Bibliography File Note.
Bibliography File Note.
On a recent episode of Q&A, Professor Jane McAdam argued for the abolishment of “carrier sanctions”. Unfortunately, the director of the Andrew and Renata Kaldor Centre for International and Refugee Law at the University of NSW didn’t get time to elaborate. So what are carrier sanctions, and how to do they stop asylum seekers coming by air?
Professor McAdam advocated reframing the discussion around refugees away from security and detention, and in favour of facilitating “safe, lawful pathways for people … who are desperately in need of assistance.”
Carrier sanctions are financial penalties imposed upon airlines and ships that transport passengers who do not have a visa to enter. Australia is the only country in the world to impose a universal visa requirement on non-citizens. This means that all people who wish to enter Australia must obtain a visa prior to entering.
Every airline that flies to Australia must check if their passengers have a valid visa by processing their data through the Advanced Passenger Processing system. By requiring carriers to check that passengers have authorisation to enter a country prior to embarking, carriers effectively become border officials, controlling migration at the point of departure.
Australia is the only country in the world to impose a universal visa requirement on non-citizens.
While carrier sanctions are not applied only to transporting refugees, they disproportionally affect refugees seeking protection. Carrier sanctions are part of a broader effort by states to prevent entry to would-be asylum seekers – what scholars call “non-entrée policies”. While states owe refugees within their territory rights under international law, they have installed a range of barriers beyond their territory to ensure that refugees can’t enter and claim these rights.
Australia leads the world in the extraterritorialisation of migration control. But as a consequence, Australia’s policies have forced those who seek protection to use irregular, unauthorised and dangerous pathways to find safety. One way to prevent these dangerous journeys is to allow asylum seekers to get on planes. Unfortunately, Australia’s use of carrier sanctions works to prevent this safe route, generating demand for people smugglers and more dangerous journeys.
Australia was perhaps the first country to implement carrier sanctions. The colony of Victoria introduced the Act to Make Provision for Certain Immigrants 1855 which placed financial penalties on an owner, charterer or master of ship if they carried more than one Chinese migrant for every 10 tonnes of ship’s tonnage or did not guarantee payment by the Chinese passengers of an arrival tax of £10. Shortly after Federation, amendments were made in 1905 to the Immigration Restriction Act 1901 (Cth) which placed a fine of £100 upon ship owners, masters, agents and charterers for each prohibited immigrant (those who failed the dictation test) they carried. As intended, this had the result of significantly reducing the embarkation of non-white passengers.
One way to prevent dangerous journeys is to allow asylum seekers to get on planes.
Today carrier sanctions are contained in the Migration Act 1958 (Cth), which makes it a criminal offence to transport a non-citizen to Australia without a valid visa. Section 229 provides that where a “non-citizen” enters Australia and does not hold a valid visa, ” master, owner, agent, charterer and operator of a vessel” each commit an offence and is liable to a fine of 100 penalty units (currently $18,000).
In addition, airlines are responsible for the costs of removing passengers from Australia if they are refused entry after arrival.
To make it explicitly clear that carrier sanctions apply even to those with genuine protection claims, section 228B(2) provides:
a non-citizen includes a reference to a non-citizen seeking protection or asylum (however described), whether or not Australia has, or may have, protection obligations in respect of the non-citizen because the non-citizen is or may be a refugee, or for any other reason.
Thus carrier sanctions will apply even if the non-citizen is found to be a refugee, in contrast to other countries. La Trobe University legal academic Dr Savitri Taylor notes that carrier sanctions have succeeded in reducing the number of asylum seekers arriving by air:
The fear of having their profit margin eroded by such penalties is supposed to encourage carriers to deny passage to Australia to those who are inadequately or irregularly documented. The fact that the number of infringement notices actually served on carriers has been dropping markedly from year to year indicates that sanctions have had their intended effect.
Carriers are unlikely to be sympathetic to the claims of refugees seeking to board, and even if they are, they do not have adequate expertise to assess refugee claims before departure. Even for those who are sympathetic, the financial impact of carrier sanctions is likely to eventually outweigh any humanitarian concern.
To assist airlines to meet their carrier obligations under migration law, Australia has developed a range of practices, including the deployment of immigration offices known as Airline Liaison Officers in certain “high-risk” countries and the development of significant surveillance and monitoring databases, including biometric scanning.
Carrier sanctions not only push immigration controls beyond the borders of Australia, they also privatise them. No longer are state officials responsible for border management, employees of private commercial airlines now decide if a person has the right to cross the border.
If refugees aren’t able to take a plane, they are forced to seek asylum by other unauthorised, irregular and dangerous ways to find safety. If we are serious about stopping the boats, let’s look at allowing people to get on planes by ending carrier sanctions.
No-one disputes the urgent need for co-operative solutions to the global crisis of displaced people, estimated at 65 million people. But the chances of co-operation in the resettlement of recognised refugees seem slim.
The UN High Commissioner for Refugees (UNHCR) has estimated that more than 1.1 million people are in need of resettlement. But offers from countries for resettlement have reached only 111,000 people. That leaves 1 million in limbo.
This week’s UN summits on migrants and refugees offer an opportunity to think creatively about solutions to the resettlement shortfall.
