Pearls and Irritations

Peter Hughes

  • TRAVERS McLEOD, PETER HUGHES, SRIPRAPHA PETCHARAMESREE, STEVEN WONG, TRI NUKE PUDJIASTUTI: Rohingya refugees and building a regional framework to manage refugee flows.

    Part 1.  The Andaman Sea refugee crisis a year on:  what happened and how did the region respond?

    The Andaman Sea crisis a year ago catalysed important policy developments on forced migration in Southeast Asia. Part one recaps what happened, and how the region responded. In part two, we discuss what’s happened since the crisis, and what’s needed to avoid similar events in future.

    Twelve months ago, events in the Andaman Sea exposed the grave reality of forced displacement in Southeast Asia. This culminated in a crisis meeting between governments in Thailand on May 29, 2015.

    More than 25,000 people had fled Myanmar and Bangladesh by boat. Around 8,000 were stranded at sea. Around 370 are believed to have died.

    The regional response was sorely inadequate. But, one year on, the region is showing signs it is determined to ensure similar crises are avoided.

    One million outsiders

    The Rohingya people have fled Myanmar and neighbouring Bangladesh by land and sea for decades. They are the largest-known group of stateless people in the world.

    An estimated one million Rohingya live in Rakhine State in Myanmar’s west. They are denied basic rights and subject to persecution.

    Bangladesh is home to between 300,000 and 500,000 Rohingya. But the United Nations High Commissioner for Refugees considers only around 30,000 to be refugees.

    Many of those fleeing have had no choice but to pay for their passage. In many cases this has led to exploitation at the hands of smugglers or traffickers. In recent years the scale and urgency of these movements have increased in response to growing oppression and violence.

    What happened a year ago?

    On May 1, 2015, a mass grave containing the remains of more than 30 bodies was discovered in the Sadao district of Thailand, a few hundred metres from the Malaysia border.

    On May 5, three Thai officials and a Myanmar national were arrested in Thailand for suspected involvement in human trafficking. Two days later more than 50 Thai police officers were reprimanded and a clean-up of suspected camps around the country was ordered.

    Interceptions of boats began. Thai, Malaysian and Indonesian authorities reportedly intercepted boats of asylum seekers and pushed them back out to sea. This led to smugglers and traffickers abandoning boatloads of people on the water.

    An estimated 6,000 Rohingya and Bengalis were stranded by May 12, most without food or water. Amid ongoing boat pushbacks, around 3,000 people were rescued by Indonesian and Malaysian local officials and fishermen, or swam to shore.

    On May 19, the Philippines offered assistance to the Rohingya and Bengali migrants.

    The following day, foreign ministers from Thailand, Indonesia and Malaysia met in Malaysia. The Indonesian and Malaysian ministers announced they would no longer push boats back out to sea. They agreed to offer temporary shelter, provided the international community resettled and repatriated the refugees within one year.

    Thailand did not sign onto the deal. Indonesia, Malaysia, Thailand, Bangladesh and Myanmar conducted search-and-rescue operations for those still stranded at sea. Thailand deployed navy vessels as floating assistance platforms.

    The international community, including Qatar, Saudi Arabia, Japan, Turkey, Gambia and the US, subsequently pledged financial support for relief, processing and resettlement. Some offered settlement places.

    Australia pledged A$4.7 million to support populations in Myanmar and Bangladesh. When asked whether any of the refugees would be settled in Australia, then-prime minister Tony Abbott infamously pronounced:

    Nope, nope, nope.

    On May 26, Malaysian police found the remains of almost 140 bodies, believed to be migrants from Myanmar and Bangladesh, in abandoned jungle camps near the Thai border. Police officials were detained on suspicion of being involved.

    Finally, on May 29, the Thai government convened a special meeting. Fifteen countries and key international organisations participated. They offered an immediate commitment to protect those at sea, announced plans to develop a comprehensive plan to address irregular migration, and agreed to tackle root causes over the long term.

    What the region has learned

    The collective leadership of the Thai meeting during the Andaman Sea crisis was welcome. But a one-off meeting should not be the norm for managing mass displacement events.

    Regional institutions and processes – ASEAN, the Bali Process and the Jakarta Declaration – were largely muted during the crisis. The lack of robust normative or policy frameworks to manage forced migration in the region was exposed. So too was a reticence to create “pull factors”, and the overall absence of protection-sensitive infrastructure.

    Tellingly, the Bali Process did not have functioning mechanisms for senior officials across the region to respond. A culture of consensus and non-interference left ASEAN relatively hamstrung.

    Bali Process ministers met in March 2016 for the first time since 2013. The outcome reached was significant. There will now be a formal review of the Andaman Sea crisis to draw on lessons learned and work to implement necessary improvements, including contingency planning and preparedness for potential large influxes.

    Just as important, a new regional response mechanism has been created. This authorises senior officials to consult and convene meetings with affected and interested countries in response to irregular migration issues or future emergency situations.

    Bali Process countries conceded individual and collective responses have been inadequate. The region is now in a position to broker more predictable and effective responses – even preventative action – to forced migration.

    These reforms responded to collective disappointment over the failure to act last May. They drew on ideas generated by the Asia Dialogue on Forced Migration.

    Importantly, reforms have also occurred in ASEAN, principally through its adoption of a Convention Against Trafficking in Persons, Especially Women and Children, and its renewed commitment to share expertise and development capabilities on regional disaster response mechanisms. This will be vital as climate-induced migration becomes more prevalent.

    There has been progress too – albeit limited – on root causes of the crisis. The election of the National League for Democracy as Myanmar’s ruling party has raised hopes the Rohingya people may eventually find a safer home in Rakhine State. And leadership from Indonesia in building schools there and continued pressure from the US continue to be vital.

    Regional leaders have started making the right noises, but must continue to take concrete steps.

     

    Part 2.  The Andaman Sea refugee crisis a year on:  is the region now better prepared.

    If progress toward a “fix” on future forced displacement crises such as that which took place in the Andaman Sea a year ago was measured in the number of regional meetings that have taken place, it would be plentiful.

    Since the temporary resolution of the crisis was announced on May 29, 2015, at the Special Meeting on Irregular Migration in the Indian Ocean in Bangkok, there have been an unprecedented number of meetings in the region.

    Where has this left us?

    Despite the promise of the Bali Process ministerial meeting outcome from March 2016, the sheer number of meetings hasn’t translated to concerted action.

    Meanwhile, not all commitments made during the Andaman Sea crisis have been honoured. And the global crisis shows no sign of abating.

    A year ago Indonesia and Malaysia agreed to:

    … provide humanitarian assistance and temporary shelter to those 7,000 irregular migrants still at sea provided that the resettlement and repatriation process [would be completed] in one year by the international community.

    A number of international donors assisted the two countries.

    Between May 10 and July 30, 2015, more than 5,000 people who departed from Myanmar and Bangladesh managed to disembark in Bangladesh, Indonesia, Malaysia, Myanmar and Thailand. Between September and December 2015 embarkations resumed. At least another 1,500 people left Myanmar and Bangladesh.

    Of the arrivals, 2,646 Bangladeshis were returned to Bangladesh. Another 1,132 Myanmar Muslims from Rakhine State and Bangladeshis continue to be housed in detention and shelters in Indonesia, Thailand and Malaysia. Of those still detained in Indonesia and Thailand, more than 95% are Rohingyas.

    Indonesia’s partnership with the UN High Commissioner for Refugees to verify the status of Rohingya and Bangladeshi arrivals in Aceh and Medan has been commended. So too has a draft presidential decree on handling asylum seekers, though this is still unsigned.

    But there are unconfirmed reports that a sizeable number of the Rohingya people who were rescued later disappeared from temporary camps, headed to Malaysia.

    Conditions in many detention facilities and shelters remain fraught. Tuberculosis infections in Malaysian facilities have prolonged processing. And earlier this week, Thai police reportedly shot and killed a Rohingya refugee who had fled the Phang Nga detention centre in southern Thailand with 20 other Rohingya men.

    The Malaysian and Indonesian governments have yet to clarify the status of those who remain.

    Progress on tackling the root causes of movement in Rakhine State has been continually frustrated despite glimmers of hope.

    The leader of Myanmar’s ruling party, Aung San Suu Kyi, recently requested “enough space” to resolve the issue at a joint press conference with US Secretary of State John Kerry. Yet, earlier this month, she asked the US ambassador to Myanmar to stop using the term “Rohingya”. Perhaps what Suu Kyi desires is “quiet diplomacy”.

    On the ground, few changes to the plight of the Rohingya are noticeable. So long as human rights violations in countries of origin and the root causes of forced migration are not solved, the flight and plight of those people will continue.

    Same old plan

    The plan agreed to in Bangkok last May, to prevent irregular migration, smuggling of migrants and trafficking in persons, was hardly revolutionary.

    Countries undertook, among other promises, to:

    • eradicate transnational organised crime smuggling and trafficking syndicates;
    • strengthen co-operation between law enforcement authorities and complementary data collection;
    • establish key national contact points; and
    • enhance legal, affordable and safe channels of migration.

    There was also a commitment to form a:

    … mechanism or joint taskforce to administer and ensure necessary support, including resources as well as resettlement and repatriation options from the international community.

    That taskforce has yet to be established, let alone convened, despite two follow-up meetings. Permanent resettlement places for those Rohingya who disembarked remain scarce.

    What’s more, framing continues to focus on the “irregularity” or “illegality” of such movements, even though they are now routine. The focus cannot be fighting crime over developing protection-sensitive infrastructure. It can be both.

    The most promising developments are the new consultation mechanism agreed by the Bali Process in March 2016, the creation of an ASEAN Regional Trust Fund to support victims of human trafficking, and the adoption in November 2015 of the ASEAN Convention Against Trafficking in Persons, Especially Women and Children.

    A New York moment?

    In September, US President Barack Obama and UN Secretary-General Ban Ki-moon will convene high-level summits in New York on refugees and migrants.

    The recent Bali Process outcome, if used strategically, could provide a platform and framework for a more functional and enduring system to be put in place before the next crisis. As Indonesian Foreign Minister Retno Marsudi said:

    This must not happen again.

    Our region is now in a position to broker more predictable and effective responses – even preventative action. Such promise must be translated into action.

    Forced migration is now a global phenomenon, identified by the World Economic Forum as the top global risk in terms of likelihood, and the fourth in terms of impact.

    Despite the many efforts and promises made, no comprehensive and systematic responses to irregular movements of people, especially those in need of international protection, have been instituted.

    Much of the focus has been on the Middle East and Europe, but Asian displacement is similarly confronting. Overall numbers of those displaced in Asia rose by 31% in 2014. Afghanistan remains the world’s second-leading producer of refugees. Climate-induced migration is expected to accelerate.

    Unless managed more effectively, forced migration will have permanent and intensifying negative impacts on countries in our region and globally.

    Experts around the world have begun advancing ideas for new migration pathways for those in humanitarian need, in addition to refugees. By September, plans for more robust architecture on forced migration will need to be more advanced. Countries in our region must not rest on their laurels.

    , Honorary Fellow in the School of Social and Political Sciences, University of Melbourne

     Visiting Fellow, Crawford School of Public Policy and Visitor, Regnet School of Regulation and Global Governance, Australian National University

    , Director of the International PhD Program in Human Rights and Peace Studies, Institute of Human Rights and Peace Studies, Mahidol University

    , Deputy Chief Executive, Institute of Strategic and International Studies

    , Researcher, Research Centre for Politics, Indonesian Institute of Sciences

    (more…)

  • Travers McLeod, Peter Hughes, Sriprapha Petcharamesree, Steven Wong, Tri Nuke Pudjiastuti. The Bali Process can do a lot more to respond to forced migration in our region.

    The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime will hold a full ministerial meeting in Bali this Wednesday. The meeting will bring together ministers from 45 member countries for the first time in three years.

    The global context for the meeting is the current levels of displacement. Sixty million people are displaced – the highest level since the second world war. And governments around the world are struggling to respond effectively.

    This is a critical opportunity for the Bali Process to rise to a new level. Ministers should not miss the chance to reach consensus on how best to respond to forced migration in the Asia-Pacific region.

    Similar causes, longer distances

    There is every sign the underlying causes of forced migration – war, repression, ethnic conflict, climate change displacement, societal exclusion and rampant human trafficking – will continue. What’s new is that displaced people who previously might have stayed and suffered in extremely difficult circumstances close to home now can – and do – move long distances across multiple borders in large numbers in the hope of alleviating their misery.

    Information about potential migration opportunities is available in the palm of their hand through smartphones. Travel is cheaper. Facilitators of clandestine movement (whether smugglers or corrupt officials) are readily available. Mobility can be related to transnational crime too, including illegal fishing and drug trafficking.

    Economic migrants seeking better opportunities also use the same routes and facilitators as forced migrants, and are often inextricably mixed up with them.

    In the Asia-Pacific, for the time being, most displaced populations are stable. However, the problem of exclusion and displacement of stateless Rohingya from Myanmar remains fundamentally unsolved. It can be expected to continue.

    The future stability of Afghanistan, the largest source of refugees over the past 30 years, remains uncertain.

    What is the Bali Process exactly?

    Australia and Indonesia set up the Bali Process in 2002. The role of Indonesian leadership in bringing a wide group of countries into the fold was vital.

    In a region where few countries are parties to the UN Refugee Convention and forced migration issues are managed almost exclusively on a self-interested national basis, it was a great leap forward.

    The process allowed a regional forum for source, transit and destination countries to discuss their respective roles and responsibilities for the forced movement of people. It led the charge on the criminalisation of people smuggling, allowing law enforcement agencies to work together to exchange information and best practices.

    The process facilitated limited discussion of refugee protection issues. The UN High Commissioner for Refugees (UNHCR) was a key participant. A Regional Support Office was established in Bangkok to provide support and expertise to regional governments.

    The Bali Process’ inclusive nature has given governments the confidence to participate, but its vast size and diverse membership meant that it has stopped short of direct action in relation to major incidents of displacement. Its role was very limited in the 2015 Andaman Sea crisis.

    Fourteen years after its establishment, this is not enough. The challenges are too big to be managed without more concerted co-operative action by its member countries.

    Lessons from Europe

    Europe’s attempts to deal with its refugee and migration crisis are instructive.

    A union of 28 developed countries that are all parties to the Refugee Convention, have well-developed asylum laws, a common asylum system developed over many years and sophisticated immigration and border management agencies, is floundering. The core problem is lack of agreement on a strategic approach to displacement, burden-sharing and its implementation.

    The Asia-Pacific is not immune to the challenges of mass displacement. A variety of scenarios could well lead to displacement on a similar scale.

