The future direction of a major aspect of Australia’s asylum seeker policy is in the balance right now, with potentially very significant future impacts for many refugees, as well as for regional relations and the treatment of people moving through the region.  The ‘tough & humane’ mantra of the federal government could end up tipping very heavily towards just one of those words – the key is which one it ends up being.

The Labor government made some significant changes on coming to office. Most important was the scrapping of the cruel and counter-productive temporary protection visa and the closure of the centre on Nauru.  Having done those things, a lot of what is now getting so much public attention about the so-called ‘Indonesia Solution’ is not really very new.

Australian has been cooperating with Indonesia on trying disrupt asylum seeker boats since the Howard era. Funding has also been provided for some time to the United Nations High Commission for Refugees (UNHCR) to process asylum claims lodged in Indonesia and to the International Organisation for Migration (IOM) to help with the basic survival for those still there and with possible returns to other countries.

What is new is that people are starting to pay attention and look at what all this entails, both in terms of treatment of asylum seekers and the overall cost. As reported in Crikey last week, independent and committed advocates such as Jessie Taylor and Kaye Bernard have travelled through the region gathering evidence of the conditions asylum seekers are being kept in for long periods.  Their findings are grim.  Some mainstream media journalists are doing the same, as shown in this report in The Australian over the weekend.

The simple fact is that the ‘accommodation’ many asylum seekers have been kept in ranges from adequate to appalling.  The Australian government, having gone on at length about the increasing cooperation with the Indonesian government, cannot now simply sidestep their responsibilities by saying the conditions are the responsibility of the UNHCR and IOM.

It seems we may be about to enter a major irony situation, whether the Coalition will be attacking the Labor government for funding the locking up of children behind razor wire and keeping refugees detained for long periods in terrible conditions with no certainty about their future.

It would be a welcome extra irony if  all of this attention and pressure on  the Australian government and their responsibility for what happens with the detention, processing and resettling of refugees in our region were to lead to a truly regional approach to effectively, efficiently and fairly manage this issue, with corresponding improvements in the way people in detention are treated in Indonesia (and ideally in Malaysia as well, where the treatment of refugee claimants is on the whole much worse again.

Such a result is a long shot, but as it is very unlikely the Australian government will reverse cooperation with other major transit countries in our region, we may as well try to apply maximum scrutiny and pressure about what is done there, and see if the standard can end up being lifted across the region.  Who knows, maybe regional cooperation and a recognition that taking in refugees does no great harm to a country might even lead to a more effective and safer process for assisting asylum seekers!  OK, I know that’s all very unlikely, but it will only be a chance of happening if the public scrutiny continues.

One of the big factors which assisted the Howard government in managing public perceptions under the Pacific Solution was a government in Nauru which was mostly happy to leave the whole thing to the Australian government – in return for various other forms of assistance – and even more importantly, performed the vital role of virtually closing the country off to any lawyers, journalists and other visitors from Australia.  When I first visited the detention centres in Nauru in 2003, the hundreds of refugees still there – including many children – had already been there two years with barely a single visitor from ‘outside’ the progression of Australian government officials.  That can’t and won’t happen in Indonesia.  The key question is whether people will keep paying enough attention long enough to ensure big improvements happen.

This is an ugly political game, because the only way to go is down. It’s a race to the bottom.

I was in Pakistan during the children overboard episode, when the dog-whistle was given a good workout, and I interviewed Afghan refugees in Peshwar. They had suffered intense levels of grief and loss both in Afghanistan and during the years of limbo in Pakistan. But for most of them, the real dream was to return to Afghanistan – not Afghanistan as it was then, and sadly as it largely remains now, but a peaceful Afghanistan, with restored communities and hope.They were not talking about flat screen TVs in the Australian suburbs, but about gardens full of grapes and possible reunions with loved ones. That is not a dream that people give up lightly. And when they are finally driven to abandon it, our Prime Minister has no right to criminalise their decision.

Peshawar, where these interviews took place,  has been rocked by one bombing after another this year. Schools and colleges across Pakistan are closed for the rest of the week in the wake of the suicides bombing of the Islamic University in Islamabad. Afghanistan is still rent by war, and Pakistan is no refuge. Put down the dog-whistle. Now.

One of Howard’s core provisions was the excising of certain territories from Australia to prevent arrivals invoking Australian legal protections. While Rudd’s lot stopped sending the intercepted boat people to Nauru etc, they sent them to the excised territory of Christmas Island. The somewhat weak excuse was that there was a new expensive centre that needed to be used, despite the acknowledged heavy costs of running it and transporting people there.

