Submission to Expert Panel on Asylum and Refugees

John Menadue Arja Keski-Nummi

Fellow Fellow Centre for Policy Development Centre for Policy Development(former Secretary, Department of (former FAS, Refugee, HumanitarianImmigration and Ethnic Affairs) and International Division, DIAC)

16 July 2012

Executive Summary

This submission examines the motivations for asylum and onward movements. It explores ways to strengthen the protection space in countries of displacement as well as measures to encourage orderly departure from source countries. We also examine the ambiguities related to questions of smuggling networks and consider some options on how best to negate those networks.

Governments alone cannot “solve the problem” – it is multidimensional. It requires input, support and action from regional governments, non-government organisations and experts in civil society as well as international agencies.

What we have mapped out are some of the key elements for developing such an approach and it builds on the recommendations outlined in the Centre for Policy Development’s report A New Approach. Breaking the Stalemate on Refugees and Asylum Seekers in Australia in 2011. [See http://cpd.org.au/category/refugee-policy]

We make a set of linked recommendations that could, if taken as a whole, start the process of building a sound plan of action

These address:Visa and settlement options covering options for orderly departures programs as well as considering the use of other visa options in particular circumstances as well as increasing the resettlement intake;

Regional cooperation and international burden sharing – addressing the complexities of building strong regional cooperation models but starting with increased registration activities by UNHCR to assist in stabilising populations as well as supporting countries in the region in hosting displaced populations and building more effective protection systems.

Strengthening the dialogue – diplomacy is a key to good arrangements. But we also need to work with civil society and NGOs in the region as they are vital in the success of support arrangements to displaced people. We believe developing a civil society/government partnership on these matters is critical as is the development of a Track 2 dialogue to sit alongside the Bali Process. Good models for such engagement exist in the ASEAN and ASEAN Regional Forum frameworks.

Enhancing research and evaluation. Good, responsive public policy relies on a sound understanding of the many dimensions of humanitarian displacement. We recommend the establishment of a research and evaluation program that will guide and support the development of new policy responses.

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Section 1: Introduction – the Context of Asylum and Displacement

Erika Feller the Assistant High Commissioner for International Protection at the UNHCR said recently of the debate in Australia. “This is not really an Australian problem alone and it's not going to be resolved through an Australia solution alone…. it's actually a regional and in fact a global one.”1

There are no easy answers or quick fixes on how to deal with asylum issues or to address the condition of people displaced from their home countries. The policy levers available to government to take unilateral action are limited. The best we can hope for is to ease the anguish of people who are displaced by providing humane and compassionate responses. For any policy approach there are consequences and it is making these difficult and finely balanced judgment calls that public policy makers must contend with. For instance the question of increased resettlement – will it become a magnet for further arrivals or will it assist with strengthening the protection capacity in the region. We do not know; but what we must decide is which fork will we take and if we find that it has “unintended consequences” what can we do to address these. These conundrums are at the heart of this policy discourse.

Human displacement is as old as civilisation and the term asylum denoting “a safe place” reminds us all of our common humanity. Roman law had a concept of asylum “ius asylae” that recognised the right to seek asylum and to not be expelled until a decision on asylum had been made. Although the historical context in which the Roman law was applied and in which the Refugee Convention of 1951 was developed are quite different, nevertheless they reflect a common tradition that reminds us that asylum is an enduring feature of the human condition.

As has been noted throughout the public discourse on this matter the number of people who seek asylum in Australia by whatever means is small when considered globally. The latest reporting from UNHCR on global asylum trends shows that there are some 441 260 asylum seekers in the 44 industrialised countries, 2 and of this number Australia had 11 500 or 2.6 per cent of all applications. This compares with the some 42.5 million people who are currently forcibly displaced worldwide3. What it highlights is that industrialised countries bear only a small burden of the total number of people displaced.

The artificial distinction between air and sea arrivals in the Australian public discourse also masks a profound unfamiliarity with what our obligations are in considering the protection claims of a person who arrives in Australia. Irrespective of the way a person arrives in Australia we are obliged, under our convention obligations, to consider if a person, within the meaning of the

1 Erika Feller in the Age, Monday 2 July 20122 As defined by UNHCR in its report Asylum Levels and Trends in Industrialized Countries 2011, UNHCR (2012) www.unhcr.org3 UNHCR Global Trends 2011, UNHCR (2012), www.unhcr.org

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Refugee Convention, is owed protection by Australia. This is law.

Displacement and onwards movement occur, not because of destination country asylum policy, but overwhelmingly because of the situation in countries of origin and in countries of asylum (whether first or later). Our public discourse is so polarised that little attention is given to the conditions in the countries of origin or in the countries of first asylum when examining how to address displacement.

