As ABC 7:30 highlighted last night, it appears that the Gillard government is about to formally sign the deal with Malaysia that will see boat-arriving asylum seekers returned to the back of the queue in that country without processing. Assuming that UNHCR accepts it (apparently the price of acceptance of the deal by Labor’s Left faction) it will represent a huge step towards resolving one of the major causes of Labor’s plummeting popularity. It’s also a sound policy response, as I’ve argued previously. I explore additional arguments in this post.
In fact the so-called Malaysia Solution has already been extremely successful in “stopping the boats”, even before it actually comes into effect. Asylum seekers are arriving by boat at less than half the rate of last year, and a major reason for that must surely be the Gillard government’s pre-emptive announcement of the Malaysia Solution in late April.
However, as 7:30 observed:
But the deal takes effect from when it’s signed, so that means the 407 asylum seekers who’ve arrived here since May, when it was first flagged, are in legal limbo.
That makes it all the more important to conclude a deal with PNG for a permanent offshore detention facility there. We haven’t heard much about progress on that front recently, probably because of Sir Michael Somare’s illness and retirement from public life. Now Kevin07 is crook with heart trouble too. Maybe Julia should just bite the bullet, swallow her pride and do a deal with Nauru now they’ve signed the Refugee Convention.
On a related front, detained asylum seekers continue to demonstrate both on Christmas Island and in Darwin. An earlier story about the Darwin situation raises an issue I’ve been meaning to discuss for some time:
Detainees say the group of Iranians and Iraqis have held the protest and hunger strike because they are dismayed that three other detainees who had faked their nationalities were given refugee visas to stay in Australia.
In fact Minister Bowen admitted not long ago that more than 80 per cent of asylum seekers arriving in Australia by boat dumped their passports before landing. On first blush this strongly suggests that most of them are fraudulently claiming refugee status, in that that’s the most obvious explanation for deliberately disposing of one’s passport. Clearly just about all of them had passports when they arrived in Malaysia or Indonesia by air, because otherwise they would not have been allowed through customs and immigration there.
Perhaps Australian authorities should consider mandatory statutory application of the evidentiary rule in Jones v Dunkel:
The unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party’s case.
However, as with most things in the asylum seeker debate, it isn’t that simple. As a recent SMH article noted:
People smugglers insist that all asylum seeker identity documents, including passports, be destroyed before embarking on boats to Australia to ensure people cannot be connected to relatives and family members living in Australia. Use of false names also means that Afghan authorities cannot trace them.
In fact a more plausible reason why people smugglers may force all passengers to destroy their ID is that it makes it equally attractive for fraudulent asylum seekers to utilise the people smugglers’ services. Genuine and fake applicants are on a “level playing field” and that gives Australian authorities an almost insoluble dilemma given their Refugee Convention obligation not to “refoule” genuine refugees. It may mean that fake applicants have just as good a chance of acceptance as real ones, as long as they can spin a plausible story that cannot be disproved. As Opposition immigration spokesman Scott Morrison commented:
“To travel by air you must have documentation. The decision to discard documentation is an act of defiance and non-cooperation with Australian authorities,” he was quoted as saying.
“The absence of documentation also leads to significant delays in processing and security assessment that detainees now complain about.
“The practice of discarding documentation is routine among asylum seekers using people smugglers and is designed to frustrate Australian authorities trying to determine whether a person has a legitimate asylum claim.”
“They are clearly counting on being given the benefit of the doubt,” he added.
However, it may not be quite that bad. Many detainees are able to establish their identities to the satisfaction of Australian authorities despite the people smugglers’ confiscation of their passports. Quite a few have members of their extended families already in Australia who can vouch for their identities, or others in overseas countries who can be accessed relatively easily by Australian diplomatic or other personnel.
As for those whose identities cannot readily be verified, it isn’t reasonable to blame Australian authorities for keeping them in detention. Australia’s security interests require it, and the Refugee Convention does not prohibit such action. In fact it appears that the overwhelming majority of asylum seekers remaining in detention at present are either ones whose identities cannot be verified (and who therefore cannot receive security clearances), or whose applications have been rejected and are simply awaiting deportation or their final appeal stage, as well as the 407 post-Malaysia Solution announcement arrivals. A PNG or Nauru-based detention centre for these applicants would be entirely appropriate.
Moreover, given the extreme difficulty of verifying identities of a significant number of boat arrivals, the extreme danger of the sea voyage, and the desirability of a much more orderly system where Australia can choose those offshore applicants most deserving of our humanitarian protection (instead of those who have enough money to take pre-emptive self-help measures with the people smugglers, and who may not be refugees at all), it’s difficult to see why even the most passionate refugee advocates are so vehemently opposed to the Malaysia Solution. Of course, that argument only applies if Australia has been able to negotiate safeguards satisfactory to UNHCR to ensure that returnees are not harassed or refouled by Malaysia.