Pearls and Irritations

For over 60 years Australia has played a vital role in the development and strengthening of a system of international protection for refugees. It was one of the earliest signatories to the 1951 Refugee Convention. It has been an active member of the Executive Committee of the UNHCR and has held the Chair on several occasions. Australia was one of the key countries in the development and implementation of the Comprehensive Plan of Action for Indo Chinese Refugees (CPA). Two Australians have been awarded the UNHCR Nansen Award for Refugees: Sir Tasman Heyes in1962 and Major General Paul Cullen in 1981.

Australia has one of the largest humanitarian resettlement programs globally and contributes substantially to international efforts in support of displaced people and refugees. Despite this, in the past decade, Australia, like other developed countries, has grappled with the increasingly contentious nexus between asylum, irregular migration and secondary movements. The public debate is now so polarised that it has become difficult to have a rational and constructive dialogue on the best ways to respond to such movements.

This essay reviews recent developments and focuses on some practical strategies that could be taken by Australia in strengthening the regional and international protection system.

Globalisation is testing the tolerance levels of developed countries regarding population flows, immigration and asylum. We know we need immigration, but in the asylum context we just don’t like the apparent self-selection that occurs. It offends both our sense of a fair go and an orderly process. Alongside this concern is the emergence of organised people smuggling activities (a low risk /high profit venture) that facilitate the movement of people when migration systems fail them or do not accommodate their needs. Finally we are often suspicious of the motivation for such population movements, particularly secondary onward movements. Is it opportunistic? Is it out of fear for safety or merely economic? Is it because legal channels have been cut off? The answer probably lies in a complex mixture of all of these.

These various strands of concern have coalesced into a sense of crisis regarding the perceived uncontrolled onward movements, especially by boat, and the capacity of the international protection system to respond effectively in a way that addresses both States’ legitimate concerns and individual protection needs. In our domestic policy context we see this being played out with ever-changing and often more restrictive policies on asylum, immigration, border control, interception and attempts at disruption, arrest and prosecution of people smugglers

While such policy responses may temporarily have some impact, they fail in essence to tackle what is at the heart of the issue – the need by people forced to flee their countries to find a place of safety.

This has been compounded further by the shrinking protection space for displaced people globally. For the past 60 years the complementary elements of an international protection system have been:

• asylum – the obligation under the Refugee Convention that States provide protection to refugees who are in their territory, and
• burden-sharing – the concept expressed in the preamble of the Convention whereby States contribute to the protection of refugees who are in the territory of other states.

However after thirty years of mass outflows of people because of wars and civil unrest, from the Vietnam War to Syria today, the international system has struggled to find an effective way to balance these dual responsibilities.

We do know it can be done. The Comprehensive Plan of Action for Indo Chinese Refugees in this region, and in Europe the airlift from Kosovo, shows what is possible when national and international interests come together. Despite being controversial and contentious at the time, both achieved their objectives of keeping borders open and providing at least some protection in the region until durable solutions were available.

However the examples of failure to act quickly are horrific: the hesitation to intervene in Rwanda that saw over one million people killed; and the current indecisiveness on Syria where over two million have fled across the borders and where, the UNHCR estimate, there are some 4.25million people internally displaced.

For over a decade there has been intense discussion on enhancing international cooperation and yet no consensus on a framework has been achieved, largely because governments have not seen what is in it for them (1) The reality is that any framework that is developed must take account of States’ national interests or it will not succeed. This is not Australia’s “problem” to fix but, as in the past, we have an important role to play in finding regional solutions because until we do we cannot hope to reach a reasonable response to the complexities of such population movements.

To achieve this, three complementary approaches that build on current arrangements are examined here.

1. Building a strategic policy dialogue

The foundations already exist, but they often appear ad hoc and uncoordinated with little appreciation by others of what is being done. This includes the Bali Process and its various working groups as well as the Regional Support Office; the Regional Cooperation Framework endorsed at the last two Bali Process Ministers conferences, and in civil society, the work of the Asia Pacific Regional Refugee Network (APRRN) (2).

The missing link in these arrangements is a mechanism that engages government and civil society in a strategic policy dialogue. There is an urgent need to start the work of establishing such a process and creating a framework that brings Governments and civil society in the region into a structured and constructive policy dialogue.

