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Hard choices - the asylum seeker challenge: speech to the Commonwealth Lawyers' Association, London.



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Philip Ruddock MP MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

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Hard Choices - The Asylum Seeker Challenge Speech to the Commonwealth Lawyers' Association, London Monday, 22 April 2002 Introduction ●

Managing migration ●

Core values of Australia's planned migration program ●

Number of persons of concern

Australia's Humanitarian Program ❍

●

Assistance for offshore humanitarian entrants

Australia's Immigration programs under threat ❍

●

Cost of enforcing Immigration law

Responding to the threats ❍

●

Measures to prevent people smuggling

Stronger border measures following the MV Tampa ❍

●

September 2001 Legislative changes

Other legislative changes ❍

●

Cost of DIMIA litigation ●

Privative Clause - Grounds of judicial review

Application of the Refugees Convention in Australia ❍

●

Conclusion ●

Introduction

Good evening [etc]

I am pleased to have this opportunity to discuss with you some of the significant challenges that Australia is facing in relation to the increasing numbers of asylum seekers and unauthorised arrivals.

Obviously, these are also important issues in the UK and in many other countries where there is a proud tradition of providing safety for genuine refugees, coupled with a determination to thwart misuse of asylum procedures.

I would like to talk about Australia's responses to these challenges, including the changes to Australia's immigration laws that were made in late September last year:

To enhance the protection of Australia's borders from unauthorised entry; ● To contain abuse of judicial review processes by unsuccessful visa applicants; and ● To provide guidance to Australian decision-makers on who is a refugee under the united nations refugees convention. ●

These new measures will strengthen the integrity of Australia's migration program and allow Australia to continue to provide protection to people who are at risk.

I will begin with some general comments about Australia's policies for managing migration.

Managing migration

As you would know Australia has a long tradition of immigration.

Indeed, the nation has been built on settlement from other countries.

In many ways this has determined the very nature of our contemporary society:

Almost 1 in 4 Australians today have been born overseas. ● Around 40 per cent of Australians have been either born overseas or have at least one parent who was born overseas. ● In recent years, people from around 185 different countries have made Australia their home. ●

We are one of only a few countries in the world that have operated a planned immigration program for over 50 years.

We have learned that sound immigration policy must be underpinned by some essential core values.

Core values of Australia's planned migration program

For Australia, the first of these is that our approach to migrant selection must be strictly non-discriminatory as far as matters such as race, religion, colour or ethnicity are concerned.

A second is that our immigration policies must enable Australians with non-Australian partners or dependent children to be re-united in Australia as permanent residents and, in time, Australian citizens.

A third core value is that the overall immigration intake must be demonstrably in the national economic interest. If this were not the case, Australia's standard of living would deteriorate, community support for immigration would rapidly diminish, and Australia's capacity to provide a humanitarian program would be reduced.

A fourth core value is that Australia must contribute its fair share to the resettlement of those most in need - the principle of burden-sharing. In re-settling refugees, the Australian Government devotes very considerable resources to ensuring that these people have the support they need to fully participate as members of our community.

And last, but by no means least, we must have the capacity to manage the movement of people across our borders in an orderly and efficient manner.

Without this critical capacity, the idea of a managed immigration policy rapidly becomes meaningless. ●

It is the last three of these core values that I will be concentrating on this evening, as they have particular relevance to asylum seeker and unauthorised arrival issues.

Since coming to power in March 1996, the liberal/national coalition Government has progressively implemented a considerable number of measures to enhance the integrity of Australia's immigration program.

These measures have included adjustments to restore the Australian community's confidence in the program, by refocussing it to contribute to Australia's development and future prosperity; and other measures to meet changing situations challenging Australia's border integrity.

All these measures contribute to Australia continuing to have the economic and social capacity to give practical effect to the nation's commitment to assist those at greatest risk.

Number of persons of concern

The number of persons in perilous circumstances is enormous. There are some 22 million people of concern to the united nations high commissioner for refugees. The sheer magnitude of the problem means that Governments must make hard choices, based on limited resources, as to the best way to most effectively assist those in greatest need.

