Tag Archive for: asylum seekers

It’s time to consider an amnesty for thousands awaiting deportation from Australia

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This week, Shadow Home Affairs Minister Kristina Keneally raised concerns that there are now around 50,000 people awaiting deportation from Australia. All of them arrived by plane and applied for asylum in Australia, but their claims for protection were rejected.

Keneally’s central thesis was that the number of people awaiting deportation has grown so large because the time taken to resolve protection claims is too long, border controls at airports are too open and deportations are not keeping pace with failed claims.

The longer term policy question arising from Keneally’s concerns is how to go about resolving the cases of the tens of thousands of people whose claims have been rejected. To understand the scale of the problem, let’s consider the different categories of legacy cases.

In the second half of 2011, Prime Minister Julia Gillard’s government was under pressure over its policies on irregular maritime arrivals and the growing number of asylum seekers in the country.

With limited options, the government decided that many low-risk irregular maritime arrivals, so-called boat people, would be released into the community on bridging visas. Following health, identity and security checks, they were released, under strict conditions, until such time as their claims for protection were assessed.

In August 2012, in response to an upsurge in boat arrivals and deaths at sea, Gillard re-established offshore processing of asylum seekers. Less than a year later, in July 2013, Gillard’s successor (and predecessor), Kevin Rudd, established offshore resettlement. Those decisions led to the creation of a new cohort of people: the legacy caseload, or those already in Australia awaiting the processing of their claims.

Almost 30,000 people have been sitting in limbo for years on bridging visas which allow them to stay in Australia while awaiting an immigration decision. Without policy intervention, they’ll be waiting for years to come.

The legacy caseload is a political time bomb to which the policy response has been slow. The option of removing families that have grown community connections over several years is heartbreaking for all involved as well as expensive.

Then we have those people who enter Australia on temporary visas but fail to leave when those visas expire. An estimated 86,940 people who entered Australia in 2017–18 breached their visa conditions. Many of those people quickly left the country, but figures from June 2017 show there were 62,900 unlawful non-citizens residing in Australia—a number that has remained roughly constant over the past few years.

Finding publicly available data on how long this cohort of unlawful non-citizens has been in Australia is difficult. In 2017, the immigration department provided the Joint Standing Committee on Migration with what was then the most recent (correct as at 30 June 2016) data on the issue. This data revealed that more than 50% of unlawful non-citizens had been in Australia for five or more years, and almost 18% had been here for more than 20 years.

Added to this mix are tens of thousands of other people who are still waiting for their refugee claims to be determined.

It’s crucial that the government come up with a policy to prevent any further growth in these numbers. There’s plenty of scope here to argue for long-term investment in integrating Home Affairs’ information systems, including those that process Australian visas, so that anomalous and high-risk visa applications can be better detected. Attention also needs to be paid to developing the risk-modelling and big-data-analytics capabilities that inform visa and border decision-making.

Australia has some of the strongest border security arrangements in the world, aided in no small part by its geographic isolation. The effectiveness of these measures is underpinned by the agility of the bureaucracy in meeting emerging challenges.

Finding a policy solution to Australia’s growing number of legacy cases is not an easy task.

Many of those cases involve people who have become part of their Australian communities over several years. In some cases, new relationships have formed and children have been born. A decision to resolve this challenge by deporting large numbers of people, for example, would have a significant cost in dollar terms as well as in its effects on social cohesion in our communities.

Given the high price and the many years that it would take to clear this legacy caseload, perhaps it’s time for Australia to open its heart further in order to find a solution to this policy challenge.

The government could consider offering a one-time amnesty for all legacy cases in which the applicant has no criminal history and has not had an adverse security assessment made against them. Such an amnesty would offer permanent residency, subject to the passing of a character test, and a path to Australian citizenship.

It would need to be a one-time offer and be accompanied by clear public messaging that no future reprieve would occur.

The removal of Sri Lankan asylum seekers Priya and Nadesalingam, and their Australian-born children Kopika and Tharunicaa, from the Queensland town of Biloela to Christmas Island has clearly illustrated the economic costs and social-cohesion impacts of dogmatic approaches by authorities in cases in which entire families have established roots in Australia.

