How to Fail at Human Rights: Australia Excuses itself from Refugee Law

A large portion of what I spend my time doing overseas is engaging with abuses of human rights and their practical implications- or working to ensure that peoples’ basic rights are met, either through direct action, or advocacy. Coming home to my family in Australia, I have the privilege of knowing they will never face the sorts of rights deprivations that many of the displaced people I habitually work with do.

With that in mind, it makes Australia’s decision yesterday to excise its mainland from the migration zone all the more shocking.

The migration zone, simply put, is the geographical boundary within which an incoming asylum-seeker can legally lodge an appeal for asylum. Under normal circumstances, an asylum-seeker can set foot anywhere on Australian sovereign territory and, from that point, appeal to the government to recognize his or her claim for refugee status under the 1951 United Nations Convention Relating to the Status of Refugees.

In 2001, following the Tampa affair in which a foreign vessel that had rescued would-be asylum-seekers from a sinking vessel subsequently lodged (against Australian wishes) on Christmas Island, the Howard government excised a number of offshore Australian territories from the migration zone. That meant that anybody arriving at those places would not have any legal recourse to claim asylum, giving the Australian government the right to move them offshore or process them in situ without recourse to legal appeal, representation, or the Australian court system.

Yesterday, the Gillard government took this to the extreme, and made the entirety of the Australian landmass, all 7,692,000 square kilometres of the place, legally fall outside the migration zone. Now, nobody arriving without a visa anywhere on the Australian mainland has any rights in regards to claiming asylum from the Australian government.

Australia has, in essence, ceased to legally exist from the perspective of a would-be asylum-seeker.

This move ensures that Australia now has full legal right to deport anybody found arriving in Australia without a visa to one of its offshore processing facilities on Christmas Island or Manus Island (the latter in Papua New Guinea). While in these processing facilities- which even the government labels ‘detention centres’- inmates are outside the Australian legal system. They cannot get representation from a lawyer. Do not have any right to appeal. The Australian government can manage them any way it sees fit.

As if this wasn’t a classy enough move, the Australian government has also rejected a proposal from the Greens that would have seen children banned from being detained in these facilities; and have upheld access restrictions for both media and, disturbingly, human rights observers.

And in an equally classy move, in this week’s 2013 Budget, the government has announced that it is upholding plans to divert $375 million from the overseas aid budget into paying for the costs of detaining asylum-seekers- which is a domestic policy initiative.

All up, I am completely sickened by the government’s actions, and disappointed that more international condemnation of their approach is not forthcoming.

Let’s backtrack a little to really grasp the implications of what’s happening here.

First off, refugees. The 1951 UN Convention (and subsequent 1967 Protocol– Australia is signatory to both) recognizes a refugee as the following:

A person who owing to a 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

The Universal Declaration of Human Rights (UN- 1948), Article 14, states:

Everyone has the right to seek and to enjoy in other countries asylum from persecution.

A person who is an asylum-seeker, therefore, is one who has lodged an appeal with a sovereign nation to be recognized as a refugee, persuant to the definition above and, critically, the risk of real harm happening to them if they return to their country of origin. (Returning a refugee to their country of origin when it has been deemed they may face harm is known as ‘refoulement’ and is strictly prohibited under international humanitarian law). It is then up to the sovereign host nation to which the asylum-seeker has applied to determine whether this person’s individual case meets the definition of refugee, and if it does, that nation has a responsibility under international agreement to grant that individual refugee status, and refuge in that country.

Asylum-seeking and refugee issues are strongly debated in Australia, both in politics and the public space. There is a perception among a particular (and vocal) segment of Australian society that asylum-seekers are a problem. This minority, unfortunately, seem to have disproportional ability to sway domestic policy.

At the crux of the debate are those asylum-seekers who arrive by boat. There are various perceptions that these people somehow pose a national security threat; that they are ‘jumping the queue’; or that they are engaged in criminal activity simply by dint of their arrival method.

Now, the arrival of asylum-seekers by boat is a problem, specifically because they tend to arrive in dangerous, unseaworthy boats that cost many their lives (since the year 2000, 1,731 asylum-seekers destined for Australia have been lost at sea). In addition, they frequently use illegal people-smugglers to transport them, opening them up to abuse and manipulation at the hands of both smugglers and the countries from which they depart (frequently Malaysia, Indonesia and Sri Lanka, all of which have questionable human rights policies when it relates to illegal migrants), and encouraging illegal activity.

It is not, however, a concern for Australia’s sovereignty.

Let’s see some figures.

First off, arriving in Australia (or any other country) without a visa for the purpose of claiming asylum is not illegal. It is a fundamental human right to which Australia and most other nations on earth have agreed and signed up to (see above). If these people arrive in Australia, try to avoid authorities, then simply melt into the community and hide away (more on this below), then they would be illegal. But this is not the case. This is even specifically recognized with respect to arrivals by boat in Australian law under the 1958 Migration Act.

