Border Protection

By Legal Eagle

Did you ever play “chasey” as a child? If you ran around in the wild blue yonder, you were fair game for any roving pursuer, but usually, there was an area which was “safe” (in my school yard it was called “barlee“). If you were touching the “safe” tree, you couldn’t be caught. If someone did tag you, you’d shout, “Barlee!” in outraged tones.

It strikes me sometimes that we never really grow up. I’m not a migration lawyer; I’m not even a migration lawyer’s bootlace. However, I’ve been thinking about refugees ever since the Federal Government announced it was “Refugee Week” this week. At the same time, they vowed to get tougher on people smugglers, proposing legislation to the effect that persons who provide material support or resources to people smugglers may be found to abet people smuggling, regardless of whether they received financial or other material benefit. The ambiguity in the wording may lead to humanitarian aid workers who assist asylum seekers getting in trouble.

My understanding is that if you’re an asylum seeker who manages to get a toe on Australian soil, you’re much more likely to have reached barlee, but if you’re still outside our territory, your situation is much tougher. Essentially, it boils down to this. If you are an asylum seeker seeking refugee status, then once you set foot on Australian soil (i.e. once you come within the ‘migration zone’) you may apply for a protection visa which gives permanent residence in Australia. It’s more advantageous to apply for refugee status from within Australia because the provisions of the Migration Act 1958 (Cth) apply (with avenues for appealing decisions of the Minister and the like). By contrast, if you are an asylum seeker outside Australian soil, it is much more difficult. For example, to qualify for the special humanitarian program visa, you have to have an Australian “proposer”, and you are more likely to succeed if you are a “split family.” Hence there is an incentive to send out one member of the family to arrive here so that he or she can then get the rest of the family over.

I wonder how many of the asylum seekers who entered here illegally had previously applied for a visa from overseas, and were rejected, but then once they got here, their applications had to be reconsidered and they were accepted. Which raises the question of why they were knocked back when they applied from overseas, and why this changed once they were on Australian soil? I’d really like to see the figures on this.  Surely they are just as deserving of refugee status, regardless of whether they are on Australian soil or not? Why does reaching “barlee” make such a difference? Should it make such a difference?

Much has been made in the news about “boat people” arriving in greater numbers. I think that one of the reasons why people react so viscerally to the asylum seeker issue is the symbolism of it — the desperate people on boats attempting to land on our shores — there’s a sense in it is seen as an invasion of our boundaries. We are an island, and we’re not used to people crossing our borders easily. The word “insular” means both “inward-looking” and “of, or pertaining to, an island”. If we shared a border with another country, perhaps we’d find it less challenging. I believe, also, that people find newcomers challenging because it’s a deep-seated human instinct. Rather than pigeonholing people who are afraid as inevitably racist, and writing off their fears, it’s better to engage with those fears and try to allay them, to ensure that integration can occur as smoothly as possible. It’s not good, either, to pretend that problems don’t occur from time to time – of course they do, and sometimes problems emanate from both sides of the fence, newcomers and existing residents (as I have discussed in relation to Sudanese refugees).

It seems to me that asylum seekers wouldn’t need to make the risky and possibly life threatening journey if it were easier to apply for a visa from outside the territory. So, rather than excising various areas from the migration zone (Christmas Island & etc) or detaining people who come here illegally, maybe it would be better to make it easier for legitimate asylum seekers to apply for refugee status from outside Australia, and to make sure that the visas you got were roughly comparable. That way, people wouldn’t feel the need to risk their lives to come here. To me, it seems really stupid to be putting all these resources into patrolling the seas, detaining people, prosecuting people smugglers and the like when perhaps there’s another way of fixing the issue.

On one level, I can understand the bitterness of Port Augusta mayor Joy Baluch, who said that she “didn’t give a damn” about 60 refugee children who wanted to play soccer in the city:

…her most vitriolic attack was directed at the former Liberal federal government, which she said spent about $150 million on running the now-mothballed Baxter Detention Centre.

