04 January, 2011

Getting Some Facts Straight about Asylum Seekers

With the recent news about boat people in such places as the South Australian town of Woodside, one tends to come across misconceptions about asylum-seekers to Australia.

So it’s time to correct some of them.

But first, how does Australia compare to other countries in terms of how many refugees it takes? The United Nations High Commissioner for Refugees 2009 Global Trends report ranked Australia at 47th in the number of refugees under the UNHCR mandate hosted from 2005 to 2009. For the same time period, Australia ranked 68th on a per capita basis and 91st in regards to national wealth. According to the same report, for 2009 Australia ranked 33rd in the number of applications for asylum received, 41st on a per capita basis in 71st in regards to Gross Domestic Product.

Now, onto clearing up these misconceptions.

Firstly, it is sometimes claimed that asylum-seekers who arrive by boat do so illegally, when in fact this is not the case. According to Article 1 of the 1951 United Nations Convention Relating to the Status of Refugees, a refugee is “a person who is outside his or her country of nationality or habitual residence; has a well-founded fear of persecution because of his or her race, religion, nationality, membership of a particular social group or political opinion; and is unable or unwilling to avail himself or herself of the protection of that country, or to return there, for fear of persecution.” The UNHCR further defines an asylum-seeker as someone coming to a country claiming refugee status, whose claim is yet to be, or is in the process of being, verified. The term does not imply the validity or invalidity of the person’s refugee claim.

The Convention, to which Australia is a signatory, also reads, “Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” Asylum-seekers who stop at transit countries en route to the country in which they seek asylum are also covered by Article 31, as the 1999 UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum-Seekers reads, “The expression “coming directly” in Article 31(1) [of the 1951 United Nations Convention Relating to the Status of Refugees], covers the situation of a person who enters the country in which asylum is sought directly from the country of origin, or from another country where his protection, safety and security could not be assured. It is understood that this term also covers a person who transits an intermediate country for a short period of time without having applied for, or received, asylum there.

No strict time limit can be applied to the concept “coming directly” and each case must be judged on its merits. Similarly, given the special situation of asylum-seekers, in particular the effects of trauma, language problems, lack of information, previous experiences which often result in a suspicion of those in authority, feelings of insecurity, and the fact that these and other circumstances may vary enormously from one asylum-seeker to another, there is no time limit which can be mechanically applied or associated with the expression “without delay”. The expression “good cause”, requires a consideration of the circumstances under which the asylum-seeker fled. The term “asylum-seeker” in these guidelines applies to those whose claims are being considered under an admissibility or pre-screening procedure as well as those who are being considered under refugee status determination procedures. It also includes those exercising their right to seek judicial and/or administrative review of their asylum request.”

The same Guidelines also say that detention of asylum-seekers is “inherently undesirable” and should only be done “in cases of necessity”. Detention of asylum-seekers “must comply not only with the applicable national law, but with Article 31 of the Convention and international law” and “must be exercised in a non-discriminatory manner and must be subject to judicial or administrative review to ensure that it continues to be necessary in the circumstances, with the possibility of release where no grounds for its continuation exist.” Alternatives to detention “should be applied first, unless there is evidence to suggest that such an alternative will not be effective in the individual case”.

It is sometimes claimed that asylum-seekers who arrive in Australia and then claim asylum are jumping the queue ahead of asylum-seekers who are waiting patiently in refugee camps overseas. This is also a misconception. Australia’s refugee intake is comprised of an “on-shore” component and an “off-shore” component. The “on-shore” component is comprised of people who travel to Australia, via such methods as aeroplane or boat, and claim asylum when they arrive. The “off-shore” component is comprised of people who wait in UNHCR refugee camps abroad to be chosen and settled in other countries.

It used to be the case that Australia’s off-shore and on-shore refugee intakes comprised two separate quota systems, with neither one affecting the other. Thus, hypothetically, if a refugee were able to access an UNHCR camp but instead chose to come to Australia and claim asylum, he/she would be easing the load on the UNHCR camp by not adding themselves to it. However, in 1996 the Australian Government, under Prime Minister John Howard, combined the on-shore and off-shore refugee intake quotas. This is not the fault of the asylum-seekers. Rather, it is the fault of the government.

Also, the off-shore refugee intake system does not work like a queue. It does not work on a first-come-first-served basis. Rather, it works more like applying for a job, or waiting in the waiting room of a hospital to be treated. Each year, Australia chooses whom it considers the most suitable for settlement into Australia out of those waiting in the UNHCR camps. Thus, a refugee who arrived later than another refugee may be the one chosen out of the two to be allowed to settle in Australia.

To be resettled in Australia via the off-shore program a refugee must either be referred by the UNHCR or sponsored by somebody already living in Australia.

