Asylum seekers – an update

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 DarwinAn 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.

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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48 Responses to Asylum seekers – an update

  1. conrad says:

    “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.”

    Not that I want to side-track things, but whilst I quite like the idea of the Malaysian solution also, I’m not especially convinced by this (indeed, I also think it’s very hard to find convincing evidence that policy is to blame when the number goes up). I assume that the situation in Iraq, for example, must be getting better and hopefully the same would be true of Sri Lanka. Perhaps the most convincing evidence for this will be if Afghanistan gets worse when foreign troops leave and the number of Afghani asylum seekers doesn’t go up. I guess we’ll find out the answer to that in the not too distant future.

    “so that means the 407 asylum seekers who’ve arrived here since May, when it was first flagged, are in legal limbo.”

    Is this really a big issue (obviously excluding to the actual asylum seekers)? Either they get stuck in a detention centre based on the old rules, which won’t be so bad if they are not over-crowded if the Malaysian solution really does end up reducing numbers (in which case I’ll admit the above statement is correct), or they get sent to Malaysia and a greater number of Burmese get to come here.

  2. Ken Parish says:


    The old chestnut about push versus pull factors is basically a blind alley. It’s impossible to prove either way, so people tend to believe and assert whichever explanation suits their argument. In a sense I’m guilty of that too. However, as Tanveer Ahmed observes:

    But a more dispassionate look at data and a more critical examination of motives and accounts suggests that more than a handful are opportunists exploiting a weakness, for whom asylum is merely the means to migrate to the developed world. The numbers speak for themselves, with a doubling of applications since 2005, while global numbers have declined by almost half, according to the United Nations High Commissioner for Refugees.

    Is the situation really better in Iraq, and even if it is why have a lot more Iraqi asylum seekers been aiming at Australia in the last couple of years and a lot less at Europe? Pull factors (Labor’s relaxation of sanctions) are the most likely explanation.

    As for the 407 “limbo” detainees, Malaysia has made it clear that they won’t be accepted back there under the deal about to be signed. And Gillard/Bowen have made it clear that they won’t be processed here as if they’d arrived before the announcement was made. Note that, at least under Australian law, it is arguably open to the government to refuse to begin processing these people and simply leave them in detention somewhere until they agree to leave. They’re not caught by last year’s M61 High Court decision if no Ministerial decision to begin considering their applications is ever made. Thus to an extent it’s a practical matter of where to put them. Ultimately they’ll have to assess them if they refuse to go somewhere else voluntarily, but presmuably the aim is to detain them for long enough that lots will eventually lose patience and agree to leave. That might be true for those who are actually economic migrants, but real refugees don’t have that option. That’s the problem with Gillard and Bowen’s hard-line stance on arrivals since the Malaysia announcement. One would suspect they will ultimately quietly grant visas to those assessed to be refugees, just as the Howard government eventually did with those on Nauru.

  3. wizofaus says:

    Presumably Ken you don’t *always* accept the means justify the ends? Even if mandatory detention was shown to be 90% effective, from the admittedly limited amount I’ve read on the conditions asylum seekers have to ensure in them, I still couldn’t bring myself to support it without a vast improvement in the way they’re treated (which of couse may well reduce the effectiveness), especially considering the tiny numbers of people we’re talking about. What problem are we trying to solve anyway?

  4. wizofaus says:

    Ugh…”endure” obviously.

  5. Ken Parish says:

    “Presumably Ken you don’t *always* accept the means justify the ends?”

    I’m assuming you actually mean this the other way around. What I’m supporting is the government’s ostensible current policy whereby existing applicant families and children are to be released into open community care (not detention) as soon as they pass security and health tests, and new arrivals are sent back to Malaysia (again not detention). The family community accommodation policy was thwarted by the sheer number of boat arrivals last year, the near universal practice of ditching passports (meaning identity verification and security clearance became impossibly time-consuming) and then the High Court’s M61 decision which required the assessment and appeal process for just about all rejected applicants to be started all over again.

    The only people who will remain in detention under this revised regime will be those who don’t pass security tests because they can’t be identified, and those who have been found NOT to be refugees and who are being detained pending deportation or final appeal. Applicants in these categories are subject to detention in most countries in the world. Would you really argue that we should allow people at large and unsupervised in the community when we have no idea who they are? Refugee advocates habitually pour scorn on the idea that asylum seekers might include serious criminals or terrorists, but if we adopted a general practice of releasing boat arrivals into the community without even verifying their identity you can just about guarantee the arrival of such people. Similarly, would you argue that people who have been found not to be refugees and had several levels of unsuccessful appeal, and who therefore face imminent deportation, should also remain at large notwithstanding the self-evident high risk of absconding and disappearance into the illegal economy in such situations?

