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  • Georgia Rodgers

Refugee Rights and Durable Solutions Within the Context of Australia

The Need for Durbale Solutions

The United Nations High Commissioner for Refugees highlight three durable and ethical solutions that they attempt to secure for refugees globally. They suggest that voluntary repatriation, local integration, or resettlement are all key sustainable solutions for nations to implement when creating policies and engaging with the global refugee crisis. Each solution they have recommended, enables refugees to live a life of dignity and peace.

Within the Australian context, the current policies surrounding refugee processing and regulations, are methods which have been considered unethical and flawed; thus, have created serious human rights concerns. As a result, there is an urgent need to a re-examine the nation’s long history of mandatory detention and implement durable and sustainable solutions.

A solution that would be successful within Australia and its regulations, is the method of local integration. Through the expansion and development of protections visas and various other support systems within the Australian community, asylum seekers and refugees whose claims are being processed, are enabled a life of dignity. Additionally, the call for alternative solutions, and the establishment of accessible processing facilities in countries such as Indonesia and Malaysia, create sustainable and viable alternatives for those using boats as a method of transport to seek asylum.

Australia's Strategic Policies

Australia’s current immigration and border force policies surrounding refugee rights involve human, economic, and strategic policies which seek to deter asylum seekers migrating to Australia by boat. Jane McAdam (2013) suggests that the position Australia holds towards refugees and asylum seekers is used as a political instrument to send a strong message to the broader community. McAdam suggests that “the conversation is not about rights or responsibilities, assistance or protection, but rather about ‘stopping the boats’ and ‘smashing the people smugglers’ business model’”.

Australia’s stance towards those seeking refuge is reflected similarly throughout the nation’s history. Australia’s history and policies have been consistent in their aim of deterring those seeking asylum by boat. Since the arrival of Vietnamese refugees, via boat in the 1970s, a negative rhetoric has emerged throughout the nation’s history of governments surrounding people arriving by boat. In response to the large influx of Cambodian refugees seeking asylum within Australia, during the 1990s, mandatory detention was established with the aim to further deter refugees.

Under the mandatory detention regulations, individuals who enter Australia’s borders without a visa are detained within a detention centre while their application is processed. Following these policies came the Pacific Solution in 2001, which has paved the way to Australia’s current immigration policies. The Pacific Solution introduced offshore detention processing, which enabled Australia to process refugee claims, while asylum seekers are held inside detention centres within host countries; those specifically being asylum seekers who arrive by boat. Those who arrive by boat are “subject to indefinite detention on Manus Island, Papua New Guinea, or in the Republic of Nauru, under arrangements between the Australian Government and those Pacific State” (ASRC, 2019). Often the length that individuals endure within these facilities are for long-periods, and for many, their wait is deemed indefinite. Former Prime Minister John Howard famously stated that "we will decide who comes to this country and the circumstances in which they come". Thus, further emphasising the rhetoric and autocratic control the Australian government has positioned themselves surrounding refugee regulations.

Further, since 2013, under the Rudd government, those who arrived by boat after the 19th July, under tighter border controls, were to be sent to offshore detention centres within Nauru and Manus Island, and had “no chance of being settled in Australia as a refugee”.

The Consequence of Our Torture

Within a 2013 report, the Australian Human Rights Commission stated that holding individuals within detention facilities indefinitely can have significant and ‘devastating’ effect on both the mental and physical welfare of individuals. Zachary Steel (2006), emphasises this statement in highlighting that through prolonged detention, there is an increased risk of recurring mental health issues and trauma, including depression and post-traumatic stress disorder.

The United Nations highlights that more than eighty percent of refugees detained within offshore detention centres suffer some form of mental health issue. Further, Michael Dudley (2003) estimated that suicidal behaviour of men and women within immigration detention centres were between forty and twenty-six times the national average. Subsequently, through the high rates of suicidal behaviour amongst asylum seekers and refugees within immigration detention centres, there is a clear indication that there is a prevalence of mental health decline as a result of detained and indefinite conditions; which are further intensified by a lack of accessible services and interventions within detention facilities (Refugee Council, 2017). Through these statistics, it is evident that the mental health of an individual decreases the longer they are kept in detention indefinitely.