According to Afghan refugee Abdul Karim Hekmat, “The so-called ''queue'' in which asylum seekers wait for an orderly process in a third country is a myth. “In Pakistan, where I spent some time as a refugee, the UNHCR accepted hardly any applications. Hekmat also writes that the reason why many people do not apply to Australian consulates is that, “Australian posts overseas do not accept direct applications from a refugee applicant.” Furthermore, “many with extended family members who tried to sponsor their families were not successful through the normal process. Some of those who came by boat have exhausted all other possibilities.”

To be referred by the UNHCR a refugee must be able to register with it. Unfortunately, for many this is too dangerous or is impossible. Some countries refuse to allow the UNHCR to register refugees. While in Indonesia in 2001, en route to Australia, Hekmat “heard stories of asylum-seekers who had stayed for years, in shelters provided by the International Organization for Migration, but their applications were not processed”.

Australia does not have many foreign posts near any of the regions of the world from where refugees flee, and many of those posts that do exist have problems of under-staffing, under-resourcing and bribery.

According to the UNHCR, in 2008 less than one per cent of all of the world’s refugees were resettled.

Amnesty International tells us that not all of the nations next to the ones from which the asylum-seekers are fleeing are signatories to the 1951 United Nations Refugee Convention, some of the countries persecute the asylum-seekers, and some are unable to offer the protection required.

When asylum-seekers started to arrive in Australia by boat from Sri Lanka, some people asked why they did not just go to India. According to Amnesty International, there are several reasons why they go to Australia instead of India. Firstly, sailing to India from Sri Lanka would risk attack from the Sri Lankan navy under the pretence of fighting the Tamil Tigers. Secondly, while the government of the Indian state of Tamil Nadu provides registered adult Sri Lankan refugees with food and 800 rupees per month, the Indian government is unwilling to offer Sri Lankan refugees permanent residency or a long-term solution, and Tamil refugees in India have no rights or real chance of getting rights via citizenship. Thirdly, the refugee camps in India are extremely substandard. Finally, India is not a signatory to the 1951 United Nations Refugee Convention, and under Indian law the government has the right to force all foreigners to “reside in a particular place”, restrict their movements and penalise those trying to help them escape.

If an asylum-seeker arrives without identification documents it does not mean his/her asylum claim is invalid or that he/he is trying to hide criminal backgrounds. It can be too dangerous to apply for and/or have identifying documents. Having and/or applying for such identifiers as a passport or visa can put the asylum-seekers in danger of the very regimes they are fleeing.

In 2009, Opposition backbencher Wilson Tuckey claimed the chances of there being terrorists aboard asylum-seeker boats travelling to Australia was about “two or three to one”. Prime Minister of the time Kevin Rudd responded by describing Tuckey’s comments as “deeply divisive, disgusting remarks” that “do not belong in any mainstream political party” and called for the Opposition leader of the time, Malcolm Turnbull, to withdraw Tuckey’s preselection. Senior lecturer in international relations at Australian National University Dr Michael McKinley responded to Tuckey’s remarks by pointing out that all asylum-seekers in Australia undergo ASIO security checks and “that most of the terrorists are home-grown”. McKinley described the chances of terrorists arriving at Australia by boat was “infinitesimally small”.

Asylum-seekers who arrive by boat are also subjected to health checks. Under Australia’s migration program, visa applicants also must undergo health checks.

Asylum-seekers who travel to Australia by boat often pay people smugglers for the journey. It is often erroneously claimed that people smuggling is a crime. In fact, under international law, people smuggling per se is not a crime. Rather, people smuggling for profit is a crime.

Article 3a of the United Nations Protocol Against The Smuggling of Migrants By Land, Sea, and Air, Supplementing the United Nations Convention Against Transnational Organized Crime defines “smuggling of migrants” as “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or permanent resident”. According to Savitri Taylor, senior lecturer at LaTrobe University’s School of Law, “the reference to a profit motive was included in order to ensure that those assisting migrants or asylum seekers on humanitarian grounds or on the basis of close family ties would not be caught by the Protocol’s provisions”.

By definition, Oskar Schindler, Dietrich Bonheoffer and the Underground Railroad were people-smugglers.

Under international law, hiring a people smuggler is not illegal. Article 5 of the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air reads “Migrants shall not become liable to criminal prosecution under this Protocol for the fact of having been the object of for-profit people smuggling.” The Protocol calls on state parties to provide humane treatment to the migrants being smuggled, and also reinforces the 1951 United Nations Refugee Convention and its 1967 Protocol.

Hopefully this article will have cleared up any misconceptions readers may have had about asylum-seekers, and will equip them to clear up the same misconceptions that other people may have.

By Matt Buckley

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