“No advantage” brings no hope

By Tania Penovic | 11 Dec 12
Asylum seeker no advantage by boat

By Tania Penovic. This article is part of our December 2012 and January 2013 focus on Asylum Seekers.

The emergence of ‘no advantage’ as a guiding principle in Australian refugee policy is examined below with reference to recent developments in the management of asylum seekers who attempt to reach Australia by boat.

On 28 June 2012, the Gillard government announced the formation of an Expert Panel on Asylum Seekers to “provide advice and recommendations to the Government on policy options available, and in its considered opinion, the efficacy of such options, to prevent asylum seekers risking their lives on dangerous boat journeys to Australia.” The announcement followed the drowning of a known 94 asylum seekers attempting to reach Australia by boat and the defeat of two Bills which sought to facilitate the implementation of arrangements for the processing of asylum seekers in Malaysia. A cooperative transfer arrangement was concluded between Australia and Malaysia on 25 July 2011, providing for the exchange of 800 asylum seekers attempting to reach Australia by boat (generally referred to by the government as irregular maritime arrivals (IMAs)) for 4000 refugees living in Malaysia. The arrangement could not be implemented following the High Court’s decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship. The Expert Panel’s report was intended to facilitate a resolution of the impasse which continued to frustrate the government’s efforts to defeat the judgment’s effect.

The Expert Panel’s report was released on 13 August 2012. Its 22 recommendations aimed to provide a comprehensive and integrated package of short, medium and longer term policy options. Some of the panel’s recommendations were aimed at increasing safe pathways towards refugee protection. These included an immediate increase in the humanitarian program to 20,000 places with a further increase to 27,000 within five years. Other recommendations had a clear deterrence aim. Among these was the ‘no advantage’ principle designed “to ensure that no benefit is gained through circumventing regular migration arrangements”. The principle was recommended as one of six guiding principles which should shape Australian policy on asylum seekers. A further guiding principle was adherence to Australia’s human rights obligations. These two principles are likely to be mutually exclusive in practice.

While a “comprehensive regional cooperation framework” was envisaged by the panel, it recommended that the  Australian government establish processing facilities in Nauru and Papua New Guinea (PNG) for processing IMAs as soon as practicable. Processing in Malaysia was not recommended in the short-term during which Australia’s arrangements with Malaysia should be revised and protections afforded to asylum seekers strengthened. Panel member Paris Aristotle indicated that “Nauru and Manus Island would be an initial short-term circuit break while the transitional process is put in place towards other regional arrangements that may include Malaysia or Indonesia as long as those arrangements can be set in place.” The establishment of a regional cooperation framework will require ongoing political commitment and high level diplomacy and is unlikely to be achieved expeditiously.

The Gillard Government accepted the panel’s recommendations and acted quickly to re-establish offshore processing in Nauru and Manus Island (PNG). Three days after the panel released its report, legislation was enacted to facilitate the processing in other countries. The first group of IMAs was transferred from Christmas Island to Nauru on 26 September 2012 and as at 7 December 2012, there were 400 men living in tents in Nauru. Appropriate accommodation was yet to be built and processing was yet to commence. Transfers to Manus Island commenced on 21 November, 2012. The operation of the ‘no advantage’ principle in Nauru and Manus Island is examined below.

No advantage in Nauru and PNG

In its various media releases announcing the transfer of asylum seekers to Nauru and PNG, the Department of Immigration and Citizenship iterated its commitment to implementing the no advantage principle, which it described as the “central principle” of the panel’s report. The principle would require that IMAs would not achieve an advantage over those who wait for resettlement as refugees while living in refugee camps and settlements in other countries. Accordingly, those who attempt to reach Australia by boat will have to wait for the same period of time they would have waited for resettlement from overseas. Resettlement is often a lengthy process. Time spent waiting for resettlement is subject to significant variation within and between different refugee camps and settlements. For some, it may be five years, for others considerably longer. Paris Aristotle has indicated that 5 years is too long.  Minister Bowen has expressed a different view:

… I’ve said repeatedly – repeatedly – that the no-advantage test will mean that people will wait for a very substantial period. Could it be five years? Yes it could.

Obtaining accurate information in order to discern how long an IMA would have waited for resettlement from overseas is a costly and complicated exercise. The Federal government has not made known the basis upon is which this counterfactual enquiry will be made. It has also failed to acknowledge the preventable human cost which will be exacted from the forced and unnecessary prolongation of what is often a lengthy and difficult process.  Keeping IMAs in Nauru and PNG beyond the period necessary to determine their refugee status is likely to amount to arbitrary detention contrary to article 9(1) of the International Covenant on Civil and Political Rights.  While the expert panel’s report calls for “appropriate accommodation” and “no arbitrary detention”, the reality is that the arrangements in place do fall within the ambit of detention as understood by the UNHCR.

