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.

The government claims that the RSA process “builds in common law requirements of procedural fairness throughout the process”. Its intent is to do whatever it can to create conditions in Indonesia such that the Australian public will be convinced that any asylum seeker landing in Indonesia will be assured humane accommodation and transparent processing of their claim in compliance with UNHCR standards. That is why the Australian government has been channelling significant funds to IOM (International Organisation for Migration).

But for Indonesia to be rightly characterised as an adequate country for asylum, proven refugees need also to be extended the usual rights of refugees, including work, health, education and social welfare. This is especially true given that Indonesia refuses to provide local integration as a durable solution and the waiting list for resettlement is so long that it takes years for a refugee like Ali to find a new home.

Deliberately, the Australian government will not consider prompt, wholesale resettlement of proven refugees from Indonesia for fear of setting up a magnet effect. On average, Australia takes only about 50 transit refugees a year from Indonesia. There are 2,509 refugees registered with UNHCR in Indonesia according to latest information from the Indonesian Department of Foreign Affairs. More than half of these are from Afghanistan.

Even if IOM were to provide appropriate accommodation for asylum seekers in Indonesia and even if the UNHCR processes were sufficiently expeditious and transparent for the determination of claims, proven refugees would still languish for years without the provision of basic refugee rights, and failed asylum seekers would still be armed with the knowledge that applicants reaching Christmas Island have a higher success rate.

Though Abbott might claim that these failed asylum seekers and proven refugees resident in Indonesia are not Australia's responsibility, it is in Australia's interests that their concerns be addressed. Otherwise they will end up in Australia, and Australia's responsibility. Many Australians want to extend their concern to these persons before they risk the treacherous sea voyage, in which case we would only avoid responsibility if they perished at sea.

You cannot tell Ali to go home and join the queue: there ain't one. If he makes it here by boat, we should give him full protection without penalty. Part of the price of protecting our borders is honouring our obligations under the Refugee Convention to boys like Ali.