By Khanh Hoang, Migration Law Lecturer, ANU College of Law Migration Law Program
When the Independent Expert Panel on Asylum Seekers (the Houston Report) handed down its report in August 2012, it made abundantly clear that its recommendations were to be construed as an integrated package not to be cherry-picked. The suite of recommendations was intended to shift the balance of risk and incentive in favour of regular migration pathways and established international protection against high risk maritime migration:
Rather than denying asylum seekers the ‘right’ to take terrible risks, there is a responsibility to create opportunities that would enable their claims to be processed more fairly and effectively in ways that make those risks unnecessary.
While the panel recommended a return to offshore processing and the ‘no-advantage’ principle as a circuit breaker to surge of irregular migration, it also made abundantly clear that a regional response centred around cooperation with Indonesia, Malaysia, UNHCR and others to enhance capacity building, provide for durable solutions and resettlement of asylum seekers was just as necessary.
In short, it called for Australia to take the lead in developing a practical burden-sharing framework.
Unfortunately, this call has fallen on deaf ears.
In my view, our Regional Resettlement Agreement (RRA) with Papua New Guinea represents nothing more than Australia using its economic power to dump its problems on an extremely poor, socially vulnerable and politically unstable neighbour. At best, it is an ill-conceived policy made on the run and at its worst, breaches our international obligations and sets a precedent that detracts from, rather than enhancing or building an effective regional framework.
I want to in this article to address the principle of burden sharing and offer some thoughts on what should urgently be pursued to create effective regional framework.
The burden-sharing principle
While the Refugee Convention outlines state responsibilities for the protection of refugees, it provides no guidance on the apportionment of responsibility between states. Burden-sharing, as a principle, is underpinned by international solidarity and the giving effect to joint moral duties and obligations under international law and the Refugees Convention between states.
History tells us that successful burden sharing initiatives have been few and far between. Providing protection comes with associated costs, be it political, social or economic. Successful burden sharing initiatives have only formed when the interests of states are aligned with interests in refugee protection.
The first successful international burden sharing effort came through the resettlement of refugees post World War II of some 1.3 million European refugees. Success resulted from a sense of humanitarian obligation and recognition that caring for victims of war made economic and political sense. Relatively homogenous resettlement within Europe allowed for easy cultural assimilation and integration, and in most cases, resettled refugees helped to meet acute post war labour shortages worldwide.
The other notable success was the international response to the mass exodus of Vietnamese refugees in the 1970s and 1980s fleeing communism. A burden sharing agreement was established in 1979 in which countries facing massive inflows — Malaysia, Thailand and Indonesia — granted automatic asylum with assurance that refugees would be resettled to developed countries. The scheme proved successful, in part because many of the resettlement countries were motivated by anti-communist sentiments. By the late 1980s, apprehensive Western states began pursuing more restrictive policies, and a Comprehensive Plan of Action was established in 1989 which subjected asylum seekers to refugee status determinations. Those found to be genuine continued to be resettled to third countries, while those who were screened out faced repatriation.
The fact that circumstances in our region make burden sharing initiatives difficult to implement does not mean that we should abandon the principle. It does not mean that Australia should have to shoulder the complete burden of providing refugees with protection. Equally, it should not be a licence to sub-contract our international obligations to other states that are ill-equipped to carry them out.
I would argue that an effective regional solution centred on burden sharing should have at its core, three main aims:
- to enhance the ability of the region to provide predictable responses to protracted refugee situations;
- to improve the quantity and quality of protection available in the region; and
- to provide better access to durable solutions and effective protection for refugees.
What’s wrong with sending people to PNG?
If we apply the above principles of burden sharing to the PNG solution, I would argue that it fails, and fails in spades. The RRA highlights that PNG is a signatory to the Refugee Convention and in honouring this agreement, would withdraw all reservations it has to the Refugee Convention. This counts for little if it does not translate to effective protection being provided. As UNHCR’s recently released Guidance Note on bilateral transfer arrangements of asylum seekers points out:
The obligation to ensure that conditions in the receiving State meet these requirements in practice rest with the transferring state, prior to entering into such arrangements … it is not enough to merely assume that an asylum seeker would be treated in conformity with these standards – either because a receiving State is a party to the 1951 Convention or other refugee or human rights instruments, or on the basis of ongoing arrangement or past practice.
In the first instance, effective protection requires protection from non-refoulement — the obligation not to send a person back to frontiers where they risk persecution. The RRA provides that refugee status determination (RSD) will be conducted by PNG. It is highly questionable whether PNG has an effective RSD system in place, or at least one that provides the kind of check and balances that a robust system like Australia provides. The risk here is that bad decisions will lead to chain refoulement, in breach of Australia’s and PNG’s international obligations.
The Refugee Convention also provides for a number of other rights, including to welfare, employment, education and freedom of movement. There is little in the RRA that suggests these rights will be protected. Australia’s undertaking to provide support ‘through a service provider’ to refugees who are resettled in PNG provides scant comfort that basic rights would be upheld, let along protection from violence against women and potential civil unrest. This hardly counts as a durable solution.
The Houston Report made clear that an effective regional solution should increase the ‘protection space’ within the region. Unfortunately, the aid given to PNG is not contingent on using money to build a robust RSD system or infrastructure that would ensure effective protection to refugees. There is a risk that other poor neighbours will put up their hand to provide offshore detention facilities in race to the bottom, without adequate consideration of whether they are in a position to ensure effective protection.
The PNG solution neither increases the amount and quality of protection in our region in the short or long run, nor does it provide adequate and effective protection for refugees.
Where to from here?
Australia needs to take the lead and help relieve the ‘burden’ of dealing with refugee flows in transit countries like Indonesia and Malaysia. It is in these states that we need to engage in capacity building to allow claims to be quickly resolved and for resettlement to occur, as well as providing durable solutions for those waiting the outcomes of their claims. This is what the Houston Report envisaged would tip the incentive balance back in favour of regular migration. It requires long term and sustained commitment from Australia as a leader in the region and the country most adequately resourced to help its neighbours.
I would argue that only by doing this can we increase the quantity and quality of protection in our region, and in a way that provides for effective and durable solutions. To do otherwise would be trying to solve the problem at the wrong end of the equation.
There is a talk that the government is willing to increase the refugee quota resettlement quota from 20,000 to 27,000. This would be welcomed, if not premature. Since 1996, Australian policy has been to link onshore and offshore components of the refugee protection program. That is, for every protection visa granted to someone who arrives by air or boat, there is one less place available for someone waiting in a refugee camp. In 2011-2012, for the first time in 35 years the program consisted of more onshore protection (maritime and air arrivals) than in offshore refugee and Special Humanitarian Program applicants (resettlement). The risk is that, without adequate support given to UNHCR and Indonesia, long waiting times and backlogs in Indonesia will remain. This will simply result in more onshore protection visas being granted and more frustrated, desperate people jumping on leaky boats.
It is glaring that the PNG solution was agreed to without any consultation with UNHCR or Indonesia. Rudd’s first job at the regional summit should be to seek cooperation of Indonesia, Malaysia and UNHCR and to provide them with greater support. A regional framework cannot work without the input of these major parties.
In the meantime, we can only wait and hope that the worst case scenarios being imagined for those to be transferred to PNG do not eventuate.