JRS paper: A Regional Response to Forced Migration

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A standardised system of regional protection will ensure more equitable responsibility-sharing for states and enhanced protection for refugees transiting through the Asia Pacific region.  

Refugees in Asia Pacific: an overview

With the lowest number of signatories to the 1951 Refugee Convention in the world, the Asia Pacific region offers paltry protection to people on the move. Consequently, the millions of refugees and asylum seekers who transit through this region or arrive here in the hope of finding safety face numerous and often insurmountable challenges.

Currently, the Asia Pacific region is home to around 8.4 million forcibly displaced people, and hosts one third of the world’s refugees – some 3.5 million people. These people represent a so-called ‘mixed flow’: some have been unsettled by conflicts and persecution; others seek economic survival or reunion with their family members, for example. What distinguishes them all is the fact that their movements are marked by fear, dangerous journeys, the experience of being smuggled or trafficked, and the risk of arrest and indefinite detention.

Without the right to work and in the absence of national asylum laws and standardised procedures for refugee status determination (RSD) across the region and the provision of safe pathways, refugees face an indefinite wait without any means of survival or the ability to legally become self-sufficient. Consequently, many of them feel compelled to seek assistance from people smugglers who facilitate their journey with an often empty promise of transporting them to a country that will willingly grant them asylum.

Since these people are at the mercy of the states on whose shores they land, it is incumbent upon these states to develop mechanisms aimed at addressing the inevitable flow of refugees in a principled and ethical way. However, states throughout the region, including Australia, have increasingly sought to seal their borders by stemming what they believe to be ‘pull factors’ – forces that draw people to a new location – by resorting to punitive measures such as offshore processing, detention, and bureaucratic processes that impede the filing of asylum claims. Australia’s own suite of policies – including offshore processing, mandatory detention, and the excision of all Australian territory from the migration zone – is deliberately designed to deter refugees from arriving by boat.

However, the problem lies not with the insecurity of Australian borders, but in the lack of durable solutions for refugees elsewhere in the region. The so-called ‘push factors’ (forces driving people from their homes) are often stronger than ‘pull factors.’ Curbing ‘pull factors’ therefore only leads to greater human rights violations and despair.

Why ‘Stopping the Boats’ and offshore processing is not a solution

The existence of people smugglers is a political reality that states have a genuine interest in eradicating, as exploitative practices preying on desperate people cannot be accepted in any law-abiding society. But the protection of asylum seekers should take precedence over the halting of boat arrivals and the punishment of people smugglers.

The Australian government has responded to boat arrivals by launching Operation Sovereign Borders (OSB), an overly simplistic and harsh military response to a complex international humanitarian problem. The deployment of battleships and the language of ‘war’ and ‘crime’, as used by the government, are both inappropriate and alarming. It falsely promotes a sense of urgency and justifies the need to mobilise billions of dollars’ worth of resources in response to what is only a perceived threat, thus allowing the government to respond in a manner that runs roughshod over people’s individual rights.

Of equal concern is the veil of secrecy that the Australian government has cast over its actions against asylum seekers attempting to reach Australia by boat. This lack of transparency on public policy effectively breaches Australians’ right to know what is being done in their name.

The problem with offshore processing

In addition to OSB, the government continues to transfer refugees who attempt to arrive by boat to Offshore Processing Centres (OPCs) on the impoverished and under-resourced Pacific nations of Nauru and Papua New Guinea (PNG).

While the UNHCR states that refugees should ‘ordinarily be processed in the territory of the State where they arrive’, it acknowledges that initiatives involving the transfer of people from one country to another for the purpose of processing their asylum claims are increasingly common and are acceptable if certain standards are met. In particular, any such arrangements should ‘be aimed at enhancing burden- and responsibility-sharing and enhance protection in the receiving state and strengthen regional cooperation’.

In light of UNHCR’s position, there are several fundamental problems with the establishment of OPCs on Manus Island and Nauru:

  • The current agreements with PNG and Nauru do not contribute to equitable responsibility-sharing in the region – in fact these arrangements are likely to been seen as ‘responsibility shifting’ that will undermine efforts to develop stronger cooperative links.
  • Manus Island and Nauru are not located along the usual route taken by refugees on their journey to Australia. Despite the huge and unnecessary costs involved in establishing and maintaining processing centres in remote locations, those refugees stranded in key transit countries still struggle to access refugee determination procedures. Ideally, regional processing centres would be located in host and transit countries where there are already a large numbers of refugees, such as in Malaysia, Indonesia and Thailand.
  • Conditions at both OPCs do not meet internationally recognised standards as outlined by the UNHCR and are intentionally punitive in nature.

Ideally people who seek protection in Australia should not be transferred from Australian territory to other nations for processing or protection unless there is a firm regional agreement that assures they will have equivalent rights and support in the countries to which they are transferred, and will be promptly resettled if found to be refugees.

