News Weekly interviewed Anthony Krohn, a lawyer dealing in immigration law particularly as it applies to refugees, for a first hand account of how Australia is dealing with illegal immigrants.
News Weekly: Can we start off the discussion by defining what a refugee is?
Anthony Krohn: I suppose the first thing that must be said by way of clarification, is that in the 20th Century in particular, there have been vast numbers of people on the move, fleeing various things. After the Second World War the international community realised that enormous numbers of people had been displaced, on a scale that hadn’t been dealt with before, and for several years after the war they tried to find a way of dealing with them. Eventually they came to an agreement, which is referred to as the Convention Relating to the Status of Refugees, finally ratified at Geneva in 1951.
What they did was come to a set of conclusions regarding what every nation was prepared to agree to do, in terms of a concerted international effort to assist displaced persons. They said, in effect, that there are people who are facing persecution, and they ought not be sent back to places where persecution is occurring. Now one of things that is not said, but which was in the minds of many at that time, was the fact that people were running away from the new communist regimes, but also there was the experience of what had happened to the Jews. So they came up with a definition of a refugee and that’s basically the one that still applies in international law today.
The definition is that you have someone who is outside the country of nationality; someone who has a fear of persecution (they call it a well-founded fear). It’s both a subjective fear and also something that has a real chance of happening. The persecution referred to has to be for one of five reasons: race, religion, nationality, membership of a particular social group or a political affiliation.
So, the first point is that the international community came to use the word refugee in a precise way: that is of someone who has a fear of persecution, and is therefore unwilling or unable to go back home. The protection that the international community was prepared to give was actually fairly minimal. Its first basic obligation is not to return somebody who is a refugee. Now, I’ve gone into that kind of detail because the word refugee is limited to somebody who’s afraid of persecution. There are other reasons why persons run away. There can be flood or famine.
People might be fighting a war, or there could be civil disturbances, and there are plenty of other people with sound reasons to leave their country of origin. I think you have a spectrum: there are people with a desperate need to move. There are people who think life would be a bit more comfortable and pleasant in another place.
NW: What is the definition of a so-called “economic refugee”, as opposed to the definition of a refugee you have just given?
AK: Often you hear the papers use the term “economic refugee”, and I think it’s a fairly unsatisfactory term, because it fudges things, blurs things. Its got the use of the notion “refugee”, which is someone who fears persecution; and its got this “economic” component, which implies that people are just being prudent, so-to-speak, they think they will get more money elsewhere. But of course what happens in some parts of the world is that there is such devastating poverty, in the wake of war, or natural disasters, or political tyranny, that it is a just and understandable thing that they would want to leave and try to make a life somewhere else. According to the international community and international law, however, none of these people fit the definition of a refugee.
I suppose, morally speaking, the definition of refugee limited to a person fleeing persecution, goes some way, but it was a kind of practical limit the nations of the world were prepared to commit themselves to. Now in fact, Australia and many other countries say that if a refugee from persecution is in our territory we are obliged not to send him back. We will, however, voluntarily assist some other people, on humanitarian grounds, although we’ve become less generous over the last twenty years. We used to take about 20,000 combined refugee and humanitarian people a year. It’s now about 7,000, I think. That drop occurred mostly in the late ’80s or early ’90s.
That combined figure is what the government calls refugee and humanitarian. Essentially refugees are those running from persecution, that the government is legally bound to assist, while the humanitarian category are those the government feels inclined to assist, who are running from something else. For example, for many years we have been taking people displaced by the civil war in Somalia.
Another important distinction the government makes, is between offshore and onshore refugees. Put very simply, an offshore applicant is someone who isn’t in Australia, but applies to enter Australia from his or her home country or another country. Australia has no legal obligation to take anyone from offshore at all. But the vast majority of the people that we do take, say 7,000-8,000 a year, are offshore applicants.
The main reasons for that we are, firstly, a big island, and it is difficult for people to get here; and secondly, the government, like most governments, wants to be in control, and it is easier to control the influx this way. As you know, we have more deaths than births per annum, so the government is cheerfully prepared to bring people into the country. We can afford to be generous.
The onshore cases are much smaller in number. I’m not sure of the figures, but I would be surprised if it were more than a few hundred per year. None of the onshore people are humanitarian cases. Firstly, you have to apply for refugee status to the Department from within Australia. Because Australia is a signatory to the international agreement on refugees, we have an obligation under the treaty to respect a request for refugee status.