This was obviously the ALP compromise version: we will be nicer to refugees, once their legitimacy is determined, but we will continue to look tough by sending them to an excised offshore island. However, this decision has now created an unnecessary problem because the facility has limited places and the numbers are becoming a political football of oversize proportions.

We have a major news story, moral panic and full blown political crisis because Christmas Island is about to overflow.

When 200 extra bunk beds make the media, there is a problem. Had the Government stopped sending the boat people to such a limited and visible facility, the extra numbers would have been a much smaller story. The fact that they continued this odd process reinforces the perception that there is a threat in the arrival of boat people that required both anxieties and high levels of spending.

We now have many years of settled boat arrivals, including those that arrived under Fraser and Hawke and NO evidence that they are in any way a threat to our social fabric. Yet Opposition politicians are still demonising the arrivals and creating a political panic and the Government has been caught in its own ambivalences. It should show some ethical courage by just bringing people to the mainland and processing them normally. Then people could just see them as just problematic arrivals who arrive inadequately documented.

I met some of the damaged people produced by the last Government’s policies and am appalled to see the start of another media feeding frenzy. Ruddock has learned nothing from the distress he caused, and the Opposition needs lessons in ethics v national and political self interest.

Please can we avoid the same mistakes again?

This latest boat, reportedly stopped by the Indonesian Navy at Australia’s behest, was carrying 260 asylum seekers, which is quite a large number compared to most of the boats that have arrived in Australia in the last year or so. Tellingly, all the asylum seekers are from Sri Lanka.  The human rights situation in that country is at a low point at the moment, with mass internment of Tamil citizens in atrocious conditions occurring for many months.  When a government kicks out the Red Cross, as the Sri Lankan government has done, you know things are not good.

The Australian government has been spending money trying to dissuade people in Sri Lank from trying to come to Australia.  It would have far more effect if the Sri Lankan government could be persuaded to start respecting basic human rights – although that is obviously much easier said than done.

Meanwhile, the inflexibility of Australia’s migration laws is on display again, with some more local level ‘let them stay’ campaigns happening.

Liberal Member for Hume, Alby Schultz, has voiced support for Mr Jing Bang Zou and his wife, Mrs Litang Fan, who are currently living in the New South Wales town of Young.  Mr Zou is reportedly a “world renowned apiarist”, but doesn’t have the required professionally recognised qualifications, thus making him ineligible for a permanent visa.  Earlier this decade, Young was one of a number of towns in rural Australia which had trouble finding enough labour for their local meatworks, and relied heavily on refugees from Afghanistan – all of whom would have come here by boat – to keep their meatworks profitable.

Meanwhile, on Queensland’s Sunshine Coast, a family of four originally from South Africa, who run a small business in Buderim, are facing removal because they have assessed as not meeting the minimum assets requirement of their business visa.  The local paper, the Sunshine Coast Daily, is going in to bat for them, with their coverage giving a strong emphasis to the unpleasantness of life in South Africa, with its  “barb wire-fenced homes with security cameras, guard dogs and streets deemed too unsafe for their children.”

An opinion piece in the Daily supports the family’s cause, while at the same time highlighting some readers’ comments attacking asylum seekers.  Somewhat ironically, but none the less appropriately, it ends with the following comment:

We all need to realise that Australia is built on the principle of the fair go – and that some of our best businesses have been created by immigrants, who are often more hard working than us laid back Aussies. In the end it means more jobs, not less, for all.

A good and simple principle, which I very much agree with.  Hopefully we can apply it to all who seek to settle here.

It is apt that the start of this debate coincided with publication of comments by Max Moore-Wilton, the former head of the Department of Prime Minister and Cabinet, that he was told prior to the 2001 election that the infamous ‘children overboard’ allegation against a boatload of refugees was false, and that he passed on that information to the Prime Minister. After a lot of double and triple checking, Mr Moore-Wilton eventually said his “recollection was not sound”.

But it barely matters which version of Mr Moore-Wilton’s recollection people accept. It has long been obvious that key leaders in the Howard government willingly smeared these refugees for political gain, and the only reason they might not have been formally told the allegations were wrong was because it was quite clear this was something they didn’t want to be told. To this day, Mr Howard has never apologised for his slandering of the refugees, including his comment that “we don’t want people like that in this country”. He has still barely acknowledged that the children overboard claims were baseless.