    And yet very few countries in the region are parties to the Refugee Convention. Few have comprehensive national policies or legislation. National implementation capabilities are also limited.

    What could the Bali Process do?

    Regional solutions will be different from those in Europe because of different legal systems. They will also be different to those found by the region in the past.

    The response to the Indochinese refugee situation in the 1970s and 1980s highlighted the benefits of co-operative solutions, but its model reflected the unique strategic environment of the time.

    The starting point should be agreement on avenues for concerted – rather than unilateral – action to prevent displacement before it occurs and better manage it collectively if it happens. In practice, this means the Bali Process should take the lead in convening smaller groups of “most affected” countries to broker collective action on particular situations of displacement. If possible, preventative action would be even better.

    It also means the process should drive improvement in national and regional contingency planning to enable more predictable and effective responses to forced migration. It can also provide greater support to key member countries to develop the policies, legal systems and implementation capabilities to make these happen in ways that also provide an orderly system of protection.

    There are positive signs that the senior officials co-ordinating the Bali Process for ministers understand what needs to happen. Their recent meeting in Bangkok endorsed a set of proposals to go to ministers that embrace this core agenda.

    Some of their ideas drew on a Track II Dialogue on Forced Migration involving experts from Thailand, Malaysia, Indonesia, Australia, New Zealand, Myanmar, the UNHCR and the International Organisation for Migration.

    It remains to be seen whether ministers have the political will to take the Bali Process up to the next level. But if they don’t take this opportunity now, it’s highly likely they will be forced to do something under pressure down the track when a very large regional displacement crisis inevitably occurs.

    In the long run, different mechanisms may be needed to prevent and deal with displacement issues in the region, not least within ASEAN, which recently adopted a Convention Against Trafficking in Persons, Especially Women and Children. In the meantime, despite its limitations, the Bali Process is the main game in town.

     Travers McLeod, Honorary Fellow in the School of Social and Political Sciences, University of Melbourne

    Peter Hughes, Visiting Fellow, Crawford School of Public Policy and Visitor, Regnet School of Regulation and Global Governance, Australian National University

    Sriprapha Petcharamesree, Director of the International PhD Program in Human Rights and Peace Studies, Institute of Human Rights and Peace Studies, Mahidol University

    Steven Wong, Deputy Chief Executive, Institute of Strategic and International Studies

    Tri Nuke Pudjiastuti, Researcher, Research Centre for Politics, Indonesian Institute of Sciences.

    This article was first published in The Conversation on 21 March 2016.

  • Peter Hughes, Arja Keski-Nummi, John Menadue. Part 3: Settlement Policy and Services.

    This is a repost from 27/5/2015.

    3.1 Overview

    The migration process starts in earnest after a visa is given to a migrant. Its success or otherwise is determined after the person arrives in Australia and becomes part of the workforce and community.

    Australia, along with the other great traditional migration countries, has sought to smoothly integrate migrants into its multicultural society, by assisting them to become quickly productive through specialised assistance if necessary, and providing a relatively.

    3.2 Settlement Policy and Services

    Supporting migrant settlement is a cooperative effort between the Australian government and State/Territory and local government. The Australian government needs to work closely with other spheres of government to ensure that they are fully informed about migrant flows and their characteristics, especially the characteristics of new communities, so that they can make appropriate provision within their own jurisdictions.

    Although most permanent migrants are selected on the basis of qualities that will enable relatively quick and easy integration into the Australian economy and our multicultural society, some (such as humanitarian entrants and family stream migrants) will require specialised assistance for a short period to help them get started in Australian society.

    Australian governments should continue to maintain a suite of specialised services aimed at ensuring migrants who need assistance in acquiring English-language skills, dealing with initial settlement problems, connecting with mainstream government services and gaining employment get such assistance.

    English language capability is well recognised as being essential to gaining employment and wider social integration into the Australian community. Settlement programs need to give special emphasis to English language acquisition, especially soon after arrival, with a variety of access opportunities to suit the needs and circumstances of individual migrants. The programs should aim to bring migrants to a level of English consistent with their capability.

    More intensive services should be available to assist refugee and humanitarian entrants who may bring with them the legacies of war or other conflict and incarceration in refugee camps for years or decades. Such services might include on-arrival accommodation, initial orientation to Australia, and support for other refugee-specific health issues, including torture and trauma.

    For non-English-speaking migrants who are still acquiring English-language skills, and are unable to access commercial translating and interpreting services, governments should continue to provide targeted translating and interpreting assistance.

    The migration process progressively introduces people from many different national, regional, ethnic and linguistic backgrounds into Australian society. Initially, they may be relatively small communities dispersed across the Australian continent. It is important that settlement policy recognises and supports new communities in establishing themselves in Australia. Past experience has shown that effective leadership within new communities is absolutely vital to their quickly becoming productive. Settlement programs should provide financial support to develop community leadership and problem-solving to accelerate integration.

    There is considerable goodwill in the community towards new migrants in keeping with Australia’s long tradition of acceptance of migration. The Australian government should seek to harness the willingness of community groups to extend the hand of friendship and support with appropriately designed programs.

    Australian governments should continue to explore ways to introduce new migrants to Australian laws and social norms at appropriate parts of the visa, settlement and citizenship process.

    Ultimately, the benefits that any migrant gains from settlement services flow on to the wider community by making migrants more productive participants in the workforce more quickly and hastening their integration into a socially cohesive society.

    The effectiveness of migrant settlement programs should be regularly reviewed and evaluated to ensure that they are properly targeted and are having real impacts in improving the individual migrant settlement process.

    Specialised migrant services should operate as a bridge to broader mainstream services. The Australian government should continue to promote Multicultural Access and Equity[1] to ensure that its agencies are able to engage with Australia’s multicultural society effectively.

    3.3 Australian Citizenship Policy

    Since Australian citizenship first came into being on 26 January 1949, it has played an important role both as a national symbol for the Australian-born and in integrating millions of migrants formally into the Australian community. This parallels the citizenship policy approach taken by other great migrant receiving countries – the USA and Canada.

    Australian citizenship policy should continue to embody the following principles:

    • Australian citizenship, and the values that go with it, should be a unifying national symbol.
    • Australian citizenship policy should actively encourage the acquisition of Australian citizenship by permanent resident migrants, without unnecessary barriers, as part of building a cohesive multicultural society.
    • Acquisition of Australian citizenship should be based on close association with Australia, either through birth in Australia to an Australian citizen or permanent resident parent, descent from an Australian citizen parent or physical presence in Australia as a permanent resident.
    • Concessions to standard residential requirements should be permitted to permanent residents who have spent at least some time physically present in Australia, but only on a limited basis in special circumstances.
    • Australia should continue to permit its citizens to retain their Australian citizenship if they acquire another citizenship, in order to retain beneficial links with an Australian diaspora of over one million people.
    • Australian citizenship is strengthened by certainty; no citizen should be deprived of it except in circumstances where they are convicted of obtaining it by fraud and deprivation would not result in statelessness;
    • The process of deprivation of Australian citizenship should not be used as a substitute for criminal law to punish naturalised citizens for crimes committed after becoming an Australian citizen.

    The take-up rate of Australian citizenship by eligible permanent residents is estimated to be about 80%.[2] This is high by OECD standards and comparable to the citizenship take-up rate in Canada. Nevertheless, take-up rates vary between nationalities and there are significant numbers of eligible people who, for various reasons, have not yet taken up Australian citizenship.

    Australian governments should promote the values of Australian citizenship and its acquisition by permanent residents on an ongoing basis, with major promotions every few years in order to maintain the high Australian citizenship take up rate.

    Recognising that permanent residents are able to, and mostly do, stay and contribute to the Australian community throughout their lives, governments should resist the temptation to increase the existing limited differential between the rights of Australian permanent residents and citizens as a basis for promoting citizenship.

    Testing on aspects of knowledge of matters relating to Australian citizenship has been in existence since 2007 as a preliminary to the acquisition of Australian citizenship by migrants. It is uncertain whether this has had any concrete benefits or indeed adverse impacts on the take-up rate of Australian citizenship. Australian governments should ensure that any testing regime does not become a barrier to the acquisition of citizenship to people who will spend their lives in Australia and make an ongoing contribution to Australian society. Alternatives to testing should be made available to those who are uncomfortable with it and should be geographically accessible throughout Australia.

    The acquisition of Australian citizenship should continue to be made a celebratory event through public citizenship ceremonies conducted by local government or the Australian government.

    3.4 Australian Multicultural Policy

    Australian governments from both major political parties have endorsed broadly similar Australian multicultural policies since the 1980s, as have all Australian states and territories. Some states and territories have given multicultural policy legislative status.

    For a society as diverse as Australia’s, and largely built on immigration, a continued focus on multicultural policy is vital to social cohesion, migrant integration and community relations.

    Broadly speaking, all multicultural policies stress as a foundation that all Australians should be committed to the basic structures and principles of Australian society – our Constitution, democratic institutions, respect for the law and English as the national language. At the same time, the policies stress the right of all Australians to express their own cultures and beliefs, within the law, and the need to accept the right of others to do the same.

    Australian governments should continue to provide active leadership in articulating and disseminating multicultural policy as the foundation for a productive and harmonious society. This will not only make us a better society, but a more resilient one in resisting externally generated stresses and pressures. 

    3.5 Conclusion – Immigration, Refugee and Settlement Policy

    The policy approaches outlined in Parts 1, 2 and 3 constitute an integrated approach to future Australian immigration needs.

    They aim to enable Australia to continue to harness the opportunities of the global movement of people to its own national economic and social development. At the same time, they should better position Australia to deal with the growing challenges of forced and irregular migration by making a significant humanitarian contribution to contribution to global displacement, including through a generous refugee resettlement program.

    Pursuing these policies should also reinforce a united and resilient Australian society capable of resisting external and internal challenges to a harmonious community.

    They will contribute to a:

    • growing and prosperous Australia with a critical population mass to support the governance overheads of modern society
    • a skilled labour force attuned to Australia’s economic needs
    • a closer relationship with Australia’s regional neighbours
    • better management of displacement and irregular migration, including humanitarian solutions
    • a culturally diverse, confident and united society

    Peter Hughes is Visiting Fellow, Crawford School of Public Policy,

    Visitor, Regulatory Institutions Network, Australian National University

    Arja Keski-Nummi was formerly First Assistant Secretary of the Refugee, Humanitarian and International Division in the Department of Immigration

  • Peter Hughes, Arja Keski-Nummi and John Menadue. Part 2. Refugee Policy

    A repost from 26/05/15

    Part 2: Refugee Policy 

    2.1 Overview

    The current and future global environment for irregular migration is extremely challenging.

    Many more people are on the move globally to gain protection from persecution, security from conflict or greater economic opportunity – or a mixture of these things.

    The movement of people is being accelerated by growing awareness of the opportunities to move, new communications technology, cheaper transport and active facilitators.

    The United Nations High Commissioner for Refugees (UNHCR) states that global forced displacement of some 51 million people (17 million refugees, 33 million internally displaced persons and over one million asylum seekers) is at the highest level since the Second World War. There are many millions more people seeking migration opportunities for employment over and above the forced migration figures.

    Australia’s traditional engagement with this issue has been through our offshore humanitarian resettlement program, but over the past 15 years national policy debate has centred almost exclusively on the management of smuggled maritime asylum seekers. Australia experienced a flow of some 10,000 maritime asylum seekers, mostly from outside the region, in the period 1998–2007 and 50,000 in the period 2008–2013.

    The debate has divided Australian society and the net result has been the adoption of the harshest possible measures to disengage Australia from this flow of people.

    In the context of growing world displacement and people movement, Australia will remain an attractive destination.

    Policy responses by successive governments to date have focused on ‘quick fixes’ driven by political and community pressures. A more measured approach will be needed.

    One choice, advocated by many, would be to maintain open access for maritime asylum seekers and to accept the consequences. Experience in Australia and Europe indicates that this approach will attract very large numbers of both asylum seekers and economic migrants facilitated by people smugglers. The numbers coming to Australia reached 4,000 people in a single month in July 2013. There is no reason why they could not go much higher. Exploitation and deaths at sea, corresponding to the size of the movement, go with this inherently disorderly and unsafe movement. If significant flows of maritime asylum seekers to Australia resume from troubled developing countries, it is unlikely that many would return to their country of origin, irrespective of whether or not they are found to be refugees.

    If Australia does not want to accept renewed flows of maritime asylum seekers, it will need to make a long-term investment in global and regional management of protection and the movement of people. Australia cannot escape the phenomenon of global displacement and must re-engage with it.

    Existing solutions, which are heavily dependent on naval interdiction and small Pacific island nations, may not be sustainable in the long term.

    The demand for migration opportunities, whether forced or economically based, to Australia and other (developing and developed) countries is unlikely to be satisfied. Priorities will need to be set as to those most in need and how they can best be assisted.

    2.2 A Formal Policy on Refugees and Displacement

    At a strategic level, Australia needs to develop a formal policy on refugees and global displacement. The policy should integrate our responses to global and regional refugee issues, bringing together foreign policy, aid policy, the offshore humanitarian resettlement program and domestic asylum policy (including for both maritime and visaed arrivals). Interventions under this policy should tackle the root causes of refugee flows as well as their consequences.

    The global asylum system is under extreme pressure with host countries in both the developing and developed world struggling to cope. Many refugees are unable to get protection close to home and are subsequently exploited by people smugglers who fill a vacuum left by States. The situation is complicated by mixed flows of refugees and economic migrants.

    Australia can play a role at the global level in working with UNHCR and partner countries to develop new, more orderly and effective responses to the modern dynamics of people movement.

    At a regional level, Australia needs to be much more active in engaging regional partner countries to better manage the movement of people and develop a sense of collective responsibility in dealing with protection issues. Australian and regional partners should develop habits of routine consultation and action, based on agreed principles, in response to forced migration and other irregular movements of people in the region. This is a long-term task, as few countries in the region are parties to the 1951 Refugee Convention and few have strong national institutions for migration management.

    The regional policy aim, in partnership with UNHCR, would be to tackle root causes of displacement as well developing an improved system of refugee protection. An orderly regional system of protection should encourage asylum seekers to seek protection in a secure environment in countries of first asylum, closer to the country of origin, and have their future determined in those countries (whether it be local integration, international resettlement or return home).

    The policy should seek to provide protection and migration opportunities for those most in need and, by stabilising those populations, to minimise exploitation opportunities for people smugglers and irregular migration.

    In fostering and developing such a system, Australia should look beyond its own immediate interests and be willing to take an active role in solving the displacement problems affecting its neighbours. Australia should also recognise that its regional partners are unlikely to become parties to the Refugee Convention. Cooperative arrangements will need to be based on practical measures consistent with Refugee Convention practices.