We’ve also enacted that legislation into domestic law, so that Section 36 of the Migration Act provides that there is to be a class of visa called protection visas, and the criterion for that is that you are someone that Australia has obligations to. This means that if you fit that definition of a refugee, you have a legal right to protection here in the form of a protection visa. You are likely to get rejected and you are most likely to get a decision within three months.
If you get rejected you can appeal to the Refugee Review Tribunal, which is supposedly an independent tribunal, with people appointed by the Governor General, under the Minister’s direction. If the tribunal is satisfied after looking at each case that an applicant has a well-founded fear of persecution, they will give you a visa. At the end of the process the vast majority of people are rejected, the percentage of those cases accepted is around five or ten per cent. In other countries, such as Canada and New Zealand the percentage of cases accepted is far higher. Around fifty per cent, I think.
NW: Do you think it right to detain illegal immigrants who arrive by sea?
AK: If you come to Australia on a boat without a visa, you will automatically be detained while your case is being determined. Now in the last month the Minister has apparently decided that some women and children do not have to be detained. But I can’t see any magic distinction between those who flee persecution at home by boat to Australia, and those who come into Australia, say on a work visa or a study visa, and then say, “I would like to stay because I fear persecution at home.” I cannot see that there is any necessity to protect Australia by detaining people who come by boat. It seems to me that if individual people are assessed to be a security risk that’s fair enough, but to detain a whole category of people just seems insane. It seems to me to be a kind of political grandstanding on the part of the government.
Other countries don’t find it necessary to detain people who enter without a visa. I don’t have the exact figures, but I’ve heard it said that at any one time there could be as many as 40-50,000 people here illegally, the vast majority of whom are short term over stayers, who in the end leave voluntarily. The rest are ultimately caught up with by the Department of Immigration and they’re either given a visa or their deported. I think in general, most people who are here without a valid visa can be taken care of without the need for detention. I don’t think the government could detain, anyway, all those who are here illegally.
NW: The term “queue-jumping” is often used for illegal immigrants. Do you think the term has any validity?
AK: Yes, its quite often used in newspapers, and used fairly indiscriminately. There is a distinction that can be made between those who move around the world voluntarily, and those who move because they’re desperate. For those who are fleeing persecution at home, war, poverty, etc., it seems to me unreasonable to accuse them of jumping the queue. Any sane human being in a desperate situation will try to leave it. The trouble for people who want instant reactions is that you can’t tell just by looking at somebody that here is somebody who is a cynical opportunist, someone who is just selfish and only looking to enrich themselves.
I think the phrase is often used at a pretty low level of the debate. I don’t think that it’s a helpful term. I accept that there are people who are not in desperate need, but who may think that they can buy their way in. But I also think there is a certain poignancy to all of that, given the recent attempt of the Pakistani man to burn himself to death in protest at the way in which immigration officials were handling his case.
I think it just illustrates the point at which frustration of people who may not be living under terrible persecution or in terrible poverty, but feel that their children, say, are missing out on opportunities that others enjoy, and they might know that they have little chance of getting approved for a visa to come here, and feel that the only way for a better life is to take such drastic measures. I find it hard to condemn such people.
NW: One argument put forward defending the Government’s current stance on illegal refugees is that it fears that vast numbers of people may be tempted to make the journey to Australia if they think we have a lenient policy towards such people. What do you think of this argument?
AK: I think that this Government, and the previous Federal Government, is more worried in theory about what might happen, with these hordes of people supposedly waiting to come from Asia, then has actually occurred in reality.
We have had two large influxes of people over the last 20 years: the Vietnamese boat people in the ’70s and ’80s; and the 30,000 or so Chinese students allowed to remain in Australia after the Tiananmen massacre of June 1989.
I think these incidents made many senior policy makers in the Department somewhat apprehensive, so since that time we’ve done things like sending Immigration officials to China, for example, to urge the Chinese to tighten-up their border controls.
I have a theoretical and a practical moral objection to the policy of detention. The practical objection is that it doesn’t really work. People who are desperate enough to get into a boat to cross the South China Sea to get to Australia, already know that it’s dangerous. They know the risks, but they are desperate enough to come regardless.
Perhaps they have unrealistic expectations about what they will find at the other end, but they know it’s dangerous. But they don’t seem to be coming in the great waves that some fear, and there seems little danger of Australia falling apart at the seems with so few coming here.
In fact there would be less strain on people if the Government didn’t detain people. The truth is that despite people’s perhaps understandable fears about illegal immigrants disappearing if they are released, this doesn’t actually happen to any significant extent.
The Department seems quite able to keep tabs on such people. And as I said, those who are found to be overstaying their visas usually leave voluntarily.