The ethics of resettlement: Australia and the Asia-Pacific Region

Abstract

One of the key problems at the heart of refugee protection today is that there are large numbers of refugees attempting to seek asylum and insufficient political will in many asylum-host states to receive refugees in their territories. A proportion of these attempt to come to Australia to seek refuge – either by requesting a resettlement place through the auspices of the United Nations High Commissioner for Refugees, or by arriving directly in Australian territory (by boat or plane). Asylum-seekers who arrive by boat are disadvantaged and penalised under Australian law in that they are excluded from Australian territory and processed offshore in third countries. Successive Australian governments justify these measures by emphasising that resettlement is the ‘proper’ mode for claiming asylum which ensures protection is given to those refugees who are most in need. This raises fundamental ethical questions: are those chosen by resettlement countries such as Australia necessarily the refugees who are most in need? Is resettlement as a concept ethical? And should resettlement be utilised to prevent and penalise spontaneous arrivals attempting to seek asylum in a country?

Keywords:

• resettlement
• asylum-seekers
• refugees
• regionalism
• ethics
• burden-sharing

Acknowledgements

Many thanks to Dr Alexander Betts, Leopold Muller Associate Professor in Refugee and Forced Migration Studies and Director, Refugee Studies Centre, University of Oxford, for his insightful comments on an earlier draft of this article and to Professor Susan Kneebone for her invitation to present this article at the ‘Comparative Regional Protection Frameworks for Refugees: Norms and Norm Entrepreneurs’ Roundtable, Refugee Law Initiative, University of London, 2013. I am also grateful to the anonymous reviewers for their helpful comments on this article.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Maria O’Sullivan is a Senior Lecturer in the Faculty of Law and an Associate of the Castan Centre for Human Rights Law at Monash University, Australia. Her research focuses on a comparative analysis of Australian and European refugee law and practice. Maria is the author of a number of publications on the subject of refugee law including: ‘Minister for Immigration and Border Protection v SZSCA: Should Asylum Seekers Modify their conduct to avoid persecution?', Sydney Law Review 36, no. 3(2014): 541--556. Her work has been cited by the High Court of Australia and in various reports of the Australian Parliament. She is also a regular contributor to media commentary on asylum in Australia and is an Associate Member of the International Association for Refugee Law Judges.

Notes

1. UNHCR, Global Trends 2014 (Geneva: UNHCR), 2, http://www.unhcr.org/558193896.htmll.

2. Ibid.

3. Ibid., 2. This figure has hovered around the 80% level for many years.

4. UNHCR, Resettlement Handbook, revised ed. (Geneva: UNHCR, 2011), 3, http://www.unhcr.org/3c5e542d4.html.

5. UNHCR, ‘Global Consultations on International Protection/Third Track: Strengthening and Expanding Resettlement Today: Dilemmas, Challenges and Opportunities’, UN Doc. EC/GC/02/7, II A 5, 25 April 2002.

6. UNHCR, ‘UNHCR Urges More Countries to Establish Refugee Resettlement Programmes’, Press Release, 5 July 2010, http://www.unhcr.org/4c31cd236.html.

7. See UNHCR, ‘Projected Global Resettlement Needs, 20th Annual Tripartite Consultations on Resettlement’, Geneva, 24–26 June 2014, 7–8, http://www.unhcr.org/543408c4fda.html; UNHCR, Progress Report on Resettlement, EC/65/SC/CRP.11, 6 June 2014, 3, http://www.unhcr.org/53aa90bf9.html; UNHCR, ‘What We Do: Resettlement', http://www.unhcr.org/pages/4a16b1676.html.

8. UNHCR, ‘Syrian Regional Refugee Response', http://data.unhcr.org/syrianrefugees/regional.php, statistics current as at 4 October 2015. The UNHCR also reports that in 2014 Lebanon hosted the largest number of refugees in relation to its national population, with 232 refugees per 1000 inhabitants: UNHCR, ‘Global Trends 2014', 3.

