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Exporting Australia's Asylum Policies

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By Bill Frelick and Michael Timmins

Australia has found a new export product: punitive asylum policies. Its overwrought reaction to asylum seekers arriving by boat has now taken hold of New Zealand's political leadership, who appear to be moving forward this month with a "mass arrivals" immigration bill that looks more like a scare tactic than a rational plan for accommodating a mass influx. The bill provides for the near-automatic detention for six months and beyond of so-called "mass arrivals" (11 people or more) by boat or other unscheduled craft who are "potentially illegal."

What mass arrivals? Notwithstanding 18th and 19th century Europeans who might have met the bill's "mass arrivals" definition, no modern-era boatload of asylum seekers has ever reached New Zealand. Even if one were to arrive, this would in no way overload New Zealand's existing asylum system. The hypothetical "risk" does not justify the abdication of principle.

The Refugee Convention, which both New Zealand and Australia have ratified, recognizes that refugees may need to enter a country illegally for protection and should not be punished on that account. But the New Zealand bill would treat asylum seekers differently depending on how they arrived. The policy, in effect, would discriminate against asylum seekers who do not have the means or opportunity to obtain passports, visas and airline tickets. Why?

New Zealand seems to be aping Australia, which has long maintained a policy of mandatory detention of "irregular maritime arrivals," and recently returned to the inhumane and discredited "Pacific Solution" of 2001-2007, which shunted boat people to Nauru or Manus Island, Papua New Guinea. The Pacific Solution was designed to discourage "queue jumpers" by isolating them on remote islands where they would not have access to legal and social support networks.

In explaining the rationale for the New Zealand bill, Immigration Minister Nathan Guy borrowed heavily from the rhetoric of Australian politicians John Howard, Julia Gillard and Tony Abbott when he declared that the purpose of the bill is "about sending a strong message that queue jumpers won't be tolerated, and people smugglers will not be rewarded."

Guy's statement, like similar ones from his Australian counterparts, is fundamentally flawed. First, there is no queue. Second, the legislation does, in effect, punish people who may, indeed, have genuine claims for refugee status, but who arrive irregularly by boat. The United Nations refugee agency, UNHCR, says that detention of asylum seekers should only be used as a last resort and only after a case-by-case assessment of its necessity. But Wellington, like Canberra, wants to use detention as a deterrent and as punishment for supposed queue jumping.

The reality is that New Zealand and Australia, already geographically isolated island states, have erected visa regimes and other legal barriers to make it almost impossible for asylum seekers to arrive spontaneously by air, with the consequence that many fleeing from Iraq, Iran, Afghanistan, Sri Lanka, Pakistan and Burma get stuck in Malaysia, Thailand and Indonesia -- none of which has ratified the Refugee Convention.

Human Rights Watch recently released a 143-page report, "Ad Hoc and Inadequate," on the difficulty of seeking or finding asylum in Thailand. As the title suggests, Thailand has no refugee law or consistent policy that provides for fair consideration of refugee claims or that allows basic rights for refugees such as freedom of movement and the right to work.

As in Thailand, asylum seekers and refugees in Malaysia and Indonesia are often trapped in a long waiting game. During years in limbo they have no legal status or right to work, and are often without adequate schooling for their children. Regarded as illegal immigrants, refugees and asylum seekers are subject to arrest by corrupt and abusive police and face the prospect of indefinite, protracted detention in deplorable conditions and, in some cases, deportation to the places where they fear being persecuted.

Far from being an orderly queue, those forced to wait in Thailand, Malaysia and Indonesia often face years of frustration, insecurity and hardship. Only a small fraction are eventually able to leave through orderly resettlement programs.

If the real concern is to reduce the market for people smugglers, then it makes sense to improve the conditions and access to rights in these non-signatory countries. Instead of exporting punitive asylum policies, Australia should lead by working to improve the capacity of other countries in the region to assess asylum claims and to protect refugees. Rather than tag along with Australia as it moves down the path of denial and deflected responsibility, New Zealand should work with Australia to build a regional co-operation framework that improves access to protection across Asia.

Bill Frelick is the director of the Refugee Program of Human Rights Watch in Washington, D.C. and the author of Ad Hoc and Inadequate. Michael Timmins is a human rights lawyer working in Bangkok, Thailand, and former senior fellow at the University of Melbourne Law School.