One approach could be modelled on the “Track 2 Diplomacy” dialogue that has been effectively used in the Asia-Pacific region on security related issues. The objective of this unofficial dialogue would be to develop a shared understanding and a shared acknowledgement of the problem and the role of diverse players. This would include people working in immigration, security, intelligence and border protection areas of government as well as refugee and asylum experts in civil society.

Done well, this approach has the potential to be transformational in breaking down the unproductive suspicions of the different parties, the current dynamics of which are self-perpetuating and so reinforcing of the stalemate that exists.

While building a track 2 dialogue takes enormous effort and commitment the dividends can be many:

• It can remove the discussion on asylum, people smuggling and displacement from public contention to a neutral space;
• It can give greater freedom to explore alternative perspectives and formulate new (joint) ideas as well as giving all players a stake in the partnership and responsibilities in addressing the issues;
• It can present an opportunity for those players outside Government to influence new policy thinking and for government officials, often stuck in rigid roles and with less flexibility, to explore and test new policy models which gives them the opportunity to “think aloud”;
• It can promote a rational public discourse using facts and reason and can strengthen the voices of moderation;
• It can kick start a process that could lead to a new framework balancing the complementary concepts of asylum and burden sharing regionally.

If successful such a dialogue could conceivably be expanded into a regional approach sitting alongside or under the Bali Process.

2. Alternative Migration options

A central focus of the international discussion on population movements and asylum has been the concept of mixed migratory movements. The literature and research on such movements highlights the complexities inherent in making simple assumptions. A migration path that on the face of it might have started principally for “economic” reasons might, when more fully probed, have compelling refugee dimensions as well. In a 2004 study on mixed migration the absence of alternative migration pathways was cited as one possible reason for the growing “asylum” populations because no other alternatives existed (3). We should understand these dynamics better and examine ways to use extant visa programs as one way of easing the pressure on asylum systems as the only migration option available.

We have faced such dilemmas before and responded with arrangements such as the Orderly Departure Program from Vietnam or the Special Assistance Category visas created for specific circumstances to release migration pressures that could otherwise have moved into an irregular migration pathway.

The government, therefore, has in its toolkit a number of visa options that could be considered, and there is a persuasive case for the creation of a negotiated Orderly Departure and/or Special Assistance Category program from targeted countries such as Afghanistan or Sri Lanka. In the case of Afghanistan it could be incorporated into the discussions on the changing nature of Australia’s engagement with Afghanistan in the wake of the draw-down of our military presence. Other vulnerable populations that could be considered are, for example, the Tamils in Sri Lanka or Rohingya in Burma.

While there will always be difficult bilateral issues with such arrangements these can be addressed through robust diplomatic engagement and discussion, as they have been in the past.

3. Building a Regional Protection Space.

Most people displaced by war and conflict will largely remain within their region of displacement (4). People continue to move when the protections in the country of first asylum become precarious or where processing is taking so long that they start to lose faith in return.

It is important to provide a humane and responsible way to for people to search for alternative protection arrangements elsewhere. We need to work with host countries along the displacement corridors to support populations so as to minimise the need to move on or use smugglers for their onward movements. Such support includes timely registration and processing of claims, access to shelter, education and health services, as well as some capacity for self-sufficiency pending a durable solution.

In this context the need to pursue regional processing arrangements through which resettlement or return can occur is urgent. Such an arrangement needs to be regarded in the broader context of supporting the continued development of a regional framework. If done well, it could assist in developing a common asylum processing system and infrastructure in the region.

Balanced with a commitment to resettlement and appropriate alternative migration pathways, as well as safe and transparent return for people who are not refugees or who do not qualify for other visa programs, this would go a long way to restoring the spirit of international cooperation envisaged in the refugee convention.

References

1. See for example James Milner, Refugee Studies Centre Working paper No4 Sharing the Security Burden: Towards the Convergence of Refugee protection and State Security, May 2000.

2. A key NGO umbrella organisation that brings together civil society and regional NGOs to identify and work out practical ways to support the development of a protection framework in the region for displaced people.

3. Crisp, Jeff and Christina Boswell Poverty, International Migration and Asylum; Policy Brief No.8, UNU- WIDER 2004.

4. See for example UNHCR Global Report 2012.

Arja Keski-Nummi was formerly First Assistant Secretary of the Refugee, Humanitarian and International Division of the Department of Immigration and Citizenship 2007-2010. This article was published as a contribution to ‘Australia21’. It was part of a series of articles on refugees and asylum seekers.  See www.australia21.org.au. 

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