Second, 94% of those who claim asylum from Australia are found to be legitimate refugees and subsequently granted refugee status and rights to live in Australia accordingly. 94%. Fearmongerers claim that these people are simply queue-jumpers with no real claims to back them up except a desire to enjoy Australia’s higher standard of living. But the government’s own statistics toss this out of the window. A mere 6% of those who arrive are being deported with non-legitimate claims.

Put in perspective, in February 2013, there were 5,750 people in immigration detention across Australia. 5,405 of these people will be recognized as legitimate refugees. Just 345 will eventually be rejected.

There’s not exactly a tidal-wave of people illegitimately seeking refugee status in Australia.

Let’s use this as a jumping-off point for an entertaining aside. On the other hand, there are around 60,000 illegal immigrants in Australia. Most of these are people who have arrived on a legal short-term or tourist visa and have come by plane, have let their visa lapse, and stayed on. Government figures say at least 50,000 people are illegally working in Australia– that is, earning money under the table but not paying tax (among other problems). This means roughly ten times more illegal immigrants than legal asylum-seekers in detention. Of these people, more than half have been in Australia illegally for more than five years, and 20,000 for more than ten. The figure of around 60,000 is up from around 50,000 in 2005, so the problem is increasing. In 2011, around 5,000 of these illegals were from the US, around 3,600 from the UK, 8,000 from China and 4,000 from Malaysia (see this link for full story). Needless to say, none of these countries has a significant refugee outflux problem.

Strangely, nobody makes much of a fuss about them.

By contrast, the debate around asylum-seekers arriving by boat has been raging for over a decade, and for most of that time, the arrival numbers have been tiny. Australia’s overall migration program looks to take in 190,000 people in 2012-13. This makes up roughly 0.8% of Australia’s overall population, and is slightly above the natural increase rate of around 0.6%. While there have been spikes in asylum-seekers arriving by boat, particularly in 1999-2002 and since 2009, when annual figures have been 4-5,000 people arriving, most of the rest of the years since the early 1980s have seen no more than a few dozen arrivals and less per year. Geopolitical factors (the Afghan & Sri Lankan wars specifically) have had an obvious impact on arrival spikes. The impact of domestic policy is less clear. The 2010-11 year saw higher figures, of around 8,000 asylum-seekers coming by boat, disagreeing with these figures that suggest 4,500 came in 2011 and 17,000 in 2012. The number of asylum-seekers in detention has been steadier, at between 4-8,000 people per year since 1999.

In the last 2 years, therefore, there’s clearly been an increase in asylum-seekers arriving by boat, problematic for the reasons listed above but not from the perspective of being a threat to Australia. The following infographic, using the slightly-outdated 2009 figures, still places it all very nicely in perspective. Even in 20,000 asylum-seekers arrive, they remain a) legal, b) far fewer in number than true illegal immigrants, and c) still a tiny proportion of Australia’s overall refugee program (70,000 annual intake), immigration program (190,000 annual intake),overall growth rate, and population (23 million).

This one also has a point:

And this one:

Oh, and this one too, showing how people without visas enter Australia:

Okay, I’ll stop now.

Why does this really matter? Well, simply put, the rights of these 5-10,000 asylum-seekers being placed in detention are being trampled upon.

First off, as we’ve already ascertained, around 94% of those making claims have legitimate claims. They’re fleeing for their own safety. Most are coming from conflict zones. Many will have already been through distressing, potentially traumatizing events. Many have also paid huge sums of money- possibly their life-savings- to smugglers and will have nothing left. They have mostly undertaken a very dangerous journey to get as far as Australia. In short, as well as being legitimate refugees, they’ve already been through very unpleasant circumstances.

And they get here and Australia puts them in prison.

Try and imagine the distress of being locked away unjustly. Not for doing something wrong. Just because you were perceived as an inconvenience to your government. Start easy. Imagine 3 months. 3 months, where you were restricted to a low-security prison. Surrounded by barbed wire, in a foreign country, not understanding why you were there, with no guarantees of what was going to happen to you, and limited or no contact with friends, families and loved ones. No rights. No lawyers. And a chance that you might be sent back after the journey you’ve just taken. All because you tried to exercise your right- your internationally-recognized right- to seek asylum in another country.

Detention times are a major cause of suffering to asylum-seekers. The government acknowledges there are no targets for releasing detainees, but 2008 figures show that just over a third of asylum seekers were in detention for less than 3 months, more than half were in detention for more than 6 months, almost a third for more than a year, and 13% for more than 2 years (stats here). During this time, asylum-seekers have no guarantees of successful application, no indication of how long they will be detained for, and their mental health rapidly deteriorates. After 6 months in detention, people (including children) begin exhibiting signs of poor mental health, and detainees who spend  15 to 18 months or more in detention exhibit psychiatric morbidity. The average stay in detention for an asylum-seeker is 224 days.