International Obligations

As a signatory to the United Nations 1951 Refugee Convention, and further the 1967 Protocol Relating to the Status of Refugees, Australia has an obligation to uphold the rights of refugees and those seeking asylum through a dignified and humane process. Don McMaster (2002) suggests however, that through Australia’s commitment to mandatory detention, and further offshore processing, such a position places “the entire onus on the asylum-seekers to prove that they are genuine refugees [which] suggests that the government places a higher value on maintaining ‘national sovereignty’ than on treating asylum-seekers with sympathy”. Australia’s onshore and offshore mandatory detention policies have positioned Australia as having one of harshest immigration policies amongst Western nations (McMaster, 2002).

Australia is the only nation that process refugees through these regulations. The double system of onshore and offshore processing is not proposed within any convention and is a unique design of the Australian government (McAdam, 2013). Greens’ Senator Sarah Hanson Young describes Australia’s offshore processing as “a completely unworkable, inhumane, [and] unthinkable scheme". McMaster furthers Hanson Young’s description in suggesting that the government’s harsh reaction to a small statistic of individuals seeking asylum, combined with the fear mongering and negative rhetoric that is continuously produced by the government, surrounding the narrative of perceived threat, “requires critical analysis”.

Local Intergration

Alternatively, a more ethical and sustainable solution that Australia should consider when addressing refugee policies, is the durable method of integration. The Australian Human Rights Commission highlights that “under its international human rights obligations, Australia is required to consider other arrangements for asylum seekers before resorting to placing them in detention facilities”.

The Human Rights Commission highlights a number of benefits related to a community-based method, such as local integration through protection visas. These benefits include the reduced impact on the mental and physical wellbeing of individuals. In addition to this, local integration is more economically viable, it creates efficient and compliant immigration processing systems, as well as more effective and smoother transitions for refugees integrating within the Australian community. Overall, local integration is found to be significantly more ethical and deemed as durable for those seeking asylum and waiting for their claims to be processed.

Amnesty International Australia stated if a community-based, human-rights approach was to be implemented by the Australian government, they would be enabling refugees to practice their rights with respect and dignity; thus moving towards restoring Australia’s broken international human rights reputation. UNHCR highlights that the effective integration of refugees involves a two-way complex process that should involve all parties making an effort that is dynamic and multidimensional.

Host communities must have durable public institutions and support systems in place to welcome refugees, to support asylum seekers awaiting on their claims and address the diverse needs of everyone. UNHCR describes integration as “complex and gradual”, which should consist of legal, economic, social and cultural aspects that are all inter-related. Each aspect should aid refugees with integration, and support those awaiting their claim with dignity.

In addition, Amnesty International Australia emphasises that Australia must acknowledge the value of refugees within the community and recognise the skills and qualifications many bring. In doing so, Australia should allow “student, work and family reunion visas within the migration program” (Amnesty International Australia, 2018). Further, McAdam highlights that evidence clearly shows that nations receive better results and can determine claims more effectively when individuals have early access to durable support systems such as legal services within the community. “Refugee lawyers provide an important ‘triage’ service and help to prevent the courts from being flooded with unmeritorious claims” (McAdam, 2013)

Amnesty International Australia calls for the abandonment of ‘deterrence-focused’ strategies, and to alternatively implement a ‘protection-based’ solution, that is holistic in its approach. The organisation suggests that strategies need to involve effective coordination between initiatives that not only combine aid and humanitarian assistance, but also create comprehensive diplomatic procedures. Furthermore, and extending beyond the Australian community, such procedures should also involve a coherent government approach that aims to effectively engage with nations within the region to ensure there is durable protection during a refugee’s journey.

