Australia's Right to Protect its Borders and Secondary Movement of Refugees

It is well recognised that Australia, as a sovereign state, has the right to protect its borders and preserve that sovereignty. The sovereignty of the nation is morally justifiable, however, only if the nation state discharges its primary obligation to protect the human rights and uphold the dignity of its citizens.

The right to protect Australia's borders and preserve its sovereignty must be balanced against these other competing rights as well as Australia's obligations under international Conventions to which it is a signatory. There are two key rights and obligations that must be taken into account in this balancing exercise. The obligation on Australia under the Refugee Convention not to penalise a person for their illegal entry or presence in Australia and the right refugees have to be afforded real protection.

Under the Refugee Convention, Australia must not penalise a person coming directly from a territory where their life or freedom was threatened (within the meaning of the Refugee Convention) because they entered, or are in, Australia illegally, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Even though most of the asylum seekers who have arrived in Australian territory by boat in the last few years have proved to be refugees, the government argues that they have not come directly from a territory where their life or freedom was threatened. In the government's opinion, most (if not all) of the refugees have had protection available to them in some other place en route. They continued their journey not for protection but for a migration outcome, seeking a better life in Australia. The government therefore claims that it is entitled to impose penalties such as detention and the provision of a visa with restrictive and discriminatory provisions because the government presumes that they have all spent at least seven days in a country where protection was available.

The Department of Immigration & Multicultural & Indigenous Affairs (DIMIA) has recently stated:

In the view of the Australian Government, a person to whom Australia owes protection will fall outside the scope of Article 31(1) if he or she spent more than a short period of time in a third country whilst travelling between the country of persecution and Australia, and settled there in safety or was otherwise accorded protection, or there was no good reason why they could not have sought and obtained effective protection there. What amounts to a short period of time will depend ultimately on the facts of a particular case.

Despite this statement, the government has arbitrarily set seven days residence in a country as the cut-off for access to a permanent protection visa, even if protection could have been sought only through the offices of UNHCR in that country. Further, UNHCR is generally not involved in providing physical protection to refugees. Instead it relies heavily on the cooperation of states to assist in providing this protection.

Does this mean that any refugee who has spent a week en route in Indonesia waiting for a boat to Australia can be penalised and denied a permanent protection visa because they could have gone to Jakarta and joined the queue at the UNHCR office rather than awaiting a boat in precarious circumstances? Given that Indonesia is not a signatory to the Refugee Convention and that the country is not governed by the rule of law, how can it credibly be argued that boat people should stop their journey in Indonesia and enjoy real and effective protection?

Australia's unilateral attempts to design punitive deterrents to prevent secondary movement of refugees have not been welcomed by UNHCR. Those who have suffered most as a result of Australia's unilateral action have overwhelmingly been found to be refugees and no security threat at all.

It is in the interests of the refugees of the world that we address the problems of secondary movement and as has been suggested by UNHCR's chief Ruud Lubbers that we "build an effective system of international burden sharing, where governments are discouraged from taking unilateral and punitive action, and where refugees are able to rely on adequate protection and assistance within their regions of origin. For to take punitive action is to shoot oneself in the foot. It is not effective, and it only worsens the climate between North and South."

Adopting a simplistic approach that few of the refugees that arrive in Australia are deserving of protection because Australia is not the first possible country in which they could seek protection does not recognise that the aim of most refugees is to seek real protection for themselves and that for a certain number of refugees Australia is the first port of call on the only journey available to them where they think there is the prospect of real protection.

It is wrong for government to design a punitive deterrent policy based on the simplistic presumption that few if any refugees reaching Australia could be seeking real protection at the first available port of call. In times of crisis, Australia like all countries which can offer real protection should be expected to pull its weight in offering proper assessment and protection to those who come seeking asylum. We should not go it alone in designing more punitive means for deterring asylum seekers thereby punishing true refugees as much as the handful of undoubted secondary moving economic migrants.

by Frank Brennan SJ AO.