Dr. Graham Thom, Amnesty International Australia's Refugee Coordinator

Migration Act Change Is 'Heavy-Handed'

Members of the Australia West Papua Association display the banned Papuan Morning Star flag outside the Indonesian Consulate at Maroubra in Sydney last month. (Photo: Greg Wood / AFP-Getty Images)

Humanitarian agencies have criticized the Australian government's proposed changes to the Migration Act, which will remove asylum seekers to a third country for processing.

Seen as a strengthening of the now notorious "Pacific Solution,"* the changes announced in April have come in response to the mounting diplomatic crisis between Australia and Indonesia over the Immigration Department's decision in March to grant temporary visas to 42 of 43 asylum seekers from the Indonesian controlled province of West Papua.

The refugees, who arrived by boat on the northernmost tip of Australia in January, claimed they were fleeing genocide and human rights abuses at the hands of the Indonesian military.

Jakarta, denying such human rights violations, demanded that the Australian government reverse its decision to grant asylum, recalling its ambassador and ending the joint effort to prevent people smuggling from Indonesia into Australian territory.

However, human rights and refugee activists have claimed the proposed legislation contravenes existing international agreements and denies asylum seekers recourse to natural justice. Dr. Graham Thom, refugee coordinator for Amnesty International Australia spoke with contributing editor Rich Bowden about the concerns Amnesty has with the new migration laws.

Q: What changes to the Migration Act is the government proposing under the new legislation?

It's basically going to be an extension to the Pacific Solution. Anybody now who reaches Australian soil by boat can be taken to an offshore processing center. This is regardless of whether this is their first country of asylum or whether they've been transferred through other countries.

It looks like [the refugees] will be taken and processed on Nauru and they won't have the same sort of access to the refugee status determination system than those who are processed on the mainland [of Australia].

It's unlikely that they'll have an independent appeals process, their access to lawyers will be extremely difficult, and whether or not Australia has any responsibilities to them under our other conventions like the Convention Against Torture looks unlikely to be taken into consideration when they're processed.

For that reason Amnesty International has grave concerns about whether Australia will be able to meet its international obligations for people fleeing persecution under this new legislation.

Would you say that refugees removed to places like Nauru for processing will be denied natural justice?

That's one of our main fears certainly. We have seen problems in the past when you do not have access to an independent appeals process. You just need to have a look at the acceptance rate of people appealing at the Refugee Review Tribunal [R.R.T.]** to get a clear understanding of why an independent process is important.

When people from Iraq and Afghanistan have had an 80-90 percent overturn rate [on their appeals against decisions made by the Department of Immigration] at the R.R.T., you get a clear picture of how mistakes can be made by the [Immigration] Department and what impact that has on the lives of those people.

We also need to look at the amount of time that individuals spent on Nauru following the Tampa*** in 2001; in fact we still have two people stuck on Nauru after five years. So when you talk about natural justice, without having access to the Federal Court and an ability to challenge the [Department of Immigration's] decisions, Amnesty International certainly has great concerns that natural justice may be denied.

Do the proposed laws breach any international laws or treaty obligations?

We believe they breach obligations firstly under the Refugee Convention because Article 31 says penalties should not be imposed on people who arrive without documentation.

Taking a group who arrive undocumented by boat to a third country and giving them less rights in terms of the appeals process, Amnesty believes is a penalty as defined by the United Nations High Commissioner for Refugees [UNHCR]. As such we say Australia will be breaching one of the fundamental tenets of the Refugee Convention.

Also, when we look at the Convention Against Torture, non-refoulement — … the international principle where you cannot send somebody back to face torture or death — is broader under the Convention Against Torture than it is under the Refugee Convention. [Refouler is French for "to force back."]

We don't see how this new legislation ensures that these people [who are returned to their country of origin] will have their international obligations under the Convention Against Torture taken into account.

We could be in breach of our non-refoulement obligations under this system, which will be very serious.

If, as it seems possible, the Australian navy were to be used to assist Indonesian forces to turn back refugees would that be a breach of non-refoulement and our Refugee Convention obligations?

That's probably the most serious breach of the convention, certainly and we cannot see how the role of the Australian navy can be anything but in breach of Article 33 of the Refugee Convention and non-refoulement where you cannot send people back to countries where they face torture or death.