The Senate debate provides a reminder of the previous federal government’s practice of (mis)using asylum seekers for political gain, with some of the familiar distortions about so-called “illegal entrants”, “jumping the queue”, “illegal immigrants” and the like being trotted out again by Coalition Senators. Still, debates on immigration – and on asylum seekers and refugees in particular – are not renowned for clarity of language and perspective. I have never seen any serious explanation of why asylum seekers arriving in boats should be treated as a matter of national security. Even linking it with a term like border protection is over-stating things, seeing these are people that want to be found, rather than being people trying to sneak themselves or illegal products into the country. Of the millions of people who enter Australia each year, there is no other group who are more thoroughly assessed for health, security, character and general customs and quarantine purposes.

Debate on the Migration Amendment (Abolishing Detention Debt) Bill will continue today. Senator Xenophon has stated he supports the Bill, as do Labor and the Greens. The Coalition Senators will oppose it – assuming none of them support the original recommendation of their Coalition colleagues on the Joint Standing Committee on Migration and cross the floor.

Which leaves the fate of the Bill with Senator Fielding. I had the understanding that he would also be supporting it, but his contribution to the Senate debate yesterday has left me unsure quite what he thinks about the whole issue, let alone the Bill. The Immigration Minister, Chris Evans, also seemed rather perplexed by Senator Fielding’s depiction of the issue, judging by the numerous injections he made. Presumably all will become clear later today when debate on the matter resumes and a final Senate vote is taken.

UPDATE: Debate concluded on the detention debt legislation at 1:20pm today. Senator Fielding moved an amendment, seeking to keep charging people for the cost of immigration detention except for those who are subsequently recognised as a refugee. This wasn’t supported by anyone. Fortunately, any risk of the Bill being defeated if Senator Fielding sided with the Coalition was removed when Liberal Senator Judith Troeth stated in the Senate that she was supporting the legislation. A division was called on the final vote on the legislation, meaning Senator Troeth crossed the floor to vote differently to her party colleagues.

The final vote was 34 in favour and 30 against, with Senator Fielding also voting for it.

Nearly six months later, on May 15 this year, the terms of reference for that inquiry were released by the Minister and Bill Shorten, the Parliamentary Secretary for Disabilities.

After a further three months, the Parliamentary Joint Standing Committee on Migration has now announced the formal launching of the inquiry, with basically the same terms of reference as previously released.

It’s taken a while to get underway, but the inquiry has the potential to devise some worthwhile reforms to our migration law and processes. This issue is an easy one to raise populist concerns about individual cases.  However, it is far from easy to define criteria which will consistently and fairly balance the competing issues involved.

Which makes it a good one for a Parliamentary Committee to inquire into, as it should produce richer and deeper details about the impacts and administration of the current rules, the costs to individuals, families and governments and – hopefully – a better and fairer law at the end of all.

The Committee is receiving public submissions until the 28th of October.

There are more and more examples coming to light in the USA that have echoes of the Cornelia Rau and Vivienne Alvarez debacles of the Howard era in Australia.  The reasons these things are happening are similar to causes of the same gross injustices that occured in the adminstration of Australia’s immigration laws.  A government wanting to look tough, an attitude that migrants have fewer rights, deliberate efforts to prevent access to legal advice or other communication and detention centres run by private providers.

From the New York Times:

One toxic remnant of one of the Bush administration’s failed wars — the one on illegal immigrants — is immigration detention. Wanting to appear tough, Bush officials cobbled together, at great speed and expense, a network of federal centers, state and county lockups and private, for-profit prisons.

The results were ugly. As we learned from reports on the secretive system, detainees were locked up and forgotten. They were denied access to lawyers and their families. They languished, sickened and died without medical attention.

On Tuesday, the National Immigration Law Center issued the first comprehensive report on abuses in a system that holds about 30,000 on any given day and more than 300,000 a year. It found “substantial and pervasive violations” — ignored for years — of the government’s own minimal monitoring requirements.

From the San Francisco Chronicle, there’s this:

When Brian Lyttle got word on April 22 from the U.S. Embassy in Guatemala that his brother Mark had been deported to Mexico and bumped around Central America for three months, he was floored.  The family had been searching for 31-year-old Mark and feared he was lost or dead.  Mark Lyttle was born in Rowan County, N.C., and had never left the United States. He speaks no Spanish and has no Mexican ancestry.