    The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime has been an important vehicle to date in putting questions of protection, people smuggling and law enforcement on the regional agenda. In the longer term, Australian policy should work towards more targeted regional processes possibility involving ASEAN and/or sub-regional groupings.

    The work of government in developing better regional approaches should be complemented by a Track 2 Dialogue involving selected countries in the region and bringing together government policymakers with non-government experts in a “non-official” conversation on these matters. This will provide an opportunity for constructive dialogue and development of new policy approaches in this contested area of public policy.

    At the national policy level, Australia should draw on a range of policy tools in its interventions in global displacement.

    Foreign policy and development assistance can play an important role in tackling root causes of displacement as well as the willingness of countries in the region to stabilise displaced populations in first asylum or transit mode.

    The Humanitarian Program, which has been Australia’s traditional contribution to durable solutions, should be increased to a base, ongoing program of 20,000 places a year, reflecting growing global displacement and the need for Australia to do more. This would represent about 10% of Australia’s total annual permanent migrant intake. The program should be operated flexibly, allowing for significant one-off increases from time to time to deal with acute global crises or regional displacement of particular significance to Australia.

    The resettlement program needs to be accompanied by measures that foster good employment and integration outcomes for refugee arrivals.

    Each cohort of people moving in the region is different, reflecting protection needs, security from conflict, economic pressures or a combination of all of these. Australian government responses need to reflect the unique circumstances of each national group.

    Australian government policy should involve targeted use of other available tools to promote orderly migration, as appropriate, such as alternative migration pathways, “in-country humanitarian programs” and “orderly departure” arrangements from selected source countries.

    Asylum decision-making and review processes, whether for asylum seekers who are irregular maritime arrivals or those who arrive with visas by air, should be regularly reviewed and evaluated to ensure that they remain fair, quick and efficient. They must be tailored to deal appropriately with new protection issues that arise and the unique circumstances of different cohorts of asylum seekers.

    Irregular movements of asylum seekers by sea, following journeys across vast distances, facilitated by smugglers for commercial gain, are not in the interests of asylum seekers because of the inherent exploitation and danger. Nor are such movements in the interests of regional states. Australian policy should continue to discourage irregular movements by sea (except in the most limited circumstances where Australia is the logical first asylum country) and promote an orderly asylum system.

    Regional policy measures should help to provide satisfactory protection alternatives for asylum seekers, but the maritime people smuggling option cannot be allowed to remain open in parallel.

    Firm, but humane, action is needed here. The preferred approach would be for the Australian government to negotiate readmission agreements, under acceptable conditions, with transit countries such as Indonesia and Malaysia, which enable any people reaching Australia by sea to be safely returned to a transit country by air and have their future determined from that location. Acceptable conditions would include asylum seekers being permitted to remain in the community of the transit country, with asylum claims considered by UNHCR, and a pathway to local or international durable solutions for refugees. Such arrangements would be safer and more desirable than use of small Pacific countries and boat turnarounds on the high seas. If these mechanisms were seen to be effective, they would rarely need to be used. 

    2.3 Legacy caseload from 2008–2013 maritime arrivals

    Australia has a continuing responsibility to resolve the future the some 30,000 people who sought to arrive in Australia by sea in the period 2008-2013 and have not yet had final decisions on their refugee claim or resolution of their long-term immigration status.

    The first priority is to resolve the situation of the 1707 people in PNG and Nauru[1] most of whom are in detention in extremely difficult circumstances.

    The Australian government should work with local authorities in PNG and Nauru to expedite decision-making on asylum cases with a fixed deadline to finally decide all cases. Apart from those few people found to be refugees who may be able to settle effectively in PNG and Nauru, the Australian government should negotiate resettlement in third countries or, as a last resort, Australia. The assistance of UNHCR should be sought in final resolution of the caseload.

    A fixed deadline should also be set for primary and review decisions for the remaining maritime asylum seeker caseload in Australia. For those found to be refugees, the Australian government should recognise that it is unlikely that political conditions will improve in source countries in a way that will enable refugees to return home within the foreseeable future. It should therefore set a defined pathway to permanent residence and Australian citizenship.

    As noted in Part 1.6, the use of detention as an immigration tool should be minimised except for short periods for specified purposes. The Australian government should use its influence to ensure that detention facilities are of an acceptable standard in PNG and Nauru and that agreement is reached with those countries to enable the equivalent of Australian community detention arrangements while asylum cases in the regional processing centres remain unresolved.

    The Australian government should make arrangements for the repatriation of those found not to be refugees (or in need of complementary protection). Such returns are necessary to maintain the integrity of the protection system. Returns should be voluntary where possible, supported by reintegration assistance. In some circumstances involuntary returns will be necessary and these should be supported, where necessary, by written agreements with source countries.

    Peter Hughes is Visiting Fellow, Crawford School of Public Policy,

    Visitor, Regulatory Institutions Network, Australian National University

    Arja Keski-Nummi was formerly First Assistant Secretary of the Refugee, Humanitarian and International Division in the Department of Immigration and Citizenship 2007-2010.

    John Menadue was Secretary of the Department of Immigration and Ethnic Affairs, 1980-1983.

    [1] Department of Immigration and Border Protection, Immigration Detention and Community Statistics Summary, 31 March 2015

  • Peter Hughes, Arja Keski-Nummi and John Menadue. Part 1: Immigration Policy and Administration.

    This article and the two following articles were part of a policy series that was posted in May/June last year and subsequently published in book form ‘Fairness, Opportunity and Security’. This is a repost from 25/5/2015.

    Overview

    This paper sets out a broad design for Australia’s immigration, refugee and settlement policies for the coming decades.

    The issues are covered in three parts:

    1. Immigration Policy and Administration
    2. Refugee Policy
    3. Migrant Settlement and Citizenship Policy

    Part 1: Immigration Policy and Administration 

    1.1 Guiding Principles

    Australia’s planned immigration program has played a major role in Australia’s development over the last 70 years – directly adding 7 million people, including 800,000 humanitarian entrants, to Australia’s population and dramatically diversifying Australia from a predominantly Anglo-Celtic community to a multicultural society with more than 270 ancestries.

    Through immigration Australia has been able to gain some of the best human capital in the world to build a nation, as well as making a humanitarian contribution.

    Governments of both major parties have in recent years set Australia’s permanent migration programs at record levels in absolute terms and continue to do so (over 200,000 permanent migration and humanitarian visas planned in 2015–16). Temporary entry programs have also risen to unprecedented levels, well in excess of permanent visas.

    At the same time, however, public debate in Australia has been diverted to, and dominated by, the relatively narrow issue of asylum seekers arriving irregularly by sea.

    Immigration still has a major role to play in building Australia. It is important to our population, our economic development, to growing the workforce in an ageing society and to providing a population necessary to fund the overhead costs of a modern nation state occupying a huge continent.

    Based on a projection of the current permanent and temporary immigration framework, Australia’s population will increase to 38 million people in 2050. Without immigration, it would stagnate at about 24 million people. It is estimated that, based on the continuation of current policy settings, migration will have added 15.7% to our workforce participation rate by 2050 and 5.9% in GDP per capita growth.[1]

    Immigration also continues to play an important role in Australia’s ongoing integration with its near region by adding cultural and linguistic skills from regional neighbours that are important to Australia’s place in the Asian century.

    The benefits achieved through migration to date cannot be taken for granted. Many other countries are competing for relatively young, highly skilled, English-speaking internationally mobile people.

    In this context, Australia’s immigration policy needs to be reaffirmed and re-articulated for the coming decades to ensure that it continues to serve Australia as well in the future, as it has in the past.

    Australian immigration policy should be guided by the following principles:

    • Australia should continue to have a planned immigration program for nation building.
    • Australia’s immigration program should be in the national interest – serving economic needs, but also including generous components for entry of people based on close family connections and on refugee and humanitarian grounds.
    • Australia’s immigration program should continue to be based on objective selection criteria, which are non-discriminatory on the grounds of race or religion.
    • Australia’s immigration program should retain a core focus on migration for permanent settlement with a pathway to Australian citizenship. At the same time, it should recognise the massive growth in international mobility and make continuing provision for large-scale temporary migration, where it can meet national interests in economic, social, cultural and foreign policy areas.
    • Australian governments should continue to set annual permanent and temporary immigration targets and planning figures, including indicative figures for forward years, but these should be administered flexibly without inefficient micromanagement to achieve rigid targets.
    • Australian government planning should continue to document an optimum figure for net migration gain and use this as a key reference point in permanent and temporary migration program planning.
    • Australia’s immigration program planning should be supported by research into post-arrival outcomes of migration.
    • Australia’s immigration program planning should be supported by regular consultation with key stakeholders – States and Territories, business, unions, migrant groups and the broader community.
    • Australia’s immigration program should continue to be supported by targeted services to those migrants who need them, particularly refugees, to assist with early, productive settlement and integration into the community.
    • Australia’s immigration program should continue to be supported by an Australian citizenship policy which promotes early take-up of Australian citizenship to ensure that migrants become full and formal members of the Australian community.
    • Australian government leadership is needed to articulate a vigorous, inclusive and unifying multicultural policy in cooperation with State and Territory governments.

    1.2 Migration for Permanent Settlement

    Australian immigration policy should continue to foster migration for permanent settlement to meet economic, social and humanitarian objectives (the latter discussed Part 2: Refugee Policy).

    Migration to meet labour market needs should focus primarily on skilled workers with high-level, recognised professional, technical and trade qualifications. Programs should be designed to meet both long-term social capital needs to build a stronger skills base in the Australian workforce as well as short-term variable demand by employers.

    The permanent migration program should be designed to meet longer term needs and remain relatively steady over time, leaving demand driven temporary entry programs to adjust up and down with the economic cycle.

    Over the past decade, skilled people working in Australia under various temporary entry programs have increasingly become a feeder group into the permanent migration stream. Australian governments should continue to foster this approach where it meets the needs of the migration program and does not introduce perverse incentives into temporary entry programs.

    Australia should permit permanent residence on the basis of business ownership or general investment in the Australian economy on a strictly limited basis, after detailed evaluation of the outcomes of previous programs. It has proven difficult to measure the concrete benefits to Australia of this form of migration. It exposes Australia to risks inherent in “selling” visas, dubious sources of capital, extradition problems with wealthy migrants who subsequently become fugitives from justice without clear offsetting migration benefits or economic gains.

    The Australian government should establish advisory bodies, drawing on the skills of business, unions, demographers and State/Territory governments to design permanent and temporary entry programs that remain attuned to labour market needs.

    Australian immigration policy should continue to make provision for migration based on close family connections, particularly spouses, parents and dependent children.

    Policies in relation to spouse migration should continue to focus closely on the genuineness of relationships to ensure the integrity of this migration category. Adequate planning provision should be made to accommodate numbers of spouse visas consistent with Australia’s population growth and the greater interaction between the Australian community and foreign communities, rather than constraining spouse migration numbers with artificial ceilings and long processing times.

    Policies in relation to the migration of parents of previous migrants should recognise the natural wish of some migrants to be able to look after their parents in Australia, particularly in their later years. Given the high costs that people in this age profile may impose on government budgets, such migration should continue to require a commensurate financial contribution from Australian-based sponsors.

    Australia occupies a vast continent. States/Territories and regions have differing population, economic, labour market and social needs.

    To be successful, migration policies and criteria must continue to be sensitive to the specific needs of particular industries and geographic locations.

    State and Territory governments, regional governments and business should continue to be given the ability to sponsor migrants to meet their specific needs, while accepting responsibility for outcomes commensurate with their sponsorship of migrants.

    1.3 Temporary Migration

    Temporary entry programs have grown to unprecedented levels over the last decade.

    There were some 800,000 temporary entrants in Australia as at 30 September 2014 (excluding visitor visa holders, bridging visa holders and New Zealanders temporarily in Australia – which bring the total to some 1.8 million)[2]. The flow of temporary entrants such as temporary skilled migrants, students and working holiday makers is well in excess of the permanent migration and humanitarian program, reflecting increasing global mobility and Australian entry programs designed to meet specific economic, social and cultural objectives.

    Australia is in a position to continue to benefit from further growth in global mobility with well-designed, and internationally competitive, temporary entry programs, provided that the risks inherent in such programs are carefully mitigated.

    Temporary skilled migration is an important tool in meeting short term, fluctuating skilled labour market needs and should be expected to rise and fall relatively rapidly in contrast to a steadier long-term permanent migration program.

    Immigration policy should continue to enable responsible employers to sponsor foreign workers to meet short-term skilled labour market needs that cannot be met domestically. At the same time there must be program design safeguards to ensure that foreign workers are not less costly than available Australian workers and that there are sufficient protections built in to ensure that sponsors do not exploit foreign workers.

    Immigration policy should continue to facilitate the entry and stay of people who are seeking to study in Australia and depart at the end of their studies, as part of Australia’s education export and cultural exchange. The degree of facilitation should be closely related to the immigration risk factors. A high degree of scrutiny should be applied to those areas of the education system where abusive practices are evident.

    While immigration rules should provide access to permanent stay for foreign students, on the same basis as overseas applicants, there should be no guaranteed pathway to permanent residence for international students simply because of an Australian qualification. The export of education should be internationally competitive and stand on its own merits and not be subsidised by the permanent visa system.

         International education agents are in many cases the face of Australian education overseas. For consumer protection purposes, they should be subject to quality standards, registration and sanctions for misbehaviour in the same way that Australian migration agents are regulated.

    Immigration policy should continue to foster opportunities, on a reciprocal basis, for young people from selected countries to live and work in Australia for periods of one to two years under working holiday arrangements. Domestic labour market impacts, especially on Australian youth, should be monitored and evaluated. Potential abuses need to be quickly identified and policy should contemplate annual limits on visas if required.

    More recently, Australia has, on a small-scale, commenced assisting Pacific neighbours through targeted arrangements which enable temporary entry of seasonal workers in agricultural industries (the scheme is currently available to citizens of Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Timor-Leste, Tonga, Tuvalu and Vanuatu).

    Migration policy should leave scope for limited amounts of unskilled temporary migration in the context of Australia’s engagement with its region. Program design should ensure that such foreign workers are able to benefit financially from the arrangements without exploitation, that such arrangements remain competitive for employers who are unable to secure a consistent Australian labour supply and that the workers return to their countries of origin.

    As a general point, many temporary entry programs are more inherently susceptible to abuse. It must be recognised that many foreigners temporarily in Australia with work rights are more at risk to exploitation than Australian workers because of their unfamiliarity with the Australian system, lack of informed networks and/or poor English language skills. Australian government and State/Territory government authorities should cooperate to ensure that such workers are given information on their rights and access to easily usable complaint mechanisms. Workplace inspection authorities must be adequately resourced to monitor for abuses in the workplace and sanction employers. It should be a criminal offence for employers to charge temporary skilled workers for sponsorship for either temporary or permanent residence.

