Australian Asylum Seeker Policy pertaining to Maritime Asylum Seekers aka Boat People

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This paper discusses the evolution of the Australian Asylum Seeker policy pertaining to Maritime Asylum Seekers (Boat people) and how it has become progressive subsumed within the Maritime Security Policy of Australia. Particular emphasis is placed
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   1 Australian Policy Framework on Asylum Seekers   Introduction  This chapter reviews the literature on Australian Asylum Policy as directed against Sri Lanka returnees. There is a paucity of literature dedicated to Sri Lankan returnees from Australia despite the growing numbers. By end of 2013 there have been 1500 Sri Lankan returnees.  This high number of returns inspires concern because of the truncated enhanced screening process used to screen out Sri Lankans from the formal RSD process. This policy on Sri Lankans is an offshoot of the general policy of the Australian government pertaining to MAS that has undergone a multi-phased evolution from the 1960s.  This chapter has three main aims. The first aim is to analyze the evolution of the MAS seeker policy within Australia. The second aim is the review of available literature on the returnees from Australia. The third aim is to review literature on Sri Lankan returnees. The evolution of MAS policy  The analysis of literature reveals several observations. For this discussion three preliminary observations must be made as a precursor to the argument raised in this chapter that the MAS policy is progressing towards becoming subsumed within Maritime Security Policy of Australia . Firstly, There is unanimity in the finding that the policies towards maritime asylum seekers have become progressively harsher. This is most acutely observable in the context that the offshore refugee program has not undergone   2 comparable rapid policy changes over the same time period. This feature leads to the second incidental observation that currently, MAS are subjected to a unique policy framework separate from the humanitarian policy dedicated to other categories of asylum seekers.  Thirdly, there is unanimity in the literature that there are multiple forces at play in shaping the MAS policy.  There are two essential preliminaries to the argument that the MAS policy is progressing towards being subsumed within Maritime Security Policy of Australia. The first essential preliminary is that the MAS policy has broken away from the general refugee policy. The second preliminary is that the MAS policy is leaving the traditional territories of refugee and human rights policy, and, immigration policies. It is not possible to categorize policies purely either as immigration or security or foreign policy outcomes. However, the goals, the politics, implementation mechanisms and oversight measures transmit clues as to the dominant policy school shaping the content and the contours of a policy. The following discussion revolves around analyzing the features of the politics, mechanics, the legal principles, the discourse and the values surrounding the MAS policies over the five boat waves that started in the 1960s. Motivations behind harsher policies  This change of attitude towards asylum seekers has mixed motivations across the global north. The numbers of asylum claims has been rising since the 1970s. 1  According to UNHCR, in 2012, there had been 893, 700 asylum application submitted all over the world. 2   The rising numbers were accompanied by growth of restrictive practices adopted by the global north. 3  However, whether the rise of numbers alone accounted for the change of attitude is debatable. Some literature suggests that racism, xenophobia, alarmist politics and disingenuous politicians are primarily responsible for this trend. 4     3 Although it is possible to attribute some of the changes to these factors it does not explain the general direction of the policies. For example if racism is responsible for the policies becoming harsher, persons who are ethnically similar to the host communities should be singled out for preferential treatment. Secondly, in mature democracies in the global north, and especially in Australia, it is difficult to subscribe to the idea that alarmist politics can misguide the polity for over four decades. Chimni argues that the trend is a result of the geopolitical makeup that followed the end of the cold war. 5  The end of the cold war signaled the end of the utility of the refugee as a triumph against the communist block. This, according to Chimni, lead to the perpetuation of the „myth of difference: the idea that great dissimilarities characterized the volume, nature and causes of refugee flows in Europe and in the third world‟. 6  Similarly, Gibney argues that the end of the cold war lead to the democratization of asylum policy in the western states with the alarming result of asylum policy shifting from high politics   to the cut and thrust of low politics  . 7  The term high  politics   represent politics of foreign policy and security policy where strong sense of bipartisan support exists for the general policy direction and content. Therefore these areas are generally immune from public debate. This theory of democratization of asylum policy, it is submitted, provides a better explanation of the trajectory taken by the Australian MAS policy. Phase I- The foreign policy era of MAS Policy in Australia Building on the theory of Gibney, Foreign policy neatly fits into what is termed as high Politics  . Australian refugee policy has been marked with generosity that typifies humanitarianism underlying the foreign policy goals of Australia. Stern has argued the importance of a generous asylum policy on the image a liberal democracy. 8  Australia   4 was a founding member of the Refugee Convention.   From the end of WWII over 620,000 refugees have found their permanent safety in Australia. 9  It has the third largest refugee resettlement program in the world. 10   The first boat wave came into Australia between 1976 and 1981. It consisted of 54 boats and 2077 Indochinese MAS. 11  Australia did not have a specific formal legislative system to deal with refugees at that time and the scheme was largely discretionary. 12  The 1976 Report of the Senate Standing Committee , which examined the circumstances of the Vietnamese Refugees reveal the humanitarian flourish that dominated the policy discourse at that early stage. 13  The recommendations of the Senate Committee were prescriptive and purposeful in achieving the humanitarian objectives of Asylum Policy. 14   It suggested that „just as the admission of refugees for reasons of humanity involves relaxing the normal intake criteria, so also does our continuing responsibility to these refugees entail modification of normal settlement practices‟. 15  Moreover, it was recommended to establish an advisory body to be known as the Australian Refugee Policy Council to be convened within the auspices of the department of the Prime Minister, and, a standing interdepartmental committee on refugees that coordinated the various governmental departments in formulating the policy. 16   The first wave of MAS were not held in detention. 17  Brennan quotes the former Prime Minister Malcolm Fraser as suggesting political unanimity in the asylum seeker policy that was hinged on the ethical obligations of Australia to assist those victims of a misguided foreign policy misadventure. 18  Due to this generous policy, Australia had accepted over 177000 Vietnamese refugees that included nearly 2000 MAS for permanent resettlement. 19  The policy on Vietnamese MAS must be appreciated in the refugee context of the years surrounding early 80s.   5 Memorandum 380 of the 1979 cabinet records indicates the very real possibility of 150,000 MAS arriving on the shores of Australia within a few years in the environment where South East Asian countries were pushing the MAS back to sea. 20  The interests of Australia highlighted by the Cabinet Memorandum included (1) resisting international pressure in absorbing more refugees beyond the absorption level (2) retaining and being seen to retain maximum control over the entry of people to Australia (3) not being regarded as a natural destination for Asian refugees (4) ensuring that the reception and treatment of refugees do not affect the international standing of Australia. 21  The range of policies that were contemplated by the Cabinet at that time ranged from “buying off Vietnam”, deterrence of refugees , offshore processing and repatriation. However, the Memorandum 380 decides against such policies for foreign policy reasons. One reason highlighted is the exhortation of Australia to the ASEAN countries to extend temporary asylum to refugees and a contrary conduct by Australia would demean Australia‟s int ernational standing. Another reason is the appreciation that the victims who are fleeing a draconian communist regime cannot be effectively deterred. 22  Thus the Australian government was instrumental in designing an international response to an international problem involving multiple stakeholders that culminated in the Comprehensive Plan of Action. 23   The experience with the first influx of Vietnamese MAS catalyzed the creation of the Determination of Refugee Status Committee (DORS) to assist the minister in the exercise of his discretion under Migration Act s 6 (1) (c) and (e) as amended in 1980 which granted refugee rights. 24  Although it had no statutory basis, the establishment of the DORS committee with the participation of the UNHCR hinted that the government desired compliance with its foreign policy obligations. In
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