Australia's Humanitarian Program

Australia's humanitarian program is based on our obligations under various international human rights treaties, but Australia's commitment goes far beyond those obligations, particularly through our offshore humanitarian resettlement program.

While our desire to assist these persons is strong, Australia, like most countries has a finite capacity to give practical effect to this. The pressure placed on our resources by those arriving in Australia without authority, and seeking to engage our obligations to provide protection, limits our capacity to assist those at greatest risk.

Since World War II Australia has resettled 600,000 refugees. The Australian Government's humanitarian program currently provides, each year, around 12,000 refugees and others who are in humanitarian need with residence in Australia.

On a per capita basis, Australia's offshore refugee intake is the highest in the world. ●

Australia's humanitarian program reflects the three durable solutions promoted by the UNHCR for the longer term protection needs of people displaced by humanitarian crises:

Voluntary repatriation in conditions of safety and dignity is the most desirable outcome for the individual; ● If repatriation is not feasible, local integration in the country of first asylum ; and ● Where neither of these is possible or suitable, resettlement in a third country may be an option - although it is often described as the durable solution of last resort and is the preferred option for a relatively small number of people. ●

Australia is one of the few countries that have such a program. This program is one of the chief means by which Australia assists the international protection system.

Under this program Australia resettles those persons in the very greatest need - those who are at risk if they remain where they are and who have no other means of escape other than resettlement in a third country.

More detailed information about Australia's humanitarian program is provided in the information kits.

Assistance for Offshore Humanitarian Entrants

Offshore humanitarian entrants to Australia have access to some of the most comprehensive and generous services in the world to assist them to become fully participating members of the Australian community. The assistance provided is tailored to the individual's needs, in recognition of the fact that refugees are particularly vulnerable.

Examples of the types of assistance provided are listed on the next slide.

Each 1000 refugees resettled under these schemes costs more than $AUS 30 million to the Australian budget.

Australia's immigration programs under threat

The migration and humanitarian programs are being jeopardised by the increasing numbers of persons seeking asylum in Australia, particularly those arriving by irregular means.

Humanitarian program places are being diverted away from our offshore program for people who have been identified by the UNHCR as being in need of resettlement, and many of these people have been living in appalling conditions in refugee camps for many years. ●

As I mentioned earlier, the overall migration intake is intended to contribute to further building the economic prosperity of the nation. The program is managed by setting criteria that align to the needs of Australian industry and the economy.

These criteria set standards that are beyond the reach of many who wish to reside in Australia. This has led to increasing numbers of persons seeing Australia's obligation to provide protection to refugees within Australia as a means of obtaining residence in Australia.

For more than a decade, successive Australian Governments have been confronted with challenges arising from increasing numbers of persons seeking asylum in our country. Historically only a small percentage have been found to be genuinely in need of protection.

Some asylum seekers come from countries where there is little risk of persecution, but which are less prosperous than Australia. They seek to use our refugee determination processes to obtain the right to work in Australia or to access health services at Australian taxpayer expense while their claims are assessed.

These persons frequently use each tier of merits and judicial review to maximise the length of their stay in Australia. Others view these refugee determination and review processes as the only means available to obtain a permanent migration outcome and to access Government services provided to members of the Australian community.

During the 1990s Australia developed one of the most comprehensive and generous refugee determination processes in the world. Each person's specific claims are considered.

Unsuccessful applicants may seek independent merits review, where they may put forward further claims and evidence, following which they may have the lawfulness of the determination process examined by a court.

While the Government has refined refugee determination procedures to minimise delay, these procedures can be time-consuming and expensive, and this increases considerably at each tier of the process.

I understand that similar concerns in the UK- about fairness, delays and costs - led to the introduction of a "one stop" appeals system.

Australia's prosperity, Government services and benefits, and generous refugee determination processes have been used by criminals to encourage persons who are unable to meet Australia's general migration criteria, to use the criminals' people smuggling services to enter Australia without authority.

People being smuggled go to great lengths to conceal their route and the organisation responsible for their travel. It is a dynamic and fluid operation, and methods of arrival can change at short notice in response to actions to combat the practice.

The international organisation for migration estimates the worldwide proceeds of people smuggling to be now, $us10 billion a year.

