Frontier Justice

by Andy Lamey

  If the smuggler’s trial was mainly concerned with the issue of border enforcement, this was reflective of the wider debate over refugee issues in Australia. People like Al Ghazzi who made desperate sea crossings invariably arrived without visas. They were thus often labelled “queue-jumpers” in the press. The label was inaccurate, as it was not actually illegal for a genuine refugee, as opposed to an economic migrant, to arrive without travel papers. Al Ghazzi and other refugees, however, were often criticized by people who did not seem to understand their situation. Six weeks after Al Ghazzi arrived, a Western Australian senator sent out a press release describing asylum-seekers as “criminals” and “law-breakers.” The release went on to summarize the view of the senator’s constituents. “Several of our callers have questioned the morality of the male refugees for abandoning their wives and children in their poverty stricken war-torn countries and for using their families’ life savings to escape to a life of comparative comfort.”

  Sue Hoffman hated the “queue-jumper” label. If Australians got to know people like Al Ghazzi, she felt, they would see just how misguided and misinformed it was. But as it stood, Hoffman knew that the fact that fourteen members of Al Ghazzi’s family had died en route to Australia would not generate any sympathy for him from Immigration officials. For this reason, when Al Ghazzi had an interview to determine whether he would be granted permanent residency, Hoffman offered to provide moral and practical support by accompanying him as a transcriber. On the day of the interview things proceeded normally, until Al Ghazzi mentioned the death of Raghed and the children.

  The Immigration officer replied offhandedly, “Many people have claimed they had relatives on that boat, more than it could carry.”

  Hoffman was taken aback by the insensitivity. “The room just went quiet. We were all shocked,” she recalls. Al Ghazzi, for his part, felt wounded. “That hurt me so much,” he says. “I don’t think, if you haven’t lost your family, you will say you lost your family. There is no point.”

  When the decision came back, it was negative. The official who had interviewed Al Ghazzi had based his decision on what he saw as Al Ghazzi’s lack of credibility. In his report, he wrote that although Al Ghazzi claimed to have lost his family at sea, there was no record of his mentioning their deaths to the Department of Immigration.

  Al Ghazzi and Hoffman were dumbfounded. Al Ghazzi had been in contact with Immigration many times about his family’s deaths. This had been the case ever since he had asked to go to Indonesia, a request he made through Immigration. During the height of his grief, Al Ghazzi had also come across a newspaper story about animal rights and stormed into an Immigration office shouting about it. “I went to Immigration, I put it in the table, I said, ‘Look, you’re looking for animal rights, and you kill people! That’s too pathetic!’ ” Immigration officials responded by seeking assurances he was not going to kill himself or set off a bomb. “I said, ‘What bomb? I want my right.’ ” Yet now it was if the entire episode had never happened.

  Al Ghazzi’s lawyer filed a freedom of information request to obtain Al Ghazzi’s immigration file. When it came back it indicated that Al Ghazzi had informed Immigration of his family’s deaths on seven separate occasions. Hoffman says, “The person asking the questions had suggested that Mohammad may have been lying because there was nothing on his file, but there was lots of evidence on his file.” The most charitable explanation was that the deciding officer had made a terrible mistake in reviewing Al Ghazzi’s paperwork. Regardless, Al Ghazzi was now a failed refugee claimant in the eyes of the law.

  The only possible option was to file an appeal. If it failed, it would be the end of Al Ghazzi’s Australian journey. By this time, as part of his vow to begin life again, Al Ghazzi had begun seeing a woman named Cherie whom he had met at a garage sale, and she accompanied him to his hearing. It took place in an office in downtown Perth, where Al Ghazzi would be interviewed over a video hookup to Melbourne.

  Cherie was nervous and squeezed his hand. Al Ghazzi, for his part, was stoic. For a long time, he had had to fight. To make it to Australia; to be released from detention; to have his family’s death acknowledged. He didn’t know if he had the energy to keep fighting anymore. “I feel dead. I’m not active anymore and I feel I’m not existing in this life. I’m just waiting for a time to go.”

  There was movement on the video screen. A member of the Refugee Review Tribunal was looking at them from Melbourne. She began the proceedings by addressing Al Ghazzi.

  “Mr. Al Ghazzi, I’m sorry for your loss.”

  Al Ghazzi was struck by the greeting. Up until now, Australia had refused to accept the reality of his family’s death. But here was a representative of the government acknowledging what he had been through. Eventually the tribunal would rule that Al Ghazzi should be recognized as a refugee, which was not a small event in his life. Yet what Al Ghazzi remembers even more than the decision was the way the member first spoke to him.

  “When she said that, honestly, I just feel all the Australian people [are] around me and catch me and give me big hug. And I feel my tears go down by themselves.”