    Policies in relation to temporary migration should take account of the phenomenon of “circular migration” and foster this when it is in the national interest.

    Australian immigration policy should continue to facilitate genuine tourists to Australia with fast and flexible visa and stay arrangements carefully calibrated to reflect degree of immigration risk.

    1.4 New Zealanders

    Under policy introduced by the Australian government in 2001 (in the context of arrangements for a reciprocal social security agreement between Australia and New Zealand), New Zealand citizens can enter and live in Australia indefinitely without meeting globally applied visa criteria, but do not have permanent resident status. They cannot access a range of government services without qualifying for permanent residence by meeting global migration criteria.

    New Zealand citizens entering Australia on this temporary basis have an advantage over citizens of other countries in that they can freely enter and live in Australia, with access to the labour market, without meeting the permanent residence visa criteria applied globally to other nationals. As at 30 September 2014, there were over 650,000 New Zealand temporary residents in Australia[3] .

    Some of these New Zealand temporary residents are able to meet globally applied permanent visa criteria and become permanent residents with a pathway to Australian citizenship. Many others do not have the skills and other attributes that enable them to qualify. This is resulting in what is unique in Australian terms – a long-term temporary population, including Australian born children, without access to permanent residence and Australian citizenship.

    The Australian government should evaluate the outcome of the trans-Tasman migration arrangements, including the changes introduced in 2001, with a view to considering whether all New Zealanders should in future be subject to globally applied arrangements or whether existing arrangements should be retained and some concessional arrangements should be introduced to allow long-term New Zealand temporary residents to transition to permanent residence.

    1.5 Immigration Policy and Regional Engagement

    Permanent and temporary migration programs have over the years have played an important part deepening Australia’s engagement with its region.

    India and China are now the top two source countries of permanent migrants. Asia-Pacific countries figure prominently in temporary skilled worker numbers. Nine Asia-Pacific countries are in the top 10 source countries of overseas students. Four Asia-Pacific countries are in the top 10 working holiday maker source countries. Asia-Pacific countries figure prominently in overseas tourism and a number of them are given the most facilitated electronic visa arrangements which Australia offers globally[4].

    The most recent region-specific initiative has been the Pacific Seasonal Workers Scheme.

    Australia has already invested significantly in cooperative arrangements on important, but relatively narrow, border management and migration control matters with regional neighbours.

    At the multilateral level, Australia should be working to develop broader regional cooperative arrangements to ensure effective routine consultation and co-operation on management of migration within the region. This should include regular migration, irregular migration and refugee protection.

    On a bilateral basis, Australia should continue to look at opportunities to strengthen and deepen its regional ties through migration arrangements that are in the national interest – including greater facilitation of travel for citizens of selected regional neighbours, whether permanent or temporary skilled migration, working holiday arrangements, student entry, tourism or expansion of seasonal worker arrangements. 

    1.6 Program and Border Integrity

    Australia has been able to achieve high level of success and of community support for a planned immigration program (which operates at a much higher level than other traditional immigration countries on a per capita basis) over many years because of its ability to effectively regulate movements to Australia in the national interest, maintain integrity of programs and achieve a relatively low population of unlawful non-citizens.

    Well-developed entry policies, backed by a careful risk management approach, have enabled Australia to make the most of the world’s mobile talent and adjust to different potential source countries over time.

    These policies have been supported by effective border management and compliance programs. These capabilities should be maintained at a high level. At the same time, they should be regarded as “processes” in support of Australia’s global activities to gain the best social capital for Australia rather than an outcome in themselves.

    Effective intelligence, supported by domestic and international interagency cooperation is vital in responding to dynamic irregular migration, crime and security risks. Equally, domestic capability to enforce immigration law, including removal of people without lawful authority to stay, is vital to the integrity of programs and also to protecting migrants – especially temporary workers.

    Australian immigration authorities need to use a variety of tools to ensure compliance with immigration law. These tools should always be proportionate to the risk presented. The use of “held” detention, except for very short periods to deal with identity, health and security risks, or risk of absconding, should be avoided as far as possible because of unnecessarily harsh outcomes which usually follow for those held in detention. Detention of children should be avoided wherever possible and special arrangements should be made for them if short periods of detention are unavoidable.

    Alternatives to detention which enable immigration authorities to remain in touch with persons of interest who do not have authority to remain in Australia should be used wherever possible.

    Any use of detention needs to be subject to rigorous external scrutiny of detention facilities and conditions as well as case-by-case examination of the reasons for detention of individuals being held for more than a short period.

    1.7 Managing Migration – Australian Government Capability

    Effective immigration programs do not run themselves. Australia needs an ongoing national capability to achieve domestic and international goals in relation to migration.

    These capabilities include a strong policy capacity, backed by evidence based research and active evaluation of program outcomes to inform further policy. The most well-intentioned policies can have unintended consequences and these must be quickly identified and policy rectified.

    This policy capability should be supported by a strong service delivery and operational network overseas and within Australia, backed by the latest technology.

    The case for full integration of the Australian Customs functions with the Department of Immigration has never been convincingly made and no major unrealised synergies or efficiency gains identified.

    The Australian Government should revisit the existing administration model to consider whether any real gains have been achieved or whether Australian Customs should become an operational agency within the broader portfolio or separated from the Department of Immigration.

    One of the great strengths of the Australian immigration system until recently has been an integrated national administration which brings together entry policy, citizenship policy and post arrival settlement services. This has ensured a close feedback loop to entry policy based on the practical experiences and outcomes for different cohorts of migrants.

    The migrant and refugee post-arrival settlement programs transferred to other departments in 2013, including the Adult Migrant English Program, should be returned to the Department of Immigration and Border Protection.

    1.8 Australian, State/Territory and Local Government management of immigration outcomes

    Consistent with its nation building objective, Australia’s immigration program necessarily impacts all states and territories, although to different degrees.

    The Australian government should put in place mechanisms to ensure that State/Territory and local government are involved in short-term and long range migration planning. Immigration, whether permanent or temporary, brings prosperity, but it also brings with it the associated costs for expanding infrastructure. It is important that governments put the necessary processes are in place to ensure that infrastructure planning and implementation reflects population growth from migration and as well as natural increase.

    The success of Australia’s immigration program has always depended upon community confidence in the efficacy of the program and its benefits for the country. All levels of government need to take responsibility for public education on immigration and its benefits.

    Peter Hughes is Visiting Fellow, Crawford School of Public Policy,
    Visitor, Regulatory Institutions Network, Australian National University

    Arja Keski-Nummi was formerly First Assistant Secretary of the Refugee, Humanitarian and International Division in the Department of Immigration and Citizenship 2007-2010.

    John Menadue was Secretary of the Department of Immigration and Ethnic Affairs, 1980-1983.

    [1] Migration Council of Australia, The Economic Impact of Migration (2015)

    [2] Department of Immigration and Border Protection, Temporary Entrants and New Zealand Citizens in Australia as at 30 September 2014.

    [3] Department of Immigration and Border Protection, as above.

    [4] Department of Immigration and Border Protection

  • Peter Hughes. Designing a more generous Australian response to the Syrian crisis

    The Australian government announcement of 12,000 additional permanent places for Syrian refugees is a reasonable scale of response, if implemented the right way.

    Taken together with the existing program of 13,750 refugees, the new program constitutes a manageable 13% of the planned 2015–16 migration intake of 193,485 permanent visas. It is only 4% of the 632,000 people already in the country temporarily with work rights.

    The fact that the places are permanent is essential. There is no reason to believe that Syrian refugees will be able to return to their home country in the foreseeable future.

    However, the lack of detail in the Prime Minister’s announcement suggests that the decision was taken very quickly and in the absence of any planning or readiness for action.

    For example, it is not clear over what period the 12,000 will be taken. To have immediate impact, the resettlement initiative should begin quickly and be completed within the current financial year.

    Implementation is vital.

    Fifteen years ago, the Howard government arranged for the emergency evacuation of 4000 Kosovars from Europe to Australia.

    The tipping point for intervention in that crisis was television coverage of masses of Kosovars stranded on a European border, unable to return home or to move forward.

    The evacuation was arranged in a matter of weeks as a result of Herculean efforts by a small task force in the then Department of Immigration. That task force, with government backing, found ways to accelerate all the usual requirements to respond to an emergency situation.

    The television images of a small boy washed up on a European shore have been the tipping point in Australian attitudes to the unimaginably large a crisis of displacement from Syria.

    It is surely possible for Australia to not only match what it was able to do 15 years ago, but to do even better in relation to a much larger crisis.

    There is no doubt that quick implementation presents significant challenges. However, sometimes a crisis is big enough to warrant imaginative arrangements outside the norm. A whole of government approach, including the cooperation of security agencies, would be necessary to speed up all of the required processes. It should be possible for a       forward-leaning Australian Public Service to do this. State and Territory government help will also be important.

    It is surely possible to devise a set of arrangements that evacuates very quickly smaller numbers of people in the greatest need of relocation, initially on a temporary basis, with later conversion to permanent status. The numbers could be ramped up to 12,000 over the balance of the financial year.

    It is a pity that the announcement contained the sting in the tail of a focus on resettlement of minorities, such as Christians. It is not clear what message this is designed to send. There is no doubt that threatened minorities should be part of the expanded intake. However, it is invidious for a multicultural society like Australia to select refugees primarily based on religious or cultural backgrounds. This should not form the basis for our choices.

    The advice of UNHCR should be taken in prioritising those who could most benefit from Australian resettlement.

    Some commentators say that taking more people would make no difference to the total problem. It would certainly make a big difference for those who came to Australia. Like the Howard government’ s Kosovar exercise, it would also show solidarity with those countries which are making even larger efforts and set an example to others to do more.

    It is clear that resettlement places will not be available for the 11 million Syrians who have been displaced, but greater resettlement will certainly ease some pressures.

    In this context, the decision to provide an additional $44 million for refugee agencies is welcome. Increased global contribution to the underfunded programs of the United Nations High Commissioner for Refugees is essential to provide better living conditions for those Syrians who cannot be resettled and stabilise them in safety in current locations.

    Peter Hughes is a Visiting Fellow, Crawford School of Public Policy, Visitor, Regulatory Institutions Network, ANU. He was formerly Deputy Secretary, Department of Immigration and Citizenship.

     

     

     

     

     

     

     

     

     

     

     

     

     

    Peter Hughes

    9 September 2015

  • Peter Hughes. Subsidising foreign investment with visas.

    Current Affairs

    Visas which give wealthy business people and investors a pathway to permanent residence and Australian citizenship through various forms of investment have been around for many years. The new twist, under the Government’s recently announced ‘complying investments‘ for the Significant Investor Visa, is to channel some money out of safe investments and into venture capital and start-ups.

    The $5 million worth of investment that a foreign investor must make in Australia to qualify for a visa must now include at least $500,000 in eligible Australian venture capital or private equity funds investing in start-ups and small private companies. The Government expects to increase this to $1 million for new applications within two years. In addition, at least a further $1.5 million of the $5 million total must go into in eligible managed funds or listed companies that invest in emerging firms.

    Some commentators, including venture capitalists, have applauded the move. On the other hand, migration agents reportedly have concerns over whether their clients will see this requirement as too risky and turn their attention to other countries. The Government has tried to manage this by only requiring 10% of the total investment to go into the highest risk investments.

    One wonders why, if these investments are truly desirable, they cannot stand on their merits and attract sufficient capital without the need to effectively subsidise them by offering visas and a pathway to Australian citizenship as an incentive to foreign investors. Alternatively, why aren’t broader-based non-visa options being pursued to attract venture capital, such as a HECS-style loans scheme?

    The changes also raise the broader question of the effectiveness of migration schemes to attract wealthy business people and investors.

    Australia has experimented with variations of such schemes over several decades. State and Territory governments are attracted to them in the hope of bringing foreign business talent and money into their economies.

    The traditional migrant ‘bargain’ with the host country is that he or she contributes their skills, resources, physical presence and family to that country’s future in return for permanent residence and access to citizenship and its benefits. However, because of their wealth, business and investor migrants have a lot more scope and flexibility to gain benefits without making much contribution.

    The Australian Parliament’s Joint Standing Committee on Migration, in its March 2015 Report of the Inquiry into on the Business Innovation and Investment Programme, struggled to find any substantive benefits, noting in the Foreword that ‘the data provided by the Government was limited and furnished little evidence that the programme was actually meeting any of its objectives.’

    And yet the risks are substantial. Migration schemes for business people attract a disproportionate number of applicants from a small number of countries, usually countries where it is difficult to verify all aspects of the background of the individuals and the sources of their wealth. China was by far the largest source country for the over 6000 visas granted in the Government’s Business Innovation and Investor programs in 2013-14.

    There is an ever present risk of attracting people of character concern who will, down the track, be the subject of criminal investigations in the source country and embarrassing extradition proceedings. There is also the risk of attracting ‘hot’ money, borrowed money and dubious financial arrangements.

    Then there is the underlying public suspicion about wealthy people ‘buying’ their way into Australia. One of the earliest schemes, the ‘Business Migration Program’, was terminated following a critical report of the Joint Committee of Public accounts in 1991 , including concerns about the role private migration agents had been given in the system.

    Despite all these dilemmas, Australia probably has to compete with other countries and have at least a limited facility for interested business people to migrate permanently. It is untenable to say that a genuinely interested wealthy business person cannot settle here in the way that a skilled migrant can.

    However, policy and administration in this area need to be tightly controlled and the results closely monitored to ensure there is a real benefit for the country. The trick for governments is to find a set of rules that lock in the benefits for Australia without scaring away most of the genuine migrants. Scams that undermine the integrity of this element of the immigration program must be quickly identified and terminated.

    Without careful scrutiny, there is a good chance that any new arrangements will end in tears, like some of their predecessors.

    Peter Hughes was formerly Deputy Secretary of the Department of Immigration and Citizenship. This article was first published by the Lowy Interpreter.

  • Peter Hughes. The War on Australian Citizenship

    Current Affairs

    It’s hard to be sure when the “War on Terror” became the war on Australian citizenship.

    I think it started in March 2014 when the Independent National Security Legislation Monitor was persuaded to recommend in his report[1] that the Minister for Immigration and Border Protection be given the power to revoke the Australian citizenship of dual citizens on national security grounds.