Cost of enforcing immigration law

As you can see from the next slide, in 1997-1998, the Australian Government spent in the order of $AUS 80 million on the enforcement of Immigration law. This cost rose to $AUS 131 million in 1998-99, to $AUS 247 million in 1999-2000, and to $AUS 299 million in 2000-2001.

On average, it costs the Government $AUS 50,000 for every unauthorised arrival by boat from the time of arrival to the time of their departure

from Australia.

Responding to the threats

Australia has attempted to address these problems by progressively implementing a range of measures to combat people smuggling and stop abuse of Australia's determination processes.

In late 1999, specific people smuggling offences were created with penalties of up to 20 years imprisonment.

The Government also introduced a three-year protection visa for unauthorised arrivals who were found to be refugees. This recognised that in discharging its obligations under the refugees convention, Australia does not have to provide permanent residence and access to all of the resettlement services that are provided to offshore humanitarian entrants.

Other amendments to the Migration Act included the introduction of a statutory framework for the interception of vessels at sea. These provisions allow Australian Government vessels the maximum powers possible under the United Nations Law of the sea convention to enforce Australia's Immigration laws.

Measures to prevent people smuggling

These changes were part of the Government's multi-faceted approach that includes the measures to prevent people smuggling that are listed in the next slide.

Again - more detailed information is provided in the information kits.

However, despite all of these efforts and work with other Governments to prevent the problem by minimising the outflows from countries of origin and secondary outflows from countries of first asylum, the illegal trade in people smuggling persists.

According to media reports there are still some thousands of people currently in Indonesia, Malaysia and Thailand who are waiting for arrangements to be finalised with the people smugglers for travel to Australia by boat. We also know that the steps we have taken, and will take in relation to the most recent arrivals, are being watched as a sign of how determined we are.

Before I move on to talk about the events involving the MV Tampa - which I believe was covered in the UK media - I would like to comment briefly on Australia's longstanding policy of mandatory detention for all unlawful non-citizens, as the policy seems to attract a surprising amount of misguided criticism.

It is important to understand that people are detained because they arrived, or have remained, in Australia without authority.

People are not detained because they have applied for asylum. ● Not all unauthorised arrivals are asylum seekers; and not all asylum seekers are unauthorised arrivals. ● In the 2001 calendar year, 36% of asylum seekers arrived in Australia without authority. ●

Stronger border measures following the MV Tampa

Now - to the issues involving the merchant vessel Tampa .

The principle underlying Australia's response to the Tampa situation is that, as a party to the refugees convention, Australia has an obligation not to refoule - that is, not to return a person to a country where the person has a well-founded fear of persecution for a convention ground.

Refugees do not have a right to choose to reside in a particular country. ●

In late August 2001 an Indonesian vessel carrying some 460 persons got into difficulties outside International waters off Indonesia. The persons on board were rescued by the Tampa , enroute to Singapore.

The captain of the Tampa intended to put these persons ashore at the closest Indonesian port and continue his voyage to Singapore. The rescuees indicated to the captain that they desired to be taken to Australia. Following threats made by some of the rescuees, the captain altered course for the Australian territory of Christmas Island.

The actions of the Tampa rescuees and the continuing flow of boats attempting to land persons illegally in Australia's island territories demonstrated to the Australian Government the pressing need to take stronger measures to safeguard Australia's borders and stop these activities. These measures, while tougher than those in place previously, are consistent with Australia's international obligations.

The Tampa incident was different from previous situations in that the rescuees intimidated the captain of a merchant vessel to divert from his course and enter into Australian waters when he had no intention to do so.

As I explained earlier, one of the core values underpinning Australia's immigration policy is that we must have the capacity to manage the movement of people across our borders in an orderly and efficient manner, otherwise, the idea of a managed immigration policy rapidly becomes meaningless.

The Australian Government is well aware of its obligation not to refoule - we never have, and we never will.

We are equally aware, however, that people cannot demand the right to reside in Australia.

September 2001 legislative changes

The legislative amendments underpinning the Australian Government's approach were passed by the Parliament on 27 September 2001. The changes include the ones set out in the next slide:

No visas for unauthorised arrivals at an Australian island; ● Power to move these persons to declared countries; ● Power to detain vessels and persons; and ● Minimum sentences for people smugglers. ●

Again, I refer you to the information kits for more detailed information.

