need resettlement. UNHCR only puts about 300,000 on their resettlement list (is this the famous “queue”?) at any one time, and less that 100,000 places are currently available each year in receptor countries. If all current refugees were placed in an orderly queue, the most recent arrivals would have to wait 135 years to reach the front. Who would not seek an alternative? Alleviation of the traffic jam can come by repatriation of some of the candidates when conditions become safe enough in countries of origin, but nowhere near enough such “improvements” are happening.   

De-linking onshore and offshore elements of the humanitarian program
Amnesty and many others have been asking for this for a number of years. Linking the numbers of refugees who are resettled from offshore (like refugee camps) with the number of refugees who seek asylum in Australia directly (boat and plane arrivals) is a political decision and is almost unique to Australia.  It has been unnecessary and confusing, so good riddance.

Implementing a thorough review of refugee status determination
This is desperately needed. I have long contended that the current process is deeply flawed and the ultimate source of much of the suffering and frustration of asylum seekers in detention. It needs to be much more professional and accountable and much less arbitrary, subjective, and politically influenced. 


The Bad
Changing the Migration Act to allow (unaccountable) offshore processing
This would mean eliminating the line that states Australia shouldn’t remove asylum seekers to any place where they will not be protected. Such a move will allow the Parliament to send Australia’s asylum seekers to anywhere it deems “safe”. So much for expressions of priority concern for ‘protecting people’.  

Reopening Nauru and Manus Island as soon as possible

History shows how those people we were meant to be protecting were in fact caused to suffer terribly in these places. This is well documented in many books and reports[4]. The mental health of hundreds of already vulnerable people was damaged, often beyond recovery.  And it cost millions – maybe even billions – of dollars. It broke international law. It was an international embarrassment.

“There is no way to dress it up – warehousing desperate refugees on tiny, impoverished islands while their sanity deteriorates is unacceptable.” (Amnesty)

Putting the Malaysia Deal back on the table
Malaysia already has over 100,000 refugees and asylum seekers of its own and it doesn’t need or want ours. The refugees in Malaysia have no legal rights; they are often beaten, exploited, raped and detained in horrific conditions. The only point of the original deal was imagined and purported deterrence, and by any civilized standard that is unethical and ghastly.  Why not take in the 4,000 already promised asylum in Australia anyway?

Applying the ‘No advantage principle’
If you get on a boat to Australia, you will not be allowed access to any of the legal protections Australia is obligated to guarantee under international law. In practice this will mean long processing times on Nauru and Manus Island, perhaps many years, in line with the rest of the region (e.g. Indonesia or Malaysia), and no guarantee of resettlement in Australia or family reunion if you are eventually found to be a genuine refugee.

So people are to be punished on the basis of their method of arrival. Instead of setting high standards, Australia now has a policy based on matching the lowest standards possible.

The Ugly

Removing Australia from Australia’s Migration Zone!
This means that anyone who arrives anywhere in Australian territory without a visa no longer has any ability to claim protection from Australia. This seems to be a legal loophole to allow the Government to sidestep the Refugee Convention to which Australia is a party and by which we have committed to provide protection to all genuine refugees who cross our borders and request asylum. Seeking asylum is a human right. It is the mechanism that millions of refugees have used to find safety and today continues to be the only hope for more than 99% of the world’s refugees. Australia is setting a dangerous example for the rest of the region, and the world.

Contemplating turning back the boats
Such a violation of human rights principles would risk the lives of asylum seekers, crew, and Navy personnel. Australia would add to its growing reputation for being willing to go to any lengths to avoid its responsibilities towards asylum seekers.

Legislating to lock out the High Court from scrutinising the human rights protections offered in any offshore processing country
It is recommended that the protections used in the High Court challenge to the Malaysia solution be removed or circumvented; this will have wide and serious implications.

The Inadequate

The “Expert Panel” failed miserably to highlight the desperation of refugees fleeing for their lives, escaping torture and running from persecution. These push factors were played down. Even the original guideline of “saving lives” was changed by the panel itself to “deterring people to seek asylum in Australia”. The pretext of concern for people risking their lives is soon overtaken by the deterrence agenda. What if the smugglers had modern, seaworthy boats and charged reasonable rates? Another excuse for rejecting refugees would have to be concocted. By contrast Amnesty International keep calling us to “change the conversation: focus on the plight of people fleeing for their lives, not refugees as “our problem”.

The Panel has simply not understood that seeking asylum is not and has never been illegal. Article 31 of the Refugee Convention makes this clear and until now Australia has affirmed that principle.  We originally made that commitment so that people who arrived on our shores asking for help would never be sent home to their deaths and could rebuild their lives in safety. The Panel has missed a moment in history to stand up for the Convention and has been seduced by the stale but ill-informed rhetoric on punishing those who come here for safety – which refugees are legally entitled to do.