    Even though the idea of dealing with Australian Jihadists by revoking their Australian citizenship has been around since then, there has not been a convincing sense of urgency or clarity about it as an effective solution. The Prime Minister announced the government’s commitment to implement the idea in February 2015 and announced it again last week, but no legislation has yet been introduced into Parliament.

    Public discussion to date has shown that the idea is extremely problematic in terms of its actual effectiveness against the Jihadist problem, the processes to be used to make revocation decisions and the collateral damage it would do to the status of Australian citizenship.

    The crucial details of the proposal are still not available for scrutiny.

    In a statement with the Orwellian title of “Measures to Strengthen Australian Citizenship”, the Prime Minister describes in very broad terms who will be the targets of the proposed citizenship revocation powers.

    However, neither the actions nor personal affiliations that will make Australians the target of citizenship revocation are clearly specified. The statement refers to people who fight with or “support” groups “such as” ISIL or Daesh.

    Nor does the statement tell us what impact adopting these extraordinary measures would actually have either in terms of stopping the return of Jihadists or removing any from Australia.

    Australian dual nationals are said to be the primary target, but the prime Minister is reported as saying that only 40 to 50 per cent of the Australian jihadists fighting overseas appear to be dual nationals. The actual nationalities have not been stated publicly.

    The government already has powers to restrict their movement through cancellation of travel documents. Revocation of Australian citizenship might be a further barrier to return of some Jihadists, but it would still leave them at large to engage in further political violence.

    In terms of the domestic targets of such legislation, the statement is silent as to the extent of their dual nationality. Even if the Australian citizenship of dual citizens of concern in Australia could be revoked, this does not necessarily mean that they would leave Australia. For example, in some cases, foreign governments refuse to accept their own nationals back if the person concerned does not want to return voluntarily. Citizenship solutions are not as easy as they look.

    The government has compared its proposed new powers to the existing provision in the Australian Citizenship Act 2007 which mandates automatic loss of citizenship when an Australian dual citizen serves in the armed forces of a country at war with Australia. However, unlike the current proposals, the test in the existing legislation is crystal clear and relates to facts which are objectively verifiable.

    And then there is the question of how a decision to take away Australian citizenship would be made. Existing Australian citizenship policy sets a high bar for revocation. Before revocation of the citizenship of a naturalised citizen can even be considered by the Minister, the person must have been convicted of a serious offence (primarily fraudulent acquisition of citizenship) committed before becoming an Australian citizen. Offences committed after becoming a citizen are a matter for the criminal law.

    The process proposed by the government by which an Australian would lose citizenship is that the decision would be at the discretion of the Minister for Immigration and Border Protection (presumably based on intelligence information). This is an extraordinary weakening of the status of Australian citizenship, even if judicial review is available. It is also the thin end of the wedge. There are other crimes which might be considered equally repulsive as those the government has targeted.

    The completely new proposition, put up for public comment (meriting only one paragraph of a seven page discussion paper) of depriving an Australian of citizenship when they don’t actually have the citizenship of another country, but “there is reasonable grounds to believe the person is able to become a national of another country” is just a recipe for statelessness.

    The government’s arguments for these measures have been backed up by references to similar powers being available in the United States, United Kingdom, France and New Zealand. However, it appears that what is proposed in Australia goes beyond what these countries have done.[2]

    In summary, the government has not made a convincing case that a wide ministerial discretion to deprive Australians who are in some way connected with terrorism of their Australian citizenship is going to have any serious impact on the problem. However, there is no doubt that the availability of such a power would dramatically weaken the status and certainty of Australian citizenship.

    Prosecution and incarceration of Australian citizens breaching Australian law on terrorism is the only thing that will keep them out of circulation. If criminal law standards for this type offence are the problem, why not look at them rather than targeting something as fundamental as our Australian citizenship?

    One thing is sure, ISIS is already winning a victory on this because they have got us discussing proposals that would have us reduce the certainty of Australian citizenship to something comparable to that of a tourist visa.

    Peter Hughes, Visiting Fellow, Crawford School of Public Policy.
    Visitor, Regulatory Institutions Network.

    This piece was first published on Policy Forum, the website of the Pacific Policy Society: http://www.policyforum.net/the-war-on-australian-citizenship/

    [1] Annual Report of the Independent National Security Legislation Monitor, Brett Walker SC, 28 March 2014

    [2] http://theconversation.com/proposals-to-strip-citizenship-take-australia-a-step-further-than-most-42398

  • Peter Hughes. Citizenship Revocation: a very limited tool in the fight against Jihadists

    This is a repost of an article by Peter Hughes which appeared on 20 February 2015.  This repost is relevant in light of recent discussion on revocation of citizenship.

     

    Liberal Federal MP, Andrew Nikolic, has put back on the agenda the question of changing the law on Australian Citizenship revocation as part of the fight against Australian Jihadists.[1]

    He writes:

     “…the issue of state citizenship – particularly that of dual nationals – will be an increasingly important battleground in the continuing War on Terror”

    “Those who persist in associating themselves with terrorist causes must be identified and wherever possible ejected from the state.”

    Current Australian Citizenship law sets a high bar for revocation. Before it can even be considered, the person must have been convicted of a serious offence (primarily, fraudulent acquisition of citizenship) committed before becoming a citizen. Offences committed after becoming a citizen are a matter for the criminal law and are not a basis for revocation of citizenship.

    To deal with the Jihadist problem, the government already has available to it criminal sanctions as well as the ability to withhold or cancel travel documents (as opposed to the substantive status of Australian Citizenship) to limit their ability to travel.

    So, what difference would it make to the Jihadist cause if the Australian government could revoke Australian Citizenship for those who are dual nationals?

    In practice, it would likely be a very limited tool.

    There is little or no public information which tells us whether or not the Jihadists about whom our security agencies are concerned are dual nationals. If they are not, the proposed change in the law would be irrelevant.

    Then there’s the question of nature the “offence” that would lead to citizenship revocation and the process by which revocation would take place.

    Nikolic targets”those who persist in associating themselves with terrorist causes” and writes about “letting our law enforcement and intelligence agencies act on the basis of reasonable suspicion”.

    These are very loose tests and to adopt them would seriously weaken the certainty and status of Australian Citizenship.

    Assuming for a moment that the citizenship of some dual nationals of concern in Australia could be revoked, this does not necessarily mean that they would leave Australia. One course open to them may be to rid themselves of their second citizenship by renouncing it so that they were no longer dual nationals. In some cases, foreign governments refuse to accept their own nationals back if the person concerned does not want to return voluntarily.

    If the person is outside Australia when their citizenship is revoked, return to Australia is prevented, but the government already has some capacity to prevent this with denial of Australian travel documents. Either way, the individual would be free to pursue extremist causes and political violence elsewhere.

    Nikolic cites the fact that some foreign governments, including the United Kingdom, have changed their citizenship law to use it against extremists. It is unclear whether this has made any substantive difference to extremist behaviour in the UK or elsewhere.

    Australia is a country of immigration and Australian Citizenship has, since its inception in 1949, played an important role in integrating newcomers into society.  Easy deprivation of Australian Citizenship on loose criteria, without due process, would seriously devalue it. Why bother to become an Australian Citizen if it can be taken away on suspicion? Some communities would definitely feel targeted by such legislation and their sense of alienation would be increased rather than diminished.

    The Australian government is right to be concerned about the activities of violent Jihadists and to be considering its options.

    However, it would be very wise to consider carefully the efficacy of any changes to citizenship law, and possible collateral damage, before deciding to use revocation as a tool.

    Prosecution, conviction and incarceration of those who have broken Australian law are likely to be much more effective weapons. Domestic programs to reduce the likelihood of radicalisation, as well as denial of travel documents to those seeking to travel abroad to pursue violent extremism, also have an important part to play.

    Peter Hughes is a former Deputy Secretary, Department of Immigration and Citizenship. He is now Visiting Fellow, Crawford school of Public Policy, ANU.

    This article first appeared in The Lowy Institute Interpreter.

    [1] “Let’s Confront Passports to Terror”, Andrew Nikolic, page 12 , The Australian, 16 February 2015.

  • Peter Hughes, Arja Keski-Nummi, John Menadue. Part 3: Settlement Policy and Services.

    Fairness, Opportunity and Security.
    Policy series edited by Michael Keating and JohnMenadue. 

    3.1 Overview

    The migration process starts in earnest after a visa is given to a migrant. Its success or otherwise is determined after the person arrives in Australia and becomes part of the workforce and community.

    Australia, along with the other great traditional migration countries, has sought to smoothly integrate migrants into its multicultural society, by assisting them to become quickly productive through specialised assistance if necessary, and providing a relatively.

    3.2 Settlement Policy and Services

    Supporting migrant settlement is a cooperative effort between the Australian government and State/Territory and local government. The Australian government needs to work closely with other spheres of government to ensure that they are fully informed about migrant flows and their characteristics, especially the characteristics of new communities, so that they can make appropriate provision within their own jurisdictions.

    Although most permanent migrants are selected on the basis of qualities that will enable relatively quick and easy integration into the Australian economy and our multicultural society, some (such as humanitarian entrants and family stream migrants) will require specialised assistance for a short period to help them get started in Australian society.

    Australian governments should continue to maintain a suite of specialised services aimed at ensuring migrants who need assistance in acquiring English-language skills, dealing with initial settlement problems, connecting with mainstream government services and gaining employment get such assistance.

    English language capability is well recognised as being essential to gaining employment and wider social integration into the Australian community. Settlement programs need to give special emphasis to English language acquisition, especially soon after arrival, with a variety of access opportunities to suit the needs and circumstances of individual migrants. The programs should aim to bring migrants to a level of English consistent with their capability.

    More intensive services should be available to assist refugee and humanitarian entrants who may bring with them the legacies of war or other conflict and incarceration in refugee camps for years or decades. Such services might include on-arrival accommodation, initial orientation to Australia, and support for other refugee-specific health issues, including torture and trauma.

    For non-English-speaking migrants who are still acquiring English-language skills, and are unable to access commercial translating and interpreting services, governments should continue to provide targeted translating and interpreting assistance.

    The migration process progressively introduces people from many different national, regional, ethnic and linguistic backgrounds into Australian society. Initially, they may be relatively small communities dispersed across the Australian continent. It is important that settlement policy recognises and supports new communities in establishing themselves in Australia. Past experience has shown that effective leadership within new communities is absolutely vital to their quickly becoming productive. Settlement programs should provide financial support to develop community leadership and problem-solving to accelerate integration.

    There is considerable goodwill in the community towards new migrants in keeping with Australia’s long tradition of acceptance of migration. The Australian government should seek to harness the willingness of community groups to extend the hand of friendship and support with appropriately designed programs.

    Australian governments should continue to explore ways to introduce new migrants to Australian laws and social norms at appropriate parts of the visa, settlement and citizenship process.

    Ultimately, the benefits that any migrant gains from settlement services flow on to the wider community by making migrants more productive participants in the workforce more quickly and hastening their integration into a socially cohesive society.

    The effectiveness of migrant settlement programs should be regularly reviewed and evaluated to ensure that they are properly targeted and are having real impacts in improving the individual migrant settlement process.

    Specialised migrant services should operate as a bridge to broader mainstream services. The Australian government should continue to promote Multicultural Access and Equity[1] to ensure that its agencies are able to engage with Australia’s multicultural society effectively.

    3.3 Australian Citizenship Policy

    Since Australian citizenship first came into being on 26 January 1949, it has played an important role both as a national symbol for the Australian-born and in integrating millions of migrants formally into the Australian community. This parallels the citizenship policy approach taken by other great migrant receiving countries – the USA and Canada.

    Australian citizenship policy should continue to embody the following principles:

    • Australian citizenship, and the values that go with it, should be a unifying national symbol.
    • Australian citizenship policy should actively encourage the acquisition of Australian citizenship by permanent resident migrants, without unnecessary barriers, as part of building a cohesive multicultural society.
    • Acquisition of Australian citizenship should be based on close association with Australia, either through birth in Australia to an Australian citizen or permanent resident parent, descent from an Australian citizen parent or physical presence in Australia as a permanent resident.
    • Concessions to standard residential requirements should be permitted to permanent residents who have spent at least some time physically present in Australia, but only on a limited basis in special circumstances.
    • Australia should continue to permit its citizens to retain their Australian citizenship if they acquire another citizenship, in order to retain beneficial links with an Australian diaspora of over one million people.
    • Australian citizenship is strengthened by certainty; no citizen should be deprived of it except in circumstances where they are convicted of obtaining it by fraud and deprivation would not result in statelessness;
    • The process of deprivation of Australian citizenship should not be used as a substitute for criminal law to punish naturalised citizens for crimes committed after becoming an Australian citizen.

    The take-up rate of Australian citizenship by eligible permanent residents is estimated to be about 80%.[2] This is high by OECD standards and comparable to the citizenship take-up rate in Canada. Nevertheless, take-up rates vary between nationalities and there are significant numbers of eligible people who, for various reasons, have not yet taken up Australian citizenship.

    Australian governments should promote the values of Australian citizenship and its acquisition by permanent residents on an ongoing basis, with major promotions every few years in order to maintain the high Australian citizenship take up rate.

    Recognising that permanent residents are able to, and mostly do, stay and contribute to the Australian community throughout their lives, governments should resist the temptation to increase the existing limited differential between the rights of Australian permanent residents and citizens as a basis for promoting citizenship.

    Testing on aspects of knowledge of matters relating to Australian citizenship has been in existence since 2007 as a preliminary to the acquisition of Australian citizenship by migrants. It is uncertain whether this has had any concrete benefits or indeed adverse impacts on the take-up rate of Australian citizenship. Australian governments should ensure that any testing regime does not become a barrier to the acquisition of citizenship to people who will spend their lives in Australia and make an ongoing contribution to Australian society. Alternatives to testing should be made available to those who are uncomfortable with it and should be geographically accessible throughout Australia.

    The acquisition of Australian citizenship should continue to be made a celebratory event through public citizenship ceremonies conducted by local government or the Australian government.

    3.4 Australian Multicultural Policy

    Australian governments from both major political parties have endorsed broadly similar Australian multicultural policies since the 1980s, as have all Australian states and territories. Some states and territories have given multicultural policy legislative status.

    For a society as diverse as Australia’s, and largely built on immigration, a continued focus on multicultural policy is vital to social cohesion, migrant integration and community relations.

    Broadly speaking, all multicultural policies stress as a foundation that all Australians should be committed to the basic structures and principles of Australian society – our Constitution, democratic institutions, respect for the law and English as the national language. At the same time, the policies stress the right of all Australians to express their own cultures and beliefs, within the law, and the need to accept the right of others to do the same.

    Australian governments should continue to provide active leadership in articulating and disseminating multicultural policy as the foundation for a productive and harmonious society. This will not only make us a better society, but a more resilient one in resisting externally generated stresses and pressures. 