    I generally agree with your comments about universal mandatory detention and have previously argued that it should be abolished. However that doesn’t and shouldn’t mean an open slather/open door policy. I think Gillard/Bowen’s revised policy is likely to prove both effective and humane, and the slashing of arrival numbers this year strongly suggests that is already the case. It will also allow Australia to provide humanitarian protection to more refugees without undermining public confidence in migration and security (however exaggerated those fears may be).

  6. wizofaus says:

    “Would you really argue that we should allow people at large and unsupervised in the community when we have no idea who they are?”

    Most of people in this country (and any free country) are essentially “at large and unsupervised in the community” and I have no idea who they are. That they just arrived via a treacherous boat-ride in order to escape unthinkable conditions where they came from strangely enough makes me less worried about them than people that have been born here.
    Yes, a few crooks and terrorists will slip through, but they’re such a tiny threat in comparison with hundreds of other far bigger problems I really just don’t see it’s worth worrying about.

    The likelihood of convincing a substantial number of Australians of that? Zero, sure. But I’m less convinced there aren’t ways the majority of Australians can’t be convinced that asylum seekers just aren’t a big enough problem to be worth spending the sort of money we do on it.

  7. wizofaus says:

    (in fact as I’ve said before, I’d prefer we try to *make* money out of them – it’s surely better than they can buy residence directly from the Australian Government than by paying off people smugglers).

  8. Richard Tsukamasa Green says:

    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.

    One of the most heartening features of the plan might be highlighted if that was rephrased as

    the Gillard government is about to formally sign the deal with Malaysia that will see the creation of a queue in that country to which boat-arriving asylum seekers will be returned to the back of without processing.

    The public sentiment about “queue jumpers” is a sincere one, and is why I’ve never attributed the entirety of anti-boat sentiment to raw xenophobia. Unfortunately there never was a queue in the sense of an orderly process by which those who have waited the longest have priority. This plan goes a long way to making reality fit the perception.

  9. Ken Parish says:


    Yes, that sounds very much like the libertarians/Lib Dem policy stance on refugees/asylum seekers. I must say I find it even more obnoxious on principle than universal mandatory detention. Such a policy implicitly assumes that there is no such thing as a genuine refugee, that they’re all just economic migrants and that therefore it’s perfectly acceptable just to auction migration places to the highest bidders among the desperate and displaced. In effect it would be a bargain basement version of our existing business migration visas (available to foreign businesspeaople who can ante up enough money).

    In fact, although there certainly are some of the current boat arrivals who are mere economic migrants, there’s a fair proportion who are real refugees who face real persecution and even death if returned to their home country. Should we offer protection only to the rich ones?

  10. wizofaus says:

    My initial reaction to the idea when I read it was much the same Ken.
    But it does seem the more I think about it the less ‘obnoxious’ it’s likely to be in practice, if not in principle.
    The migrants that do make it here are the ones that have been able to pay people smugglers to make it. My question would only be “is it possible to get them here at a similar cost by safer means”. If the answer is yes, then why not allow them to pay the that sort of amount for a refugee visa (and note, I’m not suggesting they’re granted no questions asked – you’d still need a mechanism of showing at least some form of eligibility) which includes paying for their travel. Maybe it’s not practical in the end, but it seems to be an idea not worth more than just out-of-hand dismissal.

  11. wizofaus says:

    Ugh, delete ‘not’ before worth. I really need a preview feature…

  12. Glen says:

    A very good post, Ken. I agree the Malaysia solution has the makings of a very good policy. Because the prospect of living in Australia is so much better than in much of the region (for both refugees and economic migrants), its often worth spending a year in detention, which might be the best of two horrible options. And we have deterred people by making the processing regime quite harsh, which i think is both necessary and deeply regrettable.

    If this Malaysia solution works and we can bed down a permanent program on the same principles, then that strong deterrent will allow us to relax the way we treat asylum seekers, such as by putting those we can verify in community care. Its probably the only way we could do that in a politically sustainable way. And i don’t mind taking more refugees from Malaysia, particularly if we are confident a higher percentage are genuine refugees than those in our detention centres.

  13. Patrick says:

    wizofaus, I interpret your #10 as a completely and totally different proposal to your #6.

    I agree, consistent with your #10, that we should auction a fixed number of supplementary places off each year. I also think that this should be supplementary to our humanitarian intake.

    But I don’t think that has any impact on our policy towards boat people, somewhat at odds with your #6?

  14. wizofaus says:

    I suppose my thinking is that if the “auctioning off” proposal works well enough, there would no longer be sufficient demand for the services of boat smugglers for them to be able to bring any significant number of asylum seekers to our shore.

    #6 wasn’t a proposal – just an expression of annoyance that we agonize and spend so much money on inhumane ‘solutions’ to what is really a pretty tiny problem in the scheme of things.

  15. Yobbo says:

    In fact, although there certainly are some of the current boat arrivals who are mere economic migrants, there’s a fair proportion who are real refugees

    Unless they are refugees from Indonesia, they are economic migrants. Otherwise why leave Indonesia to come to Australia?

