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"The Refugee Convention and beyond": keynote address to the International Association of Refugee Law Judges: Australasian Chapter regional conference, Melbourne



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Minister for Immigration and Citizenship

THE HON CHRIS BOWEN MP

International Association of Refugee Law Judges: Australasian Chapter Regional Conference “The Refugee Convention and Beyond”

Keynote address Melbourne 3 February 2012

Introduction

Good morning ladies and gentlemen and thank you for your introduction, Mary [Cameron, RRT Member].

It is a privilege to speak to a room that includes so many experts from around Australia and around the world.

I noted with interest that the theme of today’s conference is “The Refugee Convention and Beyond”.

As I see it, there are two ways of interpreting today’s theme.

The first is to say that we fully accept the Refugee Convention as the foundation and basis for refugee protection but that, in light of the changed nature of how people move around the globe in the 60 years since it came into force, we must look “beyond” the Convention, supplementing it with new and innovative approaches to addressing the international problem of displacement.

The second way of looking at today’s topic is to argue, as some do, that the principles behind the Convention are well-meaning but that its terms have become outdated and that its inflexibility is being exploited, undermining its goal of providing protection to those most in need. The conclusion of that argument is that it’s time to look “beyond” the Convention in another sense.

I support the former view.

Looking constructively “beyond” the Convention

It is true to say that the problems the world is facing today are quite different to the European humanitarian crisis of the 1940s and the harrowing

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experience of the St Louis, which led to the Refugee Convention being conceived and established.

Travel is easier, secondary movement is common and people smuggling has become a lucrative business with clear and extensive links to organised crime.

This does not mean, however, that the Refugee Convention needs to be torn up or rewritten. It needs to be implemented in a way which reflects these modern realities.

I disagree with those who say we should withdraw from the Convention or should push for it to be rewritten.

Rather, we should - and do - work with UNHCR and other countries in our region, as well as source countries, to ensure that asylum seekers are treated appropriately - in line with Convention obligations - but that dangerous journeys to seek asylum are discouraged.

The UNHCR, to its great credit, has recognised this and has actively worked with individual countries, and contributed to the Bali Process, to provide useful feedback on how this should occur.

It has, for example, produced a paper in November 2010, on how offshore processing can be implemented to deal with boat arrivals in a way that is compliant with the Refugee Convention. This involvement of the UNHCR has been invaluable as we tackle these issues.

There are two reasons we’ve been so driven to see a genuine regional framework in place to deal with the complex issue of movements of asylum seekers:

(1) Journeys undertaken by asylum seekers through this region are inherently dangerous.

(2) Our refugee program should be fairly calibrated to give fair opportunity to refugees in protracted situations around the world who don’t have the opportunity or resources to use people smugglers.

The issue of danger at sea is not a hypothetical one. Just yesterday, we saw the latest tragic example of the danger of this travel. At least eight people died in Malaysia making their way to Australia, via Indonesia.

This follows the deaths of 200 people just before Christmas, the loss of at least eight people in Indonesian waters in November and, of course, the terrible tragedy off Christmas Island the Christmas before last.

In my view, any discussion of the morality of various asylum seeker policies must recognise this point - that there is nothing moral or humanitarian in

telling people their best chance of a new life in Australia is to risk their lives to get here.

The policy that the Government has pursued is one that that involves resettling more refugees in Australia.

A policy that engages with a major refugee host country in our region in such a way as to create momentum towards better outcomes for the hundreds of thousands of refugees in our region living in non-signatory countries.

And it is a policy that involves close co-operation with the United Nations High Commission for Refugees and the International Organization for Migration increase the protection space in our region.

It is a policy entered into under the auspices of the Regional Co-operation Framework, involves countries that are not signatories to the Refugee Convention acknowledging the need to improve protection outcomes for refugees in our region.

Getting agreement to this Framework at the Bali Process Ministerial Conference - this step “beyond” the Convention - was no small matter.

As High Commissioner Antonio Guterres said last week - in relation to another part of the world:

“There is never a humanitarian solution for humanitarian problems. The solution is always political.” High Commissioner Antonio Guterres, Al Jazeera, 27 January 2012.