“That’s now a dirt patch and the $1.2 million oval that was in the last days of Baxter opened by (former immigration minister) Amanda Vanstone is now used as a landing pad for helicopters,” she said.

“We could have done with that $1.2 million. We’ve had to do somersaults, stand on our hands, do anything to try to get grants.”

My first reaction to Ms Baluch’s comments was, How hard-hearted not to allow the kids to play soccer. But then I thought about it. Of course it’s hard to see resources given to total outsiders by the powers-that-be when your own people don’t have enough resources and find it incredibly difficult to get help from the government. It breeds resentment of exactly the type we see in Ms Baluch’s comments.

Frankly, I’d rather those “border protection” resources be put into making decent housing for indigenous people (still not delivered, from what I understand). So I wonder if we should look at our processes for granting visas to people outside Australia and make it square more with the process for people who set foot on Australian soil. What do others think? Is this a crazy idea, or a good way of circumventing the whole issue?

36 Comments

  1. Posted June 22, 2010 at 9:19 am | Permalink

    As I understand it you can spend years in a refugee camp, even once your status as a refugee has been determined and a country found to take you. It is partly why people coming in boats are called ‘queue jumpers’. I think we need to arrange to take more long term refugees from refugee camps so that people have some certainty about how long it is going to take.

  2. rossco
    Posted June 22, 2010 at 9:29 am | Permalink

    I note that you acknowledge that you are “not even a migration lawyer’s bootlace.”. If you checked with someone who is a migration lawyer you would find that someone who comes to Australia, even by boat, has a legal right, under Australian and international law, to apply for refugee status on arrival. Anyone who does this has not entered Australia illegally. If they have broken the law ie acted illegally, they should be charged and prosecuted in a court of law. This never happens as no law has been breached.

    The term “illegal immigrant” to describe asylum seekers is fostered by politicians who should know better to justify the demonisation of desperate people who need a safe refuge.

    If anyone is here “illegally” it is the estimated 50 000+ people who have come into the country on valid visas and then overstayed and are living and working in the general community.

    We already do process people for refugee status offshore but not nearly enough.

  3. Patrick
    Posted June 22, 2010 at 9:52 am | Permalink

    The problem is the sheer numbers. Boat people status is just a reasonably acceptable proxy for merit, and one that is much more easily adminstered than the others.

    I also agree that in principle we should take many more refugees, but I can’t really see how practically it could be done without a massive investment that no Australian government looks likely to contemplate.

    Of course then there is the root causes argument – maybe we should put more energy into promoting freer trade as a (still extremely valuable) substitute for free movement of persons.

  4. Peter Patton
    Posted June 22, 2010 at 10:24 am | Permalink

    As grotesque as it first sounds, I think those libertarians who suggest charging a price to migrate to Australia have something.

    Surely, it must cost a lot of money to up sticks from Afghanistan, and make it all the way to Australia? If people could apply in Kabul (or wherever) and pay $30,000 (or whatever) then they could fly down and saunter through immigration and customs with not a care in the world. They could even freshen up before leaving the plane, applying lippy, moisturizer, after-shave, underarm deodorant, or whatever might be appropriate.

  5. Posted June 22, 2010 at 12:43 pm | Permalink

    I suspect this border protection regime will get worse not better.

    I reckon the reason governments of developed nations pursue it is because their intelligence services/long range forecasters have informed them that there will be massive human movement from those places most affected by climate change and its attendant desertification of chunks of the planet.

    They act on the percieved need to repel them to survive. It wouldn’t surprise me if there was a policy of rejecting visas by persons likely to apply for regugee status. The intention being to discourage the practice.

    Darwinian ain’t it.

  6. Peter Patton
    Posted June 22, 2010 at 2:06 pm | Permalink

    Part of the problem is that like ALL these UN-inspired “rights,” the whole discourse surrounding ‘refugees’ and ‘asylum-seekers’ was created for a world long, long passed. And that world was the hell, post-WWII.

