What is the Australian - US refugee swap deal?

I never thought I would ever find myself agreeing with a decision made by Donald Trump. But there is one decision he appears to have made, the outcome of which I agree with.

The decision is to honour the Australian / American refugee swap deal, an agreement made between Prime Minister of Australia, Malcolm Turnbull and the Obama administration late last year. While I agree with the outcome, in that it is good for those refugees who will be re-settled, I don’t agree with the reasons why a deal was needed in the first place. How did we end up at this point? For those not in the know, or who need a recap – here is a brief summary on what it is, and the history behind it.

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Under the deal, America would accept genuine refugees currently detained in offshore immigration processing centres on Manus Island (in Papua New Guinea) and Nauru – neither being Australian territory. The detainees were originally seeking asylum in Australia, travelling here by boat. However, before reaching Australian soil they were intercepted at sea and re-routed to offshore centres to await processing of their refugee status applications. They were not, and will never be, allowed into Australia even if they are found to be refugees. Instead they have been detained indefinitely offshore, some for many years.

In return, Australia will agree to accept Central American refugees based in American-backed detention centres in Costa Rica. The U.S. set up an arrangement last year for Costa Rica to temporarily host a number of Central American refugees while they are processed for re-settlement in the U.S. or elsewhere. The purpose of the arrangement was to offer asylum seekers a safe, temporary haven in Costa Rica and protect those most at risk by enabling them to flee dangerous countries such as Honduras, and also avoid trying to cross into the U.S. through Mexico.

Turnbull has been assured Trump will honour the deal, regardless of his staunch anti-immigration policies implemented in the last few days, including blocking access by refugees who come from ‘terrorist’ related countries. Most of the detainees in Manus and Nauru are from Syria, which would otherwise rule them out.

However, the whole deal itself begs the question – why won’t Australia just let these people in – into a country founded on immigration?

In recent years, Australia has had a staunch border control policy under which it proudly turns back boat loads of innocent people fleeing places of conflict – asylum seekers – trying to make their way to Australia and to be granted refugee status. They often come through Indonesia on overloaded boats run by operators wanting to make a buck from 'people smuggling'. Many boat people drown. During 2012, just before implementation of the latest policy, around 17,000 asylum seekers arrived in Australia by sea.

The policy is based on the premise that ‘you will never make it to Australia’. It is a policy that claims to maintain strict border controls, prevent people smugglers and loss of lives at sea. The essence is that while Australia accepts legal refugees (Australia took just under 12,000 refugees in 2015) it will not accept asylum seekers without a visa – and therefore turns back boats full of people attempting to gain refugee status by entering by sea.

Here steps in the concept of offshore processing – the detention of asylum seekers in locations outside of Australia while refugee applications are determined.

The Nauru and Manus Island centres are operated by independent contractors, with hundreds of thousands of dollars spent on their operations. However, detainees live in horrific conditions where abuse and mental suffering are rife. As at May 2015, there were a total of 1,577 people, including children, in regional processing centres. Almost 900 asylum seekers remain in the Manus Island detention centre, which was declared unconstitutional by Papua New Guinea courts last year and must be shut down.

The international community, including the United Nations and many human rights groups, has condemned Australia’s treatment of refugees in its offshore processing centres. The psychological damage to asylum seekers is well reported and evidenced by suicides and multiple cases of self-harm, including by children.

So I agree with the outcome of the deal for Australia – getting these asylum seekers and refugees out of the camps is a good outcome. But it begs the question – why didn’t Australia allow them on Australian soil in the first place?

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Under international law, Australia may not refuse to take in vulnerable persons who need to escape persecution – someone who meets the definition of refugee at law. A “refugee” is someone outside of their own country who fears persecution because of their race, nationality, membership of a particular social group or political opinion. It is a difficult definition to satisfy. It is irrelevant whether a person seeking refugee status enters a ‘safe’ country with or without a visa or authorisation, and whether by sea, land or air.

The upshot is that, as a signatory to the 1951 Refugee Convention, Australia must take in asylum seekers arriving by boat to determine whether they are refugees. Interestingly, while the proportion of boat arrivals has increased in recent years (until the most recent policy kicked in), these people arriving by boat are more likely to be granted refugee status than those arriving by air.

However, we are led by segments of the media to believe that these people are the ‘baddies’ – that what they are doing is wrong, illegal and should be stopped so as to stop deaths at sea and not fuel criminal people smuggling enterprises.

The thing is, what these people are doing – putting their own lives at risk in order to flee persecution and places where they genuinely fear for their lives – is not illegal. They are not bad people. For them, jumping on a rickety boat is the last resort and the alternative is likely dying in the place from where they fled. It is their international legal right to seek asylum and refugee status in Australia.

On its face Australia appears to be in breach of international laws and conventions by turning asylum seekers away and processing them offshore. Article 14 of the Universal Declaration of Human Rights (1948) upholds the right of every person to seek asylum in any country they can get to. In making it difficult for asylum seekers to reach Australia, the Government is essentially denying people that right.

Admittedly, I am unsure of the legal basis for these third-country processing agreements and how they operate to ensure Australia's obligations under international refugee conventions and laws are met. If anyone can enlighten me as to the advice the Government has received, I would be grateful.

While I am well aware of the international refugee crisis facing the world, and the subsequent floodgates argument, for a country as vast as Australia and one founded on immigrants to turn back a relatively small number of generally genuine asylum seekers, it seems inhumane not to even let these people set foot in Australia and process their application in local detention centres here. More often than not their claims are found to be legitimate and the question then is which country will accept the newly determined refugees.

For someone who is prepared to risk their life by travelling in such a high-risk manner to Australia – someone for whom the option of dying at sea is better than the future of where they are – if they make it to our shores surely the right thing to do is let them in?

So, instead of swapping refugees on Manus and Nauru with refugees in Costa Rica seeking asylum in America, why don't we just take the ones who have tried to get to Australia?

When Trump’s team claimed last year the deal shouldn't have been made in the first place, I agreed. Each country should fulfill its obligations at law and not rely on ‘swaps’. The Australian public is too smart to be brainwashed by the ‘turn back the boats’ policy and rhetoric – it’s time for Australia to lift its game and not shirk from its responsibilities.

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