The most recent annual report from Minority Rights International Peoples Under Threat 20124 highlights again instability in Afghanistan, Iraq, Burma, Pakistan and Iran among other places, as increasing the potential for people to flee due to ethnic and religious persecution as well as threat of mass killing. This report, while not forecasting displacement, has proved to be remarkably accurate as an early indicator of countries from where there is the potential for increased asylum movements.

Little research has been undertaken on the motivations for departure or onward movement. Where such research has been undertaken it is largely disregarded. A public discourse that ignores the evidence and is based on a one-dimensional approach is destined ultimately to fail.

In this debate it is time that we move beyond the one liner and deal with the uncertainties that are inherent in confronting this issue

Bali Ministers have long stressed the need to address displacement in all its forms from source to transit and receiving countries and have stressed that it cannot be seen as one country’s problem alone.

At the last Bali Ministerial conference it was acknowledged that displacement has both a humanitarian dimension and a criminal element. The way people smugglers prey on the vulnerabilities of displaced people and the superficially persuasive techniques they use to deceive asylum seekers into believing they have the answer to their predicaments demands that this issue be addressed at many different levels by governments.

Section 2: Policy Recommendations

Our recommendations are grouped into four strategic themes:

Visa and resettlement options and policy parameters – enhancing and where necessary creating new visa options. These for instance include the creation of an Orderly Departure Program and increasing the offshore refugee resettlement program. For example, during the height of the CPA resettlement years we averaged an annual intake of over 20,000 per annum. If we adjusted for our population increase since then the intake today would be about 34,000. It could also examine the scope for extending the seasonal pacific workers program to countries such as Sri Lanka. We also examine how we can further enhance all

4 Minority Rights International, Peoples Under Threat 2012, May 2012, www.minorityrights.org

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three durable solutions of resettlement, return and local integration.

Regional cooperation and burden sharing – we examine the complexities of building a regional protection system and the elements that need to be considered in constructing a framework that helps in supporting displaced populations in countries of first asylum and transit rather than options to take perilous sea journeys. We look at the conditions that would assist in stabilising movements such as creating a legal status for asylum seekers, establishing a government/civil society partnership in the delivery and design of services to asylum seekers in the region as well as registration and processing of people in countries of transit. We also consider the vulnerabilities of crew and measures that could assist in disrupting the recruitment of crew in Indonesia.

Strengthening dialogue – at the heart of good policy is communication and dialogue. As we have noted there are no simple choices in this policy area and there are consequences for whatever approaches are taken. Building an inclusive framework that brings in all the players has a better chance of incorporating into the policy framework consideration of the risks and opportunities in any of the approaches taken. It has a better chance of actually delivering real protections for displaced people as mutual suspicion of each other is replaced with confidence and trust amongst the various players. We propose the creation of a Track 2 dialogue approach that brings together experts from governments, international organisations and civil society to start this difficult journey.

Enhancing research and evaluation – A consistent theme in the literature has been the paucity of research that would support a better understanding of the causes for and motivations of displacement. There is a wealth of information held in disparate locations that could be better used and targeted for considering policy approaches – we need to harness this information and better use the data. We recommend a funded research and evaluation program be established that would reinforce the development of a sound evidence base for the development of policy regarding refugee and asylum policies in Australia and the region. It would build on work that has been commissioned under the Bali Process as well as the work of UNHCR in the region. It has the potential to deepen the understanding of how choices are made and allow for the exploration of innovative and new policy ideas to address the ‘fears and anxieties’ that push people into flight and to use people smugglers and other facilitators.

Specific recommendations against these themes are at the conclusion of this submission (pages 18-19).

Section 3 Issues

(i) Mapping the Asylum Pathway

Safety, or lack of it, determines how and why most people move. This applies equally in the decision to depart a person’s home country as to secondary movements.

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The reasons are complicated. For some a single event can be the catalyst for departure or onward movement. For others it can be the accumulation of unrelenting small-scale harassment and denial of basic livelihoods that act as the trigger.

Little research has been undertaken in countries of first asylum on the intention of refugees. The Norwegian NGO Fafo undertook one relevant piece of research on this matter in Jordan on Iraqi refugees.5 One of the key findings from this research was that most Iraqis aspirations were to return home once the conditions were right.

Today, over 80 per cent of displaced people live in neighbouring countries in their region, very few move on. While there has been little analysis of the intentions of people in countries of first asylum and in transit, some of the causes and motivations are outlined in the Centre for Policy Development’s report A New Approach. Breaking the Stalemate on Refugees and Asylum Seekers in Australia in 20116 . [See www.cpd.org.au]. The fact that very few people continue an onward movement indicates that for many displaced people moving on is not the first choice or a realistic option.