With the overwhelming majority of refugees in our region living in non-signatory countries, we recognised the need to engage - politically - with our neighbours through the Bali Process.

Resettlement in a country like Australia will never be the answer for all the refugees in our region - so we recognised the need to work constructively and creatively with countries in our region to improve conditions and protection outcomes for these “forgotten” refugees, who, in my view, receive far too little attention in the Australian political discourse.

For these people, every small improvement in essential conditions - a legal right to work, access to basic health care, protection from arrest - makes an enormous difference to daily life.

And, although it is clear that we will not be able to implement the Arrangement with the Government of Malaysia so long as the Opposition holds its current position on offshore processing, we remain convinced of its importance and virtue.

We believe the Malaysian Arrangement is the best policy approach, both for Australia and for asylum seekers, providing, as it does, a clear deterrence to people getting on precarious boats and risking their lives.

As I have said before: there is nothing humanitarian about a policy that says your best chance of getting resettled in Australia is to risk your life to get here.

So we have designed a policy to remove the incentive at the end of that boat journey, while, at the same time, ensuring that anyone transferred to Malaysia still receives protection and access to refugee processing, as required by the Convention, and at the same time, having the capacity to resettle more refugees and give more people a chance of a new life in Australia.

“Beyond” the Convention: a negative approach

There is, as I mentioned, another approach to the Convention, which views looking “beyond” it as looking around it.

Recently, there have been some comments that represent an approach to refugee policy that patently falls well short of its standards.

The proposal to ask the Australian Defence Force and border protection authorities to “turn the boats back” to Indonesia, for example, is a deeply troubling one.

It is troubling because it risks the lives of asylum seekers and our sailors. Troubling because it is being proposed when Indonesia has explicitly rejected this approach, and troubling because it is difficult to see how it could be possible implemented in a way consistent with our international obligations.

As the United Nations High Commissioner for Refugees’ regional representative said last week:

UNHCR would be concerned by any policy which consisted of pushing asylum seeker boats back at sea. Any such blanket approach would potentially place Australia in breach of its obligations under the Refugee Convention and other international law obligations. Statement of Richard Towle, UNHCR Regional Representative, 23 January 2012.

At several media events in recent weeks, including at the National Press Club on Tuesday, the Leader of the Opposition has stated - curiously - that his foreign policy will “have a Jakarta focus rather than a Geneva one”. Tony Abbott, Address to National Press Club of Australia, Canberra, 31 January 2012.

What are we to make of that?

That the Australian Government is working too closely with UNHCR? That we take our Convention obligations too seriously?

Paradoxically, this comes after the Leader of the Opposition announced to the Indonesian Government, via megaphone diplomacy, that, regardless of what Indonesia (or the Australian Navy, for that matter) has to say about it - and both have said plenty - his plan is to instruct our Navy to dump asylum seekers at the edge of Indonesian territory and sail off.

Also this week, it has been proposed that there be a presumption against refugee status for those who arrive without documents. How this would work in practice is a complete mystery, as is how it fits with the requirements of the Refugees Convention.

Either someone’s claims are assessed to be made out or they are not.

Sure, the fact that an asylum seeker has destroyed or discarded their documents can be taken into account when assessing the credibility of their claims. But, ultimately, the decision-maker has to decide, on the evidence available, whether a person is at risk of persecution in their home country. That is done in the context of the totality of their story.

If someone meets the definition on all available evidence, of which the circumstances by which they came to have no documents is one part, then the fact they have no documents cannot be used to refuse them - unless this presumption is intended to override the Convention.

Presumably at some point more information will be released about this policy: what will be the discretion of decision-makers in refugee determination cases, given the Opposition’s stated policy of a “presumption” against refugee status?

Will there be legislation? As is it almost certainly required to implement such a policy. And how could it possibly be implemented in a way that is Convention compliant?

Whether it be “turning back boats”, dubious presumptions, or promising greater distance from “Genena”, looking “beyond” the Convention in this sense is a troubling exercise.

Looking “beyond” the Convention today

While the Government has endeavoured to look constructively “beyond” the Convention in the pursuit of regional co-operative arrangements, acting “beyond” the Convention is, of course, nothing new.

