Frequently Quoted Inaccuracy #6: ‘Boat people’ are queue jumpers

But moving forward also means we must agree on the organising principles for developing policy. I submit we can agree on these principles: […] That no one should have an unfair advantage and be able to subvert orderly migration programs…[1]

Prime Minister Julia Gillard, 6 July 2010

[Before you read this post, click here for a graphic that attempts to explain the onshore and offshore components of Australia’s refugee program.]

Reality:
The perception of boat people as ‘queue jumpers’ is the most pervasive and flawed discourse shaping public opinion of, and public policy responses to, unauthorised boat arrivals in Australia. This FQI appears to stem from the misinterpretation of the onshore and offshore components of Australia’s refugee program. The policy of successive Australian governments to retain the link between the onshore and offshore components of the refugee program, has served to perpetuate this misinterpretation.

A good starting point is an explanation of the difference between a refugee and an asylum seeker. A refugee is a person who, ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [her] nationality and is unable or, owing to such fear, is unwilling to avail [herself] of the protection of that country’.[2] Recognition of someone as a refugee confers upon that person legal status under Australian law in the form of a permanent (protection) visa. An asylum seeker is a person outside her home country seeking protection. Not every asylum seeker will be recognized as a refugee, but every refugee is initially an asylum seeker. Australia has a domestic procedure for recognising asylum seekers as refugees through the grant of a protection visa.[3] In Australia, an asylum seeker is someone whose protection visa application has not been finalised. The definition of a refugee requires a person seeking protection to have crossed an international border. Therefore, the refugee protection regime is necessarily ‘international’.

The Refugee Convention is the agreement, which Australia has signed and implemented in its domestic law, that sets out the basic principles of state responsibility vis-à-vis the protection of refugees. Asylum, which is the mechanism that allows an individual to enter a signatory state, authorised or unauthorised, and seek protection, was the system of protection envisaged by this agreement. The prohibitions against (a) returning a refugee to a country where she might be persecuted[4] and (b) punishing the refugee for seeking asylum without authorisation (i.e. showing up inconveniently, unannounced, uninvited, without a visa)[5] are the core principles of this mechanism. Each signatory state retains responsibility for determining its own procedure for determining who is a refugee within the meaning of the Convention. In Australia, the onshore component of the refugee program is the equivalent of asylum. It is the original refugee protection mechanism and it represents an important exception to the rule of ‘orderly migration’. Onshore processing is the fulfillment of the responsibilities Australia agreed to by signing the Refugee Convention.[6]

Because it receives comparatively few asylum seekers, Australia goesbeyond its international obligations to protect the refugees throughresettlement – the offshore component of Australia’s refugee program.[7]Resettlement is a ‘voluntary contribution to the sharing of international responsibility for refugees for whom there is no other durable solution available’[8] usually upon the recommendation of UNHCR.[9] In 2009, out of 15.2 million refugees worldwide, 10.4 million fell within the operational mandate of UNHCR.[10] Of these 10.4 million, UNHCR recommended 128 000 for resettlement. Ultimately, only 84 000, or 0.8% of the refugees in UNHCR’s care, were actually resettled. It is unclear how many of these refugees were resettled in Australia.[11] As an indication, in 2008-2009, Australia resettled 6 499 refugees.[12]

Australia’s resettlement program is generous and deserves praise. Nevertheless, unlike seeking asylum, resettlement is not a right of the individual.[13] A refugee cannot compel a country to resettle her (from abroad) and cannot generally exercise any choice about which country she will go to or when. Moreover, assuming it were possible (and desirable) to resettle every refugee that fell within the mandate of UNHCR,[14] on last year’s figures (number of ‘UNHCR refugees’ and ‘rate’ of resettlement’), it would take approximately 124 years to achieve this goal.[15] Furthermore, resettlement criteria (i.e. who should be resettled) are determined and strictly prioritised by UNHCR.[16]

Since 1996, the Australian government has linked the quota for resettlement (offshore) to asylum (onshore) applications.[17] This policy, peculiar to Australia, encourages divisive rhetoric about “good”, “patient” (offshore) refugees and “bad”, “queue jumping” (onshore) refugees.[18] The policy was intended to ‘improve program management’[19] but it has been widely criticised for undermining the system of asylum and inciting anti-asylum seeker sentiment and community tensions.[20] The fact that the “queue jumper” discourse at least partly finds its basis in government policy is hardly ever recognised in public debate. Lastly, it is worth stating that the government does plan to receive onshore applications – it is neither a “surprise” nor an inconvenience. The oft-cited quota of 13 750 refugees actually represents the total number of refugees Australia will absorb in 2009-2010.[21] Out of this total, the government has only set aside 6 000 places for the resettlement program.[22] It is expected that almost 1/3 of the remaining places will go to asylum seekers.[23]

