also resulted in an influx of immigration into Australia both legal and illegal.
The growing number of illegal refugees became a cause for concern and in 1989, the government passed an amendment on the original Migration Act of 1958. Still to this day, the Australian government has taken an increasingly hard-line approach to its refugee policy. The impetus for its new policy is two-fold. The majority of the increased strictness in refugee policy has been a direct result of the increased influx in people seeking asylum in Australia. Many of these people arrive illegally, lacking proper passports and visas while attempting to enter the country by air or overseas. Many of them are smuggled and are seen as ‘jumping-the-queue’, taking valuable spots from potentially more deserving people. The second portion is a direct result of increased nativism amongst high-ranking officials in the Australian government. It is the combination of the two that has allowed anti-refugee policies to flourish since 1989. Before the late 1980s, Australia was seen as a welcoming center for refugees from all areas of the globe. Even though the majority of asylum seekers tended to be from southeastern Asia, there were also large migrations of Middle Eastern refugees. According to the United Nations 1951 Convention and 1967 Protocol relating to the Status of Refugees, refugees are defined as people who:
• are outside their country of nationality or their usual country of residence, and
• are unable or unwilling to return or to seek the protection of that country due to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and
• among other things, are not war criminals or people who have committed serious non-political crimes.
The Convention does not however oblige countries to provide asylum to those who have left their country on the basis of “[…] War, famine, environmental collapse or in order to seek a better life for themselves or their family”. In 1989, the notion of Australia being a haven for asylum seekers rapidly changed. During 1989, there were many international events that posed challenges to the Australian government in terms of monitoring migration.
One of the most influential world events was Tiananmen Square in June of 1989. This event virtually alone caused a rapid influx of asylum seekers, raising the numbers from 1,260 in 1989 to 12,130 in 1990. Many of these applicants were Chinese students who had already been studying in Australia. As a result, the Australian government reformed the Migration Act of 1958 with the Migration Legislation Amendment Act of 1989. This new amendment imposed new regulations that would greatly reduce room for discretion amongst immigration officers and hence tighten control over the management of the immigration program. In addition, it also created a two-tiered system for the review of migration decisions. In a speech given to Parliament, the Melbourne-Minister for Immigration, Hand,
said:
The first tier is the Migration Internal Review Office (MIRO). The second tier is the Immigration Review Tribunal (IRT) which is an independent external review agency. As I noted in the House of Representatives […] the objectives of the review system continue to be achieved. That is to say, the review system provides independent review which is fair, just, economical, informal and quick.
In doing so, the Act removed the ability for unsuccessful onshore visa applicants to appeal the decision to the judiciary. In addition, the Act introduced mandatory deportation of illegal entrants and the power to sell their possessions. According to the Minister of Immigration, Robert Ray, in a media release given on December 18, 1989, the regulations “[…] Sought to improve the ability to curb abuse of the immigration program by people seeking to come to Australia illegally”. Not everyone saw the new migration legislation as a just and legal response to the increase in asylum seekers. The new legislation in effect negated Australia’s compliance with the 1951 Convention and 1967 Protocol Relating to the Status of Refugees. According to Patricia Hyndman, a professor at Cambridge University, “The 1989 legislation, in some circumstances, will require the deportation of a refugee to his or her country of nationality […] despite the fact that such deportation may amount to refoulement […]”. Even though people saw the illegality of the situation, there was not a strong enough public outcry to dissuade the government from implementing its policy. The more stern approach towards illegal entrants continued to grow well into the early 90s. As a result of a growing influx of Vietnamese, Chinese, and Cambodian refugees, the Australian government passed the Migration Reform Act of 1992. The key feature of this new legislation was the formalization of mandatory detention of all illegal arrivals. The Act allowed for illegal entrants to be detained until an application for asylum had been filed and their final status was determined. The legislation did however specify a maximum of 273 days under detention. According to the Australian government at the time, the need for increased strictness in its refugee policy was due to a rise in and complexity of international people smuggling. While addressing the Forum of Human Rights and Immigration, Minister Ruddock stated:
Organizations involved in people trafficking - smuggling them as if they were just so much contraband - are doing very good trade. Their plans are often complex, involving recruitment of passengers, purchase or forgery of travel documents and itineraries, which offer transit through several countries before arrival in the eventual destination country. […] Those who use these smuggling schemes undoubtedly pay heavily for the opportunity. Undoubtedly also, many travelers have been promised by the organizers that they would be allowed to stay in Australia and would quickly be able to work to recoup the cost of traveling.
By passing the legislation, the Australian government felt their would be enough disincentive to keep unqualified refugees from entering the country whether or not they were being smuggled in or by overstaying their current visa. In 1994, Australia bolstered their vow to curb people smuggling by eliminating the 273-day detention and leaving the period of detention open. Between 1994 and 1999, there was little passed through the government to fortify the already stringent refugee policy in Australia. In October of 1999, the government devised yet again another system to make it more difficult for asylum seekers to be deemed refugees. To curb illegal immigration and penalize the ones who were seen as jumping the queue, the government created the temporary protection visa. The temporary protection visa did not provide the same level of protection as a full protection visa. It was only valid for three years and if the person wished to remain in Australia as a refugee they must reapply for a full protection visa before it expired. At this juncture it appeared as though the government could not get any tougher in its fight to curb illegal immigration.
