Why Ali fled Afghanistan

On last Monday night's Q&A, Tony Abbott was asked about the recent wave of boat people, including Hazaras fleeing the Taliban in Afghanistan. My ears pricked up, as I had recently been in Indonesia discussing the issue with the Jesuit Refugee Service there. At the end of one meeting, a 15-year-old Hazara named Ali came and told me his heart wrenching story.

Ali's father was taken by the Taliban, never to be seen again, and his mother has fled into Afghanistan with her children. Ali decided to flee, seeking security not just for himself but eventually for his mother and his siblings. He is presently stranded in Indonesia having spent all his money, hoping one day to reach Australia. Indonesia offers no solution to his plight.

Tony Abbott spoke of people like Ali in these terms:

... if they are fleeing a well-founded fear of persecution, the first country they get to has a duty to offer them refuge. But nearly all of the people who come to Australia have come through other countries first. They've come through Pakistan, where they presumably don't suffer the same fear of persecution. They've come through Indonesia, where they certainly are at no risk of persecution. So the risk of persecution ceases well before they come to Australia.

Australia is a very desirable destination, let's face it, which is why they don't stay in Pakistan or in Indonesia.

Australia is a long time signatory of the 1951 Refugee Convention and the 1967 protocol. It is one of the few countries in the region to be a signatory. Indonesia is not.

Under the Convention, Australia has a key obligation “not to impose for illegal entry or unauthorised presence in their country any penalty on refugees coming directly from a territory where they are threatened, provided only that the refugees present themselves without delay and show good cause for their illegal entry or presence”.

Prior to 2001, the Australian government took the view that refugees fleeing even faraway countries via Indonesia were “coming directly” and were thus not to be penalised for their illegal entry or unauthorised presence in Australian territory or waters.

That presumption was abandoned in 2001 with the increased influx of boat people from Afghanistan, Iraq and Iran. The Australian Government (of which Tony Abbott was a member) decided to penalise boat people arriving without a visa by imposing mandatory detention and by replacing the permanent protection visa with the temporary protection visa. The government also decided to reduce the access for these persons to judicial review of their status determination decisions.

The government took the view that these people were no longer engaged in direct flight from persecution. Rather they had fled persecution, found a modicum of protection in another country, then decided to engage in secondary movement seeking a more benign migration outcome.

The Rudd government improved timelines for mandatory detention, saying detention was only for the purposes of identity, health and security checks. Detention was to last as long as the refugee determination process took, with the assurance that it would usually be complete within 90 days. This has blown out to 104 days on average.

The permanent visa was restored. Boat people intercepted before arrival on the Australian mainland are processed on Christmas Island without access to the courts for the usual raft of appeal procedures. Government officials conduct the assessments and there is a review of unsuccessful claims by a panel of retired professionals.

A successful non-statutory refugee status assessment (RSA) results in the Minister considering that it is in the public interest that he permit the successful asylum seeker to apply for a visa. There might still be some recourse to the courts were government officials purporting to make decisions consistent with the Refugee Convention but without following due process.