For decades Australia has offered a generous resettlement program -the highest in the world on a per capita basis - even though, of course, the Convention imposes no requirement for us to do so.

We do it not because we have to; we do it because we are a humanitarian nation.

What we do here is important. As the world’s largest resettlement country per capita, and the third largest in absolute terms, our resettlement program is very significant in international terms. Apart from the US, Canada and Australia, there is very little international resettlement to speak of.

As you know, and as I set out at the ALP National Conference in December, I would like to progressively increase Australia’s Humanitarian Program to 20,000 places. But we simply cannot afford to do that so long as we are forced to devote a disproportionate amount of resources to dealing with boat arrivals, which is a very expensive proposition. And, unless you advocate dropping asylum seekers at Flinders Street Station with a train ticket and a map, it remains an expensive proposition regardless of whether people are accommodated in detention or in the community, since many have significant support needs.

We have what is regarded as world-class resettlement services, but these services do come at a considerable cost to Government. As people in this room know, assessing refugee claims, whether in the detention environment or in a community environment is a resource-intensive exercise. We could settle so many more people if those resources were dedicated to resettling people who have already been assessed as refugees and referred to us as priority cases by the UNHCR.

Even an orderly increase in the Humanitarian Program is expensive. For the first four years of any increase in our Humanitarian Program, every additional 1,000 resettlement places would cost the Australian Budget around $216 million. By extension, an increase to 20,000 would cost the Budget around $1.35 billion over the first four years.

So what we have is a finite program. It is an expensive program, providing world-leading settlement and social services, because we think that good integration is important. But it costs money.

A finite program and a not-unlimited budget means that, for every visa we grant onshore, we cannot offer a visa to a parent, a child, a cousin, an aunt, an uncle offshore.

Consequently, the impact of the greater number of arrivals resulting from the blocking of the Malaysia Arrangement is that this year’s Special Humanitarian Program, which is largely made up of close family members of refugees already in Australia, will be under very significant pressure indeed.

Just as Australia (and almost every country in the world) has a finite skills and family reunion component to our program, so we have a finite refugee and humanitarian program.

We believe our refugee program should be spread across Africa, the Middle East and Asia; to be able to focus on women, children and the most vulnerable; and not to be limited to those who have the ability or opportunity to make it here by boat.

Onshore processing

In the meantime, we are dealing with the practical realities in regard to the processing of asylum seekers arriving by boat, not least the situation in our detention centre network.

The Government remains committed to an upfront period of mandatory detention, given that - unlike air arrivals - we generally don’t know who boat arrivals are when they get here. So we need to do initial health, security and identity checks in order to minimise any risk to the Australian community.

Rather than simply opening more centres, the Government will continue to manage the network prudently and efficiently while making use of a range of mechanisms that have not been used in the past.

As you know, shortly after I became Minister, I began been moving families and children out of “held” detention into what are known as “community detention” arrangements. This is “detention” in only the broadest and most technical of senses.

It involves putting vulnerable people into housing in the community and providing them with an appropriate level of care and supervision, with the assistance of our NGO partners, led by the Red Cross.

The Government will continue to use community detention arrangements to provide an alternative to held detention for vulnerable groups of asylum seekers, given the additional support that this program provides. In particular, unaccompanied minors will continue to be accommodated in community detention arrangements, given the special duty of care and guardianship issues that they present.

I am very proud of the way we have progressed these community detention arrangements, meeting the target I set when I first announced the policy in October 2010 of getting the majority of children out of detention facilities by June 2011.

Since then, 2,959 people have been moved into community detention arrangements and every eligible unaccompanied minor who arrived by boat before 18 October 2011 has been released from detention.

Additionally, on 25 November last year, I announced a new approach to the management of asylum seekers who arrive by boat. Following initial detention for health, security and identity checks, eligible boat arrivals who are assessed to not pose risks to the community will be progressively considered for community placement on bridging visas while their asylum claims are assessed.

In recent weeks, my department has been developing the framework and details for the issuing of these bridging visas. The criteria for priority to be issued a bridging visa include:

length of time in detention; vulnerabilities, such as identified torture or trauma experiences; behavioural record whilst in detention; and the ability of family or friends to provide accommodation and support in the community.