  16. conrad says:

    Yobbo:”Unless they are refugees from Indonesia, they are economic migrants. Otherwise why leave Indonesia to come to Australia?”

    Indonesia doesn’t resettle refugees (which is not to say many arn’t there), and nor is it under any obligation to (it isn’t a signatory to the refugee convetion — not that it seems to get taken too seriously by many countries that are).

    Wiz:”I suppose my thinking is that if the “auctioning off” proposal works well enough, there would no longer be sufficient demand for the services of boat smugglers for them to be able to bring any significant number of asylum seekers to our shore.”

    I doubt it would work — presumably there are enough refugees that could bid the price up far higher than people smugglers cost.

    KP:”why have a lot more Iraqi asylum seekers been aiming at Australia in the last couple of years and a lot less at Europe? Pull factors (Labor’s relaxation of sanctions) are the most likely explanation.”

    I would think that it is also because Europe is getting tougher also.

  17. Ken Parish says:


    As I’m sure you know, the word “refugee” has a very specific meaning in international law. It means 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 …”

    Obviously enough, such a person remains a refugee irrespective of whether they’re currently in Australia, Indonesia or anywhere else as long as that well-founded fear continues. There’s nothing in international law or commonsense that obliges such a person to stop in the first country they reach on fleeing their homeland, nor in any other particular country along the way. Nor does the fact that their motivations after fleeing their homeland may well prominently include finding a relatively wealthy, congenial country in which to live rather than a poverty-stricken one where they have Buckley’s chance of getting a job and surviving other than in the most tenuous, insecure circumstances. The fact that they have those motivations does not convert them from a refugee to an economic migrant, it simply makes them a refugee who is exhibiting a sane degree of enlightened self-interest.

    Of course, none of that prevents Australia in a moral sense from deciding how many such people we should offer protection, nor from adopting border protection and other measures that are likely to keep arrivals orderly and within bounds our society can reasonably manage. But in considering the merits or otherwise of the range of available policy choices it doesn’t really help very much to play misleading semantic games about whether particular people are refugees or economic migrants. It certainly isn’t an argument likely to resonate with Indonesians or Malaysians when our government asks them to accept return of such people. Hence the need to sweeten the deal by agreeing to take 5 Burmese for every boat person returnee as the price of constructing a credible deterrent strategy.

  18. wizofaus says:

    conrad, possible, but I wasn’t actually assuming it would be a bidding auction – some sort of lottery system would arguably be fairer. However even if it were I’m not so sure the bids would get *that* high – presumably people smugglers attempt to exhort the biggest fees they possible can as it is, and while the fact that a guaranteed visa/safe passage is obviously significantly more inherently valuable than trip in a leaky boat with the prospect of spending months in detention only to be sent home again, there is a significant limit to just how much funds these refugees are likely to be able to pull together.
    The good thing about the idea is that you can introduce it at any time “experimentally” just to see if it does actually make a noticeable difference to the number of attempted boat-crossings.

  19. Marilyn says:

    There is a small problem Parrish is ignoring, it is fucking illegal.

    WE don’t get to choose an arbitrary date to destroy the lives of 800 random human beings because we have been breaking the law for a few thousand others.

    Bowen also knows that it is illegal, it’s just a stinking dirty $300 million deal with a dirty nation what sells humans.

    It’s no secret why Malaysia would agree to illegal human trading, they have been the worst human traders for years.

    10,000 people per week are arriving in Kenya but we whine on and on about a couple of thousand.

    Parrish, you are a brainless moron if you only bothered to discover that.

    Posted August 10, 2006

    Mr BOWEN (Prospect) (10.17 a.m.)?In 1951 the United Nations convention for the protection of refugees came into force. The world realised the mistakes of the 1930s, when many Western nations turned their backs on Jews fleeing persecution in Germany. Collectively, we said, ?Never again.? I am sure that all of us involved in public life would like to think that we would have done the right thing in those circumstances and stood up for those facing the worst of circumstances, regardless of whether it was popular or unpopular. If the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 passes the parliament today, it will be the day that Australia turned its back on the refugee convention and on refugees escaping circumstances that most of us can only imagine. This is a bad bill with no redeeming features. It is a hypocritical and illogical bill. If it is passed today, it will be a stain on our national character. The people who will be disadvantaged by this bill are in fear of their lives, and we should never turn our back on them. They are people who could make a real contribution to Australia.

    And there is no right for Australia to decide how many to ‘accept” for protection, we protect absolutely every person who applies and needs it.

    Good lord we make a mockery of this with only 0.0001% of the world’s refugees ever getting here don’t we?

    Resettlement though has nothing to do with the refugee convention and as Bowen notes in this speech we don’t get to push people away for any reason.

