By Sienna Merope
In the last fortnight two asylum seeker boats have sunk on their way to Australia, killing more than 90 people. These tragic deaths and the continuing arrival of boats have, unsurprisingly, re-ignited public debate about how to address the “refugee problem”.
What has emerged is a disturbing consensus that Australia has an ethical obligation to revive offshore processing, in order to deter asylum seekers getting onto boats. Opinions are split, and parliament is divided, about whether Malaysia or Nauru is a better “solution”. That difference aside, support for offshore processing seems both widespread and genuine.
There is a bitter irony to the idea that sending asylum seekers to Malaysia or to the desert hellhole of Nauru is a “moral obligation”. That is not to dismiss the moral urgency behind calls to do so. Seeing footage of children drowning or hearing of body counts in the dozens is horrific. It has led many people who genuinely support humane refugee policy to question their position – to wonder whether any alternative is better than the current situation. Understandable as those doubts are, the argument that we must take strong deterrent action to save lives, no matter the human cost, is fundamentally problematic and ethically flawed.
There is a broad consensus amongst scholars and refugee organisations that so called “push factors” are far more important than “pull factors” in explaining refugee movements.
The ethical argument for offshore processing assumes it will be a successful deterrent. That is far from proven. It is true that there has been a recent spike in boat arrivals. Nonetheless, there is a broad consensus amongst scholars and refugee organisations that so called “push factors” are far more important than “pull factors” in explaining refugee movements. The current debate has ignored the relatively low deterrent value of our domestic policy. But in fact it is not surprising. The whole logic of deterrence involves making a particular option so unbearable that the alternative becomes more desirable. For an individual fleeing persecution – an individual ready to risk their life at sea – it is doubtful that any Australian processing scheme will be the “most unbearable” option. If it was, that would constitute the strongest moral condemnation of this country possible. This logic applies particularly in the case of offshore processing in Nauru, which is most likely to lead to eventual resettlement. In fact, almost all asylum seekers held on Nauru under the “Pacific Solution” were resettled in Australia or New Zealand, or have returned voluntarily.
However, let’s assume that offshore processing does work as a deterrent. The evidence on “pull factors” is not unequivocal and simply saying “it does not work” avoids grappling with the harder moral questions currently being debated. Working from that assumption, the ethics of offshore processing must depend on how it affects two groups of asylum seekers: those who will come anyway, and those who will be successfully deterred.
The ethics of offshore processing must depend on how it affects two groups of asylum seekers: those who will come anyway, and those who will be successfully deterred.
It is a given that even if offshore processing is a partially successful deterrent, there will still be boat arrivals. We can be most certain about the effect on these asylum seekers, almost all of whom, based on past statistics, are genuine refugees. They will be the ones who are made examples of; the way they are treated will be the lesson to others not to board the boats. If sent to Nauru they will in all likelihood spend years in detention, as they did under the last Pacific Solution. They will self-harm, attempt suicide, and develop depression and other serious mental health issues. The psychological consequences of offshore processing have been well documented. Detention does to refugees what persecution in their home country often could not – it breaks their spirits. If Malaysia is adopted as a “solution” their situation will be even more precarious. Asylum seekers will go into legal limbo. Even once recognised as refugees by the UNHCR, they will not be guaranteed resettlement. There are over 90,000 refugees currently in Malaysia and only 7,509 were resettled in 2009. That is a long wait. In the meantime, they will linger in a country that has not signed the Refugee Convention, where refugees have no rights and are regularly brutalised and imprisoned. Between 2002 and 2006, 1300 people died in Malaysian immigration detention because of a lack of access to healthcare. Those deaths are not as dramatic as the ones at sea, but they are no less tragic. They are the predictable, likely result of offshore processing. There is a reason the High Court said sending asylum seekers to Malaysia was a breach of our human rights obligations.
Detention does to refugees what persecution in their home country often could not – it breaks their spirits.
This group of asylum seekers, and our ethical (not to mention legal) obligations towards them, has disappeared in the current debate. It is simply assumed that the imperative of stopping the boats justifies sacrificing their human rights.
Secondly, let’s consider that amorphous and unknown group of asylum seekers: those we assume will be deterred. If offshore processing “works” then the policy will have stopped them from risking, and possibly losing, their lives at sea. But what alternative does that consign them to?
For some, it will mean being unable to escape the country they fear. The current debate has assumed that asylum seekers are coming exclusively from the transit countries of Malaysia or Indonesia. In reality many refugees are boarding boats as part of their direct flight from persecution. Many boats, for example, come directly from Sri Lanka. On board are Tamil refugees who fear renewed ethnic violence, as well as – in all likelihood – asylum seekers from other countries facing deportation. Only three weeks ago Sri Lanka announced it was deporting 300 Pakistani and Afghani refugees. If they are “successfully deterred”, and unless a third country will take them or they have another passport, these individuals will probably be forced to return home to face death, torture, imprisonment or other forms of persecution. The risk to their lives will certainly be no less. Persecution doesn’t stop because people stop getting on boats, it just becomes an issue elsewhere. The only difference is that, as Australians, we don’t have to bear witness to it on the evening news.
