Returning failed asylum seekers is a necessary part of implementing the 1951 Refugee Convention relating to the Status of Refugees and the subsequent 1967 protocol. Without the ability to return, the convention makes no sense, rendering it a processing and settlement system for vulnerable migrants, rather than a mechanism to assess and protect those at risk of persecution in their home country.  However, returning a failed asylum seeker is not always straightforward, for a range of important reasons.

Voluntary return of a person who has been deemed not to be in need of protection is the ideal model, whereby a person agrees to return and may utilise a package of support services to re-integrate into their home country.  The International Organisation for Migration (IOM) is the body that brokers such voluntary assistance support packages in many countries including Australia.  However, at times, despite having exhausted all avenues of appeal on their protection claim, there are those who will continue to refuse to return and must be removed involuntarily with accompaniment, at great cost to the taxpayer and emotional distress to the client.

When the MOU was signed between Australia and Afghanistan in January this year, it was always going to be controversial to implement return where a failed asylum claimant would not agree to return voluntarily. When the MOU was signed, the Minister for Immigration Chris Bowen noted that there has not been an involuntary repatriation from Australia to Afghanistan in the past decade, neither under the current, nor former coalition government.

At the time of the MOU’s signing, it was widely questioned whether Afghanistan ever intended the MOU to include involuntary return.  However, the wording of the MOU supported Bowen’s insistence that negotiations included voluntary returns and involuntary returns.  Most recently, the issuing of travel documents by the Afghanistan government to Mr. J, a failed asylum seeker, indicates that the Afghan government understood that involuntary return was possible under the MOU.  However, the case of Mr. J will not be straightforward after he was recently granted a temporary injunction to remain in Australia by the Federal Magistrates court.  Mr. J is questioning the final assessment by the Department of Immigration that he is not eligible for protection under any other international convention that Australia has signed and can be safely returned to Afghanistan.

The case of Mr. J and whether he can be returned safely, will be of great interest to the government and any Afghan currently seeking asylum in Australia.  The case is unlikely to be heard until next year but in the meantime the gathering of evidence as to whether a failed asylum seeker can be returned safely to Afghanistan, will no doubt be collated furiously by the government and legal counsel for Mr. J.

While Australia has not returned failed asylum seekers recently to Afghanistan, other countries have continuously done so over the past few years in a voluntary and involuntary form, although at a slower rate than last year. In October the UNHCR noted that the number of Afghan refugees returning home with UNHCR help has dropped substantially this year, with 60,000 repatriating from overseas in the first 10 months compared to more than 100,000 over the same period last year.  A significant number of returnees have resided in surrounding countries, including 43,000 from Pakistan and about 17,000 from Iran.

Last week, the UK announced an incentive scheme for failed asylum seekers from Afghanistan that is backed by the UN High Commission on Refugees, the IOM, the Afghan embassy and Afghan communities in the UK.  The aim is to try to avoid involuntary return by offering a return package worth £600 for singles and families up to £2500 under the six-month trial, which can include on-arrival skill and business opportunities.  Despite what might seem to be a generous offer to failed asylum seekers, it is significantly cheaper than accompanied involuntary returns that can involve charter flights and significant staffing costs.

But ultimately, financial incentives are not the key aspect of achieving a successful voluntary return.  Aside from the challenging diplomatic negotiations in relation to obtaining the appropriate travel documents, the task of engaging with a person who is facing the prospect of return is a highly skilled and important care role.  This became more than evident for the Glasgow city council who recently shelved a two-year pilot program that cost £1 million to run on behalf of the UK Border Agency.  While the pilot was designed to facilitate voluntary return for failed asylum seeking families, the pilot achieved a 0% success rate with not one voluntary return among the 50 families.

Having had the opportunity to visit this pilot in its first few months while conducting research on asylum housing internationally, I was not surprised.  In the first months of the pilot there were no policy frameworks for working with returnees, no operational manuals to guide staff and no formal supervision or debriefing arrangements for staff.  It was not difficult to see that the pilot would fail if all of these aspects were not addressed quickly and comprehensively.

As former Director of the Hotham Mission Asylum Seeker Project (ASP), which provides casework services to hundreds of community-based asylum seekers each year, I am cognoscente of how challenging working with failed asylum seekers facing return can be.  On average, 50% of those cared for by the ASP are not deemed to be owed protection in Australia, consequently “return counselling” is a core component of the agency work.  It is by no means easy, but with a 3% absconding rate and a 90% voluntary return rate the agency has developed a model of care and support for failed asylum seekers — that seems to work.A significant aspect of this success is the fact that supporting a voluntary return outcome is far easier to achieve in the community than it is in a closed detention environment. The expansion of community detention and the implementation of bridging visas, recently announced by government, will assist greatly in the capacity of agencies to support and counsel those who are grief stricken by a legal decision that requires them to return to their country of origin.

But even if all the return requirements fall into place, including: country assessment of safety; successful diplomatic agreements; travel documents; return assistance packages and appropriate return counselling support, the return of people who have invested heavily financially and emotionally in a different future is incredibly challenging for all involved.  Thankfully, at the moment, there is a high rate of success for sea arrivals in being deemed to be owed protection, while those who arrive by air tend to have a much lower rate of achieving a protection visa and therefore, experience a higher rate of return.

Yet, for those who will be facing a return pathway and have arrived by sea, residing in the community either in community detention or on a bridging visa, will actually enhance the opportunity for voluntary return where we can arrange for the appropriate supports and facilitate the relevant agreements.   While seeming to be counter cultural, the placement of asylum seekers in the community who may not be owed protection and must return home, actually makes sense.

This is in the interests of all parties, where avoiding a distressing, involuntary return that is expensive and difficult is a good policy aim. As the expansion of community processing continues, it will be important to consider community placement for individuals in a range of stages of their protection claim, so as to achieve a good determination outcome, whether that be settlement or return.

While at the pointy end of the protection application process, return is a difficult but necessary aspect of being able to protect those who are desperately in need of our protection.

*Caz Coleman is former Director of the Hotham Mission Asylum Seeker Project and a member of the Council for Immigration Services and Status Resolution advising the Minister for Immigration. Opinions expressed are her own.

Peter Fray

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