Refugee Convention: the perils of leaving

From the Christmas Island Immigration Detention CentreIn the Financial Review last week, Anthony Bergin put forward some ideas to ‘stop the boats’. Unfortunately, his immodest proposals for changes to Australian asylum laws aren’t evidence based. In particular, the suggestion that Australia should withdraw from the refugee convention is misplaced. Most asylum-seekers don’t know of the Convention and international research shows that asylum seekers have minimal to no knowledge of asylum destination countries policies. But even if it were true, the question is—what’s the cost to the international norms which might one day protect us and our global reputation?  The AFR is doing the debate no favours by printing misleading information about the 1951 Refugee Convention.

There are a number of reasons to reject the proposal. First, our asylum system hasn’t ‘crumbled’.  New OECD figures show that in 2012, Australia ranked only 11th of 34 OECD countries in the number of people arriving and applying for asylum.  Even with the increased arrivals this year, Australia isn’t experiencing a refugee ‘crisis’ based on any objective comparator.  Jordan, for example, has been a major recipient of Syrians fleeing a conflict that has killed 97,000 people, with 1,000 to 2,000 new arrivals daily. Jordan was already hosting large numbers of Iraqi and Palestinian refugees. Developing countries overwhelmingly bear the burden of hosting refugees.

The Convention doesn’t ‘place pressure’ on Australia in terms of processing and support; Australian lawmakers decide the standards.  For example, Australia uniquely chooses to mandatorily detain asylum seekers in contravention of international law. Nor does the Convention ‘legitimise unregulated entry’; this was expressly rejected by the drafters in 1951.  It merely recognizes the lived experience of refugees from World War II to the present day—that refugees often must flee without proper documents and time to prepare.  Under Article 31, refugees unlawfully in the country of refuge shouldn’t be ‘penalized’ if they enter the territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

The Convention doesn’t ‘do nothing to protect people up until the point where they can claim asylum’.  In fact, a person is a refugee from when they cross the border of their country of origin to flee persecution, and Australia makes its own visa determination which recognises this status.  Even if not recognised by Australia as refugees, asylum-seekers are still human beings, and keep their full range of human rights, which everyone seems to forget.

It’s especially worrying to see a claim that the convention ‘doesn’t oblige countries to guarantee a refugee’s safe return’.  The very heart of the Convention is the non-refoulement principle, in other words, that refugees not be returned to persecution.  People found not to be refugees can indeed be legally returned, or even expelled, under the Convention.  In fact, removals after a good quality refugee status determination process are important to maintain the credibility of the system, although removals to fragile states like Afghanistan and Iraq are very difficult.

And it’s not just the Refugee Convention that we’re bound to. Non-refoulement is a principle of customary international law, so even if we withdrew from the Convention, we’d still be in breach if we returned a refugee to persecution or torture.  This would include turning around a boat in our waters if that person is then sent home (called ‘chain refoulement’).

I’ve worked with refugees for many years and it is the danger they’re fleeing from that is uppermost in their mind, and the place they’re fleeing to is just a place of safety and hope for the future, wherever that may be.  The government’s Expert Panel admits they have little evidence to work from in this area (recommendation 22).

Where Dr Bergin and most Australians get refugee law wrong is thinking that asylum is just a type of migration.  That’s not the case, and no amount of ‘creatively leveraged aid’ providing scholarships will stop a family from fleeing persecution in Syria.  In short, there is a cherished idea, also subscribed to by the Expert Panel, that Australia can exercise choice, control, neatness, planning and order in this area.  Stopping asylum applications onshore is a legal fiction, much like excision of the mainland.

Where people also get refugee issues wrong is their short memory.  Robert Menzies signed on to the Refugee Convention in 1954.  He was no soft-hearted humanitarian—he did it because Darwin was bombed, Australians were captured in Singapore, enemy submarines had been in SydneyHarbor.  It wasn’t inconceivable to Menzies that Australians might be refugees themselves one day and this sense of reciprocity is at the heart of all international law. Australia also took many European refugees and did so without a system in place. The Convention offers a way to grant asylum as a peaceful, humanitarian and legal act rather than a hostile gesture.

No amount of tears in Parliament for drowned asylum-seekers will protect our international or regional reputation if we withdraw from the Convention.  Australia will be, and to an extent already is, perceived as hysterical, racist and unwilling to contribute to durable regional solutions for asylum-seekers, some of whom are fleeing conflicts in which we’ve been a combatant.

You can breach international law—there’s no UN army—but it comes at the cost of isolation, reputational damage and the destruction of a rules-based system.  This isn’t a price that Australia should ever consider paying, and is at odds with our seat at the UN Security Council and a member of the G20.  Instead, we can accept with maturity that Australia is part of a globalised world and do our best to stop refugees from having to flee, help them find durable solutions without resorting to boats, save lives at sea and do our fair share when they reach our shores. Let’s plan for the actual world we live in, not the world of fantasy and control.

Dr Susan Harris Rimmer  is an international lawyer and the Director of Studies at the Asia-Pacific College of Diplomacy, The Australian National University. T: @femint. Image courtesy of DIAC.