The human rights implications of offshore processing under the Howard government’s Pacific Strategy are well-documented.  Beyond the prohibition on arbitrary detention, the practice of offshore processing raised concerns about Australia’s compliance with its human rights obligations, including the prohibition on cruel, inhuman and degrading treatment (in article 7 of the ICCPR as well as article 16 of the Convention against Torture). The degraded status determination process applied to boat arrivals constituted a penalty in contravention of article 31 of the Refugee Convention premised on unauthorised presence and raised the danger of return to persecution due to flaws in status determination in breach of the non-refoulement obligation in Article 33.  In light of significant epidemiological data charting the link between remote detention and mental illness, keeping people detained in such facilities was in breach of the right to the highest attainable standard of health in article 12 of the International Covenant on Economic Social and Cultural Rights and article 24 of the Convention on the Rights of the Child.

The application of the “no advantage” policy to detention in Nauru and PNG exacerbates the excesses of the Pacific Strategy. Most asylum seekers detained in Nauru and PNG during the Howard years spent two years in detention while some were detained for close to six years.  While isolation, indeterminate duration of detention and the uncertainty as to their future had a devastating effect on IMAs at that time, those detained in Nauru and PNG today are all likely to be subject to prolonged and indeterminate detention. If found to be refugees, their resettlement will be deliberately delayed in order to send a message of deterrence to others. This amounts to cruel and irrational policy.

The no advantage principle is likely to see Nauru and PNG become places of long term accommodation rather than the “short term circuit break” envisaged by the Expert Panel. Reports from the makeshift processing facility at Nauru have detailed hunger strikes, suicide attempts and a pervading sense if despair and hopelessness among detainees.

“No advantage” in Australia

Despite the clear deterrence aim of offshore processing, more than 7,000 IMAs have arrived in Australian territorial waters since 14 August 2012. Because there is insufficient capacity to process all IMAs in Nauru and PNG, the government has sought to extend the “no advantage” principle to IMAs processed at Christmas Island and mainland Australia. A Bill currently before the Parliament seeks to bar all IMAs from making valid visa applications, to render them liable for transfer to Nauru or PNG (irrespective of whether they arrive in mainland Australia) and exclude all IMAs from Australia’s refugee processing regime. The Bill revisits the Howard government’s controversial attempt to expand its excision regime in 2006 and is currently before the Senate Legal and Constitutional Affairs Committee, which will provide its report by 25 February 2013.

On 21 November 2012, Immigration Minister Chris Bowen issued a media release entitled “No advantage onshore for boat arrivals”. The “no advantage principle” would be applied to people attempting to arrive in Australia by boat, “whether that means being transferred to have their claims processed, remaining in detention or being placed in the community”. People “processed in the Australian community” will not be granted a permanent protection visa if found to be a refugee “until such time that they would have been resettled in Australia after being processed in our region.” Accordingly, these refugees (along with IMAs whose status remains to be determined) would be granted bridging visas with restricted access to financial support and accommodation assistance and no work rights.

Bridging visas granted to recognised refugees bear some similarities to the Howard government’s Temporary Protection Visa (TPV) regime under which most refugees would be granted a three year visa then have their protection needs reassessed after 3 years. TPV holders had no right to family reunion and could not re-enter Australia if they departed during the three year visa period.  But unlike asylum seekers granted a bridging visa, TPV holders were permitted to work.

Denial of work rights is inconsistent with article 17 of the Refugee Convention. It also generates a sense of hopelessness and impedes integration into Australian society. Quite apart from raising concerns about human rights and dignity, this policy lacks pragmatism and common sense. It also fails to recognise that the interests of society as a whole are served by enabling refugees to successfully integrate into society and become purposefully employed. Yet in the forlorn hope of sending a message to asylum seekers who might travel to Australia as IMAs, the Minister has signalled an intention to deprive IMAs of hope. Such policies mark us as a society and reveal Australia to be a nation which treats its international obligations as discretionary. Perhaps recognising the cruelty and irrationality in the new policy, Minister Bowen indicated recently that some refugees may be given work rights. How the grant of such rights will be determined remains to be seen.

Enabling refugees to begin their lives in Australia with support, work rights and hope for the future confers a benefit on society as a whole. Until the government recognises that the needs of refugees and the wider community coincide, the consequences will be borne by refugees and society as a whole.