People on bridging visas will be given the right to work and support themselves but no access to Centrelink benefits. Should they be unable to support themselves, and subject to an assessment of their needs, they may instead have access to specific programs that are funded directly by my Department, including the Asylum Seeker Assistance Scheme or the Community Assistance Support program, that provide a range of support services, including health services. Those released into the community on bridging visas will have reporting conditions and people found breaching these conditions risk having their visas cancelled and being returned to immigration detention.

While it is easy to demand the faster issuing of more bridging visas, the Government is mindful that many of the people granted bridging visas will have significant support needs. For that reason, it would be irresponsible and counterproductive to move too fast, beyond the capacity that exists to support them, both in terms of government programs and non-government support services.

I am committed to ensuring that releases under this process are managed in a responsible and staged way and therefore the exercise of my ministerial power to grant a bridging visa under the Act will be implemented on a case-by-case basis.

Merging of refugee status determination processes

At the same time as moving to progressively moving people out of detention, and now that offshore processing is not feasible in the short-term, the Government has taken the view that, in light of the High Court’s decision in M61, there is little value - and indeed there is significant inefficiency - in maintaining two parallel refugee status determination processes.

So we will move to align the refugee status determination process for offshore entry persons with the statutory process for onshore Protection visa applicants. I see that later today you will be addressed on efficient refugee processing. That is the Government’s aim here, the same efficient assessment process irrespective of your mode of arrival to Australia.

To achieve this goal, I have asked my department to develop a framework for winding down the non-statutory Protection Obligations Determination - or “POD” - process, starting in coming months. The mechanism for this will involve the use of my existing ministerial powers to allow boat arrivals to access the onshore process.

Complementary protection

Another way in which the Government has chosen to look “beyond” the Convention is the manner in which Australia will assess its complementary protection obligations.

Despite the objections of the Coalition, whose Immigration spokesman argued in Parliament that complementary protection legislation would act as a pull factor to more “boat people”, the Government passed legislation to enable consideration of our non-refoulement obligations as part of our refugee assessment processes.

In doing so, Australia caught up with many like-minded countries by introducing a formal process for meeting our non-refoulement obligations under:

the International Covenant on Civil and Political Rights; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the Convention on the Rights of the Child.

It is true that these treaties have always been taken into account - but only after the primary and review refugee stages had been completed, and only by the Minister, whose benevolent discretion was relied upon in the exercise of intervention powers.

By permitting all claims that may engage Australia’s non-refoulement obligations to be considered under one integrated process, Australia will be able to more efficiently look “beyond” the Refugees Convention to other obligations and reduce the time and anguish involved in the repeated rejections of worthy claims.

I am pleased to advise you that, subject to the finalisation of the necessary regulations, the new integrated complementary protection processes will commence next month.

Closing

Today I have tried to set out the ways in which we, as a Government, are looking “beyond” the Refugee Convention.

Complementary protection is an important change that I felt needed making. It was indicative of the heat that exists in this area of policy that we had to fight tooth and nail just to get those changes, which should be fairly uncontroversial, through the Parliament.

But complementary protection is not a game-changer.

Nor are the changes to our onshore refugee status determination processes and detention arrangements are ends in themselves. Rather, they are necessary policy adjustments. They do not do anything to improve refugee protection in our region and they do nothing to stop people perishing at sea on their way to Australia.

Australia has a long and proud history of assisting refugees, including as a founding signatory to the Convention. We have a choice, however. We can do what the 1951 Convention demands of us and no more. Or we can adopt a bolder, more innovative approach to refugee protection, an approach that has the potential to help many more refugees, and truly look “beyond” the Convention.

Achieving this has not, and will not, be easy. But the benefits - in terms of human lives improved - means that we cannot and should not give up on the objective.

To me, the object of our refugee program is to lift the maximum number of human beings as possible out of persecution and misery and to do so in a way that does not risk their lives.

This means using the Refugee Convention as our cornerstone at all times, but actively working beyond it in partnership with our neighbours and the UNHCR.

If we do so, more people will be lifted out of misery or persecution. More people will receive better protection across our region. And fewer people will drown in their attempts for a better life. If you ask me, I can think of few more worthy goals.

Thank you.