asylum seekers

Immigration experts are offering up two pieces of asylum seeker policy advice for new PM Kevin Rudd: abandon the “no advantage” test and focus on a regional solution.

Asylum seeker policy returned to the political stage this week following the return of Rudd, who quickly declared he would not “lurch to the Left” on asylum seekers (a nice contrast to his promise to not “lurch to the Right” on asylum seekers during the 2010 leadership spill).

Labor MP Laurie Ferguson declared earlier this month that Labor would be “dead” in Western Sydney if the asylum seeker issue wasn’t dealt with. It’s clearly one of Rudd’s major policy challenges. So what should he do?

“The concept of ‘no advantage’ has been very destructive,” Gillian Triggs, president of the Human Rights Commission, told Crikey. The “no advantage” principle comes from the Houston report and means that no asylum seeker arriving by boat is processed any quicker than an asylum seeker who remains in Indonesia or Malaysia to have their application processed. However, there is no set guideline of exactly what this means or how long asylum seekers will wait in limbo. Triggs notes that no asylum seeker has been processed since the Houston report was implemented last year, meaning there’s now a backlog of over 20,000 claims.

Triggs points out the “no advantage” concept may breach international law by not allowing asylum seekers the right to work or to have their asylum status determined. “Mr Rudd understands the international legal principles, and he knows of the failure of the current policies in terms of delivering humane outcomes,” said Triggs.

Lawyer David Manne, executive director of the Refugee and Immigration Legal Centre, also calls for the policy concept to end. “It has created a profound collective confusion throughout government and non-government sectors, and at a fundamental level, left refugee policy, procedure and practice in a state of crisis,” he told Crikey.

The first hint of a change in asylum seeker policy under a Rudd government came when Foreign Minister Bob Carr queried the genuineness of asylum seekers arriving by boat on Lateline just hours after Rudd’s return — declaring many of them “economic migrants”. He said stronger tests were required to validate refugee status:

“Yeah, we’ve reached the view that as a result of court and tribunal decisions, it’s coming up wrong. We need a tougher, more hard-edged assessment.”

Manne called the Foreign Minister’s comments “very unfortunate”, noting Australia has had a refugee determination system for many years that uses legal principles and evidence to make decisions about which people need protection from persecution and which don’t.

“It would be quite wrong and contrary to the facts to assert that most people coming here are so called ‘economic migrants’, when in fact we have different groups coming to Australia in different ways,” he told Crikey.

Professor Mary Crock, an immigration law expert from the University of Sydney, calls Carr’s comments “incorrect” and “unprincipled”.

“We’re doing it according to a standard that is set under international law and being applied in every other country,” she said. “We’re not out on a limb here. It’s not as if we have a higher acceptance rate than anywhere else in the world.”

Crock acknowledges that some asylum seekers may indeed be economic migrants. “What’s wrong with our system though is that if you process them and found that out, you could send them back, or try to send them back. But we’re not even doing that, we’re giving them five free years passage to Australia by not processing them. If he’s serious about this, then drop the no-advantage test,” she said.

Regardless of Carr, a complete revamp of asylum seeker policy remains unlikely. New Treasurer Chris Bowen was quizzed on Nine’s Today this morning about asylum seeker policy and he noted Labor’s current focus on a regional solution — much of which was recommended in the Houston report last year, and still remains to be properly implemented. Rudd will head off to Indonesia next week and how to handle people smugglers and an increase in asylum seekers arriving by boat are expected to be raised.

A regional solution is the best move forward, experts tell Crikey. “I think that this is an opportunity now to work at the regional level to better respond to the needs of asylum seekers to protect them and ensure that they’re not coming by boat,” said Triggs.

Rudd may have focused more on the domestic side of asylum seeker policy during his first term as PM, but he’s well-suited for a regional solution. “Rudd is going to Indonesia, he has experience as a diplomat, he understands the legal principles and I think he understands the need to work respectfully with all our neighbours,” added Triggs.

A regional solution means fewer boats packed with asylum seekers because they don’t feel compelled to take further risks to get to safety, says Manne. “It’s crucial that the Rudd government works strenuously with our regional partners to develop better protection systems for people so that they have safer ways of accessing protection from further harm.”

Peter Fray

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Peter Fray
Editor-in-chief of Crikey