    3.5 Conclusion – Immigration, Refugee and Settlement Policy

    The policy approaches outlined in Parts 1, 2 and 3 constitute an integrated approach to future Australian immigration needs.

    They aim to enable Australia to continue to harness the opportunities of the global movement of people to its own national economic and social development. At the same time, they should better position Australia to deal with the growing challenges of forced and irregular migration by making a significant humanitarian contribution to contribution to global displacement, including through a generous refugee resettlement program.

    Pursuing these policies should also reinforce a united and resilient Australian society capable of resisting external and internal challenges to a harmonious community.

    They will contribute to a:

    • growing and prosperous Australia with a critical population mass to support the governance overheads of modern society
    • a skilled labour force attuned to Australia’s economic needs
    • a closer relationship with Australia’s regional neighbours
    • better management of displacement and irregular migration, including humanitarian solutions
    • a culturally diverse, confident and united society

     

    Peter Hughes is Visiting Fellow, Crawford School of Public Policy,

    Visitor, Regulatory Institutions Network, Australian National University

    Arja Keski-Nummi was formerly First Assistant Secretary of the Refugee, Humanitarian and International Division in the Department of Immigration and Citizenship 2007-2010.

    John Menadue was Secretary of the Department of Immigration and Ethnic Affairs, 1980-1983.

     

    [1] https://www.dss.gov.au/our-responsibilities/settlement-and-multicultural-affairs/programs-policy/multicultural-access-and-equity

    [2] Department of Immigration and Citizenship, Citizenship in Australia (October 2010)

  • Peter Hughes, Arja Keski-Nummi and John Menadue. Part 2. Refugee Policy.

    Policy Series  

    Part 2: Refugee Policy 

    2.1 Overview

    The current and future global environment for irregular migration is extremely challenging.

    Many more people are on the move globally to gain protection from persecution, security from conflict or greater economic opportunity – or a mixture of these things.

    The movement of people is being accelerated by growing awareness of the opportunities to move, new communications technology, cheaper transport and active facilitators.

    The United Nations High Commissioner for Refugees (UNHCR) states that global forced displacement of some 51 million people (17 million refugees, 33 million internally displaced persons and over one million asylum seekers) is at the highest level since the Second World War. There are many millions more people seeking migration opportunities for employment over and above the forced migration figures.

    Australia’s traditional engagement with this issue has been through our offshore humanitarian resettlement program, but over the past 15 years national policy debate has centred almost exclusively on the management of smuggled maritime asylum seekers. Australia experienced a flow of some 10,000 maritime asylum seekers, mostly from outside the region, in the period 1998–2007 and 50,000 in the period 2008–2013.

    The debate has divided Australian society and the net result has been the adoption of the harshest possible measures to disengage Australia from this flow of people.

    In the context of growing world displacement and people movement, Australia will remain an attractive destination.

    Policy responses by successive governments to date have focused on ‘quick fixes’ driven by political and community pressures. A more measured approach will be needed.

    One choice, advocated by many, would be to maintain open access for maritime asylum seekers and to accept the consequences. Experience in Australia and Europe indicates that this approach will attract very large numbers of both asylum seekers and economic migrants facilitated by people smugglers. The numbers coming to Australia reached 4,000 people in a single month in July 2013. There is no reason why they could not go much higher. Exploitation and deaths at sea, corresponding to the size of the movement, go with this inherently disorderly and unsafe movement. If significant flows of maritime asylum seekers to Australia resume from troubled developing countries, it is unlikely that many would return to their country of origin, irrespective of whether or not they are found to be refugees.

    If Australia does not want to accept renewed flows of maritime asylum seekers, it will need to make a long-term investment in global and regional management of protection and the movement of people. Australia cannot escape the phenomenon of global displacement and must re-engage with it.

    Existing solutions, which are heavily dependent on naval interdiction and small Pacific island nations, may not be sustainable in the long term.

    The demand for migration opportunities, whether forced or economically based, to Australia and other (developing and developed) countries is unlikely to be satisfied. Priorities will need to be set as to those most in need and how they can best be assisted.

    2.2 A Formal Policy on Refugees and Displacement

    At a strategic level, Australia needs to develop a formal policy on refugees and global displacement. The policy should integrate our responses to global and regional refugee issues, bringing together foreign policy, aid policy, the offshore humanitarian resettlement program and domestic asylum policy (including for both maritime and visaed arrivals). Interventions under this policy should tackle the root causes of refugee flows as well as their consequences.

    The global asylum system is under extreme pressure with host countries in both the developing and developed world struggling to cope. Many refugees are unable to get protection close to home and are subsequently exploited by people smugglers who fill a vacuum left by States. The situation is complicated by mixed flows of refugees and economic migrants.

    Australia can play a role at the global level in working with UNHCR and partner countries to develop new, more orderly and effective responses to the modern dynamics of people movement.

    At a regional level, Australia needs to be much more active in engaging regional partner countries to better manage the movement of people and develop a sense of collective responsibility in dealing with protection issues. Australian and regional partners should develop habits of routine consultation and action, based on agreed principles, in response to forced migration and other irregular movements of people in the region. This is a long-term task, as few countries in the region are parties to the 1951 Refugee Convention and few have strong national institutions for migration management.

    The regional policy aim, in partnership with UNHCR, would be to tackle root causes of displacement as well developing an improved system of refugee protection. An orderly regional system of protection should encourage asylum seekers to seek protection in a secure environment in countries of first asylum, closer to the country of origin, and have their future determined in those countries (whether it be local integration, international resettlement or return home).

    The policy should seek to provide protection and migration opportunities for those most in need and, by stabilising those populations, to minimise exploitation opportunities for people smugglers and irregular migration.

    In fostering and developing such a system, Australia should look beyond its own immediate interests and be willing to take an active role in solving the displacement problems affecting its neighbours. Australia should also recognise that its regional partners are unlikely to become parties to the Refugee Convention. Cooperative arrangements will need to be based on practical measures consistent with Refugee Convention practices.

    The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime has been an important vehicle to date in putting questions of protection, people smuggling and law enforcement on the regional agenda. In the longer term, Australian policy should work towards more targeted regional processes possibility involving ASEAN and/or sub-regional groupings.

    The work of government in developing better regional approaches should be complemented by a Track 2 Dialogue involving selected countries in the region and bringing together government policymakers with non-government experts in a “non-official” conversation on these matters. This will provide an opportunity for constructive dialogue and development of new policy approaches in this contested area of public policy.

    At the national policy level, Australia should draw on a range of policy tools in its interventions in global displacement.

    Foreign policy and development assistance can play an important role in tackling root causes of displacement as well as the willingness of countries in the region to stabilise displaced populations in first asylum or transit mode.

    The Humanitarian Program, which has been Australia’s traditional contribution to durable solutions, should be increased to a base, ongoing program of 20,000 places a year, reflecting growing global displacement and the need for Australia to do more. This would represent about 10% of Australia’s total annual permanent migrant intake. The program should be operated flexibly, allowing for significant one-off increases from time to time to deal with acute global crises or regional displacement of particular significance to Australia.

    The resettlement program needs to be accompanied by measures that foster good employment and integration outcomes for refugee arrivals.

    Each cohort of people moving in the region is different, reflecting protection needs, security from conflict, economic pressures or a combination of all of these. Australian government responses need to reflect the unique circumstances of each national group.

    Australian government policy should involve targeted use of other available tools to promote orderly migration, as appropriate, such as alternative migration pathways, “in-country humanitarian programs” and “orderly departure” arrangements from selected source countries.

    Asylum decision-making and review processes, whether for asylum seekers who are irregular maritime arrivals or those who arrive with visas by air, should be regularly reviewed and evaluated to ensure that they remain fair, quick and efficient. They must be tailored to deal appropriately with new protection issues that arise and the unique circumstances of different cohorts of asylum seekers.

    Irregular movements of asylum seekers by sea, following journeys across vast distances, facilitated by smugglers for commercial gain, are not in the interests of asylum seekers because of the inherent exploitation and danger. Nor are such movements in the interests of regional states. Australian policy should continue to discourage irregular movements by sea (except in the most limited circumstances where Australia is the logical first asylum country) and promote an orderly asylum system.

    Regional policy measures should help to provide satisfactory protection alternatives for asylum seekers, but the maritime people smuggling option cannot be allowed to remain open in parallel.

    Firm, but humane, action is needed here. The preferred approach would be for the Australian government to negotiate readmission agreements, under acceptable conditions, with transit countries such as Indonesia and Malaysia, which enable any people reaching Australia by sea to be safely returned to a transit country by air and have their future determined from that location. Acceptable conditions would include asylum seekers being permitted to remain in the community of the transit country, with asylum claims considered by UNHCR, and a pathway to local or international durable solutions for refugees. Such arrangements would be safer and more desirable than use of small Pacific countries and boat turnarounds on the high seas. If these mechanisms were seen to be effective, they would rarely need to be used. 

    2.3 Legacy caseload from 2008–2013 maritime arrivals

    Australia has a continuing responsibility to resolve the future the some 30,000 people who sought to arrive in Australia by sea in the period 2008-2013 and have not yet had final decisions on their refugee claim or resolution of their long-term immigration status.

    The first priority is to resolve the situation of the 1707 people in PNG and Nauru[1] most of whom are in detention in extremely difficult circumstances.

    The Australian government should work with local authorities in PNG and Nauru to expedite decision-making on asylum cases with a fixed deadline to finally decide all cases. Apart from those few people found to be refugees who may be able to settle effectively in PNG and Nauru, the Australian government should negotiate resettlement in third countries or, as a last resort, Australia. The assistance of UNHCR should be sought in final resolution of the caseload.

    A fixed deadline should also be set for primary and review decisions for the remaining maritime asylum seeker caseload in Australia. For those found to be refugees, the Australian government should recognise that it is unlikely that political conditions will improve in source countries in a way that will enable refugees to return home within the foreseeable future. It should therefore set a defined pathway to permanent residence and Australian citizenship.

    As noted in Part 1.6, the use of detention as an immigration tool should be minimised except for short periods for specified purposes. The Australian government should use its influence to ensure that detention facilities are of an acceptable standard in PNG and Nauru and that agreement is reached with those countries to enable the equivalent of Australian community detention arrangements while asylum cases in the regional processing centres remain unresolved.

    The Australian government should make arrangements for the repatriation of those found not to be refugees (or in need of complementary protection). Such returns are necessary to maintain the integrity of the protection system. Returns should be voluntary where possible, supported by reintegration assistance. In some circumstances involuntary returns will be necessary and these should be supported, where necessary, by written agreements with source countries.

    Peter Hughes is Visiting Fellow, Crawford School of Public Policy,

    Visitor, Regulatory Institutions Network, Australian National University

    Arja Keski-Nummi was formerly First Assistant Secretary of the Refugee, Humanitarian and International Division in the Department of Immigration and Citizenship 2007-2010.

    John Menadue was Secretary of the Department of Immigration and Ethnic Affairs, 1980-1983.

     

     

    [1] Department of Immigration and Border Protection, Immigration Detention and Community Statistics Summary, 31 March 2015

  • Peter Hughes, Arja Keski-Nummi and John Menadue. Part 1. Immigration Policy and Administration.

    Fairness, Opportunity and Security
    Policy series edited by Michael Keating and John Menadue.

    Overview

    This paper sets out a broad design for Australia’s immigration, refugee and settlement policies for the coming decades.

    The issues are covered in three parts:

    1. Immigration Policy and Administration
    2. Refugee Policy
    3. Migrant Settlement and Citizenship Policy

    Part 1: Immigration Policy and Administration 

    1.1 Guiding Principles

    Australia’s planned immigration program has played a major role in Australia’s development over the last 70 years – directly adding 7 million people, including 800,000 humanitarian entrants, to Australia’s population and dramatically diversifying Australia from a predominantly Anglo-Celtic community to a multicultural society with more than 270 ancestries.

    Through immigration Australia has been able to gain some of the best human capital in the world to build a nation, as well as making a humanitarian contribution.

    Governments of both major parties have in recent years set Australia’s permanent migration programs at record levels in absolute terms and continue to do so (over 200,000 permanent migration and humanitarian visas planned in 2015–16). Temporary entry programs have also risen to unprecedented levels, well in excess of permanent visas.

    At the same time, however, public debate in Australia has been diverted to, and dominated by, the relatively narrow issue of asylum seekers arriving irregularly by sea.

    Immigration still has a major role to play in building Australia. It is important to our population, our economic development, to growing the workforce in an ageing society and to providing a population necessary to fund the overhead costs of a modern nation state occupying a huge continent.

    Based on a projection of the current permanent and temporary immigration framework, Australia’s population will increase to 38 million people in 2050. Without immigration, it would stagnate at about 24 million people. It is estimated that, based on the continuation of current policy settings, migration will have added 15.7% to our workforce participation rate by 2050 and 5.9% in GDP per capita growth.[1]

    Immigration also continues to play an important role in Australia’s ongoing integration with its near region by adding cultural and linguistic skills from regional neighbours that are important to Australia’s place in the Asian century.

    The benefits achieved through migration to date cannot be taken for granted. Many other countries are competing for relatively young, highly skilled, English-speaking internationally mobile people.

    In this context, Australia’s immigration policy needs to be reaffirmed and re-articulated for the coming decades to ensure that it continues to serve Australia as well in the future, as it has in the past.

    Australian immigration policy should be guided by the following principles:

    • Australia should continue to have a planned immigration program for nation building.
    • Australia’s immigration program should be in the national interest – serving economic needs, but also including generous components for entry of people based on close family connections and on refugee and humanitarian grounds.
    • Australia’s immigration program should continue to be based on objective selection criteria, which are non-discriminatory on the grounds of race or religion.
    • Australia’s immigration program should retain a core focus on migration for permanent settlement with a pathway to Australian citizenship. At the same time, it should recognise the massive growth in international mobility and make continuing provision for large-scale temporary migration, where it can meet national interests in economic, social, cultural and foreign policy areas.
    • Australian governments should continue to set annual permanent and temporary immigration targets and planning figures, including indicative figures for forward years, but these should be administered flexibly without inefficient micromanagement to achieve rigid targets.
    • Australian government planning should continue to document an optimum figure for net migration gain and use this as a key reference point in permanent and temporary migration program planning.
    • Australia’s immigration program planning should be supported by research into post-arrival outcomes of migration.
    • Australia’s immigration program planning should be supported by regular consultation with key stakeholders – States and Territories, business, unions, migrant groups and the broader community.
    • Australia’s immigration program should continue to be supported by targeted services to those migrants who need them, particularly refugees, to assist with early, productive settlement and integration into the community.
    • Australia’s immigration program should continue to be supported by an Australian citizenship policy which promotes early take-up of Australian citizenship to ensure that migrants become full and formal members of the Australian community.
    • Australian government leadership is needed to articulate a vigorous, inclusive and unifying multicultural policy in cooperation with State and Territory governments.