In the absence of such a regional arrangement and the government’s refusal to close these centres, conditions must be immediately and dramatically improved. Refugees must be processed in a timely manner and processing must be conducted to the same high standard as in Australia. Refugee Status Determination at both OPCs must be rigorous, fair and transparent, with access to independent merits review or an appeal process assured.

The need for regional cooperation

OSB may have slowed the boats but it hasn’t solved the broader issue of the lack of protection further up-stream in host and transit countries. If Australia is to effect broad and long-term change, its core objective should not be to ‘stop the boats’; rather, it should join affected states in Asia Pacific to develop a regional approach which manages the movement of people and provides durable solutions for those in need of protection. It is essential that such an approach would place the protection of refugees ahead of national politics and border protection.

Until such time as a regional program is developed, refugees will be forced to solicit the services of smugglers so they can reach safety. If states fail to provide regular and safe pathways for those in need of protection, irregular and dangerous pathways will remain.

Alternatives: what would a regional arrangement look like?

The need for cross-border and regional collaboration has never been greater, and the last few years have seen a rising interest in such collaboration. However, the Association of Southeast Asian Nations (ASEAN) has proven to be an inadequate space in which to encourage the protection of refugee rights. More progress has been made under the Bali Process, a grouping of over 50 states and international organisations working to address people smuggling and trafficking.

Through the Bali Process, the UNHCR has promoted a Regional Cooperation Framework (RCF) to be used as a guide for states to collaborate on migration issues. Although it has been well received, the framework is non-binding. In the past Australia has been supportive of such initiatives; however, recent governments have at best been disinterested and, at worst, have actively undermined such processes.

One of the more successful examples of bilateral cooperation has been the Regional Cooperation Model (RCM), signed in 2001, between Australia and Indonesia in collaboration with the International Organisation for Migration (IOM). The aim is to support refugees to prevent them from onward movement to Australia.

Whilst this is a good example of how states and international organisations can collaborate in an attempt to increase support for refugees in transit countries, inevitably such agreements fail due to their limited scope, the absence of durable solutions and inability to address the broader movements of people without the involvement of other host, transit and resettlement countries.

As one of the most developed countries in the region, Australia has been well placed to protect refugees and take the lead in establishing a regional approach to forced migration. Unfortunately, perceived national security interests and the state of domestic politics have undermined its ability to lead by example.

The government’s self-declared priority to develop a ‘Regional Deterrence Framework’ ahead of a ‘Regional Cooperation Framework’ demonstrates that it is increasingly unlikely that Australia will spearhead efforts to develop a system that seeks to manage and protect the flows of vulnerable refugees through the region.

A regional blueprint

Putting aside states’ interest in cooperation, what would a regional approach to forced migration actually look like? Ideally, non-signatory states would sign the 1951 Refugee Convention and incorporate its provisions within domestic legislation and establish national systems to manage and process refugees arriving on their territory. However, whilst accession to the Refugee Convention for non-signatory states is a worthy long-term goal it is unlikely to occur in the near future.

This means that in the short term Australia and other signatory states must remain open to bilateral and multilateral agreements with non-signatory states, as long as those agreements meet internationally recognised standards of protection. Among the stipulations of such agreements would ideally be the following:

  • States should partner to develop a regional ‘protection-sensitive’ migration framework. Such a system could accommodate states’ concerns regarding security and border protection but must also consider the ‘human dimension’ affecting people’s decision to move. It is essential that any regional arrangement compliment and strengthen national systems and not become a substitute for state responsibility.
  • A regional approach must address the protection of refugees as they move through the region and must acknowledge that often their onward movement results from the lack of protection in transit countries.
  • Refugees should be recognised as distinct from other migrants. Therefore, a key component to any regional system is a standardised Refugee Status Determination procedure (RSD) across the region which is fair, transparent and efficient and is applied by all host and transit countries.
  • In the absence of domestic refugee frameworks and processes, the UNHCR must reduce and harmonise the waiting period for refugee recognition, and ensure that decisions are transparent and fair in accordance with UNHCR’s own procedural standards.
  • Additional funding from states such as Australia should be earmarked to increase the UNHCR’s capacity to register and process refugees; this would help to stabilise refugee communities and assist in preventing onward movement.
  • Refugees should be issued with temporary documents to avoid being detained under immigration laws, temporary work permits and access to public utilities, including schools and hospitals.
  • Funding for the provision of vital services such as healthcare, psychosocial support, legal assistance, and education should be increased, allowing civil society to play a role in strengthening refugee protection in host and transit countries. This would help to stabilise populations and reduce the need for refugees to use people smugglers.
  • States should develop and agree upon measurable criteria which divide responsibility based on their capacity to absorb asylum seekers, offer protection or support other states financially. States must clearly define their respective roles and responsibilities and introduce clear mechanisms for accountability.
  • Countries with a greater capacity to offer protection and resources, such as Australia, should share knowledge and expertise to help build the capacity of other states to process and integrate refugees into their communities.
  • Orderly departure programs for people fleeing refugee-producing countries should be established, similar to programs initiated in the 1980s under the Comprehensive Plan of Action (CPA) which was a largely successful regional response to the deaths of thousands of Vietnamese in boats at sea and which facilitated durable solutions for Indochinese refugees.
  • Finally, an inevitable part of any regional migration arrangement is the return of those found not to be refugees. Support and monitoring must be provided for those deemed not in need of international protection to ensure safe return.