    The problem is that since then a whole class of carpetbaggers refound religion in UN ‘Declarations’ which they have increasingly substituted for the Torah, The Bible, and Communist Manifesto.

    Why do these people pray to freeze humanity in the moral/political/legal no-man’s land of the period just after WWII?

  7. TerjeP (say Taya)
    Posted June 22, 2010 at 2:08 pm | Permalink

    Peter Patton is on the money. We should have a paid migration visa with a price tag of about $30,000. If you pass a medical check and a criminal background check then you should be able to buy residency in Australia. It would kill stone dead the black market in migration to Australia via boat. It would not represent any sort of opening of a floodgate because the numbers are small. It let’s do gooders put their money where there mouth is by buying entry for needy individuals. It placates the fears of those who feel migrants contribute nothing. And an immigration tariff is far more economically sound than our current immigration quota.

  8. TerjeP (say Taya)
    Posted June 22, 2010 at 2:24 pm | Permalink

    I’m guessing but a lot of people in refugee camps probably couldn’t apply for asylum because they are not in immediate danger of persecution.

  9. Posted June 22, 2010 at 6:37 pm | Permalink

    A tough one. In principle I agree with Patrick, Terje and Peter, but in practice I know that this policy is likely to be a very hard sell. Most libertarians are in favour of pretty high migration levels (of whatever sort), and much as I hate to admit it, I suspect it’s an argument that’s very hard to win. Australia’s migration regime under both Howard and Rudd (high, but carefully selected intake) is likely to be as close as we’re going to get.

    In the recent UK election, the Liberal Democrats had the closest to a ‘pure’ libertarian immigration policy, and once it was revealed in the course of the 3rd leaders’ debate, their support tanked. The Gillian Duffy blow-up didn’t help, of course. Friends of mine who canvassed for the Tory party noticed it in that final week, and I regret to say I didn’t believe them when they said the LibDems had dropped back to their pre-debate levels of support.

    At a very basic level, I think people who pay taxes in welfare states resent enormously being told with whom they ought to share: they feel they already share enough. The libertarian response to this has traditionally been to suggest denying immigrants access to welfare, forgetting — unfortunately — that welfare isn’t just money but also wealth transfers like free education and schools. I don’t think denying people access to wealth transfers will ever be politically sustainable.

  10. Posted June 22, 2010 at 6:43 pm | Permalink

    Part of the problem is that like ALL these UN-inspired “rights,” the whole discourse surrounding ‘refugees’ and ‘asylum-seekers’ was created for a world long, long passed. And that world was the hell, post-WWII.

    .
    My understanding is that the refugee treaties were signed as the result of profound attrition after Jewish refugees were sent back to their deaths. Seeing as how most of the refugees we’re getting come from countries we’ve started wars in I wonder what moral argument we can muster.

    Oh that’s right, we don’t. we lie instead.

  11. TerjeP (say Taya)
    Posted June 22, 2010 at 6:45 pm | Permalink

    Skeptic – the good thing about a paid migration visa is that it counters the claim that immigrants contribute nothing. And it is biased towards those who either have a lot of capital or else those with a high expected earning capacity. If there are too many people migrating compared to what the community wants you either close off other migration options or else increase the fee or some combination of both. I actually think that it is a policy that could be readily accomodated by many with a less than liberal view of immigration. The actual fee would still be something that was politically determined. $30000 is just my estimate of a good opening price. It would need to be adjusted up or down based on actual experience.

    Longer term if many countries adopted this approach we may see the day when they engage in a price war.

  12. Peter Patton
    Posted June 22, 2010 at 6:59 pm | Permalink

    One analogy I find useful here is the criminalization of drugs.

    We KNOW people are going to seek out, use, buy, manufacture, distribute, and sell drugs whether they are illegal or not.