9. UNHCR, ‘Factsheet: Resettlement and Other Forms of Admission for Syrian Refugees’, 7 October 2015, http://www.unhcr.org/52b2febafc5.html. Of this number, Australia has agreed to offer 12,000 resettlement places to refugees from Syria. This will be in addition to the normal yearly resettlement quota of 13,750.

10. UNHCR, ‘2015 UNHCR Country Operations Profile – Pakistan', http://www.unhcr.org/pages/49e487016.html.

11. UNHCR, ‘2015 UNHCR 2015 UNHCR Subregional Operations Profile – South-East Asia – Malaysia', http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e4884c6&submit=GO.

12. In 2011–2012 a total of 42,928 people lodged applications under the offshore programme component and in 2012–2013 that figure was 50,444: Department of Immigration and Border Protection, ‘Fact Sheet 60 – Australia's Refugee and Humanitarian Programme', https://www.immi.gov.au/media/fact-sheets/60refugee.htm.

13. Department of Immigration and Border Protection, ‘Information Paper – Humanitarian Program’, December 2013, 3, http://www.immi.gov.au/media/publications/refugee/ref-hum-issues/pdf/humanitarian-program-information-paper-14-15.pdf.

14. United Nations High Commissioner for Refugees, 2012 Global Trends – Displacement: the New 21st Century Challenge (Geneva: UNHCR, 2013), 19.

15. See discussion at III(D).

16. For example, by way of grant of a visa.

17. See discussion in Australian Parliamentary Library, ‘Refugee Resettlement to Australia: What Are the Facts?’, 6 December 2011.

18. See for instance, the large numbers of Syrian refugees residing in urban environments: UNHCR, Syrian Regional Response Plan 2014, 35, http://www.unhcr.org/syriarrp6/docs/Syria-rrp6-full-report.pdf.

19. Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267.

20. UNHCR, ‘Resettlement Handbook’, 47.

21. Ibid., 45. See also UNHCR, ‘Global Consultations on International Protection/Third Track: Strengthening and Expanding Resettlement Today: Dilemmas, Challenges and Opportunities’, 25 April 2002, EC/GC/02/7, II A 5, http://www.unhcr.org/refworld/docid/3d62679e4.html.

22. UNHCR, ‘Resettlement Handbook', 37.

23. Ibid., 354.

24. Ibid., 47.

25. Thais Bessa, ‘From Political Instrument to Protection Tool? Resettlement of Refugees and North-South Relations', Refuge 26, no. 1 (2009): 91, 93.

26. See discussion in UNHCR, ‘Resettlement Handbook', 47.

27. UNHCR, Global Trends 2011 (Geneva: UNHCR, 2012), 17, http://www.unhcr.org/4fd6f87f9.html.

28. J. van Selm, ‘Great Expectations: A Review of the Strategic Use of Resettlement’, UNHCR Policy Development and Evaluation Service, PDES/2013/13, August 2013, Introduction, 5.

29. Ibid., Executive Summary, 1.

30. Australian Treaty Series (1954), No. 5. Australia's ratification came into effect on 22 April 1954. It acceded to the Protocol Relating to the Status of Refugees on 13 December 1973, with effect from that date: Australian Treaty Series (1973), No. 37.

31. Article 33(1) of the Refugee Convention provides: ‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’

32. These rights include freedom of religion (Article 3), freedom of association (Article 15), access to courts (Article 16), and rights to wage-earning employment (Article 17), welfare, including housing (Article 21), public education (Article 22), public relief (Article 23) and social security (Article 24): see Refugee Convention, above n.19.

33. For instance, Australia resettled some 170,700 displaced persons and a further 11,000 arrivals from the end of World War II to 1954: see R. Germov and F. Motta, Refugee Law in Australia (Oxford: Oxford University Press, 2003), 33.

34. See Barry York, ‘Australia and Refugees, 1901–2002: An Annotated Chronology Based on Official Sources' (Chronology, Parliamentary Library, Parliament of Australia, 2003), 2.

35. Ibid., 2.

36. Graeme Hugo, ‘From Compassion to Compliance? Trends in Refugee and Humanitarian Migration in Australia', GeoJournal 56, no. 1 (2002): 27, 28.