Australia’s maritime asylum seekers are predominantly from, Afghanistan, Sri Lanka and Iran with smaller but shifting numbers mainly from Burma and Iraq. It is evident from past movements that where people come from can fluctuate markedly and often depend on the push factors as well as conditions in countries of asylum. 7

Many of the countries of first asylum are themselves politically unstable and the lack of basic security in countries along the route to Australia underscore why so many continue to move on.

For example, in recent months political instability and concerns about the security situation in Afghanistan have been escalating. Close to 400 Afghans are displaced each day in Afghanistan and the UN Office for the Coordination of Humanitarian Affairs (UNOCHA)8 has raised concerns about the potential of a slowly evolving humanitarian crisis as international funding to Afghanistan decreases and as foreign forces begin to withdraw. The ethnicity of most maritime arrivals from Afghanistan (Hazaras, Tajiks) also indicates that the people departing have the most to fear from a resurgent Taliban as the foreign presence declines.

5 Norwegian Research Institute Fafo (2007),: Iraqis in Jordan 2007, Their Numbers and Characteristics. Executive Summary p. 4, Available at: http://www.fafo.no/ais/middeast/jordan/IJ/pdf

6 Centre for Policy Development (CPD), A New Approach. Breaking the Stalemate on Refugees and Asylum Seekers in Australia. August 2011. See in particular the section An International Issue Requiring and International Approach, pp 12 -16. www.cpd.org.au

7 Centre for Policy Development, op cit. p. 128 http://ochaonline.un.org/afghanistan accessed 14 July 2012

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Displacement in Pakistan and Iran, once places of relative safety for Afghans have become precarious. The Peoples Under Threat report for 2012 has for the first time in several years brought Pakistan into the top ten countries of concern. It is therefore not surprising that in recent months we have started to see more Pakistani nationals appearing in asylum movements to Europe and into this region.9 The protection space for refugees in Pakistan has correspondingly diminished and in itself has become a reason to keep moving. In Iran the authorities continue to restrict the movement and access to livelihoods of refugees. These precarious situations and particularly the threat of expulsion contribute to the onward and secondary displacement of people. It is also in these types of circumstances that smuggling networks can find an entrée to prey on the vulnerabilities of already vulnerable people.

The situation of Tamils in Sri Lanka remains precarious, despite the end of the civil war. The most recent reporting from Sri Lanka has not been optimistic and as Sri Lankan Tamils perceive that there is a limited place for them in the political or economic life of the country this factor alone can become a push factor.

The traditional travel routes to Australia for maritime arrivals largely depend on where the travel originates. For people from the Middle East it can typically commence with a short journey by dhow from across the Persian Gulf to the UAE and then on to Malaysia and Indonesia. People displaced in Pakistan might travel from Pakistan to the Middle East or direct to Malaysia and then on to Indonesia. For the mostly Tamils from Sri Lanka the journey is a direct flight from Sri Lanka to Australia and for others it could be a circuitous route through India to Malaysia and then Indonesia. 10

What is most evident about these travel routes is that they are forever changing. They are largely dependent on how the players assisting and facilitating travel routes react to where there may be crackdowns on border crossing or take advantage of new opportunities, for example where there has been a change of personnel at border crossings.

(ii) Maritime People Smuggling - Some Perspectives

Article 3 of the Migrant Smuggling Protocol defines smuggling of migrants as: “... the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a state party of which the person is not a national.” This is a supplement to the United Nations Transnational Organized Crime Convention (UNTOC).

There has been little empirical research into how people smuggling operations work. The most contemporary research on this has been that undertaken by Khalid Koser on smuggling to the UK from Afghanistan and Antje Missbach and

9 UNHCR Global Asylum Trends 2011, www.unhcr.org10 UNODC: Issue Paper: Smuggling of Migrants by Sea 2011, pp 18 and 19. http://www.unodc.org/unodc/en/human-trafficking/ viewed on 5 July 2012UNODC

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Frieda Sinanu on people smuggling operations in Indonesia11.

The UN Office of Drugs and Crime (UNODC) in 2011 published its Issue Paper: Smuggling of Migrants by Sea. Like all the research to date it highlights the paucity of data and research into this complex and ever-changing area of activity.