  20. Marilyn says:

    And there are no fucking people amugglers, it is legal to pay for transport and we ratified several conventions and protocols that make it legal.

    How do some of you people get to be so damned stupid?

  21. Paul Frijters says:

    good post Ken.

    Marilyn is out of line with the ad hominems.

  22. Patrick says:

    Well Marilyn, I don’t know much about this area, but your main complaint appears to be that you believe the proposed solution to be illegal.

    Now Ken notes this (its around about the first paragraph):

    Assuming that UNHCR accepts it (apparently the price of acceptance of the deal by Labor’s Left faction)

    So, if I’m right that you realise that there is no comprehensible use of the ‘illegal’ which applies to purely Australian domestic law, you must mean illegal under various conventions…so does this mean that the plan will go ahead if it is legal (by your lights) and won’t if it isn’t??

    In which case what are you so upset about, about from Ken’s mental deficiencies?

  23. Benjamin @ Debt Consolidation Nation says:

    a well balance article, certainly better than most I’ve read on the subject. My personal point of view was that the “illegal” component of our immigration was 2 small to be off concern and that the discrimination between boat and plane seem arbitrary.

  24. conrad says:

    Actually, I think there are really 3 confounded issues in the abuse:
    1) The legality of the matter (In my ignorant books, this doesn’t make much difference especially after Ken’s comment #2, but it’s interesting to know about).
    2) The morality of the matter, where I think the abuse was unfair because the discussion was really mainly a discussion about particular aspects of the Malaysian solution and dumping passports vs. the way refugees are treated in general. I could dislike the latter (I do) but have an entirely civil discussion about how to evaluate the former. Until people can deconfound these issues in their own heads, there will just be screaming.
    3) Why Australians hold such strong attitudes to refugees despite tiny numbers of them turning up. I think this is an entirely separate question — I always find this strange too, since I often work in place teeming with illegal migrants and the last thing people worry about is whether they are illegal or not (parts of the legal population are enough to annoy many people). The fact that people are willing to change their votes based on this (say vs. economic performance etc.) is surprising. Perhaps we just don’t have enough to worry about, but in any case the issue itself is essentially independent of the one being talked about and hence doesn’t warrant abuse.

  25. Marilyn says:

    It is illegal and Parrish has been writing his ill informed bunkum for a decade.

    Under Article 32 of the refugee convention no signatory state shall expel any refugee in their territory for any reason other than they are a threat to national security.

    And that is all there is.

  26. Ken Parish says:


    The Refugee Convention permits removal to a safe third country where durable asylum is available. Whether Malaysia will qualify as such a country will depend on the details of the agreement the Australian and Malaysian governments have entered into ad what safeguards it contains. That’s why Labor’s left faction has insisted on UNHCR signoff/approval of the arrangement as a condition of its agreement to the policy. Are you seriously suggesting that UNHCR would approve an international arrangement that breached the Refugee Convention?

    In fact it will be extremely interesting to see whether UNHCR approves the agreement. See this article on the concept of “safe third country”. Earlier views about Convention obligations took a narrower view and suggested (based especially on clause 1E of the Convention) that it was only lawful for a signatory nation at international law to send a refugee (or asylum seeker whose claim has not been determined) to a third country where the refugee/claimant would have in that third country all the rights of a national other than citizenship and political (e.g. voting) rights. It is highly unlikely that the agreement between Australia and Malaysia would satisfy that test. For instance, it would require that Malaysia recognise the returnee asylum seeker’s right to work and to access to the same social security benefits (if any) as Malaysian citizens.

    However, more recently, both European nations and Australia have been adopting a much less stringent approach to the question of whether they can send refugees/claimants back to a third country. That less stringent test merely asks whether the refugee/claimant will be free from persecution and the threat of refoulement in the third country. It probably would not require Malaysia to agree that returnees would necessarily have the right to work or access social security benefits. This approach focuses especially on Article 33 and effectively concludes that the Convention is not breached by sending a person to a third country from which they won’t be refouled nor persecuted, even if they don’t get the same rights as a national of that country.

    As I observed, it will be very interesting to see whether UNHCR is prepared to countenance this new, less stringent approach. A positive spin on this new(ish) international approach is that it aims at regional co-operation and burden-sharing in relation to the huge and seemingly permanent problem of refugees instead of the highly arbitrary operation of the Refugee Convention in its inception which simply landed with complete responsibility any signatory nation where a refugee arrived and chose to seek protection. While that was an understandable response to the plight of Jews in WWII and people fleeing Stalinist Russia, it really isn’t a sustainable long-term answer to a huge and seemingly permanent global phenomenon. That’s why most first world nations including Australia have been taking an increasingly tough approach in recent years. Something more sophisticated is needed, ad the arrangements Australia is negotiating may be a part of a more lasting solution (which could also include first world countries like Australia contributing much more to supporting countries of first asylum to provide protection until it is safe for refugees to return to their homelands).