37. See Richard Towle, ‘Processes and Critiques of the Indo-Chinese Comprehensive Plan of Action: An Instrument of International Burden-Sharing?’, International Journal of Refugee Law 18, no. 3–4 (2006): 537, 539–40.

38. Susan Kneebone, ‘The Australian Story: Asylum Seekers Outside the Law', in Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives, ed. Susan Kneebone (Cambridge: Cambridge University Press, 2009), 176.

39. York, ‘Australia and Refugees, 1901–2002′, 30–49. For instance, the humanitarian intake from Africa almost doubled during the course of the 1990s, with the Minister for Immigration in charge during that period, Philip Ruddock, indicating a strong interest in that region: Elibritt Karlsen, Janet Phillips, and Elsa Koleth, ‘Seeking Asylum: Australia's Humanitarian Program' (Background Note, Parliamentary Library, Parliament of Australia, 2010, updated 21 January 2011), 5, http://www.aph.gov.au/binaries/library/pubs/bn/sp/seekingasylum.pdf.

40. Karlsen, Phillips, and Koleth, ‘Seeking Asylum', 5.

41. In August 2001, a Norwegian-registered container ship called the MV Tampa rescued 433 asylum-seekers from a sinking Indonesian vessel. The Australian government refused to allow the asylum-seekers to enter Australian territory: see discussion by A. Edwards, ‘Tampering with Refugee Protection: The Case of Australia', International Journal of Refugee Law 15, no. 2 (2003): 192, 192–3.

42. See Tara Magner, ‘A Less than “Pacific” Solution for Asylum Seekers in Australia', International Journal of Refugee Law 16, no. 1 (2004): 53.

43. A ‘protection visa’ is the name given to the visa granted to persons recognised as a refugee or eligible for complementary protection under s36 of the Migration Act 1958 (Cth).

44. The Minister for Immigration and Citizenship, or his delegate, is responsible for deciding whether to grant or refuse a visa according to the Australian visa criteria, see Migration Act 1958 (Cth) s65; Migration Regulations 1994 (Cth) Sch 2, paras 200.223, 201.223, 203.223, and 204.223. One consideration is whether the grant of the visa will be ‘consistent with the regional and global priorities of the Commonwealth in relation to the permanent settlement of persons on humanitarian grounds’.

45. Department of Immigration and Border Protection, ‘Fact Sheet 60 – Australia's Refugee and Humanitarian Programme’. In 2012–2013 this figure was set at a higher level of 20,019, but has been brought back to 13,750 for the financial years 2013–2014, 2014–2015 and 2015–2016.

46. See Department of Immigration and Border Protection, ‘Fact Sheet 60'.

47. People who wish to be considered for a Special Humanitarian Programme (SHP) visa must be living outside their home country and be proposed for entry by an Australian citizen, permanent resident, eligible New Zealand citizen, or an organisation operating in Australia: see Department of Immigration, Offshore Resettlement, https://www.immi.gov.au/visas/humanitarian/offshore/.

48. See R. Illingworth, ‘Durable Solutions: Refugee Status Determination and the Framework of International Protection’, in The Refugees Convention 50 Years On: Globalisation and International Law, ed. S. Kneebone (Aldershot: Ashgate, 2003), 91, 105.

49. J. McAdam ‘Editorial: Australia and Asylum Seekers’, International Journal of Refugee Law 25, no. 3 (2013): 435, 439.

50. Refugee Council of Australia, ‘Myths and Facts about Refugees and Asylum Seekers', http://www.refugeecouncil.org.au.

51. ‘Enough Is Enough: It's Time For a New Approach' (A joint statement by Australian non-government organisations on the first anniversary of the report on the Expert Panel on Asylum Seekers, 13 August 2013), http://www.refugeecouncil.org.au/n/mr/130813-NewApproach.pdf. Signatories to the letter included the Refugee Council of Australia, the Asylum Seeker Resource Centre, the Human Rights Law Centre and the Refugee and Immigration Legal Service.

52. Minister for Immigration and Border Protection (Peter Dutton), ‘Restoring Integrity to Refugee Intake', Press Release, 12 May 2015, http://www.minister.border.gov.au/peterdutton/2015/Pages/restoring-integrity-to-refugee-intake.aspx.