While the Australian government has given some assurances that refugees will be questioned by the navy and, if they say there has been persecution, they will then be taken to a third country like Nauru, the chances of a mistake being made by a Navy official in such an important situation quite clearly means Australia can breach its non-refoulement obligations.

If this were the case, this would put Australia seriously at fault.

Do you think the government introduced this legislation to mollify Indonesian concerns over the West Papuan asylum seekers?

It's hard to see any other reason why they would introduce this legislation at this time. And that I think is a frightening proposition, to have a country where you have just recognized people as being in fear of legitimate persecution and to then put in place legislation to stop people from fleeing that country.

You are effectively saying those people must remain where their lives are at risk. That is completely unacceptable and completely contrary to the high ideals of the Refugee Convention and the Universal Declaration on Human Rights where Article 14 says people have a fundamental right to flee persecution and seek asylum.

This legislation therefore clearly then flies in the face of the Universal Declaration of Human Rights.

What conditions would the 43 West Papuan asylum seekers have faced had they been forced to return to their homeland under this new legislation?

Quite clearly the fact that they were recognized as refugees show there was a definite probability they would have faced persecution. We know people have been arrested and imprisoned for flying their independence flag in the Papuan province.

People have died in prisons, people have been tortured, people have been assaulted — serious human rights concerns are there in Papua — and these asylum seekers were recognized as being subject to those persecutions and human rights abuses.

We had grave concerns when they were being processed that the system would be fair and transparent and were pleasantly surprised at how well the refugee status determination system worked for this group by the fact that they were recognized.

This is why it is doubly disappointing that following this best practice in refugee status determination, the Australian government turns around with legislation that is a serious step back from best practice.

Are there any other comparable refugee processing systems in the world?

Unfortunately its looking like the European Union is moving this way and Italy is certainly looking at similar sorts of measures taking people to Libya for instance. In the past we have seen the U.S. government turning around boats fleeing from Haiti.

But to actually set up an offshore processing centre and then leave recognized refugees in limbo in this processing centre when you are the government that has effectively recognized them as refugees is, I think, a unique situation.

A country, that has a very strong refugee status determination system, which then turns around and establishes a lesser and weaker system on a third country is really setting a new low benchmark.

Prime Minister John Howard said that detention of children in processing centers would be as a last resort. How will these new laws affect that promise?

I think they will. It's hard to see how the way they house families under this new legislation won't be at odds with the P.M.'s statement. Clearly we're back to a system of mandatory detention where it's going to be as a first resort. These claims by the Australian government that children will be allowed out during the day and locked up at night, is farcical in many respects.

It is still detention, we still run the risk of psychological damage that we have seen in children who are facing these sorts of detention arrangements and it will again put us at risk of breaching our international obligations under the Convention of the Rights of the Child.

I think the Australian government recognized what detention was doing to children when it made these changes and to again put children centered where there is less scrutiny is a frightful proposition.

How do you think ordinary Australians will react when they see press coverage of children in detention?

I would hope they would be disappointed and outraged that this is going to happen again. I think — though I wouldn't wish it on anybody — if we start seeing pictures of children locked up again people will rightly be outraged because we have seen the psychological damage this has done to children.

Because children are particularly vulnerable — we have seen the psychological damage that detention does to adults let alone children — I think the Australian population has every right to be outraged by this new move.

Do we as a nation have a problem with the number of refugees seeking asylum?

We have to be realistic and say Australia does not have a problem with refugees.

The number of people arriving by boat [into Australia] is absolutely miniscule in terms of global numbers. It is important to recognize the numbers seeking asylum are declining worldwide, not just in Australia. This is a sledgehammer approach to a very, very small problem. In the last financial year we had nobody arriving by boat. This year we have had between 50 and 60 including the 43 from West Papua.

It really is not a problem for Australia and I think to take such a heavy-handed approach will make the rest of the world look in disbelief at why we would need to take these measures.

It's an extraordinary approach to a very small problem.

* The name given to the controversial policy, first implemented in 2001, of diverting asylum seekers by force to detention centers on small island nations in the Pacific rather than allowing them to land on Australian soil.

** The Refugee Review Tribunal (R.R.T.) reviews individual decisions made by the Department of Immigration and Multicultural Affairs concerning refugees in Australia.

*** Norwegian cargo ship at the centre of a diplomatic storm in 2001 when the Australian government refused to allow the captain to land on Australian soil 460 refugees who had earlier been rescued by his crew from their sinking vessel. The government implemented the Pacific Solution in response to this event.

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