These provisions stop these unauthorised arrivals from accessing Australia's domestic protection determination and visa processes, and using those processes and the Australian courts to delay removal from Australia.

Underlying Australia's approach is the need to differentiate between those persons directly fleeing from countries in which they face persecution, and those who come to Australia via countries where they were safe. The refugees convention itself contemplates that difference in the reference to direct flight in Article 31. Failure to think clearly about the difference can lead to unsubstantiated criticism and plays into the people smugglers' hands.

Australia's actions do not deny access to appropriate arrangements for refugee status determination. The arrangements we have established in cooperation with the UNHCR (which has been generally referred to as "the pacific solution") provide such access.

Australia is managing its absolute commitment to refugee protection in ways that also robustly fight people smuggling and deny migration outcomes to those making unnecessary secondary movements.

We are determined to preserve the integrity of our orderly entry systems to Australia.

Other legislative changes

Encouraging lawful movements

I would now like to discuss briefly some of the other significant legislative measures introduced in September last year.

We have introduced a new offshore humanitarian visa system designed to encourage asylum seekers to remain in their country of first asylum, rather than seeking the assistance of people smugglers to abandon or by-pass effective protection opportunities in order to obtain a preferred migration outcome.

The best possible outcome for an asylum seeker who comes to Australia through irregular means is a three-year temporary protection visa, without access to the benefits that I mentioned earlier, which are available to offshore humanitarian entrants.

More detailed information on the new visa system is included in the information kits.

New judicial review scheme for visa-related decisions

I turn now to the legislative measures that have been introduced in Australia to address concerns about the increasing cost and incidence of migration litigation.

The Australian Government believes that access to judicial review in migration matters should be restricted in all but exceptional circumstances. This commitment was made in light of the extensive merits review rights in migration legislation and concerns over the misuse of court processes by those who seek to delay their stay and frustrate their removal from Australia.

A previous judicial review regime was implemented by the last Labor Government in the early 1990s. It was part of a package of reforms that was intended to reduce Federal Court litigation and to provide greater certainty as to what was required from both decision-makers, and visa applicants and visa holders. These reforms included a significant expansion of independent merits review, including the creation of the Refugee Review Tribunal.

That scheme did not reduce the volume of cases before the courts - in fact it was just the opposite. Recourse to the federal and high courts were trending upwards with nearly 400 applications in 1994-95 compared with 1,340 in 2000-01.

The corresponding costs of that litigation also continued to soar.

Cost of DIMIA litigation

In 1995-96, the cost of all litigation for the Department was $AUS 5.8 million (and that does not include the cost of running the courts).

In 1996-97 the cost was just over $AUS 6 million.

In 1997-98 it was nearly $AUS 9.5 million.

In 1998-99 it was nearly $AUS 11.5 million.

In 1999-2000 it was nearly $AUS 12.3 million.

And, in the 2000-2001 financial year, the costs to my Department exceeded $AUS 15 million.

This trend has occurred despite full and open access by applicants to heavily subsidised independent merits review by the Migration Review Tribunal and the Refugee Review Tribunal.

Between one third to one half of applicants withdraw their applications prior to the court hearing. Of the cases that go on to substantive hearings, the merits based decision is currently upheld in around 90% of cases.

It is hard not to conclude that there is a substantial number who are using the legal process primarily in order to extend their stay in Australia. In the migration area, litigation can be an end in itself - it is probably the only area of administrative law where delaying the final determination is seen as beneficial by those pursuing court action.

Faced with these problems, options were explored for best achieving the Government's policy objective of restricting access to judicial review.

In light of the Australian High Court's original jurisdiction to consider challenges to the actions and decisions of Commonwealth Officers under Section 75(v) of the Australian Constitution, the Government's legal advisers found that a "privative clause" would be the only effective mechanism.

A privative clause operates to give decision-makers wider lawful operation for their decisions and thereby reduces the grounds on which the courts can set aside such decisions as being unlawful.

Under Australian high court caselaw, the wording of the clause in the migration act has the effect of limiting the grounds to those set out in the next slide.

