Before the 7th September 2013 national election the Chairman of the Blue Mountains Refugee Support Group wrote to Senator Doug Cameron expressing deep concerns about government policy and rhetoric in relation to asylum seekers. Copies were sent to the Prime Minister, the Opposition Leader, the Minister for Immigration and Citizenship and the corresponding Shadow Minister, Scott Morrison. Mr Morrison’s response demands careful analysis because he is now the Minister for Immigration and Border Protection and his stance is both erroneous and alarming.
Dr Graeme Swincer
The original BMRSG letter stated:
“It is time to bring an end to the political rhetoric of “Stop the boats” and politicians using drowning men, women and children to promote the cause. All of us weep with sorrow for every single life that is lost at sea, whether they are part of the official count or simply those who have disappeared. But on the other hand we know that for these people, getting on a leaky boat seems their only choice if they wish to live a normal life. There is no queue and UNHCR is virtually inaccessible in both Indonesia and Malaysia.
Neither the Australia Labor Party nor the Liberal Party of Australia has explained what happens to the asylum seekers once the boats are stopped. So, what happens to these people who are fleeing for their lives? Do they stay in countries such as Indonesia and Malaysia who do not recognise asylum seekers? Places where just being an asylum seeker can put you in prison for up to 10 years? Where they have no access to education or health services? Of course asylum seekers can go back home, but what are they going home to? For many asylum seekers the answer to this question is prison, torture or death.
The problem is not the “boats”; the problem is the lack of leadership, morals and will power displayed by the political leaders of the major parties in Australia.
Over the years successive Australian governments have introduced laws that contain clauses relating to the “spirit of the law”. Laws that include these clauses mean that it is not only illegal to break the technical aspects of the law but it also illegal to take advantage of loop holes that go against the purpose or spirit of the law. As Australia is a signatory to the United Nations Refugee Convention, and the Human Rights Convention it is about time that our politicians stopped looking for the loop holes and applied the spirit of those Conventions.”
Response from Mr Morrison
The call for a more humanitarian response in line with the “spirit of the law” was countered by “letter of the law” arguments. Mr Morrison declared that
“It is not illegal to make a claim for asylum however it is illegal according to international conventions to enter a country without a valid visa. The United Nations Convention Against Transnational Organised Crime and the Protocol Against the Smuggling of Migrants by Land, Sea and Air Article 3 states:
“Smuggling of migrants” shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident;
(b) “Illegal entry” shall mean crossing borders without complying with the necessary requirements for legal entry into the receiving State;
Additionally, the term “illegal entry” is specifically used in Article 31 of the 1951 Convention Relating to the Status of Refugees to describe the illegal entry of a person seeking asylum into another country.
Furthermore, Section 4 of the Australian Migration Act (copied below) requires that to enter or remain in Australia lawfully a person requires a visa, and “the Parliament intends that this Act be the only source of the right of a non-citizen to so enter or remain”.
MIGRATION ACT 1958 – SECT 4
Object of Act
(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.
(3) To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.
(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.
(5) To advance its object, this Act provides for the taking of offshore entry persons from Australia to a regional processing country.
On the surface this sounds all very convincing. Unfortunately it misrepresents the reality and shifts the focus away from the plight of asylum seekers to the question of people smugglers. Successive Australian governments have allowed the people smuggling issue to derail the separate matter of processing asylum seekers in accordance with the intent and spirit of the UN Refugee Convention – that is, in a humane manner within our borders, certainly not by creating laws to deflect refugees to be processed in a third country.
Australia became a signatory to the UN Refugee Convention and Protocol to formally acknowledge that Australia would protect refugees who came to Australia. The Convention was drafted immediately after World War II, and in that context the international community anticipated that it would be common-place for refugees to seek protection without valid travel documents and visas. That is the whole point. Yes, as Mr Morrison points out, Article 31 does indeed refer to “illegal entry”, but this is specifically to deal with the previously unforeseen anomaly that arises in the emergency situation that is caused by the need of people to flee their own country and seek protection elsewhere. “Illegal entry” is taken as an unavoidable reality which has to be ameliorated in the case of refugees. It is not their fault if they can be labelled “illegal” and therefore the Article requires lenient treatment: “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees . . . “. It is all about protection, not criminalisation and not prohibition. To highlight the term “illegal” and use it pejoratively is to completely miss the point of the Convention.
Mr Morrison’s case is based on references to migrants in general without distinguishing these from refugees and asylum seekers. There can be little argument with the law requiring all migrants who come to Australia to do so with a valid travel document and visa. However Conventions about illegal migration are not directly relevant to the plight of refugees. In fact the UN Convention Against Transnational Organised Crime and the Protocol Against the Smuggling of Migrants by Land, Sea and Air quoted by Mr Morrison specifically states that “Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of nonrefoulement as contained therein”. (IV. FINAL PROVISIONS Article 19. Saving clause 1.) Again, it is clear that people smuggling and illegal migration should be considered quite separately from the rights of refugees.