The mental health implications of this are becoming well-established. Suicide is attempted and achieved. Over 1,100 incidents of self-harm or threatened self-harm were reported among the 6,000 or so asylum-seekers in detention between mid-2010 and mid-11- up to 50 in one week. Five suicides occurred in detention during the same period, with one attempted hanging a night, on average, across the system. On Christmas Island, according to an ABC report, the problem is so widespread that staff are instructed to carry a knife on them at all times so they can cut down people attempting to hang themselves. The situation continues to this day.

The video embedded in this link tells a powerful story of the mental health situation in Australian detention centres and I highly recommend it if you can spare the time. The full episode is 45 minutes long, but it is powerful, comprehensive and makes a compelling case of just how badly detainees suffer in Australia’s asylum-seeker program.

This, people, is all wrong.

It’s also the subject of both Amnesty International and UNHCR condemnation.

It’s also expensive. Depending on the figures you read, Australia’s asylum-seeker program has cost around $1 billion for the 5 years from 2002 to 2007 and $1 billion per year over the last four years. The current budget is anticipating a spend in 2012-13 alone of around $2.2 billion. The bulk of this cost goes to running and maintaining detention facilities (the Christmas Island facility, for example, apparently cost $400 million for the 800-bed detention centre), and running aerial and maritime patrols (it costs $36,000 per day to run a maritime patrol-boat, up to $568,000 per day for a frigate- link).

If we use the figure of $2.2 billion for the management of the 5,700 asylum seekers currently in detention as of February 2013, this means we’re spending $380,000 per detainee to run this program each year.

Sorry what?

Even if we’re generous and spread this over an estimated 20,000 asylum-seekers arriving by boat this year, that still gives us $110,000 per asylum seeker per year.

Quite frankly I’d prefer we spent the money setting up a robust community-based support and monitoring system which let the state keep an eye on them if necessary for national security reasons (…) but let them live like human beings.

And think about these figures for a moment. In fact, let’s break it down. Let’s just look at the $375 million that Australia is diverting from its overseas aid budget to contribute to this massive bill.

First off, that makes Australia the third largest recipient of its own foreign aid budget, after Indonesia ($540m) and PNG ($493m)- and significantly ahead of its contribution to the entirety of Sub-Saharan Africa ($319m)- but then what did they ever need aid money for? This is out of a total aid budget of $5.7bn– so roughly 6.6% of Australia’s foreign aid budget is going straight into managing the up-to 20,000 asylum-seekers arriving by boat.

As this infographic neatly points out, this $375 million could prevent the deaths of 185,000 people, or education 750,000. It is the largest diversion of foreign aid in Australia’s history, and also more than double the average for developed nations- even though Australia’s refugee burden, estimated at 0.06% asylum seekers per population, is lower than the developed nation average of 0.1%.

I don’t really want to go much more into this, as I think you get the big picture (and quite a lot of the details, too). The decision by the Australian government to excise mainland Australia from the migration zone essentially reinforces a horrible, horrible policy of enforced detention for legal (I stress, again and again and again, people, LEGAL, good grief do I need to paint it neon and string it with lights?) asylum-seekers. A policy that stomps over international law and human rights, which has terrible mental-health and freedom implications for the individuals involved, which panders to a vocal, ignorant and ill-informed minority, and which costs both the Australian taxpayer and the potential recipients of aid a very significant amount of money.

We are paying vast sums to make people suffer against the collective conscience of the global community.

Perhaps the saddest irony of all is that Australia is itself an immigrant nation. The government’s own immigration website points out that a quarter of Australian nationals today were born outside of the country and that each decade for the last 6 decades has seen around a million migrants. Since the Second World War, seven and a half million migrants have come to Australia. Yet we kick up a fuss because of a measly 17,000 (last year- far fewer in previous years), we talk about queue-jumpers and place ignorant expectations on them and lock them up and deny them their rights.

It points to the underlying racism in Australian society- something not unique to Australia, but certainly prevelant. From the days of a ‘White Australia’ until now, there is a quiet discomfort with notions of the foreign ‘other’- whether the Greek and Italian migrants of the first half of the 20^th Century, or the Vietnamese who arrived in the 1960s and 70s, or the Sudanese, Somalis and Afghans arriving today. This is a diverse- a mind-bogglingly, ignorance-blowingly diverse– nation. And yet I still see utes driving around with the bumper sticker “Fuck off, we’re full.” As if white European-Australians have some right to claim ownership of this place anyway.

What arrogance.

What absolute tragedy.

What a complete, utter disgrace.

Shame on you, Government of Australia and all who support this immigration policy.