A report on the Houston Report

The report of the Expert Panel on Asylum Seekers (The Report) of 13 August 2012 is somewhat of a policy smorgasbord.  This is not surprising given the terms of reference and the narrow terms of the policy debate.  Essentially a number of tough elements of the ‘Pacific Solution’ are to be reintroduced.  However there are some sweeteners like no Temporary Protection Visas (TPV) and an increase in the refugee program to 20,000 places a year.

The first and dominating term of reference was ‘how best to prevent asylum seekers risking their lives by travelling to Australia by boat’.  This item is the theme of the report, and has been the theme of the policy arguments (rather than debate).

There is an acknowledgment in the report that the numbers arriving in Australia are small by international standards (Australia’s proportion is equivalent to 2.5% of all asylum applications internationally, including arrivals by air and sea).   Most refugees stay in countries near their home country.  However, the perceived need to ‘stop the boats’ has triumphed over the real need of dealing with an international and regional issue of 42.5 million forcibly displaced people in the world.

The report also states that most refugees are not living in ‘camps’ but in urban settings.  This has been a fact for some years, and according to the UNHCR around 30% of refugees are in camps, and around 50% in urban settings.  This is significant because it can be harder to ensure services such as health, education, and case processing is done evenly in cities and many people will simply not register, as happened in Syria with Iraqis.

On a positive side, the report recommends an increase in the annual program from 13,750 to 20,000 and even higher numbers in five years if the boats stop.  This is something that the Refugee Council of Australia has called for for many years and in fact, was the program back in the early 1980s during the Vietnamese ‘boat people’ period.

The panel’s call for regional approaches to the movement of people and dealing with non-Refugee Convention countries in the region is also important.  However, these are long term plans and unlikely to develop quickly.  In our region, Malaysia hosts around 100,000 refugees and ‘persons of concern’  for the UNHCR, yet Malaysia is not a signatory to the Refugee Convention.  In Pakistan there are an estimated 2.7 million refugees and displaced persons and 900,000 in Iran, neither country are signatories to the Refugee Convention.  Syria has over a million Iraqis by some estimates, and is now creating its own refugee flow with Iraqis looking elsewhere and Syrians fleeing the civil war in their country.

Another positive was a call for community sponsorship of refugees like in Canada.  In fact, a similar program did exist in Australia in the 1980s and 1990 called the Community Refugee Support Scheme (CRSS).   The program was abandoned in the late 1990s.  This involved groups linked to communities, or churches to fund the airfare costs, find accommodation and help with short term resettlement needs.

Reassuringly, there was no suggestion of returning to the TPV and an acknowledgement about the impracticality of the turnback policy – especially where boats can be scuttled placing the lives of refugees and Naval personnel at risk.

Nevertheless, there are significant negatives from a human rights perspective.  The worst would be the return to using Nauru and PNG as places to warehouse refugees.  The report calls for a ‘no advantage test’ which seems to mean that refugees will be stuck on Nauru for years, whilst their assessment ‘peers’ are processed in Malaysia or elsewhere. 

This view is misguided as it assumes that there is a refugee processing queue and you take a number and wait your turn.  There is no queue, and the queue myth has gradually become accepted as fact with both political parties referring to a ‘queue’ that does not exist.  It enables politicians to falsely discriminate between the ‘good refugees’, who wait patiently for a resettlement place, and the bad refugees, who try and find a solution to their plight by travelling to Australia. 

They are all refugees, but only a few will ever be resettled. This is a fact unlikely to change unless the causes of forced movement stop or countries like Australia vastly increase their resettlement programs.   Neither of these points seems likely in the medium term.  

Other recommendations deal with the punishment of the ‘bad refugees’.  These include a total excision of Australia from the migration zone for anyone arriving as an ‘irregular maritime arrival’ (IMA), and preventing the bad refugees from getting the cheap sponsorship option for family reunion.  It is not clear if a stowaway who jumps ship in Sydney will be flown to Nauru to have their case assessed or not.

Another unstated matter is what procedures and law will apply in Nauru.  Currently the IMA caseload is covered by the same legal tests as those seeking asylum after arriving by air.  The process used by UNHCR varies from country to country and generally is far less procedurally fair, and in a number of elements positively unfair.  Is it proposed to introduce a procedurally unfair process for people in Nauru, or will they get the benefit of procedural fairness as currently happens?

The family reunion issue was not fully set out in the report and it seems to have been not fully understood by the authors.   Any citizen or permanent resident can sponsor a partner and dependent children under the family migration program.   The main issue with these visas are the cost (currently $2060) and processing time.  Also, under the family program the sponsored partner and any children will not get settlement benefits such as free English classes and settelmetn assistance..   Whilst there is a figure for the family migration program each year, the partner visa is not ‘capped’ like the refugee program. 

Protection visa holders are able to apply to sponsor their spouse and dependent children under the humanitarian program which avoids paying the $2060 fee and they have access settlement services and English classes if needed.  A practical problem is that the larger numbers coming as refugees means fewer places for family reunion so the processing time for these cases has significantly blown out to several years.  The Report recommends that those who came as IMAs should not have access to this program as a way of reducing pressure on the humanitarian family reunion caseload. 

A significant number of people have already decided the delays are too long and have lodged under the family program already, which means that unless resources are moved to assess the cases in Amman, Dubai, Colombo, Tehran and Islamabad, the family migration program processing will blow out.

Another issue not really addressed is that of unaccompanied minors (UAM).  There are a few references in the Report to ‘vulnerable persons’ but does this mean that UAMs will be sent to Nauru and PNG, and if so, who are their guardians?  Currently the Immigration Minister is their Guardian and this was an issue raised in 2011 in the M70 case in the High Court which effectively ruled out the Malaysian plan.

The Malaysian plan is not ruled out but it is suggested that it be reworked as part of the general strategy of deterrence. 

One of the major causes of delays now faced by applicants whether in Australia, on Christmas Island or in Jordan is the slow process of security checks by ASIO.  Whilst this is not mentioned in the report given the limited terms of reference, it does slow down the process so much that people can be waiting more than 1-2 years after lodging a case for their security check to be finalised.  This has flow on consequences in family reunion and in some cases, means that children are no longer considered dependent because the process took so long.  Whilst there needs to be security checks, why they are taking so long is a mystery.

Overall, the report endorses a harsh policy for dealing with asylum seekers.  There are proposals which may slow or even stop the boats, but there are greater needs of addressing protection for those forcibly displaced generally.   The Report discusses the need for regional solutions but this is nothing new.  The Comprehensive Plan of Action in the 1980s was a ‘regional solution’ for the Vietnamese and Cambodian boat people, but since then there have been no serious efforts at regional solutions.  Whilst we fret over a caseload of 2.5% of the world’s asylum applications, most refugees will live in non-convention countries, in uncertain and sometimes unsafe circumstances, hoping and searching for their solution.