    We KNOW that criminalizing all the above costs US – taxpayers – a bomb, and results in death and misery for millions. Why not legalize, regulate, cut out the criminality, and death, all the while stuffing moolah into government coffers, which can be redistributed to the citizenry?

  13. Posted June 22, 2010 at 9:20 pm | Permalink

    A lot of the broad voter reaction is about a sense of control. People turning up in boats gives ordinary voters the sense that they have no say, no control. Yet, as Skepticlawyer says, their taxes will be paying for said folk. It is a toxic combination which leads to voter angst about “queue jumping”, “illegal immigration” and so forth.

    Any policy which does not give ordinary voters a sense of having a say, which does not reflect “one set of rules for everyone” and does not seem to give ordinary taxpayers unasked for extra obligations is not likely to get popular support.

  14. rossco
    Posted June 23, 2010 at 8:38 am | Permalink

    I guess it was that it was this
    ” I wonder how many of the asylum seekers who entered here illegally”
    that made me think that you were suggesting asylum seekers were illegal immigrants.
    The fact is that asylum seekers do not require a valid visa to enter Australia legally. The idea that a person fleeing persecution and in fear of their life could go through the process of applying for a visa and travel documents on the way is just not plausible. Most people who arrive by boat and apply for refugee status on arrival are accepted as refugees and allowed to stay.
    Of course there are those who arrive by plane on valid visas and apply for refugee status on arrival. A much lower proportion of these applicants are accepted. Presumably because if you were able to obtain a visa it is harder to prove a claim of persecution.

    Interestingly those who come by plane are allowed to live in the community while their claims are processed even although they are less likely to be accepted as genuine refugees.

    There are many human rights organisations such as the Human Rights Commission, Amnesty International, the Edmund Rice Centre, the UNSW Centre for Refugee Research etc which give you more information on the issues you have raised.

  15. Posted June 23, 2010 at 4:49 pm | Permalink

    Nay Rossco. It is because there is no doubt about the identity of the airline arrivals, allowing their claims to be disproven.

    The boat arrivals, having destroyed their documentation on the way, are much more difficult to disprove. Most of them are accepted only because of the provision that if their story cannot be disproved, Australia grants them citizenship rights.

  16. Posted June 25, 2010 at 4:47 pm | Permalink

    Legal Eagle, this is a most interesting proposition. I like it.

    For obvious reasons, I think, I’m very much of the view Aus immigration laws wrt refugees – arriving by boat or onshore – are wrong. I’ve helped on astounding cases of young Hazara men being deported back to Afghanistan because it’s safe now (or allegedly was 5 years ago but hoo-boy, how that’s changed now!)

    I have a slightly different perspective now seeing how porous the UK border is. And you know what? It doesn’t create such a huge problem. It is seriously such a minority who are not genuine or who were, like my family, more ‘economic’ refugees than political ones. And that kind are really not so bad for the economy, anyway.

  17. Posted June 25, 2010 at 4:53 pm | Permalink

    Oh, and in my childhood games of chasey (we called it “tiggy”), the safe spot was called “bar” and required that we actually be holding onto a pole, usually, or an adult.

    Has some history in the sanctity of an altar of a church where if a criminal/outlaw could reach the altar and hold on, the community could not turn him (usually) in.

  18. Marilyn Shepherd
    Posted June 26, 2010 at 5:33 pm | Permalink

    If you had read further you would have noticed that those overseas have no legal right to acceptance in Australia if they already have legal status in another country.

    It is ONLY asylum seekers who apply here that have that right.

    bBecause the SH”P is pretty much a hoax.

  19. Melaleuca
    Posted June 26, 2010 at 9:44 pm | Permalink

    We are up to 6.5 billion people on Spaceship Earth now and I reckon at least one billion of those people have a compelling reason to leave their home because of crushing poverty or oppression of some kind. By 2050 Spaceship Earth will have 9 billion people and at least two billion people living in hellish situations.

