The decision to grant protection visas to all 42 Afghan asylum seekers from the SIEV36, the boat that exploded off Ashmore Reef on 16 April killing 5 people, may prove to be one of the biggest political and policy mistakes the Rudd government has made. Presumably they were all assessed as genuine refugees, but approving their applications sends precisely the wrong message to the people smugglers and their customers, at a time when almost 2000 illegal asylum seekers have been intercepted in the last 12 months trying to reach Australia with another six vessels apparently on the way.
Holding a well-founded fear of persecution for a Refugee Convention reason is only one factor in the decision whether to grant a protection visa. The other key aspects are passing health and character tests. The NT police have apparently been unable to ascertain exactly which asylum seekers set off the deliberate explosion on board SIEV36, but it’s reasonable to surmise that some of those granted visas were involved while others must have known who did it but have declined to co-operate with police. In other words, some may be murderers while others are at least accessories to homicide, it’s just that we don’t know which.
Section 501 of the Migration Act 1958 (Cth) would certainly have permitted Immigration Minister Chris Evans to refuse protection visas in such a situation. Evans should have done so, drawing a “line in the sand” in the same way John Howard did with his famous/notorious statement “We will decide who comes to this country and the circumstances in which they come” back in 2001. Howard’s posture may in significant part have been electorally driven, but his remark also signalled to people smugglers and their customers a determination to stem a flow of illegal boat people just as large and worrying as the current situation, and along with resolute policy action it worked.
Section 501(1) reads:
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
The character test itself is set out in subsection 6. Given that the NT Police were unable to work out who set off the explosion (but are satisfied that it was deliberate and that the perpetrator was one or more of the asylum seekers), it’s difficult to see how Evans could have been “satisfied” that any of these asylum seekers passed the character test. Conversely, having now granted the visas it will be very difficult for the Minister to cancel them. Visa cancellation is governed by subsection 2 and requires not only the Minister’s lack of satisfaction concerning the character test but also a reasonable suspicion that the visaholder does not satisfy it. It is difficult to see how the Minister could have a reasonable suspicion about any particular person in the circumstances.
It is becoming increasingly clear that dramatic and decisive action is needed to stem the increasing flow of illegal boat arrivals. Howard employed both rhetorical signals and decisive policy action in a similar situation, implementing temporary protection visas and the Pacific Solution to completely deny illegal asylum seekers access to Australian courts. Along with reinvigorating fractured co-operation with Indonesia, Howard and Ruddock succeeded in controlling a situation similar in magnitude and threat to the one Rudd and Evans currently face.
We should keep this in perspective. Two thousand illegal arrivals per year is quite manageable in itself, in the context of an overall migration programme of more than 200,000 per year (including 457 temporary work visas) and a planned offshore refugee and humanitarian programme of 10,000 per year. That is especially so given that the Rudd government, like Howard, reduces the planned offshore programme in inverse lockstep with the number of successful protection visas granted to illegal boat people arrivals. However, former Howard government Immigration Minister Philip Ruddock plausibly asserts:
“When we were faced with an enormous people smuggling problem, 2000 a year was the figure we were reaching, and it’s where we are again,” he said.
“All the advice to me as minister from police, intelligence agencies as well as the immigration department was that there was a pipeline (of 10,000 people) behind that number – in Indonesia, in Malaysia, in Pakistan, right through the Middle East to as far as Syria and Jordan.”
Australia would have much greater difficulty in dealing with illegal arrivals in numbers as large as 10,000 per year, and there is every reason to believe that this is the scale of situation we again face. Not only would the logistics and costs be huge, completely overwhelming the capacity of the current Christmas Island detention facility to cope and probably necessitating mainland processing, but we would again face the spectre of Australian courts being swamped with appeals designed to delay and thwart the assessment process.
More importantly, unplanned arrivals in such large numbers, overwhelmingly from Middle Eastern and South Asian countries and mostly of the Islamic faith, would place major stresses on Australia’s social fabric. Successful absorption of large numbers of new arrivals with radically different cultural, social and religious backgrounds and expectations from our dominant culture is likely to prove extremely difficult. Public support for the overall migration programme and multiculturalism in general will certainly come under severe strain.