Imagine the impact on Australia’s social conscience if tens of thousands of similar deportations were to take place, even if they were spread over several years.

Note: The sixth paragraph of this piece was amended at 1220 AEDT on 21 February 2020 to clarify the dates when offshore processing and resettlement of asylum seekers began.

Australia, asylum seekers and PNG’s Supreme Court decision

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The PNG Supreme Court’s Manus Island decision of 26 April has created legal and diplomatic challenges for PNG and Australia. The ruling that the ongoing detention of asylum seekers at the Manus Island Regional Processing Centre was contrary to section 42 of PNG’s Constitution guaranteeing ‘liberty of the person’ also included orders that both governments take the necessary steps to ‘cease and prevent the continued unconstitutional detention of the asylum seekers’.

PNG Prime Minister Peter O’Neill responded a day later by indicating that the Manus facility would be closed, though no date was given. O’Neill also made clear that PNG would ask Australia to make ‘alternative arrangements’ for the Manus detainees, and that negotiations would be commenced on the timeframe for closing the facility and managing the settlement of legitimate refugees in PNG. Australia’s Immigration Minister Peter Dutton responded by reasserting that none of the Manus detainees would come to Australia.

The Manus facility opened in 2001 when John Howard originally struck a deal with PNG as part of the Pacific Solution, and closed in 2008 with the election of the Rudd government. The Gillard government then negotiated with PNG to reopen the facility in 2012. That arrangement was significantly extended in July 2013 when Kevin Rudd, in his second iteration as Prime Minister, reached agreement with Peter O’Neill for a more extensive regional resettlement program under which unauthorised maritime arrivals entering Australian waters would be transferred to PNG for processing and resettlement in PNG. The July 2013 arrangement was formalised under an August 2013 Memorandum of Understanding between Australia and PNG which provided for the transfer of asylum seekers by Australia to PNG for the processing of their asylum claims, that PNG would conduct its activities consistently with the PNG Constitution and its domestic law, and that Australia would bear all of the costs under the MOU.

An important element of the MOU is that PNG undertakes to permit persons transferred to Manus Island to be ‘lawful during their stay’ in PNG consistently with the terms of the PNG Migration Act, and that persons determined to be refugees are eligible to settle in PNG in accordance with the 1951 Refugee Convention. While PNG met its end of the bargain, including the making of orders exempting the Manus detainees from the operation of the Migration Act which would otherwise have made them unlawful non-citizens liable to deportation, the 26 April Supreme Court decision changed the legal landscape.

What are the options available to PNG and Australia with respect to the Manus detainees? While PNG remains open to welcoming legitimate refugees who are interested in staying, only a handful of the approximately 400 Manus detainees that have had their asylum claims recognised (out of 850) have so far taken up that offer. A combination of cultural, economic, religious and security factors make resettlement in PNG an unattractive option for many Manus detainees. Nevertheless there’s always the prospect of additional resettlement incentives being offered via Australian funding. The Manus detainees’ status could also be modified under the Migration Act to circumvent the Supreme Court judgment. Likewise the government could seek to again amend section 42 of the Constitution and exempt the Manus detainees from their constitutional freedoms. However, both of these options require political will on the part of the O’Neill government.

For Australia, its first line of argument has been that it expects PNG to uphold its MOU obligations under which Australia takes the position that the Manus detainees are PNG’s responsibility which includes respecting its Refugee Convention obligations. Australia views MOUs as having moral, political or practical effect and as not being legally binding, however the existing MOU can be varied—that may be the focus of forthcoming official discussions.

If the Turnbull government adheres to its stated position that none of the Manus detainees will resettle in Australia, then other options presently appear limited (other than resettlement in PNG). Nauru remains a live option and is reported to have capacity, however mixing the Manus detainees with those on Nauru could prove to be a recipe for unrest especially in light of the recent death of an Iranian asylum seeker who set himself on fire in Nauru, later dying in a Brisbane hospital. New Zealand has repeated its offer of assistance but that has been rejected on the grounds that it potentially opens a ‘back door’ entry route into Australia. Negotiations could always be reopened with previous resettlement partners such as Cambodia and Malaysia, but even if those discussions were positively advanced once the Turnbull government enters caretaker mode following the calling of the 2016 election its capacity to conclude another MOU with a resettlement partner will be compromised unless the Opposition have been consulted and are also in agreement.

