Unwelcome Down Under: Australia’s Immigration Policy

This is not just about Australia. This is about a new world that we are seeing come into being before our eyes. A world in which the defense of borders depends on the drawing of new lines between the included and the excluded, between citizens and their lives. But these are very dangerous times, for what is being redrawn here are the limits of our human community and the very fragility of those shifting lines means that one day any one of us might find ourselves on the outside.

These were the reflections of Hoda Afsha about Australia’s contemporary border protection policies upon winning the Bowness Photography Prize in 2018 for her image of Kurdish writer, scholar, and recognized refugee, Behrouz Boochani, still imprisoned in Australian immigration detention.

Australia is the only country that mandates immigration detention for all “unlawful” arrivals, including those seeking protection as refugees. Australia has had one of the most punitive policies on forced migration in the world, including controls beyond the border; the current U.S. practice of caging “illegal” migrants comes close. But a key distinction is that Australia effectively punishes those who flee to the country for protection.

The harsh conditions in detention to which “unlawful” refugees are subjected have been touted by successive Australian governments as a crucial plank of its border security policy. Widespread public support for a punitive detention regime has been driven by a dominant perception since the 1980s that those arriving by boat are either “bogus” refugees – attempting “easy” entry into Australia for economic gain –  or that they constitute a security threat. These perceptions are discounted by the reality that most applications for refugee status by “boat arrivals” are approved, with a very high percentage of successful appeals against adverse decisions. Yet there is persistent evidence of ongoing public support for tough border protection coupled with minimal concern about Australia's reputational damage as a signatory to the Refugee Convention. Unfortunately these views are typically based on misperceptions about refugee movement, fuelled by negative media and government campaigns.

Australia's newly re-elected Federal Liberal government has claimed that the dramatic fall in the number of refugees arriving “illegally” – colloquially termed “boat arrivals” – illustrates the success of its harsh border protection measures. Returned Prime Minister Scott Morrisonis keen to declare: “I stopped the boats.” Aside from the questionable truth of this claim – government operations under “Operation Sovereign Borders” are subject to intense secrecy – the bigger question is: At what cost? And what is the likely trajectory of border protection under the newly re-elected Morrison government? Given the extent of public support for its position on border control, this has repercussions for Australia's regional relationships, for human rights protections, and for the principles embedded in the newly developed Global Compact for Safe, Orderly and Regular Migration as well as for the UN’s Global Compact on Refugees.

The Australian government has had a policy of mandatory immigration detention for all unauthorized arrivals in Australia (typically refugees and asylum seekers arriving by boat) since 1992. This policy has been characterized by reports of brutality, solitary confinement, torture, sexual abuse and mistreatment, medical neglect, and the use of chemical and physical restraints. In 2001, Australia introduced harsher measures by refusing to process any asylum seekers on Australian territory who had arrived without prior authorization. It did so by establishing offshore processing sites in the neighboring Pacific states of Nauru and Papua New Guinea. While this was briefly discontinued between 2008 and 2012, the drowning of 50 refugees when a boat foundered in Australian territorial waters in 2010 prompted the then-Labor government to re-open the offshore detention facilities.

A key justification for reintroducing such measures was to save further lives from being lost at sea by discouraging people smugglers. The lived reality for asylum seekers and refugees has, however, been one of suffering, neglect, and violence as a direct effect of these policies. While some have been resettled, both in Papua New Guinea and through private sponsorship arrangements with countries like Canada, approximately 350 men remain detained or imprisoned in Papua New Guinea, and others are still detained in Nauru. Yet over the ensuing years, the government has continued to commit enormous funds to a policy reported by the UN Human Rights Council to entail extensive and systemic human rights abuses both in 2013, and again in 2018.