In the paper on maritime people smuggling the UNODC noted:

“The specific nature of the sea based component of the smuggling journey‐ resulted in a dedicated section on the issue in the Migrant Smuggling Protocol (articles 7-9). While smuggling by sea accounts only for a small portion of overall migrant smuggling around the world, the particular dangers of irregular travel at sea make it a priority for response; though more migrant smuggling occurs by air, more deaths occur by sea.” 12 (Authors’ emphasis)

What is common across all three reports is that people smuggling as a business is not a monolithic, integrated model but rather a loose coalition of interests and opportunistic networks where each step of the enterprise may be connected by ethnicity, linguistic and kinship links along the route. As Koser has reported the cohesive force in such networks is trust and communication. In these networks there is organising but there is no organisation.

In such an environment the process of smuggling is under constant pressure to adapt to changing threats and emerging opportunities. It is like a mini arms race where for each action there is a reaction. This could include for example changing methods of disruption by authorities, tightening immigration controls, a change of personnel, anti corruption measures that mean facilitators need to change their routes, use of more sophisticated technologies and employing new security measures.

It is clear in the Australian experience that smuggling networks are thriving and have effectively adapted to circumstances. They remain remarkably well informed about policy shifts and debates in Australia and will adapt their operations accordingly. The reduction in arrivals following the announcement of the agreement with Malaysia was almost certainly a direct and rapid response as a consequence of such a policy change. Similarly there has been a corresponding increase since the High Court decision.

11 see for example Koser, K., “The Economics of Smuggling People” in Refugee Transitions, Issue 23 Summer 2009,or Missbach, Antje and Frieda Sinanu (2011) “The Scum of the Earth? Foreign People Smugglers and Their Local Counterparts in Indonesia” , in Journal of Current Southeast Asia Affairs, 30, 4. 57-87

12 UNODC, op cit. Executive Summary, page 7

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(iii) The Legal Context

There is a complex interplay of various international treaties. These include the Refugee Convention of 1951 and the Optional Protocol (1967), the 1982 Convention on the Law of the Sea, The Safety of Life at Sea Convention (SOLAS) of 1974 and the UN Transnational Organised Crime Convention that has a particular supplement the Migrant Smuggling Protocol.

In recent years UNHCR with the UNODC and the International Maritime Organization (IMO) have been working to harmonise the operation of these conventions to ensure that the protection dimensions of individuals are recognised while upholding the basic principles of these separate conventions and protocols. In 2004 the IMO issued new Guidelines on the Treatment of Persons Rescued at Sea that provides guidance to ships’ masters where the person(s) rescued present with a protection/asylum claim, and goes on to state the “… need to avoid disembarkation in territories where the lives and freedoms of those alleging a well-founded fear of persecution would be threatened is a consideration in the case of asylum-seekers and refugees recovered at sea.”13

Any measures in this regard needs to have regard to all of the relevant Conventions and how they intersect with Australian domestic law when considering issues such as interceptions and the protection of asylum seekers until their claims have been finally determined.

To put beyond doubt Australia’s obligations under the Safety of Life at Sea Convention it may require incorporation into the relevant domestic legislation those elements of SOLAS, and in particular regulation 33 that spells out the obligations to assist persons in distress. This will avoid the scuttling of boats to avoid tow backs.

(iv) The Concept of International Burden Sharing.

It has been a long held principle that the best way to address the complex nature of displacement is to work with the international community. History has shown us that we work best and are likely to achieve enduring and longer lasting success when working collaboratively.

The Fraser government efforts in the development of the Comprehensive Plan of Action for Indo Chinese Refugees in 1979 (the CPA) is a case in point – it was not an overnight solution but the progression of small steps over several years. The key elements of it included:

Working collaboratively with the UNHCR, the international community, NGOs and our regional partners,

Putting in place effective regional processing and protection measures, Addressing the question of direct boat arrivals through the potential for

transfer of people to a regional processing location as well as criminalising

13 UNODC ibid.

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people smuggling; Addressing issues in the source country that were the motivations for flight; Creating new visa programs such as the establishment of the refugee

resettlement program and the orderly departure program from Vietnam Addressing the concerns of Australians with the entry of such large numbers

of refugees through the establishment of a government/civil society committee to monitor the progress in implementation of the CPA as well as inform Australians of the CPA and the refugee program.

This work commenced soon after the end of the Vietnam War in 1975 and Cabinet documents from 1977 onwards show that progressively the government, between 1977 and 1982, was putting in place the various elements of this approach.

In 1989 the second chapter of the CPA commenced, that introduced a case-by-case assessment of refugee claims by both UNHCR and resettlement countries. In all, over 1.3 million people were resettled under this program, 137,500 being resettled in Australia.