53. Department of Immigration and Border Protection, ‘Offshore Refugee and Humanitarian Visas: Creating a Simpler Framework' (Discussion Paper – January 2015), 7.

54. Migration Act 1958 (Cth), s85.

55. The Minister for Immigration may ‘lift the bar’ under s46A Migration Act to permit an unauthorised maritime arrival to lodge a valid application for a protection visa.

56. Migration Act 1958 (Cth), s35A; Migration Regulations 1994, Temporary Protection (Class XD) Visas.

57. Migration Act 1958 (Cth), s5AA defines an ‘unauthorised maritime arrival’ as a person who enters Australia by sea at an excised offshore place, or any other place, and becomes an unlawful non-citizen as a result. Due to the controls operated in international airports in the region, those arriving by plane generally hold a valid visa and are able to claim asylum. It is those arriving by boat on unauthorised voyages (‘boat people’) who do not hold such visas and who are therefore delineated as ‘unlawful non-citizens’ under the Act.

58. Migration Act 1958 (Cth), ss46A; 189; 196, 198A.

59. This applies to unauthorised arrivals who arrive after 13 July 2013.

60. See for example UNHCR, ‘UNHCR Mission to Manus Island, Papua New Guinea: 15–17 January 2013′, 4 February 2013; UNHCR, ‘UNHCR Monitoring Visit to the Republic of Nauru: 7 to 9 October 2013’, 26 November 2013. Both available at http://www.unhchr.org.au. See also Amnesty International, ‘This is Breaking People: Human Rights Violations at Australia's Manus Island Asylum Seeking Processing Centre, Papua New Guinea’, December 2013, http://www.amnesty.org.au/images/uploads/about/Amnesty_International_Manus_Island_report.pdf.

61. ‘UNHCR Mission to Manus Island, Papua New Guinea; UNHCR, ‘UNHCR Monitoring Visit to the Republic of Nauru'.

62. Amnesty International, ‘This is Breaking People’, 3.

63. ‘UNHCR Statement on Australia-Cambodia Agreement on Refugee Relocation’, 26 September 2014, http://www.unhcr.org/542526db9.html; Maria O'Sullivan, ‘Explainer: Does Cambodia Refugee Deal Comply with the Convention?’, The Conversation, 30 September 2014, http://theconversation.com/explainer-does-the-cambodia-refugee-deal-comply-with-the-convention-29639.

64. See The Report of the Expert Panel on Asylum Seekers, 13 August 2012, 56–57, http://expertpanelonasylumseekers.dpmc.gov.au/report (‘Expert Panel Report’).

65. The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (‘Bali Process’), see http://www.baliprocess.net.

66. Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement (25 July 2011).

67. ‘Joint Statements by the Prime Ministers of Australia and Malaysia on a Regional Cooperation Framework’, Media Release, 7 May 2011, http://www.aph.gov.au/.

68. Department of Immigration ‘Information Paper’. This increase was enacted in response to recommendations of the Expert Panel Report, see n.64.

69. Plaintiff M70/Plaintiff M106 [2011] HCA 32.

70. A. Rourke, ‘Australian Vessels Rescue Refugees: Rescue Ships Save More than 120 Afghan Asylum Seekers after a Second Boat in a Week Capsizes off Indonesia’, The Guardian, 27 June 2012, http://www.theguardian.com/world/2012/jun/27/australian-indonesian-vessels-rescue-refugees.

71. ‘Expert Panel Report’: 14.

72. Ibid., 39 (emphasis added).

73. Paul Farrel, ‘Asylum Seekers Registered with UNHCR in Indonesia Blocked from Resettlement’, The Guardian, 18 November 2014, http://www.theguardian.com/australia-news/2014/nov/18/asylum-seekers-registered-with-unhcr-in-indonesia-blocked-from-resettlement. The policy will take effect retrospectively to cover those refugees who have registered with UNHCR from 1 July 2014.

74. See S. Labman, ‘At Law's Border: Unsettling Refugee Resettlement' (PhD Thesis, December 2012), https://circle.ubc.ca/bitstream/handle/2429/43703/ubc_2013_spring_labman_shauna.pdf?sequence=1.