The border protection model adopted by the Australian government has had global repercussions. Australia has led the way in adopting tough border control measures, providing a template for use by other Western nations. For example, the United Kingdom and Denmark, as well as Italy and other European Union states, have adopted a range of measures that replicate the policies and practices of Australia on refugee movement, together with policies impacting adversely those who meet eligibility for residency status, yet who are considered a “behavioral concern” risk. As an example, following Australia's use of island outposts, the Danish government is building a detention center on the island of Lindholm for foreigners awaiting deportation due to criminality, national security concerns, or other reason. This includes those denied residency status but who cannot be returned to their country of origin due to the risk of ill-treatment or persecution.

The Australian government’s response to humanitarianism and rescue at sea has also provided a disturbing model for other states. Its rebuke of a Norwegian sea captain, Arne Rinnan of the MV Tampa, for attempting to render assistance to 438 Afghan refugees in distress at sea in Australian territorial waters in 2001 – which was the catalyst for Australia's introduction of offshore processing –  has been mirrored by the Italian government’s attempt to criminalize humanitarian support provided by Captain Carola Rickete to migrants at sea off the coast of Libya. Italian Interior Minister Matteo Salvini, a long time fan of Australian migration policies, has also adopted Australia’s policy of using the navy to stop boats from reaching Italian waters. U.S. President Donald Trump has publicly declared that the success of Australian policies in limiting access to refugee protection and entry influenced his approach to border security. In Austria, a turn to far right politics has been accompanied by calls by Austrian Foreign Minister Sebastian Kurtz that the EU adopt the “Australian model” by intercepting migrant boats with military force.

In 2015, the Federal Liberal government introduced new legislation – the Border Force Act – which effectively militarized border protection policies. Operating as a “military led border security operation,” the government appointed a three-star general as military commander to work under the direction of the minister for home affairs. As minister for immigration and border protection in the Liberal Government led by then-Prime Minister Tony Abbott, Scott Morrison announced a consolidation of “the border control functions of the Department of Immigration and Border Protection (DIBP) and the Australian Customs and Border Protection Service (Customs) into a single agency, to be known as the Australian Border Force (ABF).” Authorization was granted to the military to conduct “boat turn-backs” at sea and to intercept vessels in Australian territorial waters.

This new policy, referred to as "Operation Sovereign Borders” denies resettlement in Australia for any refugee who arrives by boat, using the slogan: “By boat? No way!” The Border Force Act, introduced as part of “Operation Sovereign Borders” increased secrecy provisions relating to the government's actions (especially at sea) and imposed “gag orders” on those employed to work in border protection, whether directly employed by the government or not. The policy also saw the reintroduction of temporary protection visas, leading to many asylum seekers living in limbo, often without means of support in the community and without a right to work. Dramatic restrictions curtailed access to information about the implementation of the policy, including the number of boats detected, the number of turn-backs, and conditions in offshore detention, including incidents of self-harm, hunger strikes, allegations of sexual violence, and other reports of violence and injuries in the centers. In total, there have been 12 deaths at offshore processing sites at Manus Island, in Papua New Guinea (PNG), or Nauru, since 2013 due to either violence, suicide, or medical neglect. The government has consistently denied responsibility for violent incidents in offshore detention centers.

Despite the reality that less than 5 percent of the world's refugees were successfully resettled in 2018, the tone of the Australian government on border protection has not deviated over the last six years from the position conveyed in 2015 by then-Minister for Immigration and Border Protection Peter Dutton:

We remain as committed as ever to implementing tough policies that stop vulnerable people being exploited by criminals, prevent further loss of life at sea and ultimately keep people smugglers out of business… The rules apply to everyone, there are no exceptions. The way to Australia by boat remains closed.

Both Prime Minister Morrison and Dutton, now minister for home affairs, have been absolutely central to the implementation of tough border protection policies since 2013, overseeing their development and roll out. It is therefore all but certain that the central elements of Australia’s existing migration policies will remain in place and potentially be expanded further.

Dutton has gone to great lengths since the Federal election result in 2019 to send the unequivocal message that Australia’s tough stance on border protection will not change. The Home Affairs website features short statements warning potential boat arrivals to dispense with any hope that they might be granted protection in Australia, saying all those attempting to come to Australia illegally by boat “will be returned”, adding that “you have zero chance of success.” Border Force Commander Major General Craig Furini has similarly issued a statement that under the new government that “Australia's tough border protection policies will not change. Under my command, any people smuggling boat that approaches Australia will be stopped and turned back. This will not change. People smugglers will not get through our defenses. Not on my watch.”