    If we have a kinder, gentler immigration policy we’ll be inundated by these people. I don’t want that because I like the wide open spaces. We have too many people in this country already.

    I’d stop the boats by denying asylum seekers any possibility of citizenship or PR. I’d also give each asylum seeker twenty strokes of the rattan, Singapore style.

    Ultimately it is up to the citizens of perennially fecked up countries like Afghanistan to clean up their own mess.

  20. Marilyn Shepherd
    Posted June 27, 2010 at 2:00 am | Permalink

    Great Melaluca, so you won’t mind then when the people of other countries treat us badly.

  21. Posted June 27, 2010 at 11:44 am | Permalink

    If we have a kinder, gentler immigration policy we’ll be inundated by these people. I don’t want that because I like the wide open spaces. We have too many people in this country already.
    .
    Mel’s turned into a right bushie. 🙂

  22. Posted June 27, 2010 at 11:45 am | Permalink

    Mel we also have 10000000000000 AK-47s in the world. When the eco shite hits the fan these people won;t die quietly.

  23. Peter Patton
    Posted June 27, 2010 at 12:09 pm | Permalink

    Well they’d better hope they can swim well if they want a piece of us! By the way, are we self-sufficient when it comes to food? We’ve sure got enough rocks to keep even the Palestinians occupied for a while. 😉

  24. Peter Patton
    Posted June 27, 2010 at 12:28 pm | Permalink

    Gillard just doubled Labor’s majority. 😉

    http://www.theage.com.au/national/gillard-rejects-big-australia-20100626-zb1g.html

  25. Posted June 27, 2010 at 3:06 pm | Permalink

    Well they’d better hope they can swim well if they want a piece of us!
    .
    Scenario: The US/AUS alliance breaks down as Australia refuses to send any more troops to the US’ escalating problems in Central Asia. The US is broke anyway.
    .
    Border protection has become a joke with prevention rates even worse than the drug trade. Bands of veterans of African wars hear about this and: can you say Angles, Jutes and Saxons?

  26. Peter Patton
    Posted June 27, 2010 at 3:21 pm | Permalink

    Adrien

    If – as it increasingly appears – success In federal Australian politics is tied to “prevention rates,” I would expect more Tampas in the face of African warlords having a go. Of course, all of this is just treading water, until China makes it inevitable imperialist lunge at us.

  27. Posted June 27, 2010 at 3:48 pm | Permalink

    I think that many people have stopped believing all of the tales of woe and they see those claiming asylum as immigrants claiming persecution and invoking the UN convention as a means of working the system especially when they have clearly paid large amounts of money to the people smugglers.
    Incidents where they blow up their boats or otherwise disable then does nothing for their credibility as far as most people in the burbs are concerned.
    but I am amazed that all of the advocates think that offering any of these claimants the protection of the UN convention means that we have to give those who turn up either permanent residency or the right to sponsor family members as future immigrants Under the terms of the treaty that is far in excess of our obligation which is only to offer temporary protection.

  28. Peter Patton
    Posted June 27, 2010 at 4:03 pm | Permalink

    5 MILLION of these asylum seekers/refugees are *cough* “Palestinians” *cough.* I sure hope the other however many “millions” are counted are more legit than this.

  29. Melaleuca
    Posted June 27, 2010 at 4:59 pm | Permalink

    LE says:

    I don’t accept that argument. The Afghans have a history of tribal war that goes back at least as far back as recorded history and has nothing to do with us. The ethnic and religious tensions in that country are mostly homegrown or imported from the ME.

    People seem to forget that until the last century a state of semi-permanent war was the norm for nearly all of mankind.

    Even Australia’s aboriginals were in a state of semi-permanent warfare, payback vendettas and cannibalism as demonstrated by William Buckley’s account.

    Australia and the rest of the western world did not create and cannot solve the problems of this world no matter how many refugees we accept.

    Nonetheless I’d accept maybe 20,000 or so refugees each year as a gesture of goodwill.

    ps. Marilyn- I always treat ethnic minorities well and that includes my Asian wife and step kids!