But Mark Lyttle suffers from mental illness. He has bipolar disorder, which requires medication, and is also mentally disabled.

He had been living in a group home when he got into trouble for inappropriately touching an employee. Lyttle pled guilty to a misdemeanor and served 85 days in jail. Instead of being released, he was turned over to U.S. Immigration and Customs Enforcement (ICE) because a jail form listed his place of birth as Mexico. ICE did not investigate his citizenship. He spent two months at an Atlanta detention center just miles from his mother, who didn’t know where he was.

and this:

Houston chef Leonard Robert Parrish, 52, wasn’t locked up by ICE or deported, but he did run afoul of a law intended for illegal immigrants.  The Brooklyn-born Parrish went down to the Harris County sheriff’s office in September to clear up a problem over a couple of bounced checks. He wound up in jail on immigration charges. He was strip-searched and spent 12 hours in custody.

“The deputy told me I had a foreign accent,” Parrish recalled. “I told him I had an East Coast accent. He said, ‘It sounds like a foreign accent to me.’ “

and this:

Hundreds of U.S. citizens have been detained and, in some cases, deported by U.S. Immigration and Customs Enforcement….

Cesar Ramirez Lopez, a San Pablo truck driver, won a $10,000 settlement in 2007 after he was held for four days by U.S. Immigration and Customs Enforcement (ICE) agents even after his lawyer convinced ICE investigators that he was a citizen.

“When ICE came and detained me, I told the officer I was a citizen,” said Ramirez Lopez, 25. “They told me they didn’t want to hear it, that I was going to get deported.”

Others – detained for months or years and in some cases even deported – are suing for much more. Among them are:

– Pedro Guzman, a mentally disabled man born and raised in Southern California, who was deported in 2007 to Mexico, where he survived by eating out of garbage cans for three months while his frantic mother searched for him.

– Rennison Castillo, a Washington state man who was born in Belize but took his oath of citizenship while serving in the U.S. Army in 1998, who spent seven months in an ICE prison in 2006.

“Part of the problem goes back to a system that locks people up when they’re placed in deportation proceedings and then doesn’t provide them with legal representation,” said Matt Adams, the legal director at the project.
…
Some longtime observers of the immigration agency say that, while citizens make up a tiny fraction of the roughly 400,000 people who pass through ICE custody each year, such cases occur with some regularity. The problem is exacerbated, they say, by the fact that immigration detainees, unlike those in the criminal justice system, lack the right to legal counsel and other due process protections.

More information here.

There are now reports that the education sector is trying to crack down on so-called ‘rogue education agents’.  It’s hard to see how that achieves anything more than window dressing.  The previous government specifically exempted education agents from the regulatory requirements which currently apply to migration agents.  This exemption was provided specifically to make it easier for Australian educational institutions to recruit students, without the ‘red tape’ of registration and quality control.

This has left these agents completely outside existing controls, beyond the normal laws regarding fraud and the like.  The Migration Agents Registration Authority, which polices the conduct of migration agents, can’t touch education agents.  Nor can they touch those who falsely claim to be migration agents, or those operating offshore who provide misleading advice.  The education industry is now reaping what they sowed.  Unfortunately, the harm will be spread across some of the reputable institutions, and the broader economic (and social) loss will be borne by all of us.

In some ways, a greater concern is the damage to perceptions about Australia.  No doubt some of the media commentary in India has been exaggerated or over the top. But our tabloid media are just as capable of wildly distorted coverage, especially when there is a chance for some nationalist tub thumping, so we’re not really in much of a position to complain.

One of the other causes of the problem is that while the Immigration Department determines the conditions attached to various permanent residency visas and visas for foreigners wishing to study here and does the monitoring and enforcing of those conditions, it is the Education Department which oversees the institutions which provide the courses.

Often, it is lack of support for students or shoddiness on the part of the education provider which can play a part in a student failing to meet their visa conditions, particularly when it comes to course attendance and academic results. But the Immigration Department only looks at whether a not a student keeps within the requirements of their visa, not whether or not the educational institution meets its obligations.

The obvious financial windfall to government, as well as the education industry, provides a pretty big incentive for the Education Department not to get too heavy handed.  And let’s face it, our whole society benefits from the overseas student influx. They are a huge source of export income and generate significant levels of economic activity, including paying income tax from the twenty hours a week work many of them need to do to survive. But while they provide oceans of money for our economy, they are not eligible for any support services beyond what their institution might choose to provide.

