Closing the Asylum Gate

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It seemed like old times last week when Philip Ruddock stepped forward to defend Australia's immigration stance. Five years ago, as Immigration Minister, he steered into law the so-called Pacific Solution to discourage boatloads of asylum seekers. Now, as acting Immigration Minister, he was championing the latest version of that policy against criticism from the United Nations High Commissioner for Refugees. Australia was doing nothing wrong, he insisted. Under the new measures, revealed last month, it "will meet its international refugee protection obligations."

Though the policy won't be detailed until Parliament resumes later this month, refugee law experts are far from sure he's right. What is clear is the law's broad intent: to extend the Pacific Solution - which excised dozens of Australian islands from the official migration zone so boat people landing on them could be sent to processing centers in Nauru and Papua New Guinea - to the Australian mainland. Those arriving illegally by boat will now be sent to such centers and, if found to be refugees, resettled elsewhere.

In Geneva, unhcr spokeswoman Jennifer Pagonis called the planned change "an unfortunate precedent, being for the first time, to our knowledge, that a country with a fully functioning and credible asylum system, in the absence of anything approximating a mass influx, decides to transfer elsewhere the responsibility to handle claims made actually on the territory of the state." Coming amid tension with Indonesia over the granting of three-year visas to a group of independence activists from West Papua province, the policy shift has brought accusations of appeasement. But it's also raised questions about Australia's commitment to the U.N.'s 1951 Convention Relating to the Status of Refugees.

The chief international instrument defining the rights of refugees, the Convention was created by 26 nations, including Australia, to deal with a chaotic tide of refugees after World War II. Now, says Michelle Foster, director of Melbourne University's Research Programme in International Refugee Law, it risks undermining some of the Convention's key principles. Article 31, for example, specifies that refugees should not be penalized for illegally entering a country when fleeing directly from a place of persecution. In 2001, when most boat people reaching Australia were coming from the Middle East and South Asia via other countries, Ruddock emphasized the "need to differentiate between those directly fleeing and those making secondary movements for migration reasons." Under the new policy, Foster says, even those coming directly to Australia will be penalized by indefinite detention on remote islands without the access to courts and independent review tribunals available to asylum seekers in Australia.

Also in doubt, says Foster, is Article 33, under which signatories agree not to return "in any manner whatsoever" refugees to a situation of persecution. Australia and Indonesia are discussing joint naval patrols, and a spokesman for Defence Minister Brendan Nelson says the possibility of turning boats from Papua back to Indonesia is under consideration. Such a move would breach Article 33, says Foster - as would setting up an offshore processing system inferior to Australia's, which could result in flawed decisions and genuine refugees being repatriated to life-threatening situations. Despite criticism that the Convention is ill equipped to deal with today's global flows of refugees - often aided by people smugglers - Foster says all 146 signatory nations reaffirmed their commitment to it in 2001. "It depends on international cooperation," she says, "and Australia is moving away from that."

The unhcr last week reported that refugee numbers - around 9 million people worldwide - are the smallest in 25 years. But many European governments have watched Australia's offshore processing experiment "with considerable interest," says Christopher McDowell, director of the London-based Information Centre about Asylum and Refugees. When the Pacific Solution was first unveiled, McDowell says, European officials were "clamoring to meet" then Immigration Minister Ruddock "to glean as much as they could about the proposals."

Prime Minister John Howard says that under the new system, Australia might be considered a country of resettlement for illegal arrivals who are found to be refugees. It may have to be, given the likely difficulty of finding countries willing to take them off Australia's hands, says McDowell: "Resettlement countries are becoming more selective in who they take, from where, and on whose terms." Many of those taken to Nauru in 2001 and found to be refugees were accepted by New Zealand, but in Wellington, a spokesman for Immigration Minister David Cunliffe says Australia has made no request for talks on a future resettlement deal. He might expect a call soon.