The dodgy asylum seeker dilemma

How the biggest people smuggling networks in Indonesia have moved their operations to Australia.

Monday evening’s Four Corners program about people smugglers gaining fraudulent entry to Australia didn’t derail the Refugee Action Coalition Sydney’s propaganda campaign even for a moment:

The Four Corners’ people smuggling program has only added to the demonisation that surrounds the media and politicians’ portrayal of people smugglers.

Rather than exposing a trans-national criminal network, Four Corners has revealed, what is so often the case, that people arranging boats for asylum seekers to come to Australia have often been refugees themselves, motivated by concerns for the safety of their families or asylum seekers from the same country.

The problem is that their assertions are belied not only by the Four Corners program itself, but by this story and this one and this one and no doubt many others. It’s now impossible to deny that Australia’s asylum seeker assessment and processing system is badly broken, fractured under the combined weight of:

Green politicians … would be the first to scream if asylum seeker arrivals ever reached the sorts of numbers that arrive in Europe each year

  •  an Abbott Opposition intent on opposing any Gillard policy at any cost (especially the Malaysian Solution which actually might have worked);
  • a Gillard government which thinks it can’t afford to re-embrace the Nauru/Pacific Solution to any extent at all;
  • Malaysian and Indonesian governments that won’t enter into legal agreements to honour the Refugee Convention for fear that they will make their own countries magnets for asylum seekers rather than just “jumping off points” to Australia;
  • Green politicians who mindlessly embrace the Refugee Action Coalition world view but would be the first to scream if asylum seeker arrivals ever reached the sorts of numbers that arrive in Europe each year (which might well occur if the welcome mat was put out as the Refugee Action Coalition seems to want);
  • The silent majority which sees the asylum seeker issue as critically important notwithstanding that current arrival numbers are tiny by world standards and don’t pose any threat whatever to Australian society; and
  • people smuggler gangs prepared to stop at nothing to implement their “business model”, including sending boatloads of desperate people to their deaths and still collecting the fares from their extended families, not to mention confiscating all asylum seekers’ passports and other ID to facilitate fraudulent entry to Australia under false ID by customers (and, it now seems, people smugglers themselves) who would not succeed if their real identities became known.

It is this latter problem that poses the greatest threat to Australia’s national security, and even to the consensus among left-leaning people that mandatory detention and offshore processing should be opposed as unequivocal evils.

And yet it is now undeniable that people are getting protection visas under false IDs, and that some of them are organised criminals running people smuggling operations from this country. Almost by definition we also don’t know how many others, including more general organised crime figures or even terrorists, may have gained entry in this way.  The RAC would no doubt instantly label this as “demonising” asylum seekers, and no doubt only a small minority would actually fall into the dangerous category.  But clearly from the Four Corners program, at least some do.

I’ve wondered for a long time about why the approval/issue rate for protection visas for asylum seekers arriving in Australia has always been so much higher than for the UK or Europe. The UK success rate is about 25% on initial assessment, rising to a little over 40% after appeal.  By contrast, the success rate of asylum seekers arriving in Australia is about 70% rising to between 80 and 90% after appeal.1

[T]he most likely explanation for the extraordinarily high acceptance rate is that we are letting in lots of people who really aren’t genuine refugees at all.

Of course it might be that the proportion of genuine asylum seekers arriving in Australia is twice as great as the UK and Europe, or it might be that the latter countries’ assessment systems are unduly harsh.  However, Monday’s Four Corners program, along with the acknowledged fact that the people smugglers confiscate the ID of all their passengers as a matter of course, strongly suggests that the most likely explanation for the extraordinarily high acceptance rate is that we are letting in lots of people who really aren’t genuine refugees at all.

Moreover, at least while we have a bipartisan policy that the total number of successful boat people arrivals will be deducted from Australia’s total approved humanitarian migrant intake (presently fixed at around 14,000 per year), these fraudulent “refugees” are getting in at the expense of genuine refugees in much greater need.  In that sense there is a queue and they are jumping it.

What can sensibly be done about it? I suggest there are no comfortable answers.  However the government should immediately legislate to require that a protection visa cannot be issued unless the decision-maker is satisfied beyond reasonable doubt of the applicant’s true identity. That clearly isn’t the current practice in reality.  Adopting and enforcing that policy rigorously would certainly mean more asylum seekers remaining in detention for even longer periods than at present.  However, neither the Refugee Convention nor any commonsense concept of national security requires us to give people protection visas and release them into the Australian community when we don’t even know who they are or what dangers they might pose.2

 

  1. Incidentally the linked story from The Australian spins the 70% figure as an alarming increase under the Gillard government from a previous low figure of 30%.  However the latter was a short-term artefact of the Rudd government’s suspension of processing asylum seekers from Sri Lanka and Afghanistan as an initial knee-jerk reaction to the alarming surge of boat arrivals after Rudd abolished the Pacific Solution without putting any other policy in its place.  The long-term success rate for asylum seekers arriving in Australia has generally hovered around the 80% mark, even under the Howard government.
  2. BTW To pre-empt anyone suggesting there’s any logical contradiction between this post and my recent one advocating a more strategically humane policy towards people found to be refugees but subject to adverse ASIO assessments: there isn’t. If we know who people are then we can assess the risk level they pose to the Australian community. In some cases that assessment might permit them to live in the community subject to appropriate surveillance, reporting and other conditions. OTOH If we don’t even know who they are then no such assessment is possible.
This entry was posted in Immigration and refugees, Law, Politics - national by Ken Parish. Bookmark the permalink.

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.