    Ignorant ad hominem comments like Marilyn’s really don’t do anything to contribute to debate about what is a complex, difficult long-term international situation with no easy or self-evidently correct solutions.

  27. Marilyn says:

    Bullshit, there is no durable solution and expulsion is forbidden for any reason.

    do grow up Ken, you have been publishing this crap for years and have been wrong for years.

    Articles 3, 16, 31, 32 and 33 of the convention have force in Australian law.

    And our own courts found that third country was illegal under our law in a case called NAGV and NAGW so learn some facts before drivelling.

    10,000 refugees per week arriving in Kenya, we are whining about 50.

    As for ad hominme, Ken you have been writing the same ignorant drivel without thought of Australian law for the past decade.

    The law in Australia is simply stated by Ron Merkel in the Al Masri case.
    “60 In any event, while it is literally correct to describe the applicant as an “unlawful” entrant and an “unlawful non-citizen” that is not a complete description of his position. The nomenclature adopted under the Act provides for the description of persons as “unlawful non-citizens” because they arrived in Australia without a visa. This does not fully explain their status in Australian law as such persons are on-shore applicants for protection visas on the basis that they are refugees under the Refugees Convention.
    61 The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia: see ss 36 and 65 of the Act. It has always been fundamental to the operation of the Refugees Convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban in Afghanistan and many others, may also be called “unlawful non-citizens” in the countries in which they seek asylum. Such a description, however, conceals, rather than reveals, their lawful entitlement under conventional international law since the early 1950’s (which has been enacted into Australian law) to claim refugee status as persons who are “unlawfully” in the country in which the asylum application is made.
    62 The Refugees Convention implicitly requires that, generally, the signatory countries process applications for refugee status of on-shore applicants irrespective of the legality of their arrival, or continued presence, in that country: see Art 31. That right is not only conferred upon them under international law but is also recognised by the Act (see s 36) and the Migration Regulations 1994 (Cth) which do not require lawful arrival or presence as a criterion for a protection visa. If the position were otherwise many of the protection obligations undertaken by signatories to the Refugees Convention, including Australia, would be undermined and ultimately rendered nugatory.
    63 Notwithstanding that the applicant is an “unlawful non-citizen” under the Act who entered Australia unlawfully and has had his application for a protection visa refused, in making that application he was exercising a “right” conferred upon him under Australian law.”
    Now those four paragraphs make the law pretty clear and that was upheld by three more judges in the Full Court of the Federal court in April 2003 after Akram had been deported.

    So far so good on the “unlawful” = “illegal” story.

    So let’s wander off to the High Court appeal which became Behrooz, Al Kateb and Al Khafaji and have a look at the meaning of “unlawful”.

    GUMMOW J: What is the baggage of the word “unlawful”?

    MR BENNETT: Your Honour, none. It is a word used in a definition provision, it is simply a defined phrase. It is not a phrase which necessarily involves the commission of a criminal offence.

    “GUMMOW J: What is the force of the word “unlawful”?

    MR BENNETT: It is merely a word which is used in a definition section, your Honour.

    GLEESON CJ: Does it mean without lawful permission?

    MR BENNETT: Yes, that is perhaps the best way of paraphrasing – – –

    GUMMOW J: But in the Austinian sense that is meaningless, is it not?

    MR BENNETT: Yes, your Honour. The draftsperson of the Act is not necessarily taken to be familiar with the – – –

    GUMMOW J: Well, perhaps they ought to be.”

    Wow, so the word unlawful is legally meaningless.

    Now if we choose to be the only signatory nation to be moronic over the arrival of just a few thousand people while 9 million kids per year starve do not expect me to do or say a single thing that will support that law breaking.

    In fact the High Court last November found that Bowen had been breaking the law on Christmas Island so he is using the drownings he does not care about as an excuse to illegally expel 800 other completely random human beings to some place they cannot be protected.

    So grow up, learn the law and stop writing this sort of misleading nonsense.

  28. Marilyn says:

    And as for the “huge” problem? Half of the world’s refugees for the past decade have been from Iraq and Afghanistan and who started those wars?

    15 million refugees in a population of nearly 7 billion is a drop that could be solved tomorrow.

  29. conrad says:


    you might want to look at it another way. Let’s say that the UN starts trying to enforce really strict definitions of what it expects countries to do with refugees. Now let’s also imagine what would happen if the Australian government keeps on losing refugee claims based on this. Just to pick a random figure — let’s say 1000 refugees get in based on the Australian government constantly losing various appeals.

    Now consider what the outcome of all this would be likely to be from a parliamentary system with two parties happy to appeal to populist views — it seems to that the obvious things that will happen is that someone will suggest that Australia cross its name off this convention, and which ever party does it will get a mountain of votes.

    I don’t think this likely to lead to a better outcome than the current situation.

    “15 million refugees in a population of nearly 7 billion is a drop that could be solved tomorrow.”