The terms “regular” and “irregular” were used, without definition and seemingly without understanding. “Regular” seems to allude to some approved method, which seems to mean waiting your turn somewhere in Malaysia or Indonesia. It is another way of buying into the pernicious and persistent lie that refugees are queue jumpers. There is no such thing as a “regular mechanism”.  For example, Australia has only provided resettlement of 56 people per year from Indonesia between 2001 and 2010. Only 24 were resettled in the first 5 months of this year.  This is hardly “regular”.

The circumstances of unaccompanied minors are barely addressed by the report. In an attachment, the authors state that “oversight of arrangements for minors” would be possible through the Parliament’s power to disallow the instrument designating a country as a regional processing location. This is not good enough for such an important issue. Advocates are expressing concern that this could mean that unaccompanied children may be transferred to a third country for processing.

“A strategic, comprehensive and integrated regional approach” was called for in the first recommendation. This sounds good, but it is not what we got. Asylum Seeker Resource Centre campaign coordinator Pamela Curr says "When Australia talks about regional solutions, read the real lines - they're talking about regional dumping . . . It's a comprehensive package of harm. Nauru, Manus Island, Malaysia, turning back the boats. All the things that have harmed people in the past and they're putting the green light on doing this again."  The experts were ignored and everyone is locked out of contributing to government policy for the time being. Influencing public opinion (which ultimately has the say in a democracy) is hard going in the face of mountains of misinformation, bias and racism. But we must dare to dream. I like expert lawyer Shane Prince’s “Australian solution” as a starting point.[5]

The Unconscionable

Punishing the innocent as a strategy of deterrence
The Panel’s resort to punishment for those fleeing persecution is wrong and misguided. It has been widely and repeatedly condemned – by advocates, academics, lawyers, politicians, a former Prime Minister, church and community leaders, inquiries, UNHCR and many more.  Yet Australia repeatedly returns with dogged determination to the rhetoric that we need to be "cruel to be kind". Uniting Church justice campaign director Eleni Poulos says "What they're recommending is a short-term, quick-fix policy response that actually punishes one group of vulnerable people in order to send a message to other people."

Even if it worked as a deterrent (which is debatable) such an approach would always be unethical and immoral. For asylum seekers suffering in Nauru or Papua New Guinea or Malaysia or even Australia, that experience would have to be extremely harsh to match their original or transit contexts and thus become the basis for horror stories to be communicated back. Is that what is envisaged? And will such necessary communication be facilitated, e.g. by way of phones, skype, digital cameras and videos cameras) so that the deterrent effect is ensured? What stupid questions.  

People get on boats because they have no other effective way of obtaining protection. The alternative is to be killed in their country of origin, risk torture, imprisonment and a life in limbo in a second country like Malaysia that does not recognise their rights as refugees. Events in Nauru are a minor consideration.

Preventing “Irregular Maritime Arrivals” (whatever their age) from proposing family members for the Special Humanitarian Program  
The Howard government also restricted the ability of refugees on temporary protection visas to be reunited with their families. Far from stopping the boats, this resulted in a flow of family members — women and children — seeking passage by boat to Australia to be reunited with husbands and fathers. That was the only option left. Those who perished on their way to Christmas Island in the SIEV X were 146 children, 142 women and 65 men. Closing the door and ensuring family separation for ever can only be described as desperately cruel. Imagine a child finally escaping the Taliban and being granted refugee status in Australia, only to be told they cannot help their sisters or mother to come to safety and to be reunited.


Some Biblical reflections

Whatever practical and political steps may be possible, Christians, as individuals and “church”, have a key role to play. These are moral and ethical issues and we must be sure to understand and rely on the wisdom and guidelines of God’s Word as we respond to the global challenge presented by refugees.  And our voice is needed to help inform the conscience of the nation, so we need to fine-tune the message.

I take every opportunity to preach a sermon called “God loves refugees” and share its main points far and wide.  All of us can both live and tell the basic message.

  • As Christians we cannot avoid the responsibilities of global citizenship or embrace the culture of national self-centredness.
  • The messianic mission includes proclaiming freedom for prisoners and release for the oppressed (Luke 4).
  • If God cares and acts for the vulnerable (orphans widows and aliens, which includes refugees) then so should we – and this is a test of the genuineness of our faith (Matthew 25).
  • We may not be able to solve every problem, but we can certainly help to alleviate some of the suffering.
  • Deliberate cruelty can never be condoned – for any reason.
  • Punishment of the innocent is intolerable.
  • Positive and proactive guidelines are essential: act with justice, compassion, and generosity.
  • In a world of spin we must seek the truth, dispel the myths and insist on honesty and disciplined research.
  • Courageous advocacy is biblically mandated:  “Speak up for those who cannot speak for themselves” (Proverbs 31:8)
  • Caring for such people as refugees is also biblically mandated: “Do not forget to entertain strangers, for by so doing some people have entertained angels without knowing it. Remember those in prison as if you were their fellow-prisoners, and those who are ill-treated as if you yourselves were suffering.” (Hebrews 13:2-3)


[1] http://www.expertpanelonasylumseekers.dpmc.gov.au/sites/default/files/report/expert_panel_on_asylum_seekers_full_report.pdf

The good, the bad and the ugly: a guide to the 'Expert Panel on Asylum Seekers': http://www.amnesty.org.au/refugees/comments/29489/.  Alex Pagliaro is a Refugee Action Coordinator for Amnesty International's Refugee Campaign. 