75. Protecting Canada's Immigration System Act, S.C. 2012, c. 17, Section 20(1).

76. Ibid., c. 17, Section 20(2).

77. Canadian Government, ‘Backgrounder, Designating Human Smuggling Events', http://www.cic.gc.ca/english/department/media/backgrounders/2012/2012-06-29f.asp.

78. For instance, the Public Safety Minister Vic Toews said on the day the Sun Sea (a boat containing 490 asylum-seekers from Sri Lanka) arrived that his government ‘must ensure that our refugee system is not hijacked by criminals or terrorists’: ‘Tamil Asylum Ship Docks in Canada’, Sunday Express, 14 August 2010, http://www.express.co.uk/news/world/193130/Tamil-asylum-ship-docks-in-Canada.

79. Shauna Labman, ‘Queue the Rhetoric: Refugees, Resettlement and Reform’, University of New Brunswick Law Journal 62 (2011): 57.

80. Ibid., 55.

81. Public Safety Canada, ‘Canada's Generous Program for Refugee Resettlement is Undermined by Human Smugglers Who Abuse Canada's Immigration System’, 21 October 2010, http://archive.today/e5fyO.

82. Human Rights First, ‘How to Repair the U.S. Asylum and Refugee Resettlement Systems—A Human Rights First Blueprint' (2012), 5, http://www.humanrightsfirst.org/wp-content/uploads/pdf/asylum_blueprint.pdf.

83. Donald Kerwin, ‘The Faltering US Refugee Protection System: Legal and Policy Responses to Refugees, Asylum-Seekers, and Others in Need of Protection', Refugee Survey Quarterly 31, no. 1 (2012): 13.

84. S.B. Ray, ‘Optimal Asylum’, Vanderbilt Journal of Transnational Law 46 (2013): 1215, 1223.

85. Ray, ‘Optimal Asylum’, 1229; Matthew Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge: Cambridge University Press, 2004), 159–60.

86. See Astri Suhrke, ‘Burden-Sharing during Refugee Emergencies: The Logic of Collective versus National Action', Journal of Refugee Studies 11, no. 4 (1998): 396; Alexander Betts, Protection by Persuasion: International Cooperation in the Refugee Regime (Ithaca: Cornell University Press, 2009); Eiko Thielemann ‘Toward a Common Asylum Policy: Public Goods Theory and Refugee Burden Sharing' (Paper prepared for the European Consortium for Political Research Standing Group on EU Politics, Third Pan European Conference, Istanbul, 21–23 September 2006), ttp://www.jhubc.it/ecpr-istanbul/virtualpaperroom/032.pdf.

87. Suhrke, ‘Burden-Sharing', 398.

88. Betts, ‘Protection by Persuasion', 12.

89. Ibid., 12–13.

90. Suhrke, ‘Burden-Sharing', 413.

91. Article 14 of the Universal Declaration on Human Rights provides that ‘[e]veryone has the right to seek and to enjoy asylum from persecution in other countries’: UNGA Res. 217A (III), 10 December 1948.

92. Refugee Convention, Article 33.

93. Susan Kneebone, ‘The Legal and Ethical Implications of Extra-territorial Processing of Asylum Seekers: The Safe Third Country Concept', in Moving On: Forced Migration and Human Rights, ed. J. McAdam (Oxford: Hart Publishing, 2008), 139–40; Matthew Gibney, ‘Forced Migration, Engineered Regionalism and Justice between States’, in New Regionalism and Asylum Seekers: Challenges Ahead, ed. Susan Kneebone and Felicity Rawlings-Sanaei (Oxford: Berghahn, 2007), 71–2.

94. Kneebone, ‘Legal and Ethical Implications', 141.

95. Joan Fitzpatrick, ‘Ethical Refugee Policy and the Moral Relevance of Numbers: Response to Adelman and Churgin', International Migration Review 30, no. 1 (1996): 325.

