So messed up, I want you here… Asylum Seekers and Expert Panels #auspol #refugees

It took zero seconds between the Expert Panel on Asylum Seekers saying the word ‘Nauru’ and the quagmire of Australian commentary to gurgle its reaction.  We are no longer interested in evidence or argument; we want to know conclusions so we can either yell ‘Boo!’ or ‘Hooray!’ depending on for whom we vote.

Spending some time reading the documents and the submissions is rewarding, particularly if you come at the issue with strong feelings.  Particularly enlightening is the submission by the UNHCR.  Quite a lot of commentators from the extreme left insisted that regional cooperation models were nothing but cynical efforts to dodge international responsibilities.  Compare that ‘analysis’ to the submission by the UNHCR:

15. UNHCR broadly supports the considerations agreed by the Bali Process to underpin the establishment of regional cooperative arrangements. UNHCR is committed to working with Australia and other States in the region to implement practical cooperation arrangements that address State concerns about the onward movements by sea of asylum-seekers and refugees provided these arrangements include adequate protection of such persons.

Something doesn’t add up here.  How can the UNHCR say ‘Provided certain conditions are met, we support regional cooperation models’ when so many lefties assert that it’s the worst thing since John Howard?

Note also paragraph 22(iii):

UNHCR has been concerned for some time about: the lack of meaningful consequences for those found not to be in need of international protection.

This is an interesting comment, especially read in conjunction with part of paragraph 25, which says that Australia should consider ways to ‘intensify efforts to achieve returns for those who are not in need of international protection, including through bilateral and international agreements’.  In 2011, UNHCR was party to an agreement with Afghanistan and Australia to repatriate unsuccessful asylum seekers.  Before the ink was dry, the commentosphere went into hyperdrive condemning the agreement.  Amnesty International, for example, was quick to claim that the agreement was dreadful.

Even when the Australian Government works with the recognised authority for refugee issues, it’s condemned for being heartless, cruel, and — somehow — in breach of international law.

And it’s in this space that we get the report.

The basic message is simple:

We believe that the only viable way forward is one that shifts the balance of risk and incentive  in favour of regular migration pathways and established international protections and against high-risk maritime migration. [Source: p. 8]

This has been a consistent message of governments, UNHCR, and the International Organization for Migration for decades.  Regular migration pathways are preferable not just for administrative or bureaucratic convenience, but because they lead to better outcomes.  Creating incentives for irregular migration is irresponsible, provided that it’s balanced against appropriate outcomes (that is, people with claims are assessed and they get a speedy resolution).  Investment in the former too regularly comes at the expense of the latter, but that’s because the latter rarely becomes a significant political issue.  Under-investment in ensuring regular migration pathways are appropriate and functional increases the attractiveness of irregular pathways.  Thus, a cycle of paying for under-investment.

As the report says:

the use of regular migration pathways and established international protection arrangements have their own risks and incentives – the risk of indefinite delay
with inadequate protections and without any durable outcome, set against the incentive of possible resettlement and a new life. The balance of those risks and incentives is too often insufficient to convince asylum seekers that regular pathways are more productive than irregular ones. [p.11]

The report is quite nuanced in its analysis of motivations.  The recent ‘expert panel’ run by The Conversation experienced a number of difficulties coming to terms with the complexity of asylum seeker decision-making.  Doctoral candidate at the University of Melbourne, Melissa Phillips, claimed that pull factors were a myth:

As asylum seekers worldwide spend more and more waiting time in countries of transit, they may become dependent on information from people smugglers. Whether they trust the information they are given, if they are given it at all, is unclear and so-called “deterrence” strategies are questionable.

The conclusion here is a non sequitur.  The people smugglers are evidently part of the decision-making process for destination, so the pull factors (if they exist, to be fair) might operate through the people smugglers.  Thus, deterrence strategies are not questionable if asylum seekers are dependent on information from people smugglers; deterrence strategies are aimed at reducing the likelihood people smugglers will suggest Australia as a destination.