As human beings, they may need more reason to live than relative physical safety.
What about those coming from Malaysia or Indonesia? Asylum seekers there may live precariously, with no human rights and little prospect of resettlement, but it is true that they are comparatively physically safe. But that is only the tip of their story. What about the families they have left behind, who may still be facing persecution or living in hiding? Refugees have no chance of sponsoring their loved ones to safety from Malaysia. What about the fact that, as human beings, they may need more reason to live than relative physical safety. Why do we as a country have the right to determine that the physical safety of a group of refugees in Malaysia and Indonesia is the ultimate moral imperative – more important than the safety of their families, or the chance at a life that promises more than just the absence of persecution?
I don’t know whether, faced with that choice, it is morally right or wrong to risk your life on a boat. I don’t know what I would do as an asylum seeker in that situation. It is a hopeless, awful decision and one I’m deeply grateful I will hopefully never have to make. Surely though, it is the individual’s choice to determine which is the greater moral imperative in their own lives and act accordingly. Who are we to stand in judgement and say that the decision to risk your life at sea is worse than risking your family’s by doing nothing? To argue that, as a nation, we have a moral imperative to not only condemn the choice to board a boat, but to punish the individuals who make it, is just a way to ignore these questions. It is simplistic, patronising, and it is wrong.
Recognising this doesn’t mean we should stand idly by as asylum seekers drown. If we are genuinely committed to stopping deaths at sea, there are more effective ways than sending refugees to Malaysia or Nauru.
First, we could increase our ocean surveillance and take a more proactive approach to identifying and rescuing boats at risk. We could also provide more support and information to the vastly under-resourced Indonesian search and rescue organisation Basarnas. Only last week the head of Barsanas confirmed that it has only one small fibreglass boat and is unable to conduct effective rescues. Yet Barsanas was left to (unsuccessfully) head the search and rescue for the boat that sank on 21 June, drowning 90 people. Despite the serious inconsistencies between Australian and Indonesian accounts, it is clear that a lack of coordination and resources prevented an effective rescue operation. Why isn’t this at the top of our political agenda?
Decriminalising people smuggling may not be politically palatable, but it would be far more effective at saving lives than the questionable deterrent value of offshore processing.
Second, we could reconsider our approach to people smugglers. The heavy criminal penalties we currently impose are simply leading smuggling rings to use increasingly inexperienced individuals, often children, as crew on asylum boats. Coupled with the fact that the government’s policy of confiscating boats after intercepting them is an incentive to use crowded and unseaworthy ships, this is a recipe for disaster. Decriminalising people smuggling may not be politically palatable, but it would be far more effective at saving lives than the questionable deterrent value of offshore processing.
Third, we could retain our focus on deterrence, but from another angle. Rather than making coming to Australia less attractive, we should shift the focus to making staying in Malaysia or Indonesia more acceptable. One good thing that has come out of the current political debate is an agreement that we should increase our refugee intake. Australia has an extremely low refugee intake when compared with other countries. We should resettle many more, with a particular focus on Indonesia and Malaysia. Of the more than 5,000 refugees in Indonesia, Australia resettled 560 between 2001 and 2010. Of the more than 90,000 refugees in Malaysia, we resettled 490 in the year from 2010 to 2011. That number should be in the thousands. We should also vastly increase our funding to the UNHCR. Currently there are not even enough UNHCR staff in Indonesia to process applications, further holding up resettlement. If asylum seekers had a chance of being resettled from Malaysia or Indonesia within a reasonable time, rather than facing waits of five, 10, or 20 years, there would be far less incentive to get on a boat.
We are also the only country to link our onshore and offshore refugee intakes. This means that every so called “illegal” boat, or (far more often) plane arrival, results in one less spot for a refugee from overseas There is no good reason for this policy, and we should de-link our refugee programs. Our current position not only fuels rhetoric about “queue jumping” but justifiably lessens the hope of those asylum seekers still in Indonesia or Malaysia that they will be resettled from there.
There may be no panacea, but what we can and should do is to help far more asylum seekers than we are currently prepared to.
These approaches would be far more effective than a return to offshore processing. They are certainly more humane. However, we should not pretend they are perfect, or that they – or anything else that we do – will put an absolute end to dangerous voyages at sea. It would be wonderful if we could design a perfect solution to the “refugee problem”. But that is a myth. There are more than 15 million refugees around the world. Thousands die each year trying to flee persecution, most far from Australia, some closer to our borders.
There may be no panacea, but what we can and should do is to help far more asylum seekers than we are currently prepared to. We should uphold our human rights obligations rather than trying to find legislative loopholes to get around them. And we should treat those desperate people who do arrive at our borders – whether by boat or plane – humanely and in a way that recognises that they are active moral agents who have a right to make decisions in their own lives.
Offshore processing plays no part in that equation.
Sienna Merope graduated from The University of Melbourne with a BA/LLB (Hons) in 2011. From 2006 to 2011 she was a volunteer in the legal clinic of the Asylum Seeker Resource Centre. In 2011 she worked as a research assistant to Associate Professor Michelle Foster, in the field of international refugee law.