On top of the lack of support for students from some education or training institutions, the isolation of many international students. the lack of knowledge of local rights and laws, and the fear of being seen to cause trouble that many people on temporary visas feel leaves them much more open to exploitation. This can happen in the workplace, as well as with their housing or accomodation.

This story states that since 2001, around 2650 students have ended up in immigration detention, some for extended periods.  Almost all of these ended up with no qualification despite paying large amounts and being removed from the country with a black mark against their immigration record which will make it much harder for them to travel in the future, particularly to Australia. On top of that, most got issued a debt for the cost of their detention.  A very big price for failing your exams.

This horrendous story of a Japanese woman who came here to do a PhD is a tragic example of what can happen to a person once they get caught up in the Kafkaesque regulatory roundabout between Education, Immigration and the courts.

Minister Chris Evans is apparently giving consideration to de-linking obtaining Australian qualifications with eligibility for permanent residency. This is easier said than done, but there is a lot of merit in trying it, as it removes a distortion in our migration processes.  That doesn’t mean we should make it harder for people to obtain permanent residence, but it does mean we should streamline and broaden the criteria.

Last Friday he “announced his intention to sign the U.N. Convention on the Rights of Persons with Disabilities (CRPD), in what will be the U.S.’s first signing of an international human rights treaty in over a decade.”

The CPRD was only adopted by the UN in 2006, but until now, the USA had been the only NATO country not to sign the Treaty. Australia ratified it in July 2008.

Unlike Australia, ratification of Treaties in the USA have to be agreed to be the Senate, once the President has signed it.  In Australia, Treaties are usually required to be reviewed by a Parliamentary Committee, but our government is still able to go ahead and ratify a Treaty, regardless of any views, recommendations or findings of that Committee.

In this case, the Treaties Committee recommended the Treaty be ratified.  But they also did a follow-up report which recommended:

(a) that the Government consider expanding the role of the Human Rights and Equal Opportunity Commissioner to enable the Commissioner to provide Parliament with an annual report on compliance and implementation of the Convention and, if also ratified, the Optional Protocol, and

(b) that a review be carried out of the relevant provisions of the Migration Act and the administrative implementation of migration policy, and that any necessary action be taken to ensure that there is no direct or indirect discrimination against persons with disabilities in contravention of the Convention.

The Migration Act does have provisions which directly affect people with a disability (when it is of a nature to be viewed as a significant health condition), as I’ve noted before.  Whether it does so in a way which contravenes the Disabilities Convention is something which is open to debate, but it is still timely that such a review be done.

Those recommendations were tabled in October 2008.  As far as I know, no such public review has yet been carried out or commenced.

It seems likely the issue of asylum seeker boat arrivals will once again be moving closer to the political centre stage in Australia, even though these currently number less than 1000 out of those 40 000 000 plus people.

Media commentary about Tony Abbott having reaffirmed his political ‘heavy hitter’ credentials during the recent ‘ute-gate’ stoush is being intertwined with suggestions he might be shifted to the shadow Immigration portfolio.  Understandably, this is one area the Coalition thinks they could score some political points off the government, given the political gains they made exploiting the issue in the years leading up to 2001 and beyond. Quite a few of the dynamics on this issue have changed since then, but given their current political difficulties, it might be tempting for the Coalition to be tempted to take the low road again.

I’ve previously pointed out that Petro Georgiou would have made an excellent shadow Immigration Minister, as he has more extensive knowledge and understanding of this area than pretty much anyone else in the Parliament, with the possible exception of Philip Ruddock.  But Mr Georgiou has since announced he will not recontest at the next election, so that option is now out.

Current shadow Minister Sharman Stone has had a mixed performance to date, but I don’t envy her having to not only get on top of a detailed and complex area of policy, but also having to navigate the much more tricky matter of the deep politcial differences within the Coalition parties in this area. I don’t see much benefit in shifting her just so someone else has to start all over again in getting up to speed in this difficult field.

It will be an interesting test of Mr Turnbull’s leadership to see what he does in this area – not so much because immigration is a potential political point-scorer issue for him, but because it is an area of policy which is crucial for Australia economically, socially and culturally, as well as being pivotal in how the Australia of the future sees its place in the world. Australia has suffered from a lack of attention to general policy and administration in the immigration area the past decade because of an excessive focus on asylum seekers and political point-scoring. The last thing our country needs is a return to that approach (and refugees & asylum seekers could do without it too).