    1.2 Migration for Permanent Settlement

    Australian immigration policy should continue to foster migration for permanent settlement to meet economic, social and humanitarian objectives (the latter discussed Part 2: Refugee Policy).

    Migration to meet labour market needs should focus primarily on skilled workers with high-level, recognised professional, technical and trade qualifications. Programs should be designed to meet both long-term social capital needs to build a stronger skills base in the Australian workforce as well as short-term variable demand by employers.

    The permanent migration program should be designed to meet longer term needs and remain relatively steady over time, leaving demand driven temporary entry programs to adjust up and down with the economic cycle.

    Over the past decade, skilled people working in Australia under various temporary entry programs have increasingly become a feeder group into the permanent migration stream. Australian governments should continue to foster this approach where it meets the needs of the migration program and does not introduce perverse incentives into temporary entry programs.

    Australia should permit permanent residence on the basis of business ownership or general investment in the Australian economy on a strictly limited basis, after detailed evaluation of the outcomes of previous programs. It has proven difficult to measure the concrete benefits to Australia of this form of migration. It exposes Australia to risks inherent in “selling” visas, dubious sources of capital, extradition problems with wealthy migrants who subsequently become fugitives from justice without clear offsetting migration benefits or economic gains.

    The Australian government should establish advisory bodies, drawing on the skills of business, unions, demographers and State/Territory governments to design permanent and temporary entry programs that remain attuned to labour market needs.

    Australian immigration policy should continue to make provision for migration based on close family connections, particularly spouses, parents and dependent children.

    Policies in relation to spouse migration should continue to focus closely on the genuineness of relationships to ensure the integrity of this migration category. Adequate planning provision should be made to accommodate numbers of spouse visas consistent with Australia’s population growth and the greater interaction between the Australian community and foreign communities, rather than constraining spouse migration numbers with artificial ceilings and long processing times.

    Policies in relation to the migration of parents of previous migrants should recognise the natural wish of some migrants to be able to look after their parents in Australia, particularly in their later years. Given the high costs that people in this age profile may impose on government budgets, such migration should continue to require a commensurate financial contribution from Australian-based sponsors.

    Australia occupies a vast continent. States/Territories and regions have differing population, economic, labour market and social needs.

    To be successful, migration policies and criteria must continue to be sensitive to the specific needs of particular industries and geographic locations.

    State and Territory governments, regional governments and business should continue to be given the ability to sponsor migrants to meet their specific needs, while accepting responsibility for outcomes commensurate with their sponsorship of migrants.

    1.3 Temporary Migration

    Temporary entry programs have grown to unprecedented levels over the last decade.

    There were some 800,000 temporary entrants in Australia as at 30 September 2014 (excluding visitor visa holders, bridging visa holders and New Zealanders temporarily in Australia – which bring the total to some 1.8 million)[2]. The flow of temporary entrants such as temporary skilled migrants, students and working holiday makers is well in excess of the permanent migration and humanitarian program, reflecting increasing global mobility and Australian entry programs designed to meet specific economic, social and cultural objectives.

    Australia is in a position to continue to benefit from further growth in global mobility with well-designed, and internationally competitive, temporary entry programs, provided that the risks inherent in such programs are carefully mitigated.

    Temporary skilled migration is an important tool in meeting short term, fluctuating skilled labour market needs and should be expected to rise and fall relatively rapidly in contrast to a steadier long-term permanent migration program.

    Immigration policy should continue to enable responsible employers to sponsor foreign workers to meet short-term skilled labour market needs that cannot be met domestically. At the same time there must be program design safeguards to ensure that foreign workers are not less costly than available Australian workers and that there are sufficient protections built in to ensure that sponsors do not exploit foreign workers.

    Immigration policy should continue to facilitate the entry and stay of people who are seeking to study in Australia and depart at the end of their studies, as part of Australia’s education export and cultural exchange. The degree of facilitation should be closely related to the immigration risk factors. A high degree of scrutiny should be applied to those areas of the education system where abusive practices are evident.

    While immigration rules should provide access to permanent stay for foreign students, on the same basis as overseas applicants, there should be no guaranteed pathway to permanent residence for international students simply because of an Australian qualification. The export of education should be internationally competitive and stand on its own merits and not be subsidised by the permanent visa system.

         International education agents are in many cases the face of Australian education overseas. For consumer protection purposes, they should be subject to quality standards, registration and sanctions for misbehaviour in the same way that Australian migration agents are regulated.

    Immigration policy should continue to foster opportunities, on a reciprocal basis, for young people from selected countries to live and work in Australia for periods of one to two years under working holiday arrangements. Domestic labour market impacts, especially on Australian youth, should be monitored and evaluated. Potential abuses need to be quickly identified and policy should contemplate annual limits on visas if required.

    More recently, Australia has, on a small-scale, commenced assisting Pacific neighbours through targeted arrangements which enable temporary entry of seasonal workers in agricultural industries (the scheme is currently available to citizens of Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Timor-Leste, Tonga, Tuvalu and Vanuatu).

    Migration policy should leave scope for limited amounts of unskilled temporary migration in the context of Australia’s engagement with its region. Program design should ensure that such foreign workers are able to benefit financially from the arrangements without exploitation, that such arrangements remain competitive for employers who are unable to secure a consistent Australian labour supply and that the workers return to their countries of origin.

    As a general point, many temporary entry programs are more inherently susceptible to abuse. It must be recognised that many foreigners temporarily in Australia with work rights are more at risk to exploitation than Australian workers because of their unfamiliarity with the Australian system, lack of informed networks and/or poor English language skills. Australian government and State/Territory government authorities should cooperate to ensure that such workers are given information on their rights and access to easily usable complaint mechanisms. Workplace inspection authorities must be adequately resourced to monitor for abuses in the workplace and sanction employers. It should be a criminal offence for employers to charge temporary skilled workers for sponsorship for either temporary or permanent residence.

    Policies in relation to temporary migration should take account of the phenomenon of “circular migration” and foster this when it is in the national interest.

    Australian immigration policy should continue to facilitate genuine tourists to Australia with fast and flexible visa and stay arrangements carefully calibrated to reflect degree of immigration risk.

    1.4 New Zealanders

    Under policy introduced by the Australian government in 2001 (in the context of arrangements for a reciprocal social security agreement between Australia and New Zealand), New Zealand citizens can enter and live in Australia indefinitely without meeting globally applied visa criteria, but do not have permanent resident status. They cannot access a range of government services without qualifying for permanent residence by meeting global migration criteria.

    New Zealand citizens entering Australia on this temporary basis have an advantage over citizens of other countries in that they can freely enter and live in Australia, with access to the labour market, without meeting the permanent residence visa criteria applied globally to other nationals. As at 30 September 2014, there were over 650,000 New Zealand temporary residents in Australia[3] .

    Some of these New Zealand temporary residents are able to meet globally applied permanent visa criteria and become permanent residents with a pathway to Australian citizenship. Many others do not have the skills and other attributes that enable them to qualify. This is resulting in what is unique in Australian terms – a long-term temporary population, including Australian born children, without access to permanent residence and Australian citizenship.

    The Australian government should evaluate the outcome of the trans-Tasman migration arrangements, including the changes introduced in 2001, with a view to considering whether all New Zealanders should in future be subject to globally applied arrangements or whether existing arrangements should be retained and some concessional arrangements should be introduced to allow long-term New Zealand temporary residents to transition to permanent residence.

    1.5 Immigration Policy and Regional Engagement

    Permanent and temporary migration programs have over the years have played an important part deepening Australia’s engagement with its region.

    India and China are now the top two source countries of permanent migrants. Asia-Pacific countries figure prominently in temporary skilled worker numbers. Nine Asia-Pacific countries are in the top 10 source countries of overseas students. Four Asia-Pacific countries are in the top 10 working holiday maker source countries. Asia-Pacific countries figure prominently in overseas tourism and a number of them are given the most facilitated electronic visa arrangements which Australia offers globally[4].

    The most recent region-specific initiative has been the Pacific Seasonal Workers Scheme.

    Australia has already invested significantly in cooperative arrangements on important, but relatively narrow, border management and migration control matters with regional neighbours.

    At the multilateral level, Australia should be working to develop broader regional cooperative arrangements to ensure effective routine consultation and co-operation on management of migration within the region. This should include regular migration, irregular migration and refugee protection.

    On a bilateral basis, Australia should continue to look at opportunities to strengthen and deepen its regional ties through migration arrangements that are in the national interest – including greater facilitation of travel for citizens of selected regional neighbours, whether permanent or temporary skilled migration, working holiday arrangements, student entry, tourism or expansion of seasonal worker arrangements. 

    1.6 Program and Border Integrity

    Australia has been able to achieve high level of success and of community support for a planned immigration program (which operates at a much higher level than other traditional immigration countries on a per capita basis) over many years because of its ability to effectively regulate movements to Australia in the national interest, maintain integrity of programs and achieve a relatively low population of unlawful non-citizens.

    Well-developed entry policies, backed by a careful risk management approach, have enabled Australia to make the most of the world’s mobile talent and adjust to different potential source countries over time.

    These policies have been supported by effective border management and compliance programs. These capabilities should be maintained at a high level. At the same time, they should be regarded as “processes” in support of Australia’s global activities to gain the best social capital for Australia rather than an outcome in themselves.

    Effective intelligence, supported by domestic and international interagency cooperation is vital in responding to dynamic irregular migration, crime and security risks. Equally, domestic capability to enforce immigration law, including removal of people without lawful authority to stay, is vital to the integrity of programs and also to protecting migrants – especially temporary workers.

    Australian immigration authorities need to use a variety of tools to ensure compliance with immigration law. These tools should always be proportionate to the risk presented. The use of “held” detention, except for very short periods to deal with identity, health and security risks, or risk of absconding, should be avoided as far as possible because of unnecessarily harsh outcomes which usually follow for those held in detention. Detention of children should be avoided wherever possible and special arrangements should be made for them if short periods of detention are unavoidable.

    Alternatives to detention which enable immigration authorities to remain in touch with persons of interest who do not have authority to remain in Australia should be used wherever possible.

    Any use of detention needs to be subject to rigorous external scrutiny of detention facilities and conditions as well as case-by-case examination of the reasons for detention of individuals being held for more than a short period.

    1.7 Managing Migration – Australian Government Capability

    Effective immigration programs do not run themselves. Australia needs an ongoing national capability to achieve domestic and international goals in relation to migration.

    These capabilities include a strong policy capacity, backed by evidence based research and active evaluation of program outcomes to inform further policy. The most well-intentioned policies can have unintended consequences and these must be quickly identified and policy rectified.

    This policy capability should be supported by a strong service delivery and operational network overseas and within Australia, backed by the latest technology.

    The case for full integration of the Australian Customs functions with the Department of Immigration has never been convincingly made and no major unrealised synergies or efficiency gains identified.

    The Australian Government should revisit the existing administration model to consider whether any real gains have been achieved or whether Australian Customs should become an operational agency within the broader portfolio or separated from the Department of Immigration.

    One of the great strengths of the Australian immigration system until recently has been an integrated national administration which brings together entry policy, citizenship policy and post arrival settlement services. This has ensured a close feedback loop to entry policy based on the practical experiences and outcomes for different cohorts of migrants.

    The migrant and refugee post-arrival settlement programs transferred to other departments in 2013, including the Adult Migrant English Program, should be returned to the Department of Immigration and Border Protection.

    1.8 Australian, State/Territory and Local Government management of immigration outcomes

    Consistent with its nation building objective, Australia’s immigration program necessarily impacts all states and territories, although to different degrees.

    The Australian government should put in place mechanisms to ensure that State/Territory and local government are involved in short-term and long range migration planning. Immigration, whether permanent or temporary, brings prosperity, but it also brings with it the associated costs for expanding infrastructure. It is important that governments put the necessary processes are in place to ensure that infrastructure planning and implementation reflects population growth from migration and as well as natural increase.

    The success of Australia’s immigration program has always depended upon community confidence in the efficacy of the program and its benefits for the country. All levels of government need to take responsibility for public education on immigration and its benefits.

    Peter Hughes is Visiting Fellow, Crawford School of Public Policy,
    Visitor, Regulatory Institutions Network, Australian National University

    Arja Keski-Nummi was formerly First Assistant Secretary of the Refugee, Humanitarian and International Division in the Department of Immigration and Citizenship 2007-2010.

    John Menadue was Secretary of the Department of Immigration and Ethnic Affairs, 1980-1983.

    [1] Migration Council of Australia, The Economic Impact of Migration (2015)

    [2] Department of Immigration and Border Protection, Temporary Entrants and New Zealand Citizens in Australia as at 30 September 2014.

    [3] Department of Immigration and Border Protection, as above.

    [4] Department of Immigration and Border Protection

  • Peter Hughes. Reintroduction of Temporary Protection Visas -Time to Negotiate

    In the last few days of the 2014 Parliament, the controversial Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 remains to be considered.

    The Bill contains a wide range of proposed changes to the asylum system reflecting, amongst other things, concern by the government that the current system is too heavily weighted towards approving asylum claims – a concern shared, but not acted on, by the previous government before losing office.

    It is unlikely that all of this complex mix of changes will get through the Senate.

    The most hotly contested part of the Bill, which has been on the government’s agenda since taking office, is the reintroduction of Temporary Protection Visas for maritime asylum seekers.

    Temporary Protection Visas are opposed by the opposition parties in the Senate and refugee advocates on the grounds of the uncertainty they create for the future of those found to be refugees, the need for a further assessment of refugee status, the personal stress and mental health effects, inability of refugees to achieve family reunion and the lesser scale of benefits compared to giving permanent residence to refugees.

    These criticisms are undoubtedly justified.

    More broadly, there is no evidence that the existence of Temporary Protection Visas acts in any way to deter asylum seekers from undertaking boat journeys. In public policy terms, Temporary Protection Visas only make sense where there are good reasons to suggest that a particular cohort of refugees might be able to go home relatively soon because of improvements expected in the situation in the country of origin. This does not apply to the main maritime asylum seeker nationalities in Australia.

    On the other hand, there can be no doubt that reintroduction of Temporary Protection Visas would place the 30,000 maritime asylum seekers in Australia in a much better position than they are now.

    As long as the impasse persists, the government will keep maritime asylum seekers in detention, on bridging visas without work rights, on Temporary Humanitarian Concern Visas and often without formal decisions on their refugee status.