Privative clause - grounds of judicial review

The decision-maker was not acting in good faith in making the decision; or ● The decision is not reasonably capable of reference to the decision-making power given to the decision-maker; or ● The decision does not relate to the subject matter of the legislation; or ● The decision exceeded the limits in the Commonwealth Constitution. ●

These limited grounds are intended to facilitate faster resolution of court cases, thereby decreasing delays in removal of non-citizens and lowering costs.

There is a yellow booklet in the information kits which provides further information about the new judicial review scheme.

Application of the refugees convention in Australia

The final topic I would like to discuss this evening is the application of the Refugees Convention in Australia, as there are obvious parallels for the UK.

Under the Refugees Convention and Protocol, the term 'refugee' refers to a person who has a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Australia's primary responsibility as a signatory to this Convention is not to return a refugee to a country where their life or freedom would be threatened on any of these grounds.

The key terms used under the Refugees Convention are not defined by the Convention and are matters for each member State to address.

Over recent years, in the absence of clear legislative guidance, the Australian Government has become increasingly concerned about the lack of clarity in relation to the meaning of various provisions in the Refugees Convention.

Some interpretations by the Australian courts have, in the Government's view, expanded what Australian domestic law recognises as protection obligations. These often go beyond the bounds of what was originally envisaged by the parties to the Convention and accepted by those parties.

These circumstances have included situations where hardship or serious inconvenience has been considered to be persecution, and situations where mistreatment is feared for reasons other than those intended to be covered by the Refugees Convention.

Other circumstances have arisen in which the provisions have been interpreted in such a way as to give protection to people of serious character concern when they would otherwise be excluded under the terms of the Convention.

The Refugees Convention was never intended as a universal solution to all cases where compassion or public interest may suggest that a person be permitted to stay in a country outside their homeland. Australian laws provide for other mechanisms, visa application processes, and ministerial intervention powers to address such cases.

In addition to these issues of interpretation, problems arise in relation to the increasing numbers of unauthorised arrivals without documentation.

It is estimated that around 80% of unauthorised boat arrivals arrive in Australia without any identifying documentation, even though they have generally needed such documentation to travel to the region. This has placed increased pressure on the capacity of the Australian Government to identify such people on arrival and ensure that those needing protection under the Refugees Convention are reliably identified and protected.

In order to address these issues, the September 2001 legislative package contained measures to clarify the circumstances in which Australia will owe a person protection obligations.

For example, the Migration Act now contains a definition of "persecution" which will ensure that protection is provided in cases where persecution

has occurred for a Refugees Convention reason and is at a level requiring protection under the Convention.

Other terms referred to in the Convention have also been defined, such as the meaning of "non-political crime" for the purposes of Article 1f of the Convention.

The changes introduced by the Government are fully consistent with Australia's protection obligations and will provide clarity to decision-makers and the courts alike as to the correct interpretation.

It is the role and responsibility of Parliaments to provide legislative clarification and guidance to the courts and decision-makers on how conventions should properly be interpreted and applied.

Conclusion

Ladies and gentlemen, one of the important messages I hope I have conveyed to you this evening is that the Australian Government remains committed to meeting its obligations under International law and continuing to provide protection to people most at risk.

The recent changes to Australia's Immigration laws that I have been talking about demonstrate that commitment.

The new measures that have been put in place will ensure the efficacy of Australia's planned Immigration and Offshore Humanitarian Resettlement programs.

By enhancing the protection of Australia's borders from unauthorised entry, preventing abuse of our judicial review processes, and clarifying the application of the Refugees Convention in Australia, the new measures improve Australia's ability to assist those at greatest risk.

Of course, these are challenges that individual countries cannot tackle effectively on their own - they require the UNHCR and the International community to work together.

The Australian Government will continue to work vigorously with the UK and other like-minded states and organisations to reduce the activities of people smugglers and address the fundamental factors driving people to use their services.

Australia will also continue to promote the principle of International burden-sharing in relation to refugee issues, through its activities at bilateral and multilateral international fora. ●

See: Index of Speeches

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URL: http://www.minister.immi.gov.au /media/speeches/20020422_london.htm Last update: 22 July 2002 at 14:04 AEST