Occasional visitor “Edward Carson” wrote a somewhat cynical comment on my previous post about asylum seekers:
Does this mean that if they fill out the appropriate forms in duplicate, we are then obliged to accept them all into our country?
Although I strongly suspect “Edward” is a lawyer who well knows the answer to that rhetorical question, others might not. Accordingly I answered the question at length, then concluded it was worth a post all on its own.
Member states obligations under the Refugee Convention are essentially confined to non refouler to their homeland of refugees who arrive within their borders.
Hence the Howard governments excission of thousands of northern islands and reefs from Australias migration zone in 2001 (which has not been reversed by the Rudd government); then the tactic of naval blockade, interception and towaway zone as the flow of people smuggler vessels continued, and finally the substitution of the Pacific Solution when the people smugglers tactic of scuttling their own vessels rendered the towaway zone tactic unworkable. All these tactics were designed to avoid Australias international legal obligations under the Refugee Convention ever becoming engaged in the first place.
The Refugee Convention does not impose obligations on member states to accept refugee or humanitarian migrants from offshore. Australia has a very large and generous offshore humanitarian migration programme, which is one of the more persuasive bases for maintaining reasonably tough border protection policies.
Incidentally, irregular boat people asylum seekers are not queue jumpers because theres no queue in the places they come from, indeed theyre the very sorts of people at whom the Refugee Convention was originally aimed.
However, Australia (like other countries) has a finite limit on our capacity to absorb without major social disruption large numbers of unskilled, traumatised refugees with radically divergent social, political and religious values from the dominant Australian society. Middle Eastern crime gangs and the Cronulla riots are the most visible manifestations.
Acordingly, Australian governments of both political persuasions have always aggregated the numbers of irregular onshore refugee and humanitarian applicants with the offshore programme in determining the total numbers of visas in these categories that Australia will issue in any given year. The more irregular onshore arrivals who are found entitled to protection visas, the less people we accept under the offshore programme. In that limited sense theres a queue, but its created solely by the counting practices of the Australian government, albeit that those practices are entirely reasonable from an Australian national interestperspective).
This practice is not unique to Australia. Indeed the relatively few other countries with substantial offshore humanitarian migration programmes address the problem similarly. However, this raises an ongoing dilemma in international refugee law and practice. Should the claims to refugee resettlement of those who apply offshore and patiently wait for their applications to be processed receive priority over those of people who pre-emptively journey here, either with the assistance of people smugglers or by air with a tourist or student visa obtained under false pretenses? And should we encourage large scale permanent resettlement at all? Theres no simple or obvious way of distinguishing between the moral worth or genuineness of need and desperation of applicants from these various groups, and no simple answer to the second question either.
Although accepting refugees into our community is clearly generously motivated and in the individual interests of the families and individuals to whom we grant visas, theres a credible argument that permanently resettling large numbers of refugees in western countries may be seriously damaging to the social fabric and prospects for eventual economic and political progress of the strife-torn countries from which these refugees have fled.
Without in any sense denigrating the gravity of the persecution from which they fled, the applicants from both the onshore and offshore humanitarian and refugee streams consist largely of the best, brightest and wealthiest citizens of their home countries. Its a tragic inversion of former New Zealand PM David Langes immortal gibe that migration of Kiwis to Australia raised the IQ of both countries. These are the very people that their home countries will need in order to build or rebuild a viable, prosperous, modern society when/if the civil war and religious or other feuding there is ever overcome to an extent that the refugees can safely return home.
For that reason (as well as Australias interest in keeping arrival numbers at levels we can absorb without unacceptable levels of social strife and disruption), you can mount a plausible argument that we should maintain a fairly tough border protection regime which seeks to deter irregular arrivals while also treating them humanely and fairly.
We should also maintain a generous aid programme to allow poor third countries adjacent to the strife-torn nations from which large numbers are fleeing to accommodate refugees within their borders in humane, viable conditions until its safe for them to return home. At the moment that mostly means India, Iran and some Arab Middle Eastern countries. The largest refugee outflows are currently being generated from Afghanistan, Pakistan, Sri Lanka and Iraq. Incidentally, the Refugee Convention itself (or at least its associated protocols and practices) accepts that if a refugee has already found durable asylum in a safe third country then that is a valid reason for the receiving (wealthy western) country to refuse to grant a protection visa. That is a common reason for Australia to refuse protection visas, although in some cases the safety and durability of the asylum provided by a (third world) third country adjacent to the refugees homeland may be open to serious question.
The contrary argument to pursuit of a general policy based exclusively on supporting third world safe third countries to maintain refugees within their borders is that many of the conflicts and problems that generate refugee flows are very longstanding and seemingly intractable. Its difficult to see the problems of Afghanistan, Pakistan or Sri Lanka being resolved any time soon. Refugees from those countries could conceivably end up living out their entire lives in “temporary” camps next door to their home countries. In the real world, and whatever policies we choose to adopt, some will inevitably resort to desperate expedients to find a viable permanent home for their families. For that reason, there remains a commonsense humanitarian imperative to accept for permanent resettlement as many refugees from such countries as we can absorb without major social disruption (consistent with our other national interests including economic ones).