While the geo-political environment is dramatically different today, nevertheless elements of these policies endure while others have been replaced or have lapsed. A hallmark of good public policy is the need to continually review, replace and refresh policies; to be responsive to the demands of the contemporary situation. So it is today.

In the past decade the Bali process has been an important development in the regional architecture of dialogue and cooperation on these matters. The last two Ministerial meetings of 2009 and 2011 specifically acknowledged the humanitarian dimensions of population movements and for the first time brought into the process the language of protection. This has been a huge and very important step forward in a region, where governments typically have viewed asylum seekers as illegal migrants.

There are many workshops on capacity building, strengthening migration systems and data sharing as well as on policing and interception strategies that are being run under the umbrella of the Bali process.

We need to build on these developments. A missing element of the dialogue however has been the absence of civil society as a participating partner. Any comprehensive approach must engage not only governments and international agencies but also civil societies if it is to be comprehensive in nature and to have a chance to make a difference. They are the organisations we need to rely on for education support, health support, alternative livelihood strategies and in providing the sort of security and assurances that make the difference in a person’s choosing to stay in a place of relative safety or to keep moving.

(v) Building a Regional Protection Space – Options

Policy responses that are comprehensive need to address not only the motivations for onward movement of individuals and the various protection

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dimensions of displaced people but also the illegal elements of smuggling as enshrined in the Migrant Smuggling Protocol.

In this regard the following is offered as a possible model. It has elements of policy that can be immediately implemented while at the same time recognising that some measures will take longer to develop. Each however is a building block to a comprehensive approach that is enduring, but it requires that Australia as a significant regional player remains actively engaged even if there is a time when maritime asylum pressures ease.

(a) Addressing Root Causes:

Assess strategically the case for the creation of a negotiated Orderly Departure Program from targeted countries. This could ease the pressures for departure by creating legal channels for families. This should be seen as a realistic option for Afghans and could well be incorporated into the discussions and negotiations on the changing nature of Australia’s engagement with Afghanistan with the scheduled draw down of our military presence. Other vulnerable populations that may be considered could for example include Sri Lankan or Burmese displaced communities. While there will always be difficult bilateral issues to consider these can be addressed through robust diplomatic engagement and discussion, as they have been in the past.

In addition we should complement this with the expansion of the seasonal worker program that allows for people to regularly travel and work in Australia for short periods of time. A study undertaken under the auspices of the United Nations University (UNU) in 2004 highlighted the importance of asylum in lifting families out of poverty.14 We should understand these dynamics better and examine using extant visa programs such as the seasonal worker program as one way of easing the pressure on asylum systems as the only migration option available.

Review Australia’s humanitarian aid effort and support targeted intervention strategies where there are indicators of growing or emerging displacement because of civil disturbances and breakdowns in civil society, for example Syria.

Undertake a comprehensive study of the causes of displacement and motivations for onward movement that can assist in the design and delivery of comprehensive approaches to stabilising population movements

(b) Stabilising Populations in Countries of Asylum/Displacement.

Much of the research shows that people displaced by war and conflict will largely remain within their region of displacement. The most recent Global trends report from UNHCR underscores this, showing that some 80 per cent live in the region of their displacement15. Most, after all want to return to their homes and livelihoods as soon as it is safe to do so. People continue to move when the

14 Boswell, Christina and Jeff Crisp; Poverty, International Migration and Asylum, UNU – Word Institute for Development Economics Research 2004. 15 UNHCR Global Trends 2011, UNHCR (2012), www.unhcr.org

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protections in the country of first asylum become precarious, for example Hazara Afghans in Pakistan and Iran because of insecurity; or where it is taking so long that they start to lose faith in return or the ability to build futures for their families and particularly their children.

We need to work with host countries along the displacement corridors to support populations to minimise both the need to move or the desire to secure the services of smugglers for their onward movements.

There are around 3.8 million refugees and over 200,000 people living in refugee-like situations in the Asia pacific region. Countries in the region carry a heavy burden. In Thailand for example there are over 600,000 people of concern to UNHCR and in Malaysia over 200,000.

Any measures in this area need to also have regard to the sensitivities of host communities. It is a fact that displaced populations put pressure on already weak infrastructures and compete for scarce local resources such as water and fuel as well as jobs and shelter.

While the statistics on refugees and people of concern in the region are available through regular UNHCR reports it remains true that there are an unknown number of people who bypass UNHCR or who, simply, because UNHCR resources are so stretched, are not registered with the agency. These official numbers therefore only represent the tip of a larger population of displaced people in the region.

Likewise, not all asylum seekers are refugees and whatever approaches are developed must also address how return arrangements can be implemented that uphold the principle of return with dignity.