The persistence of a punitive approach is also evidenced in Australia's refusal to sign on to the UN Global Compact on Migration. The compact includes a commitment to use detention as a last resort. The Australian government is reportedly unhappy about other key elements of the compact, notably those requiring that signatories regularly review their laws, practices, and policies regarding immigration detention “to ensure that migrants are not detained arbitrarily, that decisions to detain are based on law, are proportionate, have a legitimate purpose, and are taken on an individual basis, in full compliance with due process and procedural safeguards, and that immigration detention is not promoted as a deterrent or used as a form of cruel, inhumane or degrading treatment to migrants, in accordance with international human rights law.” Dutton has said that the Australian government is “not going to sign any document that’s not in our national interest and it’s not in our national interest to sign our border protection policy over to the UN.”

Although the Australian government has announced the closure and dismantling of detention camps in Papua New Guinea, the “closure” of the heavily fenced and securitized processing center at Lombrom, on Manus Island, saw the men transferred to a supposedly “open” site that was heavily surveilled, closed from nightfall to dawn, and with limited or no public access. This was the reality that an Australian opposition party senator, Nick McKim, recently faced when he risked deportation for attempting to visit the men in the center at East Lorengau.

On August 18, 2019, Kurdish writer and scholar Behrouz Boochani, a recognized refugee who is still being detained on Manus Island, issued a statement via Twitter regarding the removal of up to 55 men from the East Lorengau center on Manus Island to Bomana jail, in Port Moresby. The transfer was also achieved through duplicitous means, with the men persuaded that they were simply being removed to other accommodation while the camp at Manus was being repaired. Boochani reported that this action was taken to “follow an Australian government order to prevent [the men] getting medical treatment under medevac,” an arrangement legislated to ensure that those in need of medical care could be evacuated to receive it. Of those now in Bomana jail, at least 25 have been refused access to refugee assessment procedures by the Australian and PNG governments, despite the UN High Commissioner for Refugees asking that all 25 men be properly assessed for refugee status. This has effectively left these men with no access to resettlement. After their transfer to prison, the men had their phones taken. As Boochani commented, “their families are extremely worried about them.” There have been a number of suicide attempts and self-harm incidents as a result of the harshness of conditions in offshore centers.

Public opinion polls tell an important story about Australian attitudes toward migration and border protection. While surveys indicate some measure of continuing support for migration overall (despite growing concerns about overcrowding and pressure on social infrastructure) there are two clear messages emerging from public polling:

First, support for tough border control measures remains strong. There has been no fall in support for border protection, described as the “most heated, controversial and potentially divisive immigration question of the last 25 years,” with those polled endorsing border protection policies that “stop the boats” coming and bringing refugees with them. The rise of right-wing populist movements, both in Australia and beyond, has also driven support for political parties with policies on reduced migration and harsher limits on refugee intake.

Second, a recent Lowy Institute poll demonstrated that most of those polled are of the view that contemporary border protection policies make no difference to Australia’s international reputation. That less than a third are concerned about international reputation is alarming. Public interest in how refugees are treated as a result of border protection policies is also low. Of those who do show an interest (ranging from 2 to 4 percent of those polled) only half are worried about the harm this causes to those in detention.

Nevertheless, it is important to emphasize both that despite these polls, there have been sustained, vocal objections to the Australian government’s treatment of refugees and its policy of mandatory detention. Public protest, media campaigns, and reports and inquiries by human rights organizations, lawyers, and community and grassroots activists have continued to press for change over the last 30 years

What appears to be lacking is political leadership that is willing to lead the debates and not be dragged by the weight of public opinion that supports discriminatory refugee policies, often on the basis of ill-informed media and other reports. Under the leadership of Liberal Prime Minister Malcolm Fraser in the mid-1970s to early 1980s, bipartisan support was negotiated for a policy of welcome and support for refugees arriving by boat.