96. K. Nielsen, ‘Ideal and Non-Ideal Theory: How Should We Approach Questions of Global Justice’, International Journal of Applied Philosophy 2, no. 3 (1985): 33–41, discusses distributive obligations of affluent nations vis-à-vis poor states. See also S.C. Neff, ‘Rescue across State Boundaries: International Legal Aspects of Rescue', in The Duty to Rescue: The Jurisprudence of Aid, ed. M.A. Menlowe and A. McCall Smith (Brookfield, VT: Dartmouth, 1993), 159–204.

97. Joseph Carens, ‘Realistic and Idealistic Approaches to the Ethics of Migration', International Migration Review 30, no. 1 (1996): 156; J. Carens, The Ethics of Immigration (Oxford: Oxford University Press, 2013).

98. For example, John Rawls, A Theory of Justice, revised ed. (Boston, MA: Harvard University Press, 2009); John Rawls, ‘The Law of Peoples', Critical Inquiry 30, no. 1 (1993): 1.

99. Gibney, ‘The Ethics and Politics of Asylum’.

100. See Matthew Gibney, ‘Asylum: A Principled Hypocrisy', in Migration: A COMPAS Anthology, ed. B. Anderson and M. Keith (Oxford: COMPAS, 2014), http://compasanthology.co.uk/asylum-principled-hypocrisy/.

101. Carens, The Ethics of Immigration, Ch. 11. See also J. Carens ‘Aliens and Citizens: The Case for Open Borders', The Review of Politics 49, no. 2 (1987): 251.

102. Walzer, ‘Spheres of Justice', 39.

103. Ibid., 28.

104. Ibid., 29.

105. Ibid., 29.

106. See, for example, Melissa Phillips, ‘Immigration’, Election Watch 2013, http://electionwatch.edu.au/australia-2013/policy/immigration; ‘Labor Caucus Rejects Calls to Abandon Support for Offshore Processing’, The Guardian, 17 June 2014, http://www.theguardian.com/world/2014/jun/17/labor-caucus-rejects-calls-to-abandon-support-for-offshore-processing.

107. See, for example, ‘2014 Lowy Institute Poll Finds Strong Support for Government Policy on Turning Back Boats’, Press Release, 6 June 2014, http://www.lowyinstitute.org/news-and-media/press-releases/2014-lowy-institute-poll-finds-strong-support-government-policy-turning-back-boats.

108. S. Scheffler, ‘Introduction', in Consequentialism and its Critics, ed. S. Scheffler (1988), 1, cited in Brilmayer, ‘Rights and Choice in Law', Yale Law Journal (1989): 1287.

109. See discussion in Part III.

110. A. Millbank, ‘The Problem with the 1951 Refugee Convention' (Australian Parliamentary Library, Research Paper 2, 2000-01), http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp0001/01RP05.

111. See Gibney, ‘The Ethics and Politics of Asylum’, 159–60, 191.

112. F.M. Kamm, ‘The New Problem of Distance in Morality’, in The Ethics of Assistance: Morality and the Distant Needy, ed. Deen K. Chatterjee (Cambridge: Cambridge University Press, 2004), 70.

113. Ibid.

114. Ibid., 62.

115. Peter Singer, ‘Famine, Affluence, and Morality', Philosophy and Public Affairs 1, no. 1 (1972): 229, 231–2.

116. Ibid., 232.

117. Per Bauhn, ‘The Duty to Rescue and the Duty to Aid the Starving', International Dialogue, A Multidisciplinary Journal of World Affairs 3 (2013): 7.

118. Per Bauhn, ‘The Extension and Limits of the Duty to Rescue', Public Reason 3, no. 1 (2011): 40.

119. Gibney, ‘The Ethics and Politics of Asylum', 239.

120. Ibid.

121. Ibid., 238.

122. Sasha Baglay, ‘Review: Humanitarianism, Identity and Nation: Migration Laws of Australia and Canada’, Osgoode Hall Law Journal 44, no. 3 (2006): 390.

123. UNHCR, ‘Global Trends 2011’, 17. UNHCR also notes that ‘[o]f the 14.4 million refugees of concern to UNHCR around the world, less than one per cent is submitted for resettlement’, UNHCR Webpage ‘Resettlement', http://www.unhcr.org/pages/4a16b1676.html.