Beyond the political reasoning in the asylum seeker debate
“People smugglers are engaged in the world’s most evil trade and they should all rot in jail because they represent the absolute scum of the earth. People smugglers are the vilest form of human life. They trade on the tragedy of others. And that’s why they should rot in jail and in my own view, rot in hell” – Prime Minister Kevin Rudd.
“We decide who comes into this country, and the circumstances in which they come” – former Prime Minister John Howard.
Both highly charged statements convey the emotive issue of asylum seekers. The issue of asylum seekers are once again in the spectrum of political debate when human tragedy occurred near Ashmore Reef after a boat carrying asylum seekers exploded. The tragedy has killed three people, two as missing but presumed dead, with others suffering from critical burns to 95 percent of their bodies and are in induced comas.
This is the fourth boat to reach Australian waters, bringing the total number of asylum seekers arriving by sea up to 187 (already more than the 179 who arrived in 2008). With the election of the Federal Labor Government, there have been four major changes in detention policy since 2007:
First, the abolishment of the Pacific solution (i.e. closing down detention centres in places like Nauru). Second, the abolishment of the Howard government’s Temporary Protection Visas (TPVs); under that scheme even those found to be genuine refugees had to be reassessed after three years.
Third, no children should be kept in detention. Finally, once health, identity and security checks are carried out the asylum seekers are released into the community until their status is determined (though for those arriving by boat the community as such really means Christmas Island).
According to the Federal Opposition, the changes implemented by the Government have presented a “softening of detention policy” and as a result, we can only expect an increased number of unauthorised boat arrivals Australian waters. Shadow Minister for Immigration, Dr Sharman Stone stated that “Australia is fast becoming a target destination for people smugglers” and “Quite clearly the message received by the people smugglers is that this is a lucrative market with strong chances of success.”
It is important to look beyond the political reasoning and examine factors that have been responsible for the increase in asylum seekers arriving by sea. The rising number of asylum seekers can clearly be attributed to a wider global trend as indicated in a recent report from the United Nations High Commissioner for Refugees (UNHCR) which shows that there has been a 12 percent increase worldwide in asylum applications over the past year.
In 2008, 29 of the 51 asylum countries included in the report registered an increase in asylum requests. Italy (+122%), Norway (+121%), the Netherlands (+89%), Turkey (+70%), Switzerland (+53%), Canada (+30%) and several others, received the brunt of the increase but Australia, with an increase of 19%, was not one of the most affected countries.
These increases are not limited to industrialised nations. In Thailand, the number of asylum-seekers has increased in the last few years, due mainly to the recent turmoil in Burma. In Yemen, increasing refugee numbers is becoming a significant burden, largely due to Yemen’s open policy for Somali refugees despite the country’s limited resources.
So what are the international geo-political phenomena that have contributed to the increased in people smuggling? The primary reason for the increase in asylum applications is the deterioration of security situation in countries such Afghanistan, Iraq, Zimbabwe, Somalia, Nigeria, and Eritrea to name a few.
Closer to home, the following international security concerns are:
First, the conflict in Sri Lanka is of significant importance as the 26-years civil war shows no signs of ending with more and more civilian casualties. Second, Australia, along with other Commonwealth nations, is pushing Fiji to restore democracy after a military coup. Third, the growing political unrest in Thailand is a concern not just for Australia but also within the Asia Pacific region.
Climate change is also an important factor in forcing people to seek asylum. According to Antonio Guterres (Commissioner of UNHCR), “Climate change is today one of the main drivers of forced displacement, both directly through the impact on environment – not allowing people to live any more in the areas where they were traditionally living – and as a trigger of extreme poverty and conflict.”
The status of asylum seekers under international law. An asylum seeker is an individual who has sought international protection and whose claim for refugee status has not yet been determined. A person is a refugee from the moment he/she fulfils the criteria set out in the 1951 Convention Relating to the Status of Refugees (1951 United Nations Convention).
According to the Convention, the definition of a refugee is “Any person who owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of particular social group or political opinion, is outside the country of his/her nationality and is unable, or owing to such fear is unwilling to avail himself/herself of the protection of that country.”
Australia ratified the Refugee Convention in 1954 and the Protocol in 1973. Through ratification, Australia has agreed to be bound by certain obligations under international law towards people who meet the Convention definition of a refugee. The most important of these obligation is the requirement under Article 33 that persons who are recognised as “refugees” must not be returned or “refouled” to a country where they face persecution for one of the Convention grounds.”
Under Article 27, states may not invoke their internal laws as justification for their failure to perform an obligation under a treaty. Under Article 31, a state is bound to carry out its international treaty obligations in good faith. Norms set out under international human rights law are not dependent on maritime classifications of high seas, contiguous zones and territorial seas.
Australia’s international obligations are to: provide humanitarian assistance to a vessel and passengers in distress, give effect to the right to seek asylum under the Migration Act, and grant rights to due process of the law. As a signatory, Australia is required to provide sanctuary to those refugees to whom we have protection obligations regardless of whether they have entered Australia lawfully or unlawfully.
Reference: Asylum Levels and Trends in Industrialized Countries, United Nations Convention Relating to the Status of Refugees