Malaysian refugee “solution” on hold after legal action

By Legal Eagle

In May this year, our government proposed a “solution” to the increasing arrival of refugees: deport 800 asylum seekers who arrive by boat and swap them with 4000 refugees from Malaysian camps over four years. The first 15 or 16 asylum seekers were to be flown out this morning (8 August 2011), but yesterday Hayne J of the High Court awarded an interim injunction preventing the deportation until the end of today. The interim injunction has now been extended until the High Court can hear a challenge to the government’s policy on 22 August 2011. The Australian reports:

According to [refugee advocate] Mr Manne [who was responsible for bringing the challenge], the High Court challenge to the refugee swap will hinge on the immigration minister’s ability to make unilateral declarations on the human rights standards of another country.

Labor is relying on Howard government amendments to the Migration Act as the legal basis for its Malaysian Solution.

The law says the minister may declare a specified country “provides protection for persons seeking asylum” and “meets relevant human rights standards in providing that protection”.

“We’ll be challenging that because the consequences here, of course, are very grave,” Mr Manne said earlier today.

“The minister could declare any country to have adequate human rights standards or protections without a review by the court,” he told ABC radio.

“What we know about Malaysia, of course, is that it hasn’t signed the refugees convention or other key human rights treaties and that it has this very troubling record when it comes to treatment of refugees.”

Under our previous Federal government led by John Howard, the LNP was responsible for the “Pacific solution“, where asylum seekers were intercepted before they could reach Australia and relocated to various islands for processing. In a surreal twist, even some refugee advocates have said that it would be preferable to revive the Pacific “solution” than to implement the Malaysian “solution”. And it’s kind of ironic that the challengers are relying on Howard-era amendments to the Migration Act to mount their challenge!

I must confess to being sceptical from the beginning about the Malaysian “solution”. Deporting people to far flung islands or other countries does 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 to get a visa once they are here on our soil than it is when they are off our soil, even though the asylum seeker’s circumstances have not changed one iota. I refer to and repeat what I said then:

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.

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 [which] 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.

Anyway, ’twill be interesting to hear what happens with the Malaysian “solution”. Will it survive the legal challenge or not? And if not, what then for Gillard…? What will the next “solution” be?

Update: Here is a note of the proceedings before Hayne J (the “legalspeak” bits are down the bottom for those interested).

4 Comments

  1. Nick Ferrett
    Posted August 8, 2011 at 7:55 pm | Permalink

    There is a helpful note here of the causes of action upon which the plaintiffs have relied to found the interim injunction.

  2. Posted August 9, 2011 at 7:44 pm | Permalink

    This whole business appears to be a slowly unfolding trainwreck. That’s how it looks from afar, anyway. (Mind you, we can’t talk, London Town is burning down as I type.)

  3. Patrick
    Posted August 9, 2011 at 8:20 pm | Permalink

    What, the whole government? You got it in one!

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