    This is obviously apriori false otherwise the problem would be solved.

    “Half of the world’s refugees for the past decade have been from Iraq and Afghanistan and who started those wars?”

    There were tons of refugees leaving Afghanistan at least well before Western forces got there. When was the last time Afghanistan wasn’t at war?

  30. Ken Parish says:


    I’ll respond substantively to your latest abusive comment, but that’s the last time. Any further abusive comments will simply be deleted. It isn’t difficult to conduct a civil conversation, and if you wish to participate on Troppo you are required to do so just like everyone else.

    NAGV and NAGW did not hold that the concept of safe third country was unlawful, either under international or domestic law. The Court merely held that the fact that Australia might not breach its international obligation under Article 33(1) of the Convention by sending applicants/refugees to a safe third country did not mean that Australia had no protection obligations to those applicants/refugees under the Convention (as the Minister had argued was the case). Thus in fact the case accepted the existence of the concept of safe third country, but it didn’t accept that the existence of such a country amounted to a complete removal of Australia’s Convention obligations.

    Moreover, NAGV and NAGW (which was decided in 2005) did not consider the effect of Migration Act s 36(3) which reads:

    (3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

    I’m not sure whether the High Court has subsequently relevantly considered s 36(3). Moreover, whether it is relevant will depend on whether the agreement between Australia and Malaysia confers on returnees a “right to enter and reside in, whether temporarily or permanently” in Malaysia.

    Finally, your long rant about illegal/unlawful is irrelevant to the issue under discussion i.e. the safe third country concept, which however defined clearly represents when satisfied a circumstance in which a receiving country may send a refugee/asylum seeker to another country where he/she will receive effective protection. The concept (and this debate) has nothing to do with whether the asylum seeker is an “unlawful” arrival. Thus, for example, a person who arrived entirely legally (e.g. by air on a tourist visa) and then applied for a protection visa could lawfully (both under Australian domestic law and international law) be returned to another (third) country from which they had come if they had a right to enter and reside in that country and did not face either persecution or refoulement there.

  31. Marilyn says:

    So Ken, what if all 147 nations decided to skive off the people who applied in their countries to some other safe third country? What would that mean.

    And that diatribe about illegal or unlawful is a direct quote from our courts.

    You deliberately misread NAGV and NAGW, the government were wrong. The eminent justice Kirby said that if they were correct to deny asylum because the jews could have gone to Israel that would mean that not one person would be able to seek or gain protection from persecution.

    If you want to write nonsense go right ahead but the entire notion of safe third country is a furphy, that is simply about the movement of people through transit countries not being stopped.

    Good heavens you are Philip Ruddock par excellence with the way you distort and twist.

    In our region we are the safe third country, full stop.

    Indonesia will not protect, Malaysia, Cambodia, nowhere are refugees protected by the law in our region except here and we are whining about a mere 0.0001 % of them while 2.3 million children have died of starvation and preventable disease in countries of supposed first asylum.

    The law is simple. Anyone who applies for asylum in signatory countries has to have their case heard.

  32. Ken Parish says:


    Neither I nor anyone who knows anything about refugee law would disagree with your “diatribe” on illegal/unlawful. It is beyond question that a person is entitled to make an application for protection under the Refugee Convention if within the borders of a signatory nation, irrespective of whether they arrived with or without a valid visa or might otherwise be considered to be an “unlawful” arrival.

    But that has nothing to do with the issue under discussion. As I explained, the safe third country concept may permit the country in which a person arrives and applies for protection, irrespective of whether they arrived legally or otherwise, nevertheless to remove that person to another (third) country if it is a “safe third country”. Thus the relevant question is not whether the person arrived legally but whether the third country can properly be regarded as “safe”.

    If I am deliberately misreading NAGV and NAGW, then so is the author of the Commonwealth Law Reports headnote because I pasted my summary of its effect direct from there. In turn the CLR author copied the summary direct from the majority judgment of Gleeson CJ, , McHugh, Gummow, Hayne, Callinan and Heydon JJ (at [29]).

    If you don’t want to believe either me or the CLR headnote author, I don’t suppose you’ll accept the explanation of Savitri Taylor either in a 2006 article in the International Journal of Refugee Law:

    As mentioned at the beginning of this article, the Australian Government’s position is that it does not ‘owe protection obligations’ to persons, who would be ‘adequately protected in a safe third country’. This statement is simply too broad to be a correct statement of international law. It is a correct statement of international law to say that Australia does not owe Refugees Convention protection obligations to a person, who, while falling within the article 1 A definition of ‘refugee’, is ‘recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country’. This is what article 1 E of the Refugees Convention provides. Apart from situations in which article 1E can be invoked, however, it is firmly established that the fact that there is a third country which could and arguably should provide protection to a particular asylum seeker does not prevent the state within whose jurisdiction the asylum seeker actually is from incurring protection obligations. On the other hand, a receiving state may be able to send an asylum seeker to a third country without breaching any protection obligations it may owe that person, if the third country is ‘safe’ in the requisite sense, and this is the basis on which the ‘safe third country’ principle has developed in international law.