Regardless of the path taken by the Turnbull government, it will be just the latest chapter of Australia’s asylum policy saga, rather than the last.

The Australian Border Force: our newest security agency

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Border protection

Tomorrow Australia will have a new national security agency: the Australian Border Force. The Australian Customs and Border Protection Service will be merged into the Department of Immigration and Border Protection (DIBP). The ABF will be formed within the DIBP and will become the nation’s unified operational border enforcement agency.

The formation of the ABF is the most significant change to our border management arrangements since the establishment of the Department of Police and Customs in 1975.

These changes are an imperative given the diverse and complex threats at Australia’s borders—including terrorism, serious and organised crime and the new challenge of identifying individuals travelling to fight in foreign conflicts and returnees from Iraq and Syria.

The formation of the ABF operationalises three significant changes in Australia’s border security strategy; a reconceptualisation and securatisation of the border, and the centralisation of border control.

The absence of land borders often makes understanding the physicality of border security difficult. The ABF’s underlying strategies define the Australian border as substantially more complex than a line on a map. The ABF will operate from the perspective that the border is a continuum: it stretches from overseas, to our maritime zones, our physical border and our domestic environment.

The formation of the ABF represents the latest phase in the securitisation of Australia’s border controls. Before 1 July, the front line staff of the DIBP were first and foremost public servants. With the formation of the ABF, these front line operational staff are more akin to police.

The creation of the DIBP is the first visible stage of a centralised border control; a process much like the United Kingdom’s.

In 2008, the UK implemented a unified border security strategy with its UK Border Agency and then Border Force in 2012. The ABF should pay close attention to the British experience, which revealed that size, cultural resistance, poor planning and outdated IT systems can contribute to poor performance at the border. And the ABF won’t be immune from those risks.

Through its portfolio approach, the DIBP has mitigated the risks associated with rapid organisational growth and cultural change. DIBP will assume responsibility for policy, regulatory and corporate functions, while the ABF will draw together the operational border, investigations, compliance, detention and enforcement functions.

The centralisation of border control in the Australian context remains nascent. If the ABF model proves successful, consideration should be given to the centralisation of other border security functions, such as quarantine and biosecurity, to allow for the development of a unified national border security strategy.

Since May 2014, ABF and DIBP have been undertaking a fast-paced program of change. Everything until now has been about setting strong foundations for the long journey towards the maturation of Australia’s new border security era.

Over the last eighteen months the balance between the department’s roles in facilitating trade and travel, and undertaking law enforcement operations have been recast in favour of border security. As Prime Minister Tony Abbott said in February ‘if Immigration and Border Protection faces a choice to let in or keep out people with security questions over them—we should choose to keep them out.’

The impacts of this strategy change are already evident with a 50% increase in the number of travelers denied entry to Australia at the border over the last two years.

The ABF’s security focus will have negative impacts on the performance of its trade and travel facilitation roles; which will have time and resource costs for members of the private sector and the public. This creates an opportunity for private sector entities to play a more active role in Australia’s border security; because it will be in the interest of shareholders to facilitate quick transitions across the border.

Even with the ABF, the Australian border will remain a complex operating environment. A key component of the DIBP strategy for resolving the often unclear and overlapping jurisdictional challenges is the National Border Targeting Centre (NBTC). The NBTC will act as the conduit for securing tactical, operational and strategic engagement from the various departments and agencies involved in border security.

Managing Australia’s border security won’t be smooth sailing—even with these new arrangements. The projected 20% increase in freight, travelers and mail crossing our borders over the next three years will certainly contribute to the challenges that will be faced by the ABF.

The ABF strategy will realise savings through efficiencies such as shared corporate services. But effectiveness of these forces in operational areas will continue to be stretched thin without further government investment. Without continued real growth in border security funding for technological capabilities, the initial gains in border security could well be quickly lost.