The Expert Panel report, on the other hand, shows a clearer picture:

Those who choose to move through irregular pathways may be further influenced in their choice of destination by people smugglers, relative costs and their own assessment of whether they will be able to remain in a country permanently. members of refugee communities indicated to the panel that perceptions about the likelihood of successfully securing asylum in a particular country – whether this is justified in reality or otherwise – are often part of these calculations. [p. 27]

The report has upset a few people who feel that the humanitarian visa program should be a Darwinistic free-for-all which rewards survivors of smuggling.  It recommends that refugees who were irregular maritime arrivals should be excluded from the family reunion program:

The panel notes the current policy concession that presumes that immediate family applicants meet the ‘compelling reasons’ criteria for resettlement under the SHP. The panel believes that this concession should be removed for applicants currently in the backlog whose proposers have arrived in Australia through irregular maritime voyages unless the proposer was under the age of 18 at the time the SHP application was lodged. Applicants who are now likely to be unsuccessful under the SHP can seek family reunion under the existing provisions of the family stream within the overall migration program (see paragraph 3.18 on additional places for the family stream of the migration program). current policy settings should continue for applicants in the backlog who have sponsors who arrived in Australia through regular migration pathways. [p. 40-41]

This is undeniably harsh.  Drawing from the International Organization for Migration’s website:

A right to family reunification has been expressly established in two significant human rights treaties: the 1989 UN Convention on the Rights of the Child (CRC) and the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

Interestingly, the report’s proposal doesn’t seem to contradict the CRC as it explicitly states that it won’t apply to people under the age of 18.  On the other hand, does that create an additional incentive for minors to engage in irregular migration pathways?  The Migrant Workers Convention can, and should, be ignored, because it is batshit crazy (Australia isn’t a signatory to it).

So even if it’s not strictly a breach of international obligations, is still feels harsh.  Can we, as a country aspiring to greatness, enact a policy which rewards irregular migrants with a place in our humanitarian program, but denies them a (relatively) easy way to reunite with their family?

An important detail about the disincentives is highlighted:

A range of disincentives is set out in this report to actively discourage irregular and dangerous maritime voyages to australia for the purposes of claiming protection or seeking asylum. The purpose of these disincentives, which are consistent with Australia’s international obligations, is not to ‘punish’ those in search of such protection or asylum. It is to ensure that IMAs to Australia do not gain advantage over others who also claim protection and seek asylum but who do so through enhanced regional and international arrangements and through regular australian migration pathways. [p.47]

An unfortunate part of the narrative in Australia’s asylum seeker debate is the language used to discuss disincentives.  Regional cooperation models which sought to process claims in Malaysia, for example, were construed as ‘punishment’.  Similarly, administrative detention is seen as punitive.  I don’t think the report persuasively deals with this problem, and yet it is a major hurdle to genuine debate.  There isn’t a shared language if one side can see nothing but ‘punishments’ where the other sees ‘disincentives’.

The LNP have claimed that the report vindicates their position that Nauru works as a disincentive.  The report is interesting in this regard:

The Panel’s view is that, in the short term, the establishment of processing facilities in Nauru as soon as practical is a necessary circuit breaker to the current surge in irregular migration to Australia. It is also an important measure to diminish the prospect of further loss of life at sea. Over time, further development of such facilities in Nauru would need to take account of the ongoing flow of IMAs to Australia and progress towards the goal of an integrated regional framework for the processing of asylum claims. [p. 47]

My reading of the section relating to Nauru suggests an ‘anywhere but here’ approach.  The report has endorsed an offshore processing model and, in the short term, Nauru is one of the few live options.  More importantly, the LNP interpretation is, at best, only half correct:

In the panel’s view, the Malaysia arrangement needs to be strengthened and revised in these ways as a matter of urgency and at the highest level of government. This is particularly the case in terms of the confidence it provides that its protections will be respected and implemented in practice, and that the human rights of transferees will be upheld. It is also important because it is the panel’s view that, with appropriate amendments for these purposes, the arrangement would be able to play a vital and necessary role in supplementing the processing facilities in Nauru and PNG that are recommended elsewhere in this report. [p. 52]

Similar to my above reading, there’s a ‘do (nearly) everything’ approach being endorsed.  With both LNP and ALP policies given a kind of blessing in the report, it seems the only people not endorsed by the report are the Greens.

At 56 pages, the report is complex and dense.  I’m not sure that the glib responses provided thus fair by the commentariat have been fair or reasonable.  This is a space in which the commentators and analysts really need to pull their socks up and engage productively with the evidence.  Until that happens, we’re going to be stuck in the Boo-Hooray model.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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