Durable solutions 

In addition to assessing people’s claims for protection and improving conditions whilst they wait, a regional arrangement must also provide durable solutions for those recognised to be refugees. Traditionally there are three recognised durable solutions available to refugees: voluntary return, local integration and resettlement to a third country.

Due to the intractable and ongoing nature of many conflicts around the world, the prospect of voluntary return in the near future for many refugees is highly unlikely. Ideally, resettlement countries such as the US, Canada and Australia would consider increasing their quotas for humanitarian visas, and work towards decreasing the waiting time for resettlement for those waiting in transit countries.

The preference for resettlement is improbable given that only one percent of the world’s refugees are resettled. Even with a significant increase to the number of refugees resettled through Australia’s Refugee and Humanitarian Program –from 13,750 to 25,000, for example – resettlement will always remain a small, albeit important, component in any regional system designed to manage the flow of forced migrants in the region.

It is important that resettlement should be used strategically in that it strengthens protection in host countries for those who remain. One could argue that despite large-scale resettlement out of countries like Thailand and Malaysia, there has been little improvement in protection standards for those who remain. The fact that Australia has resettled thousands of refugees from these countries over the years can be used as leverage in persuading states to increase protection for the urban and camp-based refugees that remain.

We must avoid falling into the trap of defining ‘resettlement’ as a legitimate pathway to protection while labelling irregular movement ‘illegitimate’. It is a concerning trend that countries such as Australia want to trade off their obligations to those refugees arriving irregularly against a promise of increasing resettlement places for ‘genuine refugees’. A too-heavy focus on resettlement as the ‘only durable solution’ can undermine the principle of asylum.

If voluntary return is unlikely and resettlement numbers insufficient, then more attention must be placed on the often forgotten durable solution of local integration. Both governments and donor agencies tend to respond negatively to the notion of ‘local integration’ since it is easily confused with settlement and the finality that such a policy implies. At present, refugees and the programs developed to assist them are not regarded as valuable assets to countries of first asylum, or as a way of promoting human security.

Incentives to participate

Incentives for host and transit countries which encourage local integration will increase protection space in the region and support compliance with international standards of protection.

An example of this model might be a system which provides economic incentives, such as the provision of targeted foreign aid and access to skilled labour, to host and transit countries that agree to integrate some refugees. This could be combined with a renewed commitment from more wealthy and developed countries to share the responsibility – the resettlement of vulnerable refugees from those countries to wealthier resettlement countries. The result would be a mutually beneficial quid pro quo arrangement where for every skilled and able-bodied refugee locally integrated into a non-signatory state, a more vulnerable refugee is resettled in a country like Australia.

Not without its challenges, a system that matches the skills of those in need of protection with gaps in labour shortages in the region could be one strategy to create safer pathways to greater protection.

Conclusion

It is most likely that a comprehensive RCF envisioned by the Bali Process will take shape organically over several years through a series of bi-lateral and multi-lateral agreements between states in the region. These agreements can then be integrated, coordinated and aligned to form a more holistic and comprehensive regional arrangement.

In the meantime, Australia needs to move beyond three-word slogans, knee-jerk policy prescriptions and short-term political fixes – which do nothing to address the broader issue of irregular migration – and find pragmatic but principled alternatives to the status quo. It should form a bipartisan collaborative approach before engaging with other countries in the region, employing diplomacy and negotiating a system that prevents people smuggling but ensures refugees are protected and offered alternative pathways to safety.

A standardised system of regional protection, which is underpinned by principles of compassion and justice, will ensure more equitable responsibility-sharing for states and enhanced protection for refugees transiting through the Asia Pacific region. Refugee Determination Procedures should be fair, transparent and efficient, and a regional arrangement should provide durable solutions for those recognised to be refugees and support and monitoring for those deemed not in need of international protection to ensure safe return.

States’ respective roles and responsibilities vis-à-vis a regional framework must be clearly defined, and clear mechanisms for accountability must be introduced. Australia can play a leading role by increasing the number of refugees it resettles with the agreement that other states in the region do more to protect refugees on their own territory. Local integration should be encouraged through an incentive system.

Finally, there is no place for deterrence, deflection and containment in a regional approach to managing the flows of refugees. If refugees moving through the region can have their claims for protection assessed in an orderly and timely manner, and solutions can be found for those found to be refugees, then the harsh and punitive conditions in places like Manus and Nauru will become redundant.

By Oliver White, Head of Policy and Advocacy, Jesuit Refugee Service

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