The policies of the Fraser era were in part derived from Australia’s involvement in the war in Vietnam, but the difference between that period and the policy responses marking the late 1980s and beyond was, for Fraser, a question of leadership: The choices that were made and how they were communicated to the Australian public. Fraser said of that time: “We never spoke about fear. We always spoke of tolerance, diversity, and we planned carefully.”

The success of the Liberal government (whose supporters are more likely to support tough border protection measures) and continued support for minor, right-wing parties such as One Nation suggest that Australian government policy will continue to accommodate the views of those in the electorate who endorse punitive responses to refugee movement. This is especially so given the ongoing divisiveness this issue generates, and which recent analysis suggests is better explained by political party affiliation than by any other factor.

However, Australian government policies, practices, and laws regarding refugees in detention are  contrary to the spirit and intention of the recent UN Global Compact on Refugees as well as to the Refugee Convention, which stipulates that no penalties shall be applied to refugees based on their mode of arrival. They also ignore the global reality that refugee movement presents challenges that are deep and  intractable. The numbers of displaced persons is steadily increasing, from 33.9 million in 1997 to 65.6 million in 2016 – and the UNHCR has reported that the number of displaced persons was closer to 70.8 million as of the end of 2018. Given this reality, the need for regional cooperation is pressing, with the recent Global Compact urging “more equitable sharing of the burden and responsibility for hosting and supporting the world's refugees.”

Australia is well equipped to provide support and meaningful resettlement in a region that hosts some of the largest numbers of refugees and displaced persons, including the world’s most persecuted minority, the Rohingya of Myanmar.

While hundreds of refugees remain in detention at offshore sites in neighboring states, and many more are in detention on the mainland, the Australian government is also ramping up efforts to deport “non-citizens” through the “character test” in the Migration Act. There has been a long-standing provision in the Migration Act (1958) for visas to be cancelled on the basis of a risk posed by security, health, character, and criminal concerns. But the power of the minister to deport “non-citizens” has dramatically increased since the introduction of Operation Sovereign Borders, amounting to a 1,400 percent increase in visa cancellations on character grounds between the 2014 and 2017 fiscal years.

Recent changes have since lowered the threshold further for visa cancellations leading to deportation, including of those with a conviction for any offense punishable by at least two years imprisonment, irrespective of whether those charged were imprisoned at all, acquitted, or committed an offense years before the legislation was introduced. This is having disproportionate effect on many individuals and their families. Many of those deported grew up in Australia and have no known family in their country of origin. Many families have been separated as a result. Other changes include “savage” cuts to support services for those living in Australia on bridging or temporary protection visas, while awaiting the resolution of their residency status, leading to homelessness and destitution for many asylum seekers and their families.

Given that existing Australian policies are unlikely to change in the current political climate and without international and regional cooperation to meet fundamental human rights obligations, it is difficult to imagine how this challenge will be met in ways that uphold human dignity and rights rather than undermine them. The guiding principles of the UN Global Compact on Refugees include support for humanity and international solidarity, and for operational capacity that enables more effective sharing of responsibility for refugee protection, notably by those signatory states best equipped to do so. The compact recognizes that many of those hosting large numbers of refugees do so even while they are not signatories to the Convention, and accordingly that the key objectives should be to “ease pressure on host countries; enhance refugee self reliance, expand access to third country solutions and support conditions in countries of origin for return in safety and dignity.”

Regional cooperation between Australia and its neighbors instead tends to center on policing and control over refugee movement, rather than increasing the possibility of resettlement in Australia. Growing numbers of refugees wait in queues for protection in Indonesia, while living on the streets with no means of support. This is indicative of the regional repercussions of Australia's border protection policies. Returning to the reflections of Hoda Afshar, the border is being drawn in new ways that are changing the boundaries between who is included and who is excluded, well beyond policies of mandatory immigration detention.