In summary, asylum (onshore component) and resettlement (offshore component) are distinct expressions of the international protection regime for refugees. Australia’s onshore component is the fulfillment of our international obligations under an agreement we have respected since 1954.[24] Resettlement is a reflection of Australia’s voluntary commitment to collective responsibility for refugee protection. As a liberal, democratic nation[25] Australia can and should implement policies that respect the unique character of asylum and resettlement. Practically, this means that the Australian government should delink the quota for resettlement (offshore) from asylum (onshore) to stop perpetuating the false assumption that asylum seekers are ‘queue jumpers’.

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[1] Julia Gillard, ‘Moving Australia Forward’ (Speech delivered at the Lowy Institute, Sydney, 6 July 2010), p. 6.

[2] Migration Act 1958 (Cth) s 36 incorporates the definition of a refugee enshrined in the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, art 1A(2) (entered into force 22 April 1954), incorporated by reference in the United Nations Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267, (entered into force 4 October 1967).

[3] Migration Act 1958 (Cth) s 36. See also, Department of Immigration and Citizenship, ‘Seeking Protection’ <http://www.immi.gov.au/refugee/seeking_protection.htm> at 18 August 2010.

[4] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, art 33 (entered into force 22 April 1954), incorporated by reference in the United Nations Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267, (entered into force 4 October 1967).

[5] Ibid, art 31.

[6] Department of Immigration and Citizenship, Refugees and Humanitarian Issues: Australia’s Response (2009), p. 16.

[7] Ibid, pp. 16-17.

[8] Paul Power, ‘Which way forward? Refugee, security and the Asia-Pacific’ (Speech delivered at the ALP National Conference Fringe Event, 31 July 2009), p. 3.

[9] There are certain “Special Humanitarian Visas” under which a person can apply from within their home country if they are at risk of persecution or be sponsored by an eligible person from within Australia for resettlement. These visas will not be considered in this post. For more information, see Department of Immigration and Citizenship, ‘Application for an Offshore Humanitarian visa – form 842’, p. 1 <http://www.immi.gov.au/allforms/pdf/842.pdf> at 17 August 2010.

[10] UNHCR, 2009 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and Stateless Persons (2010), p.1. [hyperlink] All the UNHCR figures that follow are drawn from this source.

[11] UNHCR calculates its figures based on a calendar year whereas Australia calculates its figures on a financial year basis.

[12] Department of Immigration and Citizenship, ‘Fact Sheet 60 – Australia’s Refugee and Humanitarian Program’ (Last reviewed 4 November 2009) <http://www.immi.gov.au/media/fact-sheets/60refugee.htm> at 18 August 2010.

[13] UNHCR, ‘Chapter 4: UNHCR Criteria for Determining Resettlement as the Appropriate Solution’ in UNHCR Resettlement Handbook (2004), p 2.

[14] It is not possible to make this assumption because UNHCR envisages several ‘durable solutions’ to crises of displacement of which resettlement is one. The others are voluntary repatriation and local integration. For more information, see UNHCR, ‘Durable Solutions’ <http://www.unhcr.org/pages/49c3646cf8.html> at 18 August 2010.

[15] This calculation was inspired by the Refugee Council of Australia, ‘Myths and Facts About Refugees and Asylum Seekers’ (2010) p. 2 <http://www.refugeecouncil.org.au/docs/news&events/rw/2010/3%20-%20Myths%20and%20facts%20about%20refugees%20and%20asylum%20seekers%20media%202010.pdf> at 18 August 2010.

[16] See UNHCR, above n 13.

[17] Power, above n 8, p.3.

[18] Mary Crock, Ben Saul and Azadeh Dastyari, Future Seekers II: Refugees and Irregular Migration in Australia (Leichhardt: The Federation Press, 2006), p18.

[19] Department of Immigration and Citizenship, above n 6, p. 23.

[20] Ibid. See also, Katharine Gelber, ‘A Fair Queue? Australian Public Discourse on Refugees and Immigration’ (2003) 77 Journal of Australian Studies 19.

[21] Department of Immigration and Citizenship, above n 12.

[22] Ibid.

[23] Ibid. This forecast is based on the numbers in the first table under Humanitarian Program Figures.

[24] Australia acceded to the 1951 Refugee Convention in 1954 and the 1967 Protocol in 1973.

[25] Savitri Taylor, ‘Liberalism’s asylum dilemma’, Inside Story, 28 October 2009 <http://inside.org.au/liberalisms-asylum-dilemma/> at 18 August 2010.