What Australia can do together with the international community in this regard includes:

For people who have been found to be refugees to increase the number of people to be resettled under the refugee component of the resettlement program. This should not be done at the expense of the Special Humanitarian Program but a real increase to the overall places available. There are options:

o Break the nexus between the counting of asylum numbers against the resettlement program – Australia is the only country that so explicitly links the two despite the relatively small number of asylum seekers coming to Australia,

While all efforts should be taken to engage other resettlement countries Australia should take the lead by progressively increasing its resettlement efforts with the goal of reaching 30,000 annually by 2017.

Consideration of a specific ‘in country’ SHP should also be considered as has been done in the past, for example Central and South America, where internal displacement has created large communities in “refugee-like” situations. This particularly could be applicable to Sri Lankan Tamils.

Immediately increase funding to UNHCR to enhance its capacity to register

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people quickly. This action alone can give some hope and reassurance to people that they are not forgotten.

Support strategies for creating a “legal space” where displaced people can live. This for instance could include:

o working with host governments on giving limited legal status (not dissimilar to Australia’s bridging visa regime for example);

o support the development of a housing infrastructure that ensures that host communities are not disadvantaged with the presence of asylum seekers;

o working with civil societies and NGOs to explore options for provision of schooling, skills training and health services that support communities and families in building a future rather than a sense of creeping hopelessness.

Working with governments under the Bali umbrella to develop managed migration systems in the region, to build the tools and systems to identify people with protection needs while also developing systems that address all elements of mixed migratory movements. This can have the potential to open the discussion to achieve all three durable solutions -resettlement, local integration and return as circumstances might warrant. Such measures can also be linked into the concept of the orderly departure program – thus creating a suite of regular migration channels.

Working with IOM and regional governments to support the development of a firm and sustainable returns program for people who are found not to be refugees. This should support people to return with dignity. Such a program could for example assist through giving people work opportunities and remit income to families in countries of origin or on return to have access to training and micro-financing programs that assist in reintegration into their communities.

Assisting the training of protection officers throughout the region leading to the development of real protection outcomes. This could for instance be carried out through a Civil Society/ Regional Governments partnerships program funded under the Bali process.

(vi) The Vulnerabilities of Crew

During the recent Australia/Indonesia Heads of Government talks the issue of crew was discussed. It is clearly an irritant in the bilateral relationship.

While Australian and International law may consider crew who bring people to Australia as people smugglers the reality is that the motivation of Indonesians to crew these vessels is a desire to lift their families out of poverty.

For the equivalent of a few thousand dollars an Indonesian fisherman can secure better housing, afford to send his children to school and perhaps set up a small business. Taking the risk of being charged and convicted for a people smuggling offence in Australia is worth the risk for the long-term security it can give a family in Indonesia. In short, the people smugglers (not the crew) have established a lucrative micro-financing program in the villages of Indonesia with very little risk to their overall operations. This is no doubt further aided by the presence of poor and underpaid officials for whom turning a blind eye for a few

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rupiahs is worth the possible disapproval of their superiors.

If there is to be any success in disrupting these movements it must be in addressing the reasons why crew can be so easily recruited and officials so easily bought.

There is no single answer but some options that we must pursue in this area, along with the disruption and other strategies already being used, include:

A significant and well-targeted aid response, not dissimilar to what we have previously been able to achieve with the Indonesian fishermen and that supports the development of alternative livelihoods, the building of schools and health clinics and creating new training opportunities for young people.

Working with local village elders, leaders and government officials to know and understand what will make the difference, and helping build alternatives that strengthen at risk communities.

(vii) Offshore/Regional Processing

While the High Court ruled against the agreement with Malaysia there remains a place for considering the regional processing of asylum seekers.

Such an arrangement however is not in itself a solution but needs to be discussed in the broader context of supporting the continued development of a regional framework. Elements of this include resettlement and return of non-refugees as well as the question of smuggling organisers and facilitators.

In 1998, UNHCR at its Executive Committee (ExCom) envisaged the possibility of transferring people from one state to another for processing and made the following conclusion:

No.85 (XLIX): stresses that, as regards the return to a third country of an asylum seeker whose claim has yet to be determined from the territory of the country where the claim has been submitted, including pursuant to bilateral or multilateral readmission agreements, it should be established that the third country will treat the asylum seeker(s) in accordance with accepted international standards, will ensure effective protection against refoulement, and will provide the asylum seekers with the possibility to seek and enjoy asylum16

The High Court found the agreement with Malaysia could not be upheld because Malaysia:

1. was not a signatory to the refugee convention,2. did not have in place a system of refugee status determination,

16 ExCom Conclusions constitute expressions of opinion, which are broadly representative of the views of the international community. The specialist knowledge of ExCom and the fact that its Conclusions are taken by consensus add further weight and are relevant to the interpretation of the international protection regime.