  30. Melaleuca
    Posted June 30, 2010 at 9:53 am | Permalink

    LE

    An article in The Age illustrates my point:

    ” THE drive by Afghan President Hamid Karzai to strike a deal with Taliban leaders and their Pakistani backers is causing deep unease in Afghanistan’s minority communities, who fought the Taliban the longest and suffered the most during their rule.

    The leaders of the country’s Tajik, Uzbek and Hazara communities, which make up close to half of Afghanistan’s population, are vowing to resist – and, if necessary, fight – any deal that involves bringing members of the Taliban insurgency into a power-sharing arrangement with the government.

    ”Karzai has begun the ethnic war,” said Mohammed Mohaqeq, a Hazara leader and a former ally of the president. ”The future is very dark.” http://www.theage.com.au/world/backlash-on-overtures-to-taliban-20100627-zc1f.html

    The ethnic and ideological/religious tensions that are the root cause of eons of conflict in Afghanistan are NOT the fault of the West.

  31. Posted June 30, 2010 at 6:37 pm | Permalink

    I am amazed that all of the advocates think that offering any of these claimants the protection of the UN convention means that we have to give those who turn up either permanent residency or the right to sponsor family members as future immigrants Under the terms of the treaty that is far in excess of our obligation which is only to offer temporary protection.

    I think this is a fair point. During the last Balkans conflict we accept many refugees. They went home to build something out of the rubble when the madness ceased.

  32. Patrick
    Posted July 1, 2010 at 5:48 am | Permalink

    Appositely, this (last) week’s Economist has a feature on Gary Becker’s latest take on immigration, which in short is that it should be market priced.

    It is an idea that I and certainly all the Catallaxians here are familiar with and attracted to. The interesting bit is that in its new center-left-dash-of-right mode the Economist concludes that if as Becker posits the If the benefits of immigration depend more on people’s characteristics than their willingness to pay, the answer may already exist, to wit the ‘points’ system.

7 Trackbacks

  1. […] This post was mentioned on Twitter by AustraliaImmigration, John Hacking. John Hacking said: Border Protection: Did you ever play “chasey” as a child? If you ran around in the wild blue yonder, you were fair… http://bit.ly/coRJya […]

  2. […] # Legal Eagle on Border Protection … Much has been made in the news about “boat people” arriving in greater numbers. I think that one of the reasons why people react so viscerally to the asylum seeker issue is the symbolism of it — the desperate people on boats attempting to land on our shores — there’s a sense in it is seen as an invasion of our boundaries. We are an island, and we’re not used to people crossing our borders easily. The word “insular” means both “inward-looking” and “of, or pertaining to, an island”. If we shared a border with another country, perhaps we’d find it less challenging. I believe, also, that people find newcomers challenging because it’s a deep-seated human instinct. Rather than pigeonholing people who are afraid as inevitably racist, and writing off their fears, it’s better to engage with those fears and try to allay them, to ensure that integration can occur as smoothly as possible. It’s not good, either, to pretend that problems don’t occur from time to time – of course they do, and sometimes problems emanate from both sides of the fence, newcomers and existing residents (as I have discussed in relation to Sudanese refugees). […]

  3. […] I’ve said in a previous post, I strongly believe that a new approach needs to be formed with regard to asylum seekers. Rather […]

  4. By Skepticlawyer » Mercy for Seena on February 17, 2011 at 6:17 pm

    […] the way, I still think an overhaul of the way in which we look at asylum seekers and allow offshore applications is necessary.  […]

  5. […] much of a “solution”. There needs to be a total paradigm shift. The real problem, as I’ve said before, is about the perverse incentives our law sets up for asylum seekers — it’s easier for […]

  6. […] not provide much of a “solution”. There needs to be a total paradigm shift. The real problem, as I’ve said before, is about the perverse incentives our law sets up for asylum seekers — it’s easier for a person […]

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