What possible justification is there for Turnbull’s new refugee ban? – By THE CONVERSATION

The Conversation 1 November 2016, 3:30pm 30

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(Image via Wikimedia Commons)

‘Since October 2013, nearly 2500 asylum seekers have had to suffer for the [Coalition] Government to send this message … Where does it end?’

THE FEDERAL GOVERNMENT has announced that asylum seekers attempting to reach Australia by boat will never be allowed to enter the country on any permanent or temporary visa, including a tourist visa.

This applies to all of the 2,500 asylum seekers who have been detained on Nauru or Manus Island at one time or another since the second half of 2013.

This will prevent asylum seekers who have family in Australia from ever meeting them in Australia. We know anecdotally that there are asylum seekers and refugees on Nauru and Manus Island in this position. Indeed, it is common for refugees to follow the same path to protection as family members who had earlier fled persecution.

The numbers of asylum seekers on Manus and Nauru

As at September 30, there were 1,269 refugees and asylum seekers on Manus and Nauru (873 Manus, 396 Nauru). A further 551 asylum seekers have voluntarily returned to their country of origin since Operation Sovereign Borders began on September 18. There have also been many involuntary returns when asylum seekers have been unsuccessful in their claims for protection, but have been unwilling to return to their country of origin.

The majority of those who remain on Nauru and Manus have been found to be refugees and are awaiting resettlement. Even if they were willing to return to their country of origin, it would be wrong to facilitate this. So although the numbers on Manus and Nauru have been falling, the rate of decline has become progressively slower as a greater proportion have been found to be refugees and require resettlement.

What is the rationale for the new measure?

There has been some speculation that the reason for the new announcement is to send a message to asylum seekers on Nauru and Manus Island that they should take up the resettlement options offered them and not continue to hold out hope of making it to Australia.

But after three years, the Coalition Government has failed to enter a durable resettlement agreement with any other country. The Government claims that refugees can resettle permanently in Nauru and PNG. These are both inappropriate places of resettlement given the limited capacity of these countries to resettle asylum seekers and the demonstrable danger refugees face living there.

The arrangement with the Cambodian Government for resettlement of refugees was an abject failure. The Coalition Government spent $55 million to transfer five refugees to Cambodia. Only two remained for any length of time and the Cambodian Government admitted that its government “does not have the social programs to support them”.

If the new legislative proposal is an attempt to encourage asylum seekers to take up resettlement options, then the Coaltion Government needs to put some resettlement options on the table. This is surely the crucial next development in refugee policy. Further discrimination against those who attempted to reach Australia by boat is a distraction from this real issue.

Another possibility for the policy change is that there is an imminent threat of more boat arrivals.

In a press conference, Prime Minister Malcolm Turnbull said that the government was locked in a “battle of wills” with “criminal gangs of people smugglers”.

He continued:

“You should not underestimate the scale of the threat. These people smugglers are the worst criminals imaginable.”

Despite this rhetoric, the Turnbull Government has given no indication that there is an imminent threat from people smugglers. On the contrary, Operation Sovereign Borders statistics indicate that since the beginning of 2015, there have been no “illegal” maritime arrivals transferred to Australian immigration authorities and no Suspected Illegal Entry Vessels (SIEVs) intercepted.

Government statements and media reports suggest two other possible policy rationales for the proposed changes to the law.

First, the Immigration Minister Peter Dutton has pointed to a phenomenon in which asylum seekers are entering Australia on partner visas, which the minister considers “unacceptable”.

If this is true, there are safeguards around partner visas. Specifically, partners have to be able to demonstrate a genuine intention to share their lives together into the future. They are initially granted a temporary two year visa, which can be converted to a permanent visa if the relationship is ongoing and proves to be genuine.

The Government might want to consider the reason refugees are forming relationships with refugee advocates. Having been on Manus and Nauru for three years, with very limited access to people in the outside world, it would not be surprising that some refugees form close relationships with the few outsiders they have the opportunity to encounter. The government also needs to consider whether it is right to prevent Australian citizens from sponsoring partners to Australia with whom they share a genuine loving relationship.

If the Turnbull Government decides there is no entitlement for Australians to have long term relationships with refugees who attempted to reach Australia by boat, a more targeted response than a blanket ban on those refugees ever entering Australia is to tighten the rules around partner visas. This would mean either changing the requirements for the relationship status for a partner visa, or excluding asylum seekers and refugees from accessing this class of visa.

Finally, there is some speculation in the media that the proposed change to the law will pave the way for agreements with New Zealand and the U.S. to resettle asylum seekers from Nauru and Manus Island, because it will mean that asylum seekers settled there will not be able to subsequently enter Australia. This is logically flawed.

It is not clear why blocking a subsequent pathway from the U.S. or NZ to Australia will act as a deterrent for asylum seekers to attempt to get to Australia by boat. There is little doubt that any of the asylum seekers on Nauru or Manus would be delighted to be resettled in a developed country such as NZ and the U.S. without ever entering Australia in the future. Deterrence lies not in the lack of choice of place of resettlement but in the lack of any resettlement options at all.

Policy based on disproportionate fear

The Turnbull Government’s fear is that if it backs down and resettles asylum seekers on Manus Island and Nauru in Australia, the people smuggling trade will begin again in earnest. I have argued elsewhere that this is very unlikely. Given the manifest immediate harm to refugees and asylum seekers on Nauru and Manus Island, it is worth risking the resumption of boat arrivals to solve the humanitarian crisis on our doorstep that is entirely of Australia’s making.

The Government’s message to people who might subsequently attempt to get to Australia is loud and clear: you are not welcome, you will not be resettled in Australia, you will spend many years in remote locations that will lead many of you to develop serious mental illness and many of you will commit suicide or self-harm. We cannot guarantee your safety at these locations. You risk being murdered or sexually assaulted. Things will be so bad that many of you will choose to return to your country of origin, where you fear persecution, rather than tolerate these conditions.

Since October 2013, nearly 2,500 asylum seekers have had to suffer for the Australian Government to send this message. Does it really need to add to the list of detriments that asylum seekers will never enter Australia in any capacity for the rest of their lives? Where does it end?

 is Deputy Dean and Director of the Public Law and Policy Research Unit, Adelaide Law School, University of Adelaide. This article was originally published in The Conversation.

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