    Incidentally, here’s how Taylor explains the UNHCR’s current attitude towards ” safe third country”:

    UNHCR is, however, prepared to accept the transfer of an asylum seeker to a third country (whether a transit country or any other) if that country provides a prior guarantee in relation to the individual case that:

    (i) the person will be admitted to that country;

    (ii) will enjoy there effective protection, in particular against non-refoulement;

    (iii) will have the possibility to seek and enjoy asylum; and

    (iv) will be treated in accordance with accepted international standards.

    UNHCR is, in fact, willing to go so far as to say that if the conditions specified above are met the state transferring the asylum seeker also transfers responsibility for providing effective protection to the third state. Whether this is the case or not is an argument for another day, but it seems beyond argument that where the conditions specified above are not met a state transferring an asylum seeker to a purported ‘safe third country’ bears the risk of miscalculation. In other words, if the third country turns out not to be ‘safe’, the transferring state’s protection obligations will be breached.

    Thus, if the agreement between Australia and Malaysia satisfies each of the 4 requirements listed above, UNHCR might well approve it. However, if Malaysia breaches any of those promises, Australia’s protection obligations would also be breached. That is, the last two sentences in the second quote from Taylor’s article essentially echoes what the High Court held in NAGV.

  33. Marilyn says:

    I don't care what the Australian government think they believe, they are wrong.

    The people they think they can push away do not have protection in any other country and have not applied in any other country.

    This whine is pointless.

  34. Ken Parish says:

    This SMH article details why UNHCR is giving the deal its seal of approval. As will be seen it complies with all the UNHCR “safe third country” requirements listed in Savitri Taylor’s article quoted at #32 and indeed goes further:

    Sources said the refugee agencies would not be signatories to the document, which is an agreement between Australia and Malaysia, but had agreed it would operate in parallel with their policies for protection of refugees and side arrangements with Australia.

    The UNHCR’s endorsement is crucial because the agency will be responsible for processing and resettling the 800 asylum seekers sent to Malaysia.

    But its approval has been hard won; its head office in Geneva pushed for the deal to include human rights guarantees and rejected several earlier drafts. The UN commissioner, Antonio Guterres, was bombarded with hundreds of emails from Australians protesting against the deal.

    Approval from the UNHCR is critical for the Gillard government to have the refugee exchange accepted by Labor’s Left faction, which was concerned that unaccompanied children would be sent to Malaysia.

    The UNHCR has welcomed Australia’s agreement to resettle 4000 refugees from Malaysia but had been cautious about a deal that also sent 800 boat arrivals from Australia to a country which is not a signatory to the UN’s refugee convention.

    About 95,000 refugees in Malaysia have no legal right to work, are at risk of arrest, have no access to government schools and healthcare, and must wait years for resettlement in other countries.

    Australia has committed $292 million to the deal, which will include covering all the UNHCR’s costs in ensuring the healthcare, education and eventual resettlement in third countries of the 800, who will receive identity documents stating they are not illegal migrants.

  35. Ken Parish says:

    In fact, according to this story, returnees to Malaysia will actually have the right to work in that country (if they can find employment). That would put the deal fairly close to strict compliance with the conditions applicable to Article 1E of the Refugee Convention, let alone the less rigorous expectations of the “safe third country” doctrine.

    The conditions on Article 1E are that the person must “hav[e] the rights and obligations which are attached to the possession of the nationality of that country”. That doesn’t require voting rights etc, but would require rights to social security equivalent to a national. Returnees presumably won’t have those but then there are no unemployment benefits in Malaysia anyway, even for nationals. You can see why UNHCR approved this deal. Australia and Malaysia have agreed to a deal with very strong human rights protections which will serve as a precedent for other first world countries and regions which may aspire to enter into regional burden-sharing arrangements of this sort. It will be very difficult for anyone plausibly to criticise this deal, although it certainly won’t stop the shriller and sillier refugee advocates like Pamela Curr. Moreover Tony Abbott has never let lack of plausibility stand in the way of condemning anything Gillard does, and the media never bothers in any concerted way to critique the nonsense he continually spouts. Their self-conceived role is merely to commentate the political footie match as a spectacle.

    However, and despite this, I expect that even the Labor government should be able to effectively highlight the fact that they HAVE already gone a long way to stopping the boats, and in a much more sustainable, human rights-compliant manner than John Howard did (assuming Malaysia agrees to a renewal of the deal in due course).

  36. Kevin Rennie says:

    One of the strangest attacks on the Malaysian ‘solution’ comes from Scott Morrison. He wants to stop asylum seekers getting here from Malaysia but objects to sending them there because it would be inhumane. Where is he happy for them to be? They won’t all fit on Nauru. Should we take all those with refugees status currently in Malaysia?