Australia prides itself on its participation in the UNHCR’s Resettlement Program, which is administered through Australia’s Refugee and Humanitarian Program. Our resettlement quota under that program stands at 13,750 places annually, with 11,000 of those reserved for people applying from outside Australia.
But can and should Australia be doing more to resettle refugees? Australian has resettled only one-sixth of its promised one-off intake of 12,000 Syrian refugees. So do we need to stick with our current model of state-controlled resettlement schemes? Or are there other models we can learn from?
Refugees comprise just 7% of Australia’s annual migration intake. By contrast, they made up 48% in the years following the second world war.
Since July 2013, Australia’s Department of Immigration and Border Protection has been trialling an alternative model of resettlement, the Community Proposal Pilot.
Under this pilot, community organisations are able to sponsor potential applicants. The pilot is capped at 500 visa places within the Refugee and Humanitarian Program.
The department has appointed five organisations to work with families and supporting community groups to facilitate this resettlement pathway. The response to the pilot has exceeded available places and initial assessments of the program are enthusiastic.
However, the pilot is not without flaws. In particular, the available places are not additional to but are included within the Refugee and Humanitarian Program quota.
The initial evidence shows there is a higher and faster visa grant rate under the pilot than for other resettlement applications. This means certain “private” individuals and organisations can pay for priority “public” service.
Under this model, the families and community organisations bear not only the substantial costs of the visa applications (more than A$30,000 plus additional costs for family members), but also provide practical resettlement assistance to new arrivals. The resettled arrivals have immediate access to the public purse through Centrelink. The pilot model is thus very much nested in the public domain.
Canada does a similar scheme differently. There, private sponsorship is additional to and supplements the public resettlement program – that is, private sponsorship occurs over and above the government’s commitment to public sponsorship, not instead of it.
Australia and Canada share many similar characteristics as countries of immigration. In particular, their experiences with Indo-Chinese refugees from 1975 shaped their responses to refugees today.
Private sponsorship was legislated into Canadian law in 1978. In its present form, a group of private individuals (usually not newcomers themselves) come together to nominate one or more refugees for resettlement. The government vets the nominated refugees for health, security and alignment with the refugee definition.
The sponsors must raise the equivalent of one year’s social assistance (equivalent to Centrelink) and undertake to financially support the refugee/s. They do not pay visa or processing costs.
Privately sponsored refugees have access to health care, education, English as second language programs and the like, and the sponsorship group undertakes all other settlement tasks. The formal sponsorship undertaking usually lasts a year.
Australia’s pilot program differs from the Canadian model in the following respects:
Private sponsorship of refugees offers several potential advantages.
In Canada, it is recognised that private sponsorship not only confers benefits on refugees, but also benefits the sponsors and the nation in tangible and intangible ways.
In Australia, an impending government review of the pilot provides the opportunity to revise the program to better harness community support for private refugee sponsorship and help with the global crisis.
Susan Kneebone, Professorial Fellow, Melbourne Law School, University of Melbourne; Asher Hirsch, PhD Student, Monash University, and Audrey Macklin, Professor and Chair in Human Rights Law, University of Toronto
Bibliography File Note.
Foreigners, refugees, or minorities?
This article was originally published on APPS Policy Forum.
Asher Hirsch unpicks the precarious future of Australia’s hard-line asylum seeker policy.
What does the future hold for refugee policy in Australia? Following a brutal policy approach to people seeking asylum in recent years and a blanket policy of harsh deterrence from both major parties, a key question now is whether these policies are sustainable, let alone desirable, over the longer term. Already, tensions and challenges have emerged that threaten Australia’s absolute refusal to face up to its refugee responsibilities.
This article was originally published on Asylum Insight.
Australia leads the world in outsourcing and offshoring its human rights obligations. It is the only nation to subcontract the management of its entire detention centre network to private for-profit corporations. It is also the only nation that mandatorily detains those who arrive without a visa, and sends those who come by boat to third countries for processing. Between 2001 and 2007, and again from 2012, the Australian government has attempted to avoid both moral and legal responsibility for asylum seekers by sending them to offshore detention centres in the Pacific.
Australia maintains that responsibility for the management of these centres, and for the numerous abuses that have taken place there, rests solely with the host countries of Papua New Guinea and Nauru. The secretary of the Department of Immigration and Border Protection, Mr Michael Pezzullo, asserted during the 2015 Senate inquiry into conditions at the detention centre on Nauru that:
‘The Australian government does not run the Nauru Regional Processing Centre, or RPC. It is managed by the government of Nauru, under Nauruan law, with support from the Australian government. The government of Nauru operates the RPC, assesses asylum claims and, where persons are found to be in need of protection, arranges settlement. The government of Nauru is specifically responsible for security and good order and the care and welfare of persons residing in the centre.’ (emphasis added)
This article was originally published on Right Now.
Wednesday’s High Court decision upholding the legality of detention in Nauru is tragic in its result. But the decision was far from a vindication for the Government. In important ways the judgment signals an increasing willingness by at least some members of the High Court to rein in the excesses of Australia’s detention policies.
The case was litigated by the Human Rights Law Centre on behalf of a Bangladeshi woman brought to Australia while she was pregnant, and centred on two main claims: that no Australian law authorised the government to fund offshore detention arrangements, and that the detention by the Commonwealth Government on Nauru was unconstitutional.