Tampering with Asylum: A Universal Humanitarian Problem

Tampering with Asylum: A Universal Humanitarian Problem

by Frank Brennan


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By denying the Tampa and its cargo of asylum seekers permission to dock at the nearest landfall of Christmas Island, Australia signalled that it was dramatically closing its national borders. Trading on fear, and using mandatory detention in the Pacific, John Howard and Philip Ruddock effectively excluded asylum seekers from the Australian courts.Frank Brennan argues that the Australian government’s response was a massive overreaction, possible only because Australia is a remote country with few asylum seekers and no land borders. He compares Australia’s response with that of the United States and Europe and provides a practical blueprint for countries wanting to humanely protect asylum seekers.'A timely, topical book...penetrating.' – Canberra Times'A powerful book.' – Australian Financial Review'A valuable contribution to the assessment of our treatment of asylum seekers.' – Journal of Australian Studies Review of Books'Necessary reading.' – Australian Book ReviewReview excerpt'Of particular use to those who are studying the issues at some depth is the discussion of the significance of border control and the sovereignty of nation states. There is a useful comparison of the way in which those who present themselves illegally are received and detained in Australia, in Europe, and in the United States. This readable excursion into sometimes difficult and technical material is likely to be a standard reference on the subject.' – Rev Brian Lucas, Australasian Catholic Record

Product Details

ISBN-13: 9780702234163
Publisher: University of Queensland Press
Publication date: 11/01/2003
Pages: 234
Product dimensions: 5.50(w) x 9.00(h) x 0.80(d)

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Tampering with Asylum

A Universal Humanitarian Problem

By Frank Brennan

University of Queensland Press

Copyright © 2007 Frank Brennan
All rights reserved.
ISBN: 978-0-7022-3416-3



The 1951 Convention Relating to the Status of Refugees is the main legal document that sets down how nation states are to protect refugees. It was drafted with one eye on Europe's refugee crises at the end of World War II. The other eye was on the risk of mass population flows from the third world to the first world. Australia participated in the drafting of the Convention and was a signatory when the Convention entered into force on 22 April 1954. The Convention defined a refugee as a person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

The primary obligation of contracting states to the Convention is not to 'expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion'. The Convention envisages that many refugees in flight will have to enter another country seeking protection without having complied with the migration laws of the country where they are seeking asylum. It prohibits the contracting states from imposing penalties 'on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence'.

International travel in 1954 was not what it is today. Australia happily participated in the formulation of the Convention, maintaining its White Australia policy, presuming that there would never be a need to admit non-white refugees to Australian shores, and initially stating reservations that ensured that refugees would not take Australian jobs. Prior to 1973, Australia was committed only to recognising refugees made such by events in Europe before 1951. There had never been an influx of refugees arriving in Australia uninvited. In 1956 the Federal Cabinet, in preparation for the Melbourne Olympics, for the first time considered the prospect of non-Europeans in Australia claiming asylum. Cabinet decided on a softly, softly approach. Any Asian refugees would not be granted permanent residence but they would be given 'certificates of exemption, renewable if and when necessary'. When the Dutch relinquished West Papua to Indonesia in 1963, Australia for the first time confronted the reality of a land border with territory that could produce a steady refugee flow. Sir Garfield Barwick, Minister for Foreign Affairs, told parliament, 'If any requests are received under the heading of political asylum, they will be entertained and decided on their political merits from a very high humanitarian point of view in accordance with traditional British principles.' He told his departmental officers that they 'should not be too infected with the British notion of being a home for the oppressed'. Six months later Barwick had to call in the Indonesian Ambassador and let him know that there were just too many Papuans presenting themselves at the border of Australia's colony and trust territory complaining of ill-treatment by Indonesian officials. Barwick's policy was to return them to Indonesia, but he warned:

If the numbers and circumstances of the people seeking political asylum evoked humanitarian considerations, public opinion in Australia would react sharply and the Australian government could not take a rigid or seemingly harsh line. It was therefore important that the apprehension of the West Papuans should not be aroused.

In 1967 the international community added a protocol to the Convention broadening its application beyond the European post-war situation. Australia agreed at this time to recognise refugees beyond Europe. Australia was still not minded to sign the protocol, which contained no limit on time or place for the situations producing refugees:

because she was unhappy about allowing to stay within her borders, as the Protocol might well have required her to do, any number of Papuans or West Irianese who might take small boats from the southern coast of Papua to the Torres Strait Islands and claim they were refugees seeking asylum; as, indeed, a few West Irianese did some years later.