    It will take years to make decisions on this very large group of people whatever system of case-by-case decision-making is adopted. If Temporary Protection Visas are reintroduced, the system will at least start to move again – asylum seekers will get a formal refugee status determination, refugees will get temporary visas with work rights and a suite of benefits. This will open the way to resolution of the future of this very large group of people. For those found to be refugees, one can expect that some years down the track, when the first Temporary Protection Visas are approaching expiry, in a different political landscape, the question of permanent status will be revisited in a more positive way.

    There is clearly scope for opposition parties to negotiate with the government to seek changes that would improve the operation of the Temporary Protection Visa system set out in the Bill. They should be doing it now.

    There is no reason why they could not agree to the reintroduction under protest, but on the basis that they have achieved some improvements to the working of the system.

    The work of the Palmer United Party in negotiating a commitment to the Safe Haven Enterprise Visa, although at the margins, highlights the possibilities. There are undoubtedly many areas of process and outcome related to Temporary Protection Visas, short of permanent residence, that the government would be willing to consider.

    Defeating the reintroduction of Temporary Protection Visas will be a pyrrhic victory. The main losers will be the asylum seekers. Maritime refugees will be no closer to permanent residence, but a year will have passed by with no improvement in their situation and there will be no prospect of any further movement for many months.

    Time to negotiate.

    Peter Hughes is Visiting Fellow, Crawford School of Public Policy, ANU. He was formerly Deputy Secretary of the Department of Immigration and Citizenship.

     

     

  • Peter Hughes. Australian Jihadists: Is Revoking Citizenship the Answer?

    One of the policy solutions being considered by the Australian government to deal with the expected problem of returning Australian jihadists is to preclude their return to Australia, or expel them, by revoking their Australian citizenship.

    The recently released report of the Independent National Security Legislation Monitor (INSLM)[1] recommends that the Minister for Immigration and Border Protection be given the power to do this on national security grounds.

    The idea of using Australian citizenship legislation to indirectly solve a problem that cannot be solved directly is not new. Some time ago there were calls to revoke the Australian citizenship of ageing, suspected World War II war criminals in the hope that this action would get them out of the country. We “knew” that were guilty, but couldn’t actually prove it in a criminal justice process.  It was argued that an administrative decision under the Australian Citizenship Act would function as a work-around. The idea was never adopted by government for good reason, including the fact that there was no guarantee that anyone who lost their Australian citizenship in that way would actually be accepted to return another country.

    It is not clear what it is expected would be the actual outcome of the citizenship solution. Revocation of the Australian citizenship of someone who has already engaged in jihadist activity would have the benefit of denying further access to Australia, but would not stop the person from circulating freely in the world and engaging in further political violence.  Only prosecution, conviction and incarceration, whether overseas or in Australia, would achieve that.

    Citizenship solutions are always harder in practice than they look.

    The INSLM Report suggests that Australia should respect its obligations under the 1961 UN Convention on the Reduction of Statelessness, and that revocation of citizenship should only occur in relation to jihadists who are dual nationals. Unfortunately, there is nothing in the Report to tell us whether or not the relevant suspects are dual nationals and therefore whether anyone’s Australian citizenship could in practice be revoked.

    And then there is the question of how a decision to take away citizenship would be made. Existing Australian citizenship policy and law set a high bar for revocation. Before revocation of the citizenship of a naturalised citizen can even be considered, the person must have been convicted of a serious offence (primarily fraudulent acquisition of citizenship) committed before becoming a citizen. Offences committed after becoming a citizen are a matter for the criminal law and are not a basis for revocation of citizenship. There is no provision for loss of citizenship of an Australian-born citizen, except where the person is a dual citizen who serves in the armed forces of a country at war with Australia.

    For jihadists, would a conviction for some offence be required or just suspicion? If the latter is sufficient to take away a person’s citizenship, the status of Australian citizenship is seriously weakened.

    The government is right to look seriously at any measures which could restrict violent activity by Australian jihadists, either overseas or in Australia. However, it should weigh up very carefully whether the uncertain citizenship solution can make any substantive difference to the problem before introducing any new policy.

    The report moves on from the question of jihadists to make a broader condemnation of dual citizenship, noting that the INSLM “does not see why, as a matter of public policy, an Australian citizen should also be able to be a citizen of another country” and “by its nature, dual citizenship is deeply problematic”. It goes on to say that that “its (dual citizenship) permission in Australia since 2002 does not render it anything like traditional” and recommends that “the 2002 legislated policy in favour of dual citizenship should be reconsidered”.

    This analysis would probably come as a surprise to the estimated 4 million Australian citizens who enjoy dual citizenship.

    Most Australians dual nationals are people who migrated to Australia and then acquired Australian Citizenship. Retention of their first citizenship is, in practice, a matter between them and their country of birth. There is nothing much the Australian government can do about this and it has not attempted to do anything since the commencement of the status of Australian Citizenship in 1949. The sensible policy priority, as in other migrant receiving countries such as the USA and Canada, has been to integrate migrants through encouraging take-up of Australian citizenship, rather than to sever past linkages.

    The anomaly in Australian citizenship law was that, until April 2002, an adult Australian citizen who was Australian-born lost his or her Australian citizenship if they took out the citizenship of another country. This created the ridiculous situation that an Australian-born person was in a much less favourable position than a migrant Australian citizen.

    Implementation of this restrictive policy was in practice arbitrary as the Australian government had no way of knowing which Australians had taken out another citizenship. The only people that were recorded as losing their Australian citizenship were those who were unlucky enough to reveal their acquisition of foreign citizenship, perhaps while in contact with an Australian mission abroad. For example, an Australian woman seeking to register a child born overseas as an Australian citizen might find that, not only was the child not a citizen, but that her own Australian passport had to be confiscated on the grounds that she had not been an Australian citizen for years, by virtue of acquisition of another citizenship.

    This restrictive approach became completely untenable when Australian-born citizens began to live and work abroad in much larger numbers as part of a globally mobile workforce. A diaspora estimated at about 1 million Australians (living mostly in the UK and North America) came into being. Many of them found that for practical reasons they needed to take out foreign citizenship, but wanted to keep their personal and family links with Australia to allow frequent travel between countries and possible return. The Australian approach to dual citizenship was also increasingly out of step with the USA, Canada and the UK which permitted their nationals to take out another citizenship without loss of their original citizenship.

    The Coalition government secured the passage of legislation in 2002 to stop Australians losing their citizenship through acquisition of another, on the advice of a report of the Australian Citizenship Council chaired by former Governor General and Justice of the High Court, Sir Ninian Stephen.[2] A key justification was that Australia would benefit economically and socially by retaining linkages with its expanding diaspora, even if some of them also became citizens of other countries. That argument remains valid.

    Dual citizenship is not without its problems, including in the consular realm, but the current policy settings remain in the national interest and should be left alone. Tinkering with them is unlikely to have any impact at all on the Australian jihadist problem.

    Peter Hughes PSM, Visiting Fellow, Crawford School of Public Policy; Visitor, Regulatory Institutions Network, Australian National University

    This article was first published in edited form in the Lowy Institute Interpreter.  http://www.lowyinterpreter.org/post/2014/08/20/Australian-jihadists-citizenship-solution.aspx

    [1] Annual Report of the Independent National Security Legislation Monitor, Brett Walker SC, 28 March 2014.

    http://www.dpmc.gov.au/INSLM/index.cfm

     

    [2] “Australian Citizenship for a New Century”, a report by the Australian Citizenship Council, February 2000

    http://catalogue.nla.gov.au/Record/280935

    “Loss of Australian Citizenship on Acquisition of Another Citizenship”, A discussion paper on Section 17 of the Australian Citizenship Act 1948, June 2001.

    http://catalogue.nla.gov.au/Record/2553377

     

  • Repost: Nation building or border policing? Guest blogger: Peter Hughes

     This was posted on November 15, 2013. 

    Increasingly refugee policy is portrayed in terms of border protection and stopping the boats. We are losing sight of the enormous nation-building benefits that we have received from immigrants and refugees.  John Menadue

    The repositioning of the Immigration and Citizenship portfolio as “Immigration and Border Protection” was a clear indication by the incoming government of its political priority – stop the arrival of maritime asylum seekers!

    In the process of shuffling programs around to accommodate this, Australia lost something.

    The settlement programs that provide initial support to migrants and refugees after arrival in Australia were moved from the Immigration portfolio to the Social Services portfolio. The Adult Migrant English Program was moved to the Industry portfolio (after inexplicably spending two weeks in transit in the Employment portfolio).

    Through these programs last year, some 15,000 refugees were assisted with specialised humanitarian services and around 60,000 adult migrants received English language training. 216 grants were made to organisations assisting migrants with their initial transition into Australian society. Many other services, including translating and interpreting, were also delivered.

    It has been hard to find an articulated rationale for the portfolio changes. Apart from one commentator on this blog, public commentary has been muted.

    The Immigration portfolio and the Department, since its inception in 1945, has been primarily about nation building. This has continued under successive governments, with a short break in continuity in the early 1970s.

    One of the great strengths of Australian national administration of immigration over that period has been that the Department has had a strong connection with migrant communities through its management of the initial settlement process. This has given it an important insight into the experiences of migrants and refugees when they get to Australia. It has enabled nimble adjustments to programs to deal with the particular circumstances of constantly changing national groups coming into the country. It has also enabled preparation for Australian Citizenship to be built in at an early stage.

    Australia’s immigration program is regarded as one of the most successful in the world. The fact that last year saw the largest immigration program in the nation’s history absorbed into our society, with almost no controversy, is a testament to that. Our “one-stop shop” has been one of the secrets of our success. Why discard it?

    One other equally unheralded shift of policy responsibility also took place. Responsibility for national multicultural policy also shifted from the Immigration portfolio to the Social Services portfolio. Interestingly, the community debate about its location after it moved from the Prime Minister’s portfolio to the Immigration portfolio in 1996 has been whether or not it should once again come under the Prime Minister’s wing. The idea that multicultural policy is just another social service is a novel one.

    The previous Coalition government updated multicultural policy in the late 1990s with a strong and effective policy under the banner of “Australian Multiculturalism”. It then let the policy wither on the vine in 2007. The challenge is now for the responsible Parliamentary Secretary, Senator Fierravanti-Wells, to keep multicultural policy (reinstated by the Labor government in 2011) alive and kicking.

    The problem of maritime arrivals, although seemingly intractable, is likely to prove transitory. In the meantime, we must neither lose focus on the enduring, longer term, goal of nation building through immigration nor weaken our capability to deliver it.

    Peter Hughes is Visitor at the Regulatory Institutions Network, ANU, and formerly Deputy Secretary, Department of Immigration and Citizenship.

  • Are current maritime asylum seeker policies working? Guest blogger: Peter Hughes

    So what if current maritime asylum seeker policies are working? I mean that question in the narrow sense of reducing irregular maritime arrivals to a trickle.

    The arrival figure of some 339 persons for October 2013 announced by the government represents only 16 per cent of October 2012 arrivals.

    Although it is only the figure for a single month, this is a significant change. If arrivals were to level out at this rate, it would represent 4068 arrivals per year, compared to some 25,000 arrivals in 2012 – 13.

    It is quite possible that the announcement of long-term resettlement in Papua New Guinea and Nauru (as supposed to temporary stay in those countries pending departure for an unspecified destination – probably Australia) has been decisive in changing the decision to travel on the part of those asylum seekers who have not yet paid their people smuggler. Tighter visa procedures on the part of Indonesia might also be a factor. The overlay of stern language by the incoming Coalition government no doubt adds to the general atmosphere of a restrictive approach. We do not know whether the Australian Government has actually turned any boats around.

    However, even on the most optimistic scenarios of reductions in numbers, we are not out of the woods. Australia would still find itself with a huge legacy of people to deal with.

    There are some 2000 asylum seekers in PNG and Nauru. Their cases have to be decided and their futures determined. Those found to be refugees and given residence in Papua New Guinea or Nauru will agitate to come to Australia. Some non-refugees will return home voluntarily. It will not be easy to repatriate, against their will, those found not to be refugees to countries such as Iran, Iraq and Afghanistan because of lack of cooperation of those governments.

    There are some 33,000 maritime asylum seekers in Australia in the community on bridging visas or in detention, in various stages of processing. It will take years to finally decide their cases, even under foreshadowed truncated procedures. The grant of temporary stay and limited benefits to refugees will be controversial and legally contested. Achieving return to country of origin of those found not to be refugees will be even more difficult than for those in PNG and Nauru.

    There remains considerable anguish for the government, the Department of Immigration and Border Protection and the asylum seekers themselves as these issues are worked through.

    Even if the current set of policies achieve the result of slowing arrivals to a trickle, the solution based on PNG and Nauru (which are simply not involved in the flow of maritime arrivals to Australia) and threats of turnarounds is certainly not the optimum way of managing the flow of asylum seekers.

    Australia will no doubt face future outflows of asylum seekers from within the region and beyond .A solely deterrent-based approach in partnership with small countries that may not wish to be caught up in our problems again is not a sustainable long-term approach.

    It is a pity that another way was not found for governments and UNHCR to take active responsibility for the protection needs of asylum seekers in the region, while cutting people smugglers out of the picture.

    One could imagine that it might have been a lot better had Australia managed to work with one or more of the countries through which people actually transit to work out an arrangement to return them there and have their future determined as part of established UNHCR processes in that country. It would have been good if those asylum seekers had the opportunity to live and work in those communities pending having their futures determined. It would have been even better if such arrangements could have been reached with the cooperation and blessing of the United Nations High Commissioner for Refugees.

    But of course, we did have such an arrangement. It was the Arrangement on Transfer and Resettlement with Malaysia negotiated by the previous government in 2011, before boat arrivals went to unprecedented levels. Australia rejected it. The High Court, with a surprise interpretation of the relevant parts of the Migration Act 1958, decided that the Minister did not have the legal power to make transfers to Malaysia. An odd alliance between refugee advocates, the Greens and the then Coalition Opposition ensured that the simple legislative arrangements needed to make it viable at that time could not happen. It was a truly lost opportunity for a long-term sustainable approach.

    The bottom line is that, even if the current downtrend remains, Australia has somehow ended up with a “one-off fix” based on fairly hard deterrent strategies. It may not be usable or sustainable in the future and certainly does not build any long-term partnership with the major states in the region in relation to asylum and protection issues.

    Of course, if the October arrivals figure turns out not to be the start of a further downtrend and arrival numbers go up again, existing challenges will be exacerbated and even harsher measures will come on to the table.

    Peter Hughes was formerly Deputy Secretary, Department of Immigration and Citizenship.