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3. did not have in law guarantees against non-refoulement, and4. did not give people some legal status while on their territory. 

In short it could not be found to provide Effective Protection. 

If new agreements in the region were to be considered the key issue to tackle would be the question of effective protection. For example, it could be made explicit that a person has Effective Protection if: 

people were given a legal status while they are in a transit country   people had access to other rights such as work – supporting  livelihoods,

education for children etc. people could access a refugee determination process either within the

legal  jurisdiction of the state or by UNHCR were not detained  and the principle of non-refoulement was honoured

If a country is willing to enter into an agreement with these provisos then effective protection could be said to have been achieved. 

However the complexities of such an agreement would need to be negotiated and would demand careful assessment of the legislation required to bring this into effect.

Such an arrangement could also require adherence to certain modalities, for example, that:

arrangements of this nature should be trilateral and have UNHCR at the table as a signatory to the agreement , particularly as our region has so few countries that are party to the Refugee Convention.

require a “Committee of Experts” to be constituted, appointing the appropriate government and international agencies onto such a committee as well as relevant civil society representatives from the participating states. The role of such a committee would be to oversee the operations of the agreements.

Bali ministers have endorsed the concept of states’ exploring such arrangements. These opportunities should be pursued, not to “stop the boats” although no doubt that is the desire of many, but if done well have the potential to start the process of building a durable protection system in the region – one in which the protection outcomes for all asylum seekers can be significant.

In this region there are very few Refugee Convention signatory countries and none with established refugee status determination procedures outside of Australia, New Zealand and the Philippines. Supporting the development of regional processing capabilities in transit countries in association with UNHCR, has the potential to start building an effective regional protection model. This would be a far more valuable outcome than being diverted by a debate on whether a country has signed the Refugee Convention or not before such arrangements can be established.

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New initiatives are always controversial. The Comprehensive Plan of Action for Indo Chinese Refugees (CPA) while today seen as a model of regional cooperation at the time was not without its critics. Host governments’ commitments to providing a protection space in the region were tested, resettlement countries’ commitments were regularly questioned, UNHCR was moving into unchartered territories particularly in the way it was to engage with Vietnam and in redefining its mandate. NGOs and powerful lobby groups were not happy.

If we are ever to achieve a regional cooperation framework it will take a considerable time and we need to work with what is available now step by step, difficult as these may be. However, Parliament alone can determine the question of legislation and so we recommend that:

a Parliamentary working group in conjunction with relevant international and domestic legal experts explore the options for legislative change that could for example :

o Consider the incorporation of the concept of effective protection in the broadest sense into the legislation,

o Consider how transfers can be affected with due regard to how Australia discharges its obligation under the Refugee Convention when considering the transfer of people

o Address the treatment of particular cohorts and in particular unaccompanied minors.

(vii) Strengthening Dialogue

As noted earlier the inter-governmental and multilateral dialogue on displacement and people smuggling has grown over recent years. The Bali Process has had a positive impact on this.

There has been little attention given to engaging with civil society (including NGOs) and yet in many ways such engagement holds one of the keys to supporting the development of a stronger protection framework.

It is both timely and important to start the process of developing a framework that engages civil society as an important partner in the process. ASEAN has led the way in such engagement with the model it uses for the development of the ASEAN Human Rights Instrument.

Another successful model that has been used in the security dialogue has been the concept of the Track 2 approach (Track 2 because it involves both government and non government players as equal partners, recognising the complementary strengths that each brings to the table).

While building such a dialogue takes enormous effort and commitment the dividends can be many:

it can remove from public contention to a neutral space the discussion on

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asylum, people smuggling and displacement, it gives all players a stake in the partnership and responsibilities in

addressing the issues, it promotes a rational public discourse with facts and reason

As a first step a local Track 2 dialogue could be initiated in Australia bringing together the key experts from government, the region, international agencies and civil society to map out approaches and strategies for the future. This dialogue would be funded by the Government but would not be part of Government. The Minister should appoint the chair.

Government funding for this should be provided as a matter of urgency and could be channelled through a university as is done for Council for Security Cooperation in the Asia Pacific (CSCAP)17 in the security dialogue or through an agency such as UNHCR or IOM that have strong track records in this type of work.

It is not an immediate issue but this dialogue could conceivably be expanded into a regional approach sitting alongside or under the Bali Process.

(vii) Know the problem!