The Whitlam government acceded to the protocol in 1973 but with the rider that 'The Government of Australia will not extend the provisions of the Protocol to Papua/New Guinea'. From the beginning we Australians were adamant that we would not have the international community pressuring us in the unlikely event that there was ever to be a significant influx of boat people coming uninvited from our nearest neighbouring country seeking asylum. In our isolation, we could never contemplate ourselves being a country of first asylum. The seeds of the Tampa crisis (see Chapter 2) are readily discernible in the initial compromises made by the international community in the negotiation of the Convention on Refugees finalised in 1951. The loopholes in the Convention were sure to cause problems even for an isolated country such as Australia.

It was not until 1980 that there was any reference in Australian legislation to the Convention on Refugees and its key terms. The granting of refugee status was never seen to be a matter for the courts. A government minister, being advised by his or her public servants, would decide to grant a person a right of residence in Australia because they were accepted as a refugee. There were very few onshore applications for permanent residence or continued temporary residence on the basis that the person was a refugee. Australia accepted many refugees from overseas but they were not given any special migration status.

When the first wave of boat people arrived after the Vietnam War, their future status was a matter in the hands of the politicians, spared from any scrutiny by the courts and without any comprehensive legislative scheme setting out procedures for their reception and assessment. There were no precedents and the policy about boat people would be made on the run as each wave arrived. As Nancy Viviani said, 'The story of Australia's policy towards the entry of Indochinese has elements of both pride and shame, of fair treatment alongside bias and arbitrary dealing with the lives of families and individuals, of bureaucratic ineptitude and probity and of ministerial stupidity and inspiration.' All these elements have been at play in the Australian parliament and in the Australian community as we have come to terms with four waves of boat people whose presence has evoked fear, loathing, welcome and anticipation in the Australian community. With each wave, the law and policy have become more restrictive.

Politics, like life, is full of competing needs and conflicting principles. When an uninvited asylum seeker from a poor, unstable country turns up on the border of a rich democratic country that respects the rule of law, people of good will vehemently disagree about how best to strike the balance in treating the asylum seeker. When asylum seekers from as far away as Afghanistan and Iraq started arriving on the Australian shores by boat, most Australians endorsed the government's tough response in 2001. The government was very clear in its policy and practice:

• giving a preference to refugees who came through the front door having been invited and with visas in hand

• deterring boat people from coming

• detaining those who successfully ran the gauntlet, and limiting access to the courts for review of their refugee decisions

• restricting the uninvited refugee's right to remain permanently in the country

• removing future boat people to Pacific countries for processing and detention, with no guarantee that they would be permitted to reside in Australia even if family members were already living lawfully in Australia.

A vocal minority of citizens thought the government's response was mean-spirited and unfair. The government and its supporters thought the response was generous, measured and realistic, especially in the light of the events of 11 September 2001.

During the last ten years there has been a common pattern in government responses to asylum seekers in Australia, regardless of which party was in power. In that time, every Minister for Immigration, whether from the Left of the Labor Party or from the centre of the Liberal Party, has caused controversy and upset with every major legislative change. Surveying the situation in other first-world countries such as the United States, the United Kingdom and Germany, and studying the present European exercise to harmonise asylum law and policy, the reader can appreciate that a plaintive recitation of the UN conventions and human rights instruments does not actually get us far in resolving the modern problems and predicaments – though everyone gives notional assent to all of them.

In Australia the boats have stopped coming for the time being. This is a public moment for everyone to step back from the policy-making on the run and from the vitriolic exchanges on the airwaves. We must assess whether our tampering with asylum in these last two years has been a guide or a distraction to a more decent and more workable asylum policy for first-world countries whose citizens are anxious about their own security post-September 11 and whose borders are more assailable given the services of people smugglers. One of the good things about living in a stable democracy is that we are able with our fellow citizens to provide assistance to some other human beings who are in situations of heart-wrenching need. One of the things about being human is that the person on our doorstep (even if uninvited) evokes the desire to be of assistance more than does the person on the other side of the world. The person on the other side of the world may be in even greater need. With international cooperation and a targeted commitment of resources, it may be possible to render more assistance to one or other, or to both. The moral calculus is difficult.

