Asylum seekers and policy dilemma

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).

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 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 the early 1990s.
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Paul Frijters
Paul Frijters(@paul-frijters)
12 years ago


“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.”

This is obviously the crucial bit in your argument because it is on that basis that law has to bow to reality, forcing governments to circumvent international law and. It is where the ideal of tolerance and goodwill to all in need runs up against a brick wall of own interest. It is where the economic ideal of labour mobility hits a dead end (at least in the short run).

I find the statement interesting because it is a perfect example of a statement that is almost impossible to defend if you would be asked to prove it beyond doubt (for starters, trying to empirically define ‘social values’ is a nightmare, let alone the notion of distance between values), but yet most people would at some level agree with it. It is the kind of truth that you’d never find hard evidence for in any laboratory or science of the brain. Yet our societies also believe this and act upon it. What is it about our ‘common sense’ that makes us see this truth and act upon it without having irrefutable proof for it?

12 years ago

I wonder about the aid. I would really like to see an analysis of the likely cost of such aid if we really meant it, and the likely cost of just taking more of them here.

Also I think we have to discount, to about zero, the social fabric etc of the countries that people are fleeing. It far too illiberal for me. In effect it is discrimination against poor people from Africa on the basis that they are a) poor and b) smart/desperate/ingeninous to boot. Sure, some are merely ‘connected’, but I expect that this group is underrepresented in refugee applications, and certainly is not sufficiently represented to justify damning the rest and throwing self-determination to the dogs.

Also, although I don’t even get to the stage of balancing these factors, your argument ignores remittances, plus the effect of requiring poor countries to attract their own best and brightest not exploit their industry and creativity to help prop up incompetent and corrupt governments.

Paul Frijters
Paul Frijters(@paul-frijters)
12 years ago

Hi Ken,

I agree that there is a lot of circumstancial evidence. Further to your list, you could include the modern findings on social capital where they found that more homogenous communities have higher levels of public good provision, lower crime, etc.
The problem is that this is circumstantial though, i.e. its not proof that there necessarily should be strife. Wildly different communities have coexisted for centuries without much bloodshed. Funnily enough, the Jews in the Arab peninsula used to be a good example of that, with tolerated minorities persisting to this day in places like Iran and Syria. Also, in historical times enormous floods of newcomers have been absorbed in different countries. Just think of the Hugenots when they were kicked out of France and who settled peacefully elsewhere.
More fundamentally, even if there is in-built morality codes, there will always be someone different in one’s surroundings and one could thus alternatively argue that the ability to live with other values is itself something malleable. One might hence venture that a society should choose to be able to live with more ‘true’ diversity. I myself am slightly sceptical of this possibility, but you’d need to disprove such counter-possibilities for the original statement to stand.
Perhaps the answer is that the notion that too much diversity is socially unsustainable fits a shared common ‘theory of how the world works’ which has simply not really been articulated yet but which we nevertheless implicitly share.

Edward Carson
12 years ago

No I am not a lawyer but I have studied law, and as much as I did not know the answer to that question, I certainly have nothing against the rhetorical device of asking a question you already know the answer to.
Let me give an example. If the quota set by the government for refugees this year is 40,000 and 60,000 have already arrived by sinking boats and been duly granted residence because of our commitments to foreign bodies, does that mean that to aggregate our total to the set 40,000 we must send back 20,000 of the off shore refugees who formally applied and were granted residence last year?

As much as it was not specifically answered, Im guessing the answer to my original question is that our law requires us to grant residence to as many genuine refugees as land onshore.
Apart from various other reasons, this bothers me from a strictly legalistic point of view. If hypothetically 10 million arrived over the course of one year (not that hypothetical the USA allegedly has 12 million illegals {sorry, undocumented aliens} within its borders) it just goes without saying that the law would not be followed and they would not be granted residence. Perhaps a John Howard trick would be exercised whereby the law would be abolished retrospectively to the day before the first boat arrived.
So what we have done is pat ourselves on the back by declaring this humanitarian law, all the while just knowing that we will only honour it while it makes us look good but not if it causes us too much of a hassle.
Laws are supposed to mean things. They are supposed to have substance and permanence at least for the time of the zeitgeist that they were implemented. There is nothing wrong with changing a law after 20 years if the general beliefs and attitudes of the voters change but at the time of their implementation they are supposed to reflect the attitudes and morality of the times.

P.S. Ken, I do appreciate the trouble you went to explain the whole system to me together with various suggestions, even if I did read a lot of it with developing aversion.
To wit: applicants who enter the country illegally take precedence over those who follow the correct procedures; we should give aid (tribute) so as to stop refugees coming; a commonsense humanitarian imperative : the humanitarian impulse is strictly emotional (not that there is necessarily anything wrong with that), the opposite of rational. Reason cannot be used to defend refugee immigration; it is only what individual Australians want. There is certainly nothing wrong or lacking in common sense for some of us not to wish to allow immigrants who will benefit us the least.

John Greenfield
John Greenfield
12 years ago

Paul F

In reality, there is very little public international “law” let alone any “forcing governments to circumvent international law”. What really gets my goat in this debate is the way the bourgeois left continues to insist the Australian parliament’s “obligations” are to non-Australian outsiders. This is bullshit and needs to be constantly called as such. The Australian parliament’s “responsibilities” are to one body, and one body only.

We, the Australian people.