An equally drastic situation in the late 1980s and early 1990s led to expedient tough policy action on the part of the Hawke and Keating governments, but not before the social groundwork for the emergence of Middle Eastern crime gangs in south-west Sydney and elsewhere had been laid, along with the conditions which allowed Pauline Hanson’s One Nation to develop and fourish. Lax administration of the family reunion programme under right wing Ministers like Mick Young and Clyde Holding in the 1980s contributed to the growth of large and rapidly growing ethnic Lebanese and Vietnamese enclaves in south-western and western Sydney. Then a sudden influx of boat arrivals from around 1989, consisting predominantly of Sino-Vietnamese and then Cambodian asylum seekers, prompted Hawke to appoint left faction head kicker Gerry Hand to the Immigration portfolio. Hand quickly adopted a punitive policy of mandatory detention of all boat people asylum seekers combined with drastically restricting their access to the Australian court system. This remains the core of Australia’s practical response to the challenge of boat people arrivals. All Howard and Ruddock did later was to reinforce it.
Hand’s initiatives, further developed by his successor Nick Bolkus, appeared to stem the flow of boat people through most of the 1990s. Numbers returned to a relative trickle of a few hundred per year, until 1999 when they suddenly shot up again into the thousands after Australia’s humanitarian intervention in East Timor. That prompted Howard’s “we will decide …” statement as well as the implementation of the Pacific Solution and temporary protection visas.
I gave qualified public support to the Howard government’s actions at that time (here and here), to the disgust of some of my refugee lawyer mates. My reasons were similar to the ones set out above. However cynical one might be about Howard and Ruddock’s motivations, it’s undeniable that their approach worked. The people smugglers were stopped in their tracks.
Later, I gradually convinced myself that the main reason why there had been such a dramatic upsurge in boat people arrivals between 1999 and 2001 was that Indonesia had engineered it to punish Australia for supporting the East Timorese, and that therefore the more inhumane aspects of the Howard/Ruddock policies could safely be relaxed now that we were friends with a newly democratic Indonesia under Yudhoyono. Hence I strongly supported Howard’s late initiative (spurred by courageous “wet” liberals like Petro Georgiou) to release women and children from mandatory immigration detention and allow them to live in the community. I also supported Rudd’s widening of that relaxation to provide a 90 day cap on detention of all asylum seekers (other than those failing the character or health tests), and the substitution of permanent protection visas for the temporary ones Howard had imposed.
However, the current dramatic upsurge in boat arrivals gives the lie to my complacent assumption. However much Rudd may argue that the flow is caused solely by “push” factors in Australia’s general region (like the deteriorating security situation in Afghanistan and the defeat of the Tamil Tigers in Sri Lanka), it’s difficult to avoid the conclusion that we’ve also started sending the wrong signals to the people smugglers and their customers. Neither the AFP nor the Rudd government have denied claims by Coalition Senator George Brandis that a recent AFP report stated:
“Reporting indicates that people-smugglers will market recent changes to Australia’s immigration policy to entice potential illegal immigrants. This may cause a rise in the number of attempted arrivals.”
Indonesia is doing all that it can to stem the flow, but with partial success at best. It is unlikely that action by Indonesia alone, even with Australian help, will be enough to slow the continuing increase. Rudd will need to take decisive action, just as the Hawke government did in 1990 and Howard/Ruddock in 2001. Exactly what policies will be needed remains to be seen, but mere tough rhetoric and crossing our fingers that Indonesia will somehow manage the situation are unlikely to suffice. Rudd is fooling himself if he imagines that immigration and refugee questions aren’t every bit as powerful, divisive and potentially vote-changing issues as in the recent past. The only factors Rudd presently has going for him on this front are Turnbull’s sadly diminished status as Opposition Leader and the fact that, as a “wet” Liberal himself , Turnbull is probably having trouble mustering the intestinal fortitude to adopt the requisite ruthless stance and trade in his Amnesty International credentials as Ruddock did without a qualm.