It’s the cornerstone of the expert panel report and Australia’s new asylum seeker policy, but the government still hasn’t decided what a “no advantage” principle means.

The report that inspired Labor’s policy — authored by Angus Houston, Michael L’Estrange and Paris Aristotle — explains: “Asylum seekers gain no benefit by choosing not to seek protection through established mechanisms.” Or in other words, asylum seekers who come by boat will have to wait just as long in Nauru or Manus Island as they would if they’d stayed in Malaysia, Indonesia or wherever.

But there’s still been no official explanation of what it means in practise, although the government has signed deals for asylum seekers to be sent to Papua New Guinea and Nauru and it’s been a month since the Houston report recommendations were passed into legislation.

Will “no advantage” mean waiting months or years? Will all refugees have to wait the same amount of time? On what basis is a waiting time decided? Does the waiting time begin from when the asylum seeker gets off the boat or from when their refugee claims have been approved?

“It’s not simply an issue of length of time as some commentators have referred to it as,” Aristotle told Crikey. “It’s more complex than that.

“What would be envisaged is that the way in which UNHCR processes now and makes determination of who is in need of resettlement and then makes the determination of who in that group is prioritised for those resettlement places, that’s the exact same operational principles that would apply in this context. That’s why you can’t simply rely on a mathematical formula about length of time only.”

Meaning a young single mother with three children who have experienced torture would be placed quicker than a young single man who was healthy.

However, the UNHCR won’t be involved in processing asylum seekers on Nauru and Manus Island, meaning it’s Australian officials who are attempting to use UNHCR principles. “I fully accept that’s a complicating factor,” said Aristotle. “It’s not an exact science and it’s not a test and it’s a principle that should be applied.”

A spokesperson for Immigration Minister Chris Bowen called it a “complex process” and said the details were still being finalised.

“Data around the processing and resettlement times for a range of cohorts in various circumstances is being gathered from a number of places, including from the UNHCR, Immigration and Australian diplomatic posts across the world,” they told Crikey.

The UNHCR confirmed it had been in discussions with government and the Department of Immigration on a number of issues in the Houston report, including the “no advantage” principle, but would give no further details on the type of data the government wants. “I can’t discuss those discussions in terms of any information we may or may not have provided,” a spokesperson said. Instead, they pointed to a letter by UNCHR president Antonio Guterres sent to Bowen last week and tabled in parliament on Monday on the UNHCR’s formal advice on Nauru being a processing country.

Regarding the “no advantage” principle, it reads:

“The practical implication of this are not fully clear to us. The time it takes for resettlement referrals by UNHCR in South-East Asia or elsewhere may not be a suitable comparator for the period that a Convention State whose protection obligations should use. Moreover it will be difficult to identify such a period with any accuracy, given that there is no ‘average’ time for resettlement … Finally, the ‘no advantage’ test appears to be based on the longer term aspiration that there are, in fact, effective ‘regional processing arrangements’ in place.”

Aristotle agrees that the regional plan hasn’t been fully developed yet but adds: “The worse thing you could do is to wait for the environment to be ideal.”

Forty to 50 male asylum seekers will be flown to Nauru this week, although Bowen’s spokesperson told Crikey: “The government will make further announcements on the ‘no advantage’ test in due course”. When Crikey pressed for further clarification of “due course”, the spokesman replied: “This is a complex area with legal intricacies and it is important we get it right. As such more detail will be released when appropriate, and I don’t intend to provide arbitrary timelines, sorry.”

The “no advantage” principle has refugee advocates angry. “It’s nonsensical,” said Pamela Curr. “No advantage to what? It’s an implied threat to asylum seekers.”

Curr notes that some asylum seekers spend decades waiting in Malaysia. She says there’s been speculation in refugee circles of different waiting time periods for different nationalities. Two recent boatloads of asylum seekers (who have been earmarked for removal to Nauru) include Burmese families, Iranians, Iraqis, Sudanese, Pakistanis and Somali asylum seekers.

Once the offshore processing centres are running at full capacity, Nauru will hold a maximum of 1500 (with 500 expected to be living there by the end of the month) and Manus Island will hold a total of 600. Over 2000 asylum seekers have arrived since the implementation of the Houston plan.

Although the government and media focus is on Nauru and Manus Island, Aristotle calls them only “short-term measures” and says the real focus should be on building a regional processing arrangement, the increase of humanitarian refugee visas and the millions the government has committed to spend on capacity building and research.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey