Asylum policy in Australia: Between resettlement and deterrence

Written by Ionel Zamfir

Australia has established an asylum policy which has proved highly effective in deterring irregular migrants, but has attracted much criticism from human rights organisations. Its main drivers have been mandatory detention and offshore processing of asylum-seekers.

Political context

Over a period of 20 years, Australia has put into practice various policies aimed at deterring asylum-seekers from arriving illegally by sea. In September 2001, the Australian Government introduced a set of legislative measures known as the ‘Pacific Solution‘. Under this policy, asylum-seekers arriving by boat were transferred to offshore processing centres in the Republic of Nauru and in Manus Island, Papua New Guinea, where they were detained while their asylum claims were being processed. In 2008, the Labor government dismantled this system, resettling all refugees in Australia. After a huge increase in boat arrivals between 2008 and 2012, with hundreds of people drowning at sea, treatment of irregular migrants became a central topic of political debate. It caused a ‘race to the bottom‘ among all political parties during the 2013 federal election campaign. In its last months in power before the elections, the Labor government introduced harsh restrictions to the country’s immigration policy. Tony Abbott’s conservative Liberal party, which had won the elections on a platform promising to ‘stop the boats’, put in place an even more rigorous policy, in line with its promises. As a consequence, after the Australian authorities had reported the arrival of 300 boats in 2013, with approximately 20 000 people on board, in 2014 this number was down to a single boat and there were no incidents of asylum-seekers drowning in Australian waters.

Policy towards lawful asylum-seekers

In 2014, Australia recognised 2 780 asylum-seekers present on its territory as refugees, i.e. 0.09% of the number of refugees in the world. The same year, Australia accepted to resettle 11 570 refugees from third countries within its territory through the Office of the United Nations High Commissioner for Refugees (UNHCR). They accounted for 11% of the global number of refugees resettled through the UNHCR Programme, Australia ranking third in the world and first on a per capita basis. However, this is only a tiny part of all refugees in the world, since the UNHCR sumbits for resettlement less than 1% of them. Refugees are admitted to Australia through the Humanitarian Programme, which has two main components: offshore resettlement for people resettled to Australia from other countries as refugees, and onshore protection for people who come to Australia with a valid visa and subsequently make a successful claim for asylum. For the 2014-2015 financial year, the government has provided 13 750 places in the programme. Recently, it has announced it will accept an extra 12 000 refugees from Syria and Iraq, with a focus on persecuted minorities.

Deterring irregular migration

The underlying principle of Australia’s policy, put in place by successive governments, has been that asylum-seekers arriving by boat should not ‘jump the queue’, i.e. receive an advantage over those waiting elsewhere for resettlement. The main elements of this policy include turning back boats into international waters, detaining all illegal entrants, processing their claims ‘offshore’ (in third countries), and resettling those among them who get granted refugee status to countries other than Australia.

Operation Sovereign Border

Immediately after assuming power in September 2013, the Liberal-National coalition rolled out Operation Sovereign Borders, aimed at stopping illegal boat journeys into Australian waters. Conceived as a deterrence strategy and presented under the slogan ‘No way. You will not make Australia home’, the operation

conducted by the military involves forcing, or towing, boats back to international waters. To ensure that no one entitled to international protection is denied it, asylum requests of people arriving in boats have been screened via videoconference at least in one case; the fairness of this procedure is however questionable. The UNHCR and human rights organisations called this treatment of asylum-seekers a breach of the Geneva Refugees Convention, which prohibits returning refugees to a territory where they risk persecution, and of other international human-rights norms. It was also criticised for violating Australia’s obligations under international maritime law and Indonesia’s sovereignty, and for endangering people’s lives.

Agreements with neighbouring countries

In order to resettle asylum-seekers and recognised refugees to third countries, Australia has concluded a number of agreements: on 19 July 2013, a Regional Settlement Arrangement with Papua New Guinea, allowing for unlawful asylum-seekers to be transferred to this country for processing and resettlement; on 3 August 2013, a new Memorandum of Understanding with Nauru, containing similar provisions; on 26 September 2014, a new Memorandum of Understanding with Cambodia for the permanent resettlement from Nauru of asylum-seekers who have been granted refugee status. Resettlement to Cambodia is done exclusively on a voluntary basis. An earlier 2011 agreement with Malaysia to swap 800 unlawful asylum-seekers from Australia for 4 000 registered refugees living in Malaysia, in order to deter boat journeys, was rejected by Australia’s High Court, on the grounds that Malaysia is not a party to the Refugee Convention or its Protocol.

Mandatory detention

Introduced in 1992, Australia’s mandatory immigration detention system was expanded in 1994 to apply to all non-citizens without a valid visa. Under Division 7 of the 1958 Migration Act (with subsequent amendments), asylum-seekers arriving in Australia without a valid visa are held in immigration detention until they are granted a visa or removed from Australia. Australian law does not put a limit on the length of time in which a person may be held in immigration detention. According to the Australian Human Rights Commission, some asylum-seekers spend long periods of time in immigration detention waiting for their refugee claim to be assessed, or their health, identity and security checks to be completed; or awaiting removal from Australia if they have been found not to be a refugee or a person qualifying for ‘complementary protection’. As of 30 June 2015, there were 2 013 people in immigration detention and 1 189 people in community detention in Australia. Offshore, there were 655 asylum-seekers (including 88 children) in detention in Nauru, and 945 adult asylum-seekers in detention on Manus Island.

Currently, Australia transfers all of its illegal maritime entrants, including children, to Nauru or Manus Island, where they are placed in Australian-funded detention centres, and their asylum claims are assessed under local law. Criticism has emerged about conditions at these centres. After visiting Papua New Guinea and Nauru in 2013, the UNHCR assessed the treatment of asylum-seekers at the centres as ‘arbitrary and mandatory detention under international law’ and criticised them for not offering ‘safe and humane conditions’ or a ‘fair, efficient and expeditious system for assessing refugee claims’. In 2013, violent protests broke out in the Nauru centre after the resettlement deal with Cambodia was announced. An independent 2015 review (‘the Moss review’), investigating allegations about the mistreatment of refugees in the centre, recommended improving mechanisms for preventing and reporting cases of sexual and physical assault. An Australian Senate inquiry from the same year found that the centre is inadequate and unsafe and children should be removed from it. Recently, the Nauru Government has announced that all asylum-seekers will be allowed to move freely on the island. The Manus Island centre has also come under heavy criticism, especially after the breakout of violent protests among asylum-seekers, which left one dead in 2014. In January 2015, a new wave of protests, involving hunger strikes and incidents of self-harm, took place. Immigration detention also comes with a cost. The National Commission of Audit estimated the cost of offshore detention per person per year in 2013-2014 at AUD430 000 (approximately €270 000), and onshore at AUD239 000 (approximately €150 000).

According to some sources, despite the inherent geographical differences, the EU could emulate the Australian model of border control at least from a practical point of view. However, from a legal point of view, the EU faces a totally different situation. An EU policy similar to the one implemented by Australia could be ruled illegal under the European Convention on Human Rights. The European Court of Human Rights ruled in 2012 that the return by the Italian Government of migrants intercepted at sea to Libya violated its legal obligations under the European Convention on Human Rights.

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