8 thoughts on “The dodgy asylum seeker dilemma

  1. Far be it for me, unlike thee, to make a big thing out of small numbers, Ken, but read 211 FLR 428 and tell us again that Australia has a lax protection visa regime. Here’s how WestlawAU reports it:

    Citizenship and migration > Migration > Categories of visas > Refugee and humanitarian visas > Exclusion of protection > Safe third countries

    availability of Israeli visa to Jewish applicant

    Is it impossible for a Jewish refugee to get an Australian protection visa?

    The Migration Act 1958 Cth, s 36(3), denies a protection visa to any applicant “who has not taken all possible steps to avail himself or herself of a right to enter and reside in, however that right arose or is expressed, any country apart from Australia.” The Refugee Review Tribunal upheld the denial of a protection visa to a Russian Jew on the ground that she had not taken all possible steps to avail herself of a right to an Israeli visa. The Israeli Law of Return gives “every Jew … the right to this country as an Oleh” and provides that an Oleh’s visa shall be granted to “every Jew who has expressed his desire to settle in Israel”. Expressing no desire to settle in Israel, the visa applicant sought review in the Federal Magistrates Court of Australia.

    Held: (setting aside the tribunal’s decision)
    (1) Despite authority that the plain meaning of “all possible steps” should not be read down, s 36(3) did not implicitly require a non-genuine expression of a “desire to settle in Israel” by any Jewish refugee seeking an Australian protection visa.
    (2) So to rule was to interpret s 36(3) (a question of law for the court) and not to find as to foreign law (a question of fact for the tribunal). It was therefore irrelevant whether the tribunal’s finding as to foreign law was a finding of jurisdictional fact.

  2. Great piece, and sorely needed in the current climate, where people with an opinion are bunkered down on opposite sides of the issue and stuck with the extremists of each side.

    The refugee situation can’t be boiled down to “they’re all innocent victims of oppression” or “they’re all cashed-up freeloading terrorists”, so it’s refreshing to see some factual analysis.

  3. “The silent majority which sees the asylum seeker issue as critically important notwithstanding that current arrival numbers are tiny by world standards and don’t pose any threat whatever to Australian society;”

    If you check the statistics provided by the Refugee Council of Australia here…
    http://www.refugeecouncil.org.au/global/stats.php

    … you can see that Australia was 1st in the world in actual resettlement of refugees, both on a per-capita basis and on a per-GDP basis. That’s actual resettlement, other countries had higher application rates, and hold more refugees in detention, etc, whereas we actually offer more places for people to have a hope of a future. I’m not opposed to us continuing with this by the way, I just don’t like to see people completely ignoring what we really do and start with the “tiny by world standards” BS.

  4. Moreover, at least while we have a bipartisan policy that the total number of successful boat people arrivals will be deducted from Australia’s total approved humanitarian migrant intake (presently fixed at around 14,000 per year), these fraudulent “refugees” are getting in at the expense of genuine refugees in much greater need.  In that sense there is a queue and they are jumping it.

    The fact that Australia’s acceptance rate is higher than Britain’s is no proof that a large percentage of the surplus successful applicants to Australia are fraudulent. It is equally possible that the British are illegally excluding genuine refugees.

    There is no doubt that 4 Corners identified a successful fraudulent application for refugee status. But let us not forget that these people smugglers have long experience with the Australian system. They know how to rort the system. It is entirely likely that these criminals successfully replicated the identity profile of genuine refugees.

    As the 4 Corners program itself reported, genuine refugees at Christmas Island were astounded when they saw that these criminals were fast tracked through the system. In other words, these criminals were more adept at passing themselves off as genuine refugees than genuine refugees.

    Clearly, some means need to be found to apprehend criminals. But would it be just or legal to exclude many true positives in the cause of excluding a few false positives?

    And it is clear from the 4 Corners program that many of the clients of these people smugglers had significant financial resources and did not appear to be under any serious threat in their home countries. The question arises, why did not these folks simply apply for a tourist visa and fly into Australia like the vast majority of overstayers from various countries in Western Europe and North America? The answer is simple. These folks are denied access to tourist visas on the basis of racist Australian public policy.

  5. It’s worth noting that the vast majority of asylum seekers arrive comfortably by plane, and are not European tourists overstaying their visas, but Chinese nationals.

    • Of course.. and our aim is for 100% of asylum seekers to arrive by plane. Its a good thing, not a bad thing.

      In relative order of desirability:

      1. Refugee visa granted overseas with strong positive identificaiton and verification. Visa holder travel to Australia by plane just like any other migrant category.

      2. Person travels to Australia by plane on an alternate visa, then apply Refugee visa. Person most likely has strong positive ID and can be verified with high confidence. If not verified, person can fairly easily be deported back to the original country.

      3. Person travels to Australia through people smuggling boat network. Person is verified with high degree of confidence and passes through the exact ‘lottery-like’ system as person who applies offshore. This will provide strong disincentives to risky boat travel.

      4. Person travels to Australia through people smuggling network under the current system. Person is not verified with any reasonable degree of confidence. Person automatically has a priority over any other offshore applicant.

      Scenario 1 is preferred. Scenario 2 and 3 is managable. Scenario 4 as we have currently is a farce

  6. Yes, Anderson’s scenario 2 siphons off some of the high wealth individuals from the smugglers’ clientele, thus undermining the smugglers’ business model.

  7. Where is the proof that the current number of refugees pose “no threat whatsoever” to Australian society? Does Ken Parish have any evidence to back this up? Or is he completely oblivious to the new kinds of violence being brought here by Sudanese refugees in particular?

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