The return to Rudd: a turn for the worse on asylum seeker policy?

The night of Wednesday 26^th of June was full of surprises. We got an old/new Prime Minister in Kevin Rudd, found out that our first female Prime Minister was quitting politics, and learned what the Foreign Minister Bob Carr thinks of refugees and our international obligations to protect them. Not much as it turns out. Bob Carr went on the ABC on that 'historic' night, to state that:

The people who express noble sentiments on refugee rights have got to recognise that under our noses the nature of this problem has changed… they're not people fleeing persecution – they're coming from majority religious or ethnic groups in the countries they're fleeing – they're coming here as economic migrants.

The same sentiments were reiterated by Bob Carr in Indonesia recently. This is an incredibly worrying turn for the worse in our approach and commitment to our international obligations. There are several reasons why Bob Carr's statements are so troubling. The first is the denial of the status of refugees. The use of the term 'economic migrant' is not an accident. It serves a convenient function in the discourse. By suggesting that asylum seekers have left their home countries out of their own free will for economic or social reasons Carr is implying that we, the Australian people, have no legal obligations to them.

The label is an incorrect characterisation of many of the individuals who seek asylum in Australia. It is true that some individuals coming to Australia by boat do so for economic and social reasons. However, as is borne out by the numbers, approximately 90% of asylum seekers arriving by boat are refugees who have fled their home countries.

Being a 'refugee' means something very particular under both domestic and international law and gaining refugee status is incredibly difficult. The individuals who have been recognised as refugees under Australian law have been found to be at risk of persecution because of their race, ethnicity, nationality, membership of a particular social group or political opinion. It is also important to note that once an individual is at risk of persecution for one or more of these reasons, they become a refugee under international law, whether or not their status is recognised by a country like Australia. That is, under international law, Australia does not get to make someone into a refugee or deny them that status. All a country like Australia can do is recognise a pre-existing status.

It is very important not to conflate the category of 'refugee' – which is a legally defined status that places certain obligations on countries that have signed up to the Refugee Convention – with the category of 'economic migrant'. Australia must, under international law, ensure that no refugee is returned to persecution and provide them with a range of rights outlined in the Refugee Convention. The same obligations do not exist towards 'economic migrants'. Labelling a refugee as an 'economic migrant' does not in any way make a refugee less of a refugee under international law or remove Australia's international obligations to that individual.

The basis for Bob Carr's assessment also appears to be unfounded. When asked by Tony Jones how the asylum seekers arriving through irregular means to Australia could possibly be anything but refugees given that 9 out of 10 are accepted as genuine refugees by the systems we have in place, Bob Carr stated that he and presumably his government had "reached the view that as a result of court and tribunal decisions, it's coming up wrong. We need a tougher, more hard-edged assessment."

This is also a worrying statement. Australia currently has such an assessment regime in place for the identification and protection of refugees. Some of the process is incredibly troubling and needs re-examination. For example, when asylum seekers first arrive in Australia they may be subjected to a screening procedure. I wrote about this issue in an earlier post and will not reiterate my concerns here again in full. It suffices to note that some refugees who may be in need of protection may fail to be identified at the screening stage because they may not say the right things looked for by the Australian officials, and may therefore be denied protection before they have had a chance to speak to a lawyer or seek review of the decision.

If asylum seekers are fortunate enough to be 'screened in' they will be subjected to further interviews and assessments by the Department of Immigration. Should they be unsuccessful before the Department of Immigration they may have the opportunity to be heard before the Refugee Review Tribunal (RRT). Bob Carr's reference to 'tribunal' decisions 'coming up wrong' is probably a reference to the RRT. However, the RRT is an independent body that can ensure that the Department of Immigration has made the correct decision. Mistakes are possible during status determinations and an opportunity to have a decision reviewed safeguards against such mistakes. Furthermore, a right to seek review before a body that is further removed from political considerations such as the RRT insulates decision makers (somewhat) from the political process and provides greater accuracy and impartiality.

Bob Carr also mentioned courts as part of the reason he, and presumably his government, believe that decisions are 'coming out wrong', but as he should know, the courts do not determine who is and is not a refugee under our system. All the courts can do is point out where the initial decision makers have made a legal mistake. It is therefore difficult to see how the courts could be contributing to what Bob Carr sees to be the wrong decisions when their role is limited to ensuring that the procedures followed and the rules applied by the decision makers are lawful.

A wrong decision is different to an inconvenient decision and Bob Carr may be confusing the two. Our system may be getting it wrong, but my guess is that the mistakes are more likely to be false negatives rather than false positives: that is, refugees who may need protection are not being recognised or protected because of the many obstacles we have placed in their way, including a screening test that denies them access to information and assistance. If we need reform of the refugee status determination process, we should be improving procedural safeguards to ensure that we are not sending refugees back to harm.

To claim that the system is too far the other way and that the refugees being recognised are in fact economic migrants is not supported by the evidence. We need to remember that when discussing refugees we are talking about extremely vulnerable human beings who are at great risk of persecution and even death. If we make our assessments too difficult we risk failing to recognise refugees to whom we owe an international obligation. Most importantly, we place real lives at risk. Let us hope that the new/old Prime Minister remains committed to 'humane' policies towards asylum seekers and refugees and not simply 'tough' policies; and that Bob Carr's unfounded words were not indicative of an even more restrictive approach to this issue under the new leadership.