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Border protection

By Katy Barnett - posted Friday, 25 June 2010

Did you ever play “chasey” as a child? If you ran around in the wild blue yonder, you were fair game for any roving pursuer, but usually, there was an area which was “safe” (in my school yard it was called “barlee”). If you were touching the “safe” tree, you couldn’t be caught. If someone did tag you, you’d shout, “Barlee!” in outraged tones.

It strikes me sometimes that we never really grow up. I’m not a migration lawyer; I’m not even a migration lawyer’s bootlace. However, I’ve been thinking about refugees ever since the Federal Government announced it was “Refugee Week” this week. At the same time, they vowed to get tougher on people smugglers, proposing legislation to the effect that persons who provide material support or resources to people smugglers may be found to abet people smuggling, regardless of whether they received financial or other material benefit. The ambiguity in the wording may lead to humanitarian aid workers who assist asylum seekers getting in trouble.

My understanding is that if you’re an asylum seeker who manages to get a toe on Australian soil, you’re much more likely to have reached barlee, but if you’re still outside our territory, your situation is much tougher.


Essentially, it boils down to this. If you are an asylum seeker seeking refugee status, then once you set foot on Australian soil (i.e. once you come within the “migration zone”) you may apply for a protection visa which gives permanent residence in Australia. It’s more advantageous to apply for refugee status from within Australia because the provisions of the Migration Act 1958 (Cth) apply (with avenues for appealing decisions of the Minister and the like).

By contrast, if you are an asylum seeker outside Australian soil, it is much more difficult. For example, to qualify for the special humanitarian program visa (PDF 367KB), you have to have an Australian “proposer”, and you are more likely to succeed if you are a “split family”. Hence there is an incentive to send out one member of the family to arrive here so that he or she can then get the rest of the family over.

I wonder how many of the asylum seekers who entered here illegally had previously applied for a visa from overseas, and were rejected, but then once they got here, their applications had to be reconsidered and they were accepted.

Which raises the question of why they were knocked back when they applied from overseas, and why this changed once they were on Australian soil? I’d really like to see the figures on this. Surely they are just as deserving of refugee status, regardless of whether they are on Australian soil or not? Why does reaching “barlee” make such a difference? Should it make such a difference?

Much has been made in the news about “boat people” arriving in greater numbers. I think that one of the reasons why people react so viscerally to the asylum seeker issue is the symbolism of it - the desperate people on boats attempting to land on our shores - there’s a sense in it is seen as an invasion of our boundaries. We are an island, and we’re not used to people crossing our borders easily. The word “insular” means both “inward-looking” and “of, or pertaining to, an island”. If we shared a border with another country, perhaps we’d find it less challenging.

I believe, also, that people find newcomers challenging because it’s a deep-seated human instinct. Rather than pigeonholing people who are afraid as inevitably racist, and writing off their fears, it’s better to engage with those fears and try to allay them, to ensure that integration can occur as smoothly as possible.


It’s not good, either, to pretend that problems don’t occur from time to time - of course they do, and sometimes problems emanate from both sides of the fence, newcomers and existing residents (as I have discussed in relation to Sudanese refugees).

It seems to me that asylum seekers wouldn’t need to make the risky and possibly life threatening journey if it were easier to apply for a visa from outside the territory. So, rather than excising various areas from the migration zone (Christmas Island and so on) or detaining people who come here illegally, maybe it would be better to make it easier for legitimate asylum seekers to apply for refugee status from outside Australia, and to make sure that the visas they got were roughly comparable. That way, people wouldn’t feel the need to risk their lives to come here.

To me, it seems really stupid to be putting all these resources into patrolling the seas, detaining people, prosecuting people smugglers and the like when perhaps there’s another way of fixing the issue.

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First published by Skeptic Lawyer on June 22, 2010.

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About the Author

Dr Katy Barnett is a lawyer, blogger and lecturer at the University of Melbourne. She lives in Melbourne, Australia and blogs at Skepticlawyer.

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