For those turning up uninvited, no country has yet found the right balance between detention for removal and liberty for processing of claims, nor between judicial supervision of the decision-making process and unfettered executive action that is quick, fair and efficient. No country has yet found a way to discriminate fairly between two types of people who arrive uninvited at the border:

• the asylum seeker who had no option but to engage a people smuggler, transiting through various countries to find the first available place where the family might feel secure, find protection, and be guaranteed that they will not be sent back home to face persecution

• the asylum seeker who had protection available to self and family in a country closer to home, but who cleverly took the opportunity of flight from persecution to look further afield and seek a migration outcome in a country where life would be much better for the family.

Understandably governments want to clamp down on the so-called secondary movement of the second type of asylum seeker. Refugee advocates do not want that clamp-down to result in punitive action against the first type of asylum seeker.

The political compromises forged at the time of the 1951 Refugee Convention and the moral certainties in refugee discourse before the end of the Cold War and before September 11 no longer provide the answers. In Australia, there have been ten years of mistrust between governments of each political persuasion and refugee advocates. Courts have often been caught in the middle of the crossfire. This could be a good time for some positive, internationally cooperative reconstruction of the asylum system. It could also be a time when hard-fought gains protecting the rights and dignity of asylum seekers are lost in the name of national security and border protection.

The moral basis for the nation state is its capacity to provide the conditions for the citizen to enjoy those things necessary for a good life. The state is able to efficiently protect the dignity and freedom of the citizen. The state can uphold the human rights of the citizen and others in the state's territory. It can guarantee the law-abiding citizen a place of belonging. The citizens of a democratic nation state with laws respecting the human rights of all its citizens are not likely to see any case for other states or citizens of other states interfering in their domestic affairs. They are entitled to insist upon their sovereignty. Non-interference will be guaranteed in international relations only to the extent that there is reciprocity of respect, even for those nation states which are not democratic or which do not give full recognition to the human rights of their citizens. Interference in the affairs of another state in the name of protecting the human rights of abused citizens will be possible only if that other state has previously agreed to some international arrangement authorising outside intervention. Sovereign nation states agreeing to implement and to be scrutinised according to international human rights standards are still the best means of protecting persons throughout the world.

Any nation state wanting to maintain its sovereignty and anxious to uphold the international order of a United Nations consisting of nation states will need to play its part in assisting those persons who flee from the territory of their nation state having been persecuted by their own government. If these persons were not to be given protection by other nation states, they would have no self-interested reason to respect or uphold the sovereignty of other nation states and there would be a real difficulty in upholding the moral legitimacy of sovereign nation states. Providing protection for refugees is a responsibility to be shared by all sovereign nation states if the collective sovereignty of nation states is to continue with some moral basis.

The special case for the international obligation to protect the refugee has been made out by accepting the need to acknowledge the sovereignty of the nation state. International acknowledgement of this sovereignty could not be given unless there was some fall-back mechanism for providing protection to those persons singled out and persecuted by the government of the nation state on account of their religion, race, nationality, political belief or membership of a particular social group.

Those fleeing persecution by their own government cannot be expected to return home until it is safe to do so. Many of those who flee across borders will seek and find protection in the country next door. Others will need to go further afield to find that protection. Whenever there is a major crisis, the victims will scatter to the four winds and refugees can be expected to turn up in countries near and far. In the fifty years since the Convention was finalised international travel has changed. Those fleeing persecution may now have more options available to them. This creates the new problem of secondary movement. Though governments ought to have no objection to refugees who are fleeing directly from persecution, they have understandable concerns about those refugees who see their moment of flight as an opportunity to seek a more beneficial migration outcome for themselves and their families. Given the widening gap between the first and the third world, it is not surprising that some people fleeing persecution will look further afield for more secure protection together with more hopeful economic and educational opportunities. Having the status of a refugee has never been accepted as a passport to the migration country of one's choice. Then again, the international community has never been so callous or short-sighted as to say that during a mass influx one has access only to the country next door in seeking protection even if you have family, friends or community members living in a more distant country.


Excerpted from Tampering with Asylum by Frank Brennan. Copyright © 2007 Frank Brennan. Excerpted by permission of University of Queensland Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents


1: The 1951 Convention on Refugees and the moral complexities of today,
2: Four waves, Tampa and a firebreak,
3: Border control,
4: Reception and detention of unauthorised asylum seekers in Australia,
5: Reception and detention in Europe and the US,
6: Courts and the adjudication of asylum claims,
7: Refugee and humanitarian status,
8: A warm-hearted, decent international citizen once again,

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