[4] See for example Human Rights Overboard, Seeking Asylum in Australia by Linda Briskman, Susie Latham, and Chris Goddard, Scribe, 2008


Tony Rawson
September 4, 2012, 10:16AM
All of the above rings true, but several things disturb me.
We cannot take all refugees but hopefully we are taking a share via those who do arrive legally. I am assuming that those who don't arrive by boat cannot afford the big dollars asked by smugglers, so are we receiving the genuinely poor or those who have enough money to buy a boat ride? If so, we then cannot vet arrivals and weed out undesirables. As a Christian who regularly travels to Asia I am aware of the damage militant Muslims inflict on helpless Christians. I don't like the fact that no one blames militant Islam for the pain it inflicts on those of other faiths and also their own people. I am concerned that those arriving may bring an unwelcome Islamic agenda here. A pastor friend told me that the govt had appointed some Muslims to interview regugees to see if they qualified as genuine. It was claimed that a Christian who fled Iraq was rejected by the panel and was listed for deportation. He now fears for his family in Iraq as the Muslim Australian Govt. official has all their details.
Because of political correctness and some anti vilification legislation, it seems no one will speak plainly about this. I know others will now label me a something-phobic, but I would feel lots happier if I knew those arriving by boat are not just those rich enough to get here (has a genuine refugee from a 3rd world country got a few thousand bucks to fly to Indonesia and buy a boat passage?). We don't need any more Captain Ameds. It's the fact that we don't know who is coming and the suspicion that they are arriving because they have heard of the Australian welfare system (people in Asia once asked me if it was true that the Australian govt paid you not to work. They obviously misunderstood the dole, but to their ears it sounded like that). If the above can be solved and people were able to enunciate what they call the "push factors" (mostly religious persecution) and thereby letting arrivals know that militant religion of any hue is not acceptable here, then I would be much happier. The above may not be p.c. but it's my honest concern.
Graeme Swincer
September 4, 2012, 3:45PM
Tony, thoughtful comments. I base the following responses on close friendships with dozens of refugees, two of whom live with my wife and me. However a helpful guide to some of these questions is provided by the Refugee Council of Australia (www.refugeecouncil.org.au). Their Resource Kit for Refugee Week 2012, part 4 addresses the subject of myths about refugees.
For example those who come by boat asking for protection are not illegal. At present there is no law in place that they are breaking. This is one reason words like “irregular” are used: less easily challengeable but just as inaccurate.
On the question of economics, hardly any asylum seekers are genuinely poor. You need money to travel whether it is by plane or boat. I have questioned many refugees about this and the answer is always that they were somehow able to get the funds needed: by selling land or vehicles, using life savings or borrowing from relatives. Young men are most vulnerable to genocide strategies and they are usually the ones who are helped to leave. Other family members often have no choice but to stay and face the risk. Many of them die along with the poor. It parallels the Jewish refugees from Nazi Germany: the better off and the better connected were often able to escape, but the poor went to the gas chambers. Does having money disqualify a person from protection?
Undesirables? It depends what you desire or what kind of people you do not want. Are we talking ethnicity, intelligence, health, honesty, industriousness, tolerance, or adaptability? Among all the asylum seekers I have met and befriended I cannot think of any who would fail on any of these criteria, except a few who are maimed or brain damaged as a result of violence and torture or traumatized before and after reaching Australia . You would have to look very hard to find a Captain Ahmed.
Militant Muslims. No doubt this is an important issue. I lived in Indonesia for 10 years and knew Muslims of almost every variety. Certainly the qualification “militant” is very relevant. And persecution of Christians is a significant reality. However those who come seeking asylum are often fleeing from militant Islam and they are not interested in replicating the acts of their persecutors. They just want life and peace. None would have an agenda to persecute others, especially if Christians show them genuine friendship during their early days of detention and resettlement. Security checks are already overzealous. Hardly any boat people have been granted protection and later given any significant trouble, in spite of the politically motivated being on the lookout for examples. Those foreigners who want to pursue extremism usually have good connections and come as migrants. Research information points to first generation migrants (not refugees) being the main perpetrators of terrorist acts originating in “Western” countries.
The Australian welfare system. This is a minor factor if anything at all. The overwhelming message is that survival is what it is all about.
Sadly, the status determination process is deeply flawed and the question of repatriating people, including Christians, irresponsibly is huge. I commented briefly on this in the article. More detail is in my submission (#46) to the Senate Joint Select Committee (article endnote 3). Any Muslims doing assessments are almost certainly from migrant backgrounds, not refugees.

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