  Mohammad Al Ghazzi arrived in Australia when it had the most severe asylum system in the Western world. In Australia at the turn of the century, asylum was seen primarily as a border-enforcement issue. The government’s overriding goal was to reduce the number of people arriving by boat. The most controversial measure in that regard, mandatory detention, was introduced by the left-wing Labour Party in 1992. John Howard’s right-wing Liberal Party then added other elements in the late 1990s, such as temporary protection visas for refugees and contracting out the management of detention camps to ACM. In 2002 the government achieved its goal when the number of boat arrivals sank to zero. The same year saw Curtin close following a riot and further instances of self-harm. Three years later many of the most extreme policies were revised. Among other changes, after 2005 families with children were detained in the community, and people incarcerated for more than two years had their cases investigated. These and other modifications were a result of a revolt by backbench members of the governing Liberal Party. One of the MPs involved said he was motivated by the realization that if Australia’s refugee system had been in place during the 1940s, it would have turned away Jews fleeing Hitler’s Germany. Five years later, in 2010, the Pacific Solution was called into question when the High Court of Australia ruled that asylum-seekers on Christmas Island were entitled to the same protections as those on the mainland.

  Between 1992 and 2005, refugees in Australia were known to be incarcerated longer than serious criminals. The difference between the two groups was underscored by an unidentified refugee who addressed an inquiry into mandatory detention, which he had experienced for five years: “I have been in detention. I got a paper and there was a big article about the dangerous man who was a rapist in Adelaide. He had raped three women, but he was jailed about four years with parole after three years. This is your law—this man is a criminal, he is a serious offence against women, but he has only been jailed for four years. For me I don’t know what I have done after five years. I am still waiting and waiting.”

  This refugee was not the first person to observe the lower status that refugees occupied relative to criminals. Hannah Arendt had made a similar observation fifty years before, when she noted that a refugee was the one type of person who would not lose, but actually gain, legal rights by committing a crime. As Arendt put it, “Even if he is penniless he can now get a lawyer, complain about his jailers, and he will be listened to respectfully. He is no longer the scum of the earth, but important enough to be informed of all the details of the law under which he will be tried.” Twenty-first-century Australia was one of the world’s most advanced democratic states. But even there, refugees could slip back into the condition Arendt diagnosed in an earlier age.

  The world’s eyes were on Australia when it incarcerated refugees such as Al Ghazzi. While the country’s policies were criticized b
y the United Nations and international human rights organizations, they were also held up as a model by politicians in other countries. In 2005 the British Conservative Party campaigned on an “Australian-style annual limit” on the number of people who came to Britain, with a special emphasis on reducing the number of asylum-seekers. Commentators on refugee issues in North America similarly argued that “Canada and the United States need only look at Australia … to prevent the flood of undesirables through the refugee loophole.” Australian officials travelled overseas to make presentations before the United Nations and other organizations, offering arguments that were widely publicized around the world. In these and other ways, the debate over refugee issues in Australia took on a significance that extended far beyond Australia’s shores.

  One of the most vigorous defenders of Australia’s policies was cabinet minister Philip Ruddock. In the 1980s and early 1990s Ruddock was a high-profile supporter of Amnesty International who wore the group’s badge on his lapel while giving speeches in Parliament. In 1988, when his party’s leader ignited a controversy by saying Asian immigration was too high, Ruddock crossed the floor to vote in support of a bill affirming non-discrimination as a bedrock principle of immigration policy. But after Ruddock became minister of immigration, he oversaw the introduction of harsh policies regarding asylum-seekers. Many observers commented on the disjunction between Ruddock the former defender of human rights and Ruddock the minister in charge of mandatory detention. Ruddock, however, paid little attention to his critics. After he left cabinet, he was asked what he thought of the refugee advocates who dogged him during his years in power. He dismissed them as do-gooders with too much time on their hands. “I mean, it’s called the doctors’ wives syndrome.”

  While in government Ruddock never lost a chance to speak out in defence of Australia’s approach. The zeal with which he did so was on display in a 2001 interview he gave to Australian journalist Peter Mares. As Mares described it in his 2002 book Borderline, he and Ruddock had a patient back-and-forth about Australian asylum policy and the situation of the world’s 21 million refugees. Then Mares began to challenge Ruddock’s arguments. At that point, Mares writes, “the minister swivelled around in his beige leather chair to face me. The tables were turned as he became the interviewer, I the subject.”

  RUDDOCK: Why not take 21 million?

  MARES: 21 million people aren’t arriving on our shores …

  RUDDOCK: No, no, no. Let’s deal with the issue of principle first. Why not 21 million? The issue of principle is that there are people who have refugee requirements, and here is Australia. Why not 21 million? You tell me. Why not 21 million?

  MARES: The reasons are probably fairly obvious.

  RUDDOCK: Well? What are they? Just give me the reasons.

  MARES: The capacity administratively to deal with it?

  RUDDOCK: Cost is it? Cost? Do you think it’s cost?

  MARES: Partly. Political acceptability. All sorts of reasons.

  RUDDOCK: Oh, all sorts of reasons! Well look, you know, once you start … I mean, I don’t know whether I want this in your book. I think now that we’ve established the price, we know what you are.

  Ruddock laughed after the final remark. He was asking Mares to face up to the reality that any immigration system will of necessity include measures consciously designed to keep people out. Or, as Mares put it, “He has found out the weak point in my position.… Where would I, a heart-on-sleeve liberal, draw the line on people seeking asylum in Australia?” Mares gave the example of airport liaison officers who are posted overseas to help airline staff detect fake passports. They inevitably prevent some refugees from reaching Australia. Yet very few people believe all such border-control