  37. Marilyn says:

    Morrison is playing dirty grubby politics with Bowen.

    I would suggest the two racist cowards get into a boxing ring and beat each other to a pulp and leave the refugees alone.

    If they can’t be bothered doing that perhaps they could read Australian law.

  38. Marilyn says:

    (Moderator) Ad hom comment deleted

  39. Marilyn says:

    (Moderator) Ad hom comment deleted

  40. Yobbo says:

    3) Why Australians hold such strong attitudes to refugees despite tiny numbers of them turning up

    It’s really pretty simple Conrad. Australians like to give a sucker an even break, and they see refugees as Queue Jumpers who are taking the spot of other people who did it by the book.

    There’s not really any argument that they are wrong, either. Australia takes around 12,000 offshore refugees (that is, refugees who apply for asylum before setting off for Australia) every year – usually.

    In 2009-2010, when there was a massive increase in boat arrivals, they only took 9300 offshore refugees. The 5000 boat arrivals, in effect, took the spots of around 3,000 of the refugees who otherwise would have been admitted to Australia.


    Queue Jumpers who break the law, who pay money to criminals to assist them in getting here at the expense of others, and cost us money rescuing them when their boats sink.

    Australia is a very egalitarian country, and they don’t like people who think themselves important enough to ignore the queue and stroll straight to the front.

  41. Yobbo says:

    The funny thing is that by all rights, Gillard’s “Malaysian Solution” directly addresses this: Send the cheating boat people back to Malaysia where they can suck it up, and take 4000 of the patient refugees instead.

    I think the problem is that nobody has any confidence in anything the Gillard government does at this point, which is why the policy hasn’t really got any supporters at all.

  42. Yobbo says:

    And the big winners out of this Malaysian policy will be the Burmese refugees, who typically make up the largest % of offshore refugee applicants, and – unlike some other refugee groups – are a model minority in Australia.

  43. Marilyn says:

    Yobbo, there is no queue for asylum seekers, those refugees in other countries have been asylum seekers in other countries and are not entitled to come here.

    The lousy resettlement scheme is voluntary, there is no treaty or convention to cover them, it is another pathetic scheme for 0.0001% of the world’s refugees used as a fig leaf to pretend we are doing our bit.

    Each refugee we import this way costs taxpayers $60,000 while those asylum seekers who have the right to come here pay their own way.

    The only way asylum seekers can be queue jumpers is a mystery that not one other country has ever heard of.

    Offshore? Everyone is offshore except Australians, so what is the point of your silly whining.

  44. Yobbo says:

    Yobbo, there is no queue for asylum seekers, those refugees in other countries have been asylum seekers in other countries and are not entitled to come here.

    There is a queue for total refugees, as evidenced by the fact that Australia takes in around the same number every year – around 13,000. In years with high numbers of boat arrivals we accept less offshore refugees.

    Just to clarify, according to the government website I linked to earlier:

    Offshore = Refugees taken from camps overseas according to recommendations from the UN.
    Onshore = Asylum Seekers who apply for asylum after landing (either by boat or plane).

    The more Onshore arrivals we have, the less offshore get allowed in. Therefore there is a queue – or, more accurately, a quota – and you can get to the front of it by coming here in a boat.

    Stop ignoring the facts please.

  45. . says:

    Government immigration numbers are consistently wrong. If there is a queue it is because the Government has created it.

  46. Ken Parish says:

    “Therefore there is a queue – or, more accurately, a quota – and you can get to the front of it by coming here in a boat.”

    Quite so, and the Malaysia Solution addresses that by putting them to the back of the queue/quota. Moreover, Bowen indicated earlier today that the Malaysians have expressed a willingness to extend the arrangement beyond 800 returnees as long as the initia stage works OK. I think it will, although no doubt the people smugglers will be looking for any way they can to sabotage it (just as they sabotaged Howard’s “tow the boats back to Indonesia” strategy by adopting a simple but ruthless tactic of sinking the boats)!!

  47. Ken Parish says:

    “If there is a queue it is because the Government has created it.”

    What do you mean? There is a queue/quota for the reasons Yobbo explained. The government has certainly created it in the sense that they have a refugee/humanitarian quota (around 13,000 for the last few years but will now rise to 14,000 to accommodate the Burmese swappees from Malaysia), but deduct onshore arrivals found to be refugees from that quota total. Incidentally that has been the policy of both Labor and Coalition governments ever since at least the Hawke/Keating government.

  48. Yobbo says:

    Quite so, and the Malaysia Solution addresses that by putting them to the back of the queue/quota.

    Yep, as I said in post 41.

    At least, that’s the way it will work the first time we do it. The 2nd time around we’ll just get those 800 back along with 3200 burmese.

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