Operation Sovereign Borders

In 2013, the newly elected Coalition, under the leadership of former Prime Minister Tony Abbott, introduced ‘Operation Sovereign Borders’. An initiative led by military intervention, surrounding border security, ‘Operation Sovereign Borders’ combined offshore processing, with the interference of boat arrivals, as well as further actions to disrupt and deter the practice of people-smuggling. Within this initiative, border force were given the power to turn boats back. The Coalition government claimed that through the active force of boat turn backs, deterrence for further boat arrivals would be created. Such a method of transport was deemed as a dangerous process to seek asylum. In doing so, the government claimed they “were avoiding deaths at sea”.

McAdam highlights that the Australian government justified such a policy by focussing on a “humanitarian agenda” that shifted the “rhetoric from ‘stopping the boats’ to ‘saving lives at sea’". It has been noted, however, that boat turn backs create a high degree of risk for individuals involved. Andreas Schloenhardt, reported the risks not only involve the physical journey back for passengers, but also the dangers they face when returning home. Such dangers include the potential for ongoing persecution, torture, and imprisonment. “Turn backs hamper people fleeing persecution from finding safety and do not address the underlying conditions that cause people to flee, it is possible that people are simply forced into dangerous situations elsewhere” (UNSW, 2019).

The Need for Accessible Processing Facilities

An alternative, durable solution for processing asylum seekers who arrive by boat, is through the creation of processing facilities within countries such as Malaysia and Indonesia. Through the implementation of accessible processing centres, asylum seekers are given a safer and durable solution when applying for protection within Australia. In doing so, Australia would remove the need for refugees and asylum seekers having to cross international waters to seek protection. Through this alternative, the rhetoric of ‘saving lives at sea’ would still be implemented, however an effective, humanitarian approach be also be adopted.

Through the access of determination processing facilities on land, within nations that are more accessible to asylum seekers, those applying for protection can “avoid dangerous sea journeys while reducing opportunities for smuggling and trafficking rings” (UNSW, 2019)). Through Australia’s long history of boat arrivals, it is clear that such inhumane policies do not deter the arrival of further boats.

Former Prime Minister Malcom Fraser highlights that “however, unpleasant the Australian government tries to be, it cannot match the terror from which those who are genuine refugees are fleeing. That remains the fundamental flaw in the policy of deterrence” .

Furthermore, a durable and humane response to boat arrivals must look at ‘alleviating’ the conditions of those seeking asylum, not only at the source, but also throughout the process individuals take in claiming protection. Thus, the Australian government must look beyond deterrence strategies and acknowledge that refugees take risks to seek protection. As a result, the implementation of durable, and humane solutions that place human rights mechanisms as a priority, is essential if the government is to address the arrival of refugees effectively.

A Call For a More Compassionate Repsonse

Through durable, and sustainable solutions, that involve local integration through protection visas, as well as establishing processing facilities within countries that are easily accessible for asylum seekers, individuals are guaranteed a dignified process that ensures a humane and safe solution to refugee processing. Through adequate protection visas, local integration enables asylum seekers awaiting their claims to access support systems and facilities needed to help aid them in their journey. Further, through the stabilisation of people’s situations within local communities, the wellbeing of individuals are benefited; and the process of refugee claims are conducted more efficiently.

Additionally, through the establishment of accessible processing facilities within nations such as Malaysia and Indonesia, Australia is able to continue to ‘save lives at sea’ while simultaneously implementing humane and durable processing solutions surrounding the issue of boat arrivals. It is clear that Australia’s current policies and regulations surrounding the processing of refugee claims is in breach of the nation’s international human rights obligations. Through such policies, Australia continues to undermine the Refugee Convention and “violate concrete legal obligations- such as the right to seek asylum” (McAdam, 2013).

Ultimately, without durable, ethical, and sustainable solutions for refugee processing, Australia continues the systematic and inhumane punishment of individuals seeking asylum that arrive via boat, or without a valid visa. In doing so, Australia refuses individuals seeking asylum the right to be free from arbitrary and indefinite detention, the right to non-discrimination, and further the freedom from inhumane and degrading treatment.

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