This idea abruptly changed on August 26, 2001 when the Tampa responded to distress calls from the Palapa, a 20-meter wooden fishing boat loaded with 438, mainly Afghan, asylum seekers. These asylum seekers were stranded approximately 140 kilometers north of Christmas Island. According to international law, survivors of a shipwreck are to be taken to the closest port for medical treatment, which in this case, would have been Christmas Island. The captain of the Tampa, Arne Rinnan, radioed to the Australian government asking for permission to come to port on the island and unload the asylum seekers. The Australian government denied permission claiming it did not have the facilities to house the asylum seekers and that since the rescue happened in Indonesia waters, they should instead go seek asylum in Indonesia. After pleading with the government, repeatedly citing that many of the asylum seekers were unconscious and sick and in addition, claiming the boat was not seaworthy for travel back to Indonesia, Rinnan declared a state of emergency and proceeded towards Christmas Island. The Australian government responded by dispatching SAS commandos to board the ship and prevent it from coming to port. Clearly the government was seeking to thwart any attempts of the asylum seekers of reaching land and applying for asylum. As a result, later that night, Prime Minister John Howard attempted to introduce an emergency bill entitled the Border Protection Bill 2001. The bill would have provided the power for the government to be able to remove any ship in Australian territorial waters and not grant asylum applications to those that were onboard. Fortunately for those onboard the Tampa, the bill never passed the Senate. Since the government did not want the asylum seekers to make their way to Australia’s mainland, many of the refugees were transported to Nauru. This became what is now commonly referred to as the ‘Pacific Solution’. On Nauru, they were held in detention camps and had their cases reviewed to see whether or not they could be granted asylum on an individual basis. To those that were found to be genuine refugees, they were granted three-year temporary protection visas. The temporary visa did not allow the refugee to return home and at the same time did not grant the same level of access to services that normal refugees could receive. This policy, commonly referred to as the ‘Pacific Solution’, has been the underlying ideology of the Howard government and its anti-refugee policy. In the federal election that occurred right after the Tampa incident, Howard ran with the election slogan “[…] We decide who comes into this country and the circumstances in which they come”. By September 2001, several hundred million dollars were made available to shut down Australia’s borders against unwanted asylum seekers. The primary means of strengthening Australia’s borders was accomplished through Operation Relax. This was a quasi-military operation that conducted air surveillance by the Australian Air Force over Indonesia waters. If they noticed any ship leaving Indonesia towards Australia, they immediately sent Australian ships to intercept. If they were in fact smuggling asylum seekers, they would force them to return to Indonesia. If the ship attempted to return to Australian waters on several occasions, the military would take further action and detain the asylum seekers, placing them in detainment centers such as Christmas Island. The Howard Government hoped this would be a stringent enough deterrent to reduce the sudden influx of people smuggling. In May 2002, the government passed legislation to set aside 1.5 billion US dollars for “border protection and related measures”. As of 2002, under the ‘Pacific Solution’ policy, more than 1,800 asylum seekers have been transferred to Nauru, Papua New Guinea and Christmas Island but have been denied permission to claim refugee status. To this day, Howard’s anti-refugee policy still runs rampant through his government’s veins. Even though in 2005 Petro Georgiou and Judith Moylan, both from Howard’s government, were able to, in the short run, get those that had been in detainment for over a year their cases reviewed for refugee status, the progress did not last long. In a news article from The Australian written on April 8, 2006, Howard was quoted as saying:
I’d be concerned about the abuse of human rights anywhere in the world, and I guess no country is free of human rights abuses, but I do not think it serves anybody’s interests for us to encourage in any way the fragmentation of Indonesia. That’s why I’ve taken such a strong stand and why I sent such a strong message to the people of West Papua. Do not imagine for a moment we want you to come to Australia.
Phillip Ruddock, one of the masterminds behind the ‘Pacific Solution’ and the current acting Immigration Minister, has consistently insisted that there is nothing wrong with Australia’s current refugee policy. In May, Ruddock hopes to pass laws that will extend the ‘Pacific Solution’ making it tougher for refugees to gain access to Australia. These laws would include the Australian government having the ability to ship asylum seekers attempting to gain access to Australia to offshore centers. From there they would be held indefinitely until a third country assumed responsibility and provided refuge. According to Ruddock, “Smugglers watch very closely what happens. They know whether people reach Australia or not. If they sense that we’ve in any way weakened in our resolve, if they sense that they’ve found a new way of being able to circumvent the measures we have put in place, they will use them.” In the next couple of years it will be interesting to observe how harsh Australia’s refugee policy becomes. Amnesty International, a worldwide movement that campaigns for human rights, has become very vocal in challenging the Howard Governments current refugee policy. Amnesty International claims that the Australian government has negated the 1951 Refugee Convention and that their policy is, “inappropriate and inconsistent with the edifice of asylum that’s been built up over years.” Because of the mounting concerns over heavily televised news stories such as global terrorism and the rapid increase in the price of oil, the international community at large has not been focused on the current debate involving asylum seekers. If changes are to be made, it will only be as a result of an increased international initiative to being more hospitable toward asylum seekers. Without international support for change, there is little that can be done to curb the existing problem.
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