Smoke and Mirrors:Harvard Political Review

“An excellent and well-researched article about Australia’s  punitive and unlawful asylum policies. Well worth a read.”

Smoke and Mirrors

Australia claims that its refugee policies are consistent with human rights standards, but a closer examination reveals that a secretive, abusive system is at work.

By Jack Taylor | October 2, 2019

On June 26, President Trump tweeted that “much can be learned” from Australia’s refugee policies. Other leaders, including Italy’s Matteo Salvini and The Netherlands’ Geert Wilders, have also expressed admiration for Australia’s deterrence-based refugee policies. The numbers are convincing. In the seven years before the Liberal government’s Operation Sovereign Borders took effect, approximately 50,000 asylum seekers sought to enter Australia by boat and approximately 1,100 died at sea. Since Sovereign Borders, only two boats have reached mainland Australia, and there have been no known deaths at sea. So, is President Trump right? Does Australia provide the answer for countries wishing to deter asylum seekers, who risk their lives and the lives of their children to reach safer shores?

Closing the Back Door

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Australia says that asylum seekers are welcome by the front door but not the back. Operation Sovereign Borders, the highly politicized, catch-all name attached to Australian border policy, ensures it. Operation Sovereign Borders is actually a package of legislation, featuring bills introduced by lawmakers from across the political spectrum. Most notably, it mandates that boats be turned back, and that asylum seekers undergo mandatory offshore detention until those who receive refugee status can be relocated to a third country and those who do not can be sent back home. Asylum seekers arriving by boat are met at sea by the Australian Border Force Unit, which streams video interviews of the asylum seekers back to mainland border officials who attempt to determine whether the migrants are technically refugees. If the officials conducting the interviews determine the arrivals are in fact genuine refugees, the boat is brought to a processing center — which, importantly, is not on Australian soil. Australia has opened multiple offshore processing centers in nearby territories as well as countries like Papua New Guinea and Nauru.

If none of the asylum seekers are found to be genuine refugees, the boats are turned back. And the Border Force Unit has turned back every boat it has come across in the past two years, suggesting that there has not been a single genuine refugee among the asylum seekers arriving by sea in that time. Amnesty International, which has been highly critical of Australia’s refugee policy, notes that few asylum seekers fleeing by boat will have the documentation they need to prove their case while at sea, and reports that there have been multiple accounts of poor connectivity in the video links.

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Abrogating Responsibility

Under international law, though, it is not an option for Australia to assist asylum seekers arriving on its borders — it is an obligation. Australia, like most other countries, is a party to the 1951 U.N. Refugee Convention, its Protocol, and multiple other human rights treaties. Australia also has a seat on the U.N. Human Rights Council, and is one of five countries making up the U.N. Working Group on Arbitrary Detention. These international treaties and the multilateral institutions they emanate from seek to protect refugees from arbitrary detention, refoulement — repatriation to a country where refugees could be in danger of persecution — and physical and psychological torture.

In an interview with the HPR, Josh Watkins, a professor of global studies at the National University of Singapore who specializes in borders and border security, noted: “From the advent of the Pacific Solution in 2001, through its reincarnation in Operation Sovereign Borders, Australia’s asylum seeker policies have been condemned by UNHCR, Amnesty International, and scores of other commentators as being unnecessarily draconian.”

Erika Feller, assistant high commissioner to the UNHCR from 2006 to 2013 and a professor of government at Melbourne University, expressed that concern in an interview with the HPR. She explained that Australia’s deterrence-based asylum seeker policy “flies in the face of international treaties. Deterrence is not a mechanism that is envisaged in the 1951 Refugee Convention and it runs counter to it.”

 Even after ratifying international non-refoulement agreements, Australia has turned boats back to countries where their passengers might face harm, such as Sri Lanka and Vietnam, where asylum seekers have been arrested, interrogated, tortured, and jailed. Many of the other Asia-Pacific transit countries which receive these turnbacks are not party to refugee and human rights treaties and do not have the legal or financial capacity to protect asylum seekers. As a consequence, asylum seekers find themselves in regions where they have no rights and may face persecution and imprisonment. Meanwhile, the Australian government does not document the asylum seekers sent away in these boat turnbacks; as a result, it remains impossible to hold Australia accountable for the plight of those refugees who are persecuted upon return to their home countries. 

 Australia’s system of mandatory and indefinite detention blatantly violates its obligations to protect asylum seekers. Australia has been condemned by a working group of the U.N.’s Human Rights Council for 51 counts of illegally holding refugees in indefinite detention, some for as long as nine years. The average length of arbitrary detention for a refugee who arrived in Australia by boat was 511 days. Australia’s policy of holding refugees in indefinite detention breaks international human rights law, taints its international standing, and undermines its credibility when denouncing other nations for the same crimes.

 In an interview with the HPR, Mary Crock, a professor of law at the University of Sydney and the author of nine books on refugees, noted that “from the time mandatory detention became law in 1992 there was increased dissonance between Australia’s international legal obligations and our domestic law and practice … Our relationship with international human rights law became increasingly fractured and problematic.”

 Refugees have undergone significant human rights abuses in Australia’s offshore detention centers. Human rights organizations report the absence of physical liberty, medical attention, and proper security on Manus and Nauru islands. Twelve men have died while in detention — one of them immolated himself during a U.N. monitoring visit. Since the Australian election in May, there have also been at least 26 cases of self-harm or attempted suicide on Nauru and Manus — in desperation, asylum seekers have cut themselves, gone on hunger strikes, swallowed rocks, and even sown their own lips shut. These cases were not recorded by any Australian institution until Monash University created a database of border-related deaths in 2010. To this day, no government authority collects any information on asylum seekers who have died while attempting to enter Australia, while in detention, or shortly after their release.

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