Anyone with even minimal understanding of the plight of refugees knows that very few of them can possibly have a valid visa. A passport is an impossible dream for most, especially those fleeing from oppressive governments or chaotic situations. The next step of obtaining a visa for travel to Australia or another “Convention” nation as a refugee is equally difficult. Embassies, Consulates and High Commissions are notoriously inaccessible to most ordinary people and processing takes time which is not often available to people on the run, inevitably the case for most people existing in a foreign country with no citizenship rights.
UNHCR registration points are notoriously hard to find, slow with processing and unable to offer hope of suitable resettlement inside a decade or even a century. Faced with such difficulties most of us would not be prepared to single-mindedly work at getting all our documents in order just to avoid being “illegal”. Life is too short.
The argument above is based on the opinion of experts in this field. For example Professor Jane McAdam, director of the International Refugee and Migration Law Project at the University of New South Wales, says that “asylum seekers are not illegal under international law” and “by ratifying the Refugee Convention, governments agree precisely not to treat asylum seekers as illegal”. Professor Andreas Schloenhardt, from the University of Queensland law school takes a similar view: “the terms ‘asylum seeker’ and ‘illegal’ should not be used together or in the same sentence” and “illegal implies that a criminal offence has been committed, which asylum seekers have not, and for that reason it is preferable to use different vocabulary”.
Mr Morrison quotes from the Migration Act 1958. The above discussion yields the point that in practice Australian law should complement the international conventions, not oppose them. As a nation we are committed to protecting asylum seekers, even if in theory our laws may allow them to be labelled “illegal”. That is what the various Conventions emphasise. The problem is with the law, not the asylum seeker.
In this light we should urge all politicians and commentators to stop using the term “illegal”, which clearly distorts the reality and communicates an unwarranted negative perception. Technically, asylum seekers may be “illegal” but they are not guilty of any crime. Therefore what must be reinforced is the positive intention of the Refugee Convention and the right of each asylum seeker to seek protection in any country which is a signatory to the Convention, and not to be discriminated against on how they arrived at the border to seek asylum.
Nelson Mandela frequently used the statement “When injustice becomes law, resistance becomes duty”. If the law is to be interpreted as suggested by Mr Morrison, then this can only be understood as injustice. Resistance is called for and we must hope that this will not need to be too strong or too sustained. Clearly our laws need to be revisited and amended rather than being used as an excuse and device for perpetrating the kind of injustice that begins with characterising refugees as illegal.
Once an innocent person is described and denigrated as “illegal” the door is opened for application of draconian measures such as those associated with the so-called Pacific Solution and many of the recommendations of the so-called “Expert Panel” which the true experts have condemned scathingly.
From any enlightened humanitarian perspective cruelty towards innocent people can never be justified for any agenda at all. To argue deterrence as a justification is totally inadequate if our international commitment to providing safe haven to refugees means anything. To argue saving lives is also totally inadequate; there are plenty of kinder, more effective and less costly options. To argue smashing the people smugglers’ model is totally inadequate; many refugees are very thankful for the smugglers, but would have welcomed a safe and viable alternative such as access to airlines or seaworthy ferries at a much lower cost. Clearly the boats can be stopped simply by allowing better options for people desperate to find asylum. Many of those who are well informed about the current politically sanctioned harsh treatment of refugees fear that the unstated agenda is to pander to a misinformed electorate’s underlying desire to stop the people, having been led to believe they are “undesirables”, described as ‘illegals’, and also as ‘irregulars’, ‘queue jumpers’, ‘economic refugees’, ‘potential terrorists’, ‘opportunists’, ‘welfare shoppers’, and ‘threats to our way of life’. None of these commonly used labels have any foundation, certainly not as unqualified generalisations, yet their blatant and undisciplined use seems like a deliberate strategy to dull compassion and excuse cruelty.
As a footnote, Mr Morrison’s mention of the impact of boat arrivals on the numbers of places available under the Special Humanitarian Program prompts a firm response. One of the good recommendations of the Expert Panel was delinking of 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). Amnesty International and many others have been asking for this for a number of years. Linking the numbers is a political decision and is almost unique to Australia. It has been unnecessary and confusing, and it is to be hoped that the new government will support doing away with this measure, in line with the recommendation of the Panel. The Expert Panel also recommended increasing the number of places available; again this measure is strongly supported by the true experts, and in light of the increasing numbers of refugees globally we can only hope the government will reverse its pre-election threat to reject the recommendation.
The primary concern of asylum seeker policy must not be about people smugglers but about the refugees: their rights and how they are treated. The two issues are separate and different and should not be confused in order to side-track the conversation. A major step towards a more humane response to people fleeing persecution and danger and seeking protection in Australia must be to reject use of the derogatory and inaccurate term “illegal”.
Graeme Swincer, October 2013
Dr Graeme Swincer is a member of BMRSG