The announcement on Monday that Immigration Minister Chris Bowen and Afghan Minister for Refugees and Repatriation Jamahir Anwary had signed a memorandum of understanding providing for the involuntary return to Afghan asylum seekers has prompted predictable responses from both sides of the asylum seeker debate.

Immigration minister Chris Bowen has been playing the tough guy this week on Sydney and Melbourne talk radio — saying the new agreement will deter Afghan asylum seeks from travelling to Australia — while refugee advocates slammed the government for even thinking about coercing asylum seekers back to Afghanistan.

But despite the rhetorical battle from both sides, there’s a question that needs to be asked — is it better to ensure people whose asylum applications have been rejected are sent home, instead of languishing in indefinite detention?

Until now, asylum seekers were faced with two options when their avenues of appeal had run out — either languish in indefinite detention or voluntarily accept a return ticket home. Much research has been conducted on the plight of asylum seekers who face indefinite detention, with particular concern for the deterioration of mental health of detainees. There have been cases where people have sat in detention for up to seven years.

Bowen’s new agreement with the Afghan government will permit the government to return asylum seekers who are not granted refugee status yet refuse to voluntarily return to their country of origin. According to Immigration, the new involuntary return program is expected to effect between 40 and 80 Afghan asylum seekers by the middle of 2011 — once all their avenues of review have been exhausted. The UNHCR have backed the agreement, as long as there are special safeguards on the return of children and unaccompanied minors.

The majority of Afghans fleeing to Australia are Hazaras who face persecution from the Taliban. According to the UN Assistance Mission in Afghanistan, in the first six months of last year civilian casualties — including deaths and injuries of civilians increased by 31 per cent over the same period in 2009.

The Australian government promised to help fund an Afghan passport and visa system as sweeteners to get the Afghan government on board, plus provide resources for the AliceGhan housing development, and offer funding for training assistance and accommodation for returnees.

Bowen was quick to laud the agreement as a coup:

”Never, all through the Howard years, never before today, has there been an involuntary return from Australia to Afghanistan,” he said on Monday.

Under the Howard government, asylum seekers held as part of the Pacific Solution were offered a voluntary repatriation package of $2000 per person or $5000 per family to return to their home country. That package came under intense scrutiny for the return of asylum seekers to countries still under a security cloud.

In 2009 it was revealed that nine Afghans who had accepted the package and assure it was safe at home had subsequently successfully won protection as refugees under the Rudd government.

The current government have continued an assisted voluntary return program, which offers sustainable return packages valued between $US3300-4000, however it has not proved to be especially successful. An immigration spokesperson told Crikey that just three Afghan refugees had been returned last year.

According to current arrival and grant figures, there are more than 2400 Afghans sitting in detention (Crikey was not provided with an exact figure), while Bowen told 2UE this week that there are “about 700” Afghans who have failed the primary level of review (where cases are looked at by a departmental office) and “around 50” who had failed their merits review (the second level of review) as well.

Last year, 1514 final protection visas were granted to Afghan asylum seekers with the primary grant rate at 99.2%. The lowest it the grant rate has been in the last three years was 92.3% in 2007-08.

If Bowen’s approximate figures for Afghan asylum seekers who have been knocked back at the first instance are any indication, the primary grant rate for this year could be expected to be substantially lower this year.

Pamela Curr from the Asylum Seeker Resource Centre says that there is currently political interference in the review process and that it undermines any involuntary return program.

Early last year the federal government placed a freeze on the processing of the claims of Afghan asylum seekers. The freeze was lifted later in the year, with the federal government claiming that more people would be sent home as a result.

“If people are not refugees then they have no right to receive a visa based on refugee that is a given,” Curr told Crikey. “My concern is that the refugee determination process has become so politicised, that the decisions are being made not on the merits of the case, but in order to send a significant number of people back.”

But commentators such as The SMH‘s David Marr has voiced his support of the agreement, so long as it didn’t break the rule of non-refoulement — the expulsion of an asylum seeker or refugee to a dangerous area.

“The ability to return to the countries of origin people who do not satisfy the criteria for refugee protection is extraordinarily important for the health of the whole system,” he told ABC News 24. “We have to be secure that they will be safe when they return. But if they will be safe when they return, back they must go if they are not refugees.”

A number of countries in Western Europe, including the UK, France and Norway, currently have similar agreements with Afghanistan. Like the Australian-Afghan agreement, voluntary repatriation is preferable but involuntary return is still considered a viable option for non-compliant asylum seekers.

David Corlett, author of Following Them Home: The Fate of The Returned Asylum Seekers, says that there needs to be safeguards against sending people home who are legitimate refugees.

“These are complex issues, I think that return is an important component of a protection system that has integrity,” he told Crikey. “The system ought to be designed to give protection to those who are in need and that system can be undermined by those seeking protection who are not entitled to it.”

Mental health was also a big factor, according to Corlett, especially after people had been held in detention for a considerable amount of time.

“Detention acts as part of a big stick — the carrot for asylum seekers is if you sign up we will provide you with assistance to get employment. The stick is the threat of indefinite detention or the threat of involuntary return and we know that involuntary return is a whole lot more costly and traumatic than voluntary return.”

Involuntary return will affect only those who have exhausted all of their options of appeal, now extended by last year’s High Court decision, which allows asylum seekers to appeal their review process in the courts. Due to the new High Court process, involuntary returns are not expected to be in full swing until later this year.

Voluntary returnees receive a small cash payment, as well as assistance in the form of a resettlement program and skills that are intended to help them find employment in Afghanistan. Currently, asylum seekers being held in Australian detention centres are taught skills like gardening, bricklaying and aquaponics — the growing of barramundi in fish tanks.

Those who leave as part of the involuntary program would receive a smaller amount of assistance, which comes on a “case by case” basis in the form of safe passage home and assistance for basic requirements.

Phil Glendenning, director of the Edmund Rice Centre for Justice and Community Education, says that the new agreement will not deter people fleeing from Afghanistan, despite Bowen’s tough talk.

“Our concern is ultimately the safety of innocent people, there’s no coincidence that we’re not seeing boatloads of people coming from other poor countries like Cambodia or Bangladesh we’re seeing people coming from Afghanistan — a war torn country,” he told Crikey. “When people flee from Afghanistan — a war zone, where people have sold everything that they own to come here — they don’t tend to flee with a copy of The Age under their arm telling them what the government’s latest policy positions are.”

UNHCR guidelines in Afghanistan currently consider the protection of civilians a “major issue”, with deep poverty being the biggest threat to life a progress.

“With Afghanistan’s capacity to absorb returnees stretched to its limits, achieving sustainable return and reintegration is becoming ever more difficult,” the guidelines state.

Curr says that any notion that sending people who have been rejected refugee status home is more humane than leaving them in indefinite detention is wrong and that there is another way to handle the issue.

“I cannot accept that Australia is reduced to offering people likely death on return or slow death in a detention centre, there is a third option and that is to stand by the refugee convention which we are signatories to,” she said. “If people could go back they would take that option, but there is no way in the current climate that they would take it.”

Peter Fray

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