A consistent theme in the studies to date has been the lack of data and research, understanding the ‘how and whys’ of population movements. Policy responses based on “assumptions” are difficult to sustain. They seldom build in the need for evaluation and review mechanisms or anticipate that changes need to be made quickly or to consider alternative strategies if the dreaded “unintended consequences” arise.

Developing a strong evidence base about irregular migration flows, capacity to monitor such movements and assessment of potential impacts is essential to understand:

reasons why people are fleeing their homes, how they are able to travel without authorisation across borders, why they would risk their lives to travel to Australia across dangerous

seas in unsuitable vessels,

A sound, well funded research agenda that helps in building a comprehensive, multifaceted and enduring policy response is vital to good policy. We believe that priority needs to be given to the establishment of a well-funded research program. While the development of a research program and the results of findings take time and is not an answer to the immediate issue, it is an essential building block for future policy deliberations and will assist in governments’ being able to be more anticipatory and agile in their policy responses.

17 CSCAP is widely regarded as the premier Track 2 organisation in the region. It has a relationship with the ASEAN Regional Forum (ARF), which is its declared Track 1 counterpart.

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Conclusion

In this submission we have mapped out the key elements for a comprehensive regional framework. The underlying policy principle that has guided us is the need to provide a humane and responsible way to stabilise population outflows and which minimises the incentive for people to risk maritime ventures. It addresses issues all the way along the pipeline – from source, countries of first asylum, through transit points.

We have noted the need for complementary and mutually reinforcing strategies, knowing that some will take longer to get off the ground. We have therefore made 15 recommendations, which are grouped below according to possible implementation timeframes – although work on all should start immediately.

Recommendations

For immediate implementation:1. Immediately increase funding to UNHCR to boost its capacity to register

people quickly; 2. Increase the number of people to be resettled under the refugee

component of the resettlement program up to 20,000 in the first two years and progressively increasing it to 30,000 by 2017, particularly from within the region;

3. Introduce an Orderly Departure Program from targeted countries;4. Expand the seasonal worker program to countries such as Afghanistan

and Sri Lanka; 5. Incorporate into the relevant domestic legislation those elements of

SOLAS that spell out the obligations to assist persons in distress;6. Establish a Parliamentary working group to explore the options for

legislative change that could for example:a. Consider the incorporation of the concept ‘effective protection’ in

the broadest sense into the legislation;b. Consider how transfers can be effected with due regard to how

Australia discharges its obligation under the Refugee Convention when considering the transfer of people;

c. Address the treatment of particular cohorts and in particular unaccompanied minors.

Medium term- next 1-2 years:7. Review Australia’s humanitarian aid effort and developing targeted

intervention strategies where there are indicators of growing or emerging displacement because of civil disturbances and breakdowns in civil society;

8. Establish a Civil Society/Regional Governments partnerships program funded under the Bali process to facilitate the training of protection officers in the region;

9. Implement a significant and well-targeted aid response in transit countries that, supports the development of alternative livelihoods, the building of schools and health clinics and creating new training opportunities for young people;

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10. Working with local village elders, leaders and government officials in transit countries to know and understand what will make the difference and helping build alternatives that strengthen at-risk communities;

11. Support strategies for creating a “legal space” where displaced people can live. This for instance could include:

a. Working with host governments on giving limited legal status (not dissimilar to Australia’s bridging visa regime for example);

b. Support the development of a housing infrastructure that ensures that host communities are not disadvantaged with the presence of asylum seekers;

c. Working with civil society and NGOs to explore options for provision of schooling, skills training and health services that support communities and families in building a future rather than a sense of creeping hopelessness;

12. Developing a comprehensive and sustainable returns framework for people who are not refugees.

Longer term – 2 years plus13. Undertaking a comprehensive study of the causes of displacement and

motivations for onward movement that can assist in the design and delivery of comprehensive approaches to stabilising population movements;

14. Working with governments under the Bali umbrella in developing managed migration systems in the region, building the tools and systems to identify people with protection needs while also developing systems that address all three durable solutions;

15. Establish and fund an independent organisation to initiate the development of Track 2 dialogue bringing together the key experts from government, the region, international agencies and civil society to map out approaches and strategies for the future.

Finally, population movements are complex. There is never one simple story about why and how people move and this will continue to be the case. At no time over the past 60 years has there been a period when there have not been asylum seekers to Australia. The numbers have ebbed and flowed but our asylum trends have largely followed the patterns to Europe and North America.

People will continue to travel to Australia by whatever means and will continue to seek asylum. They will not always play by the rules. It is our job to have in place processes in Australia that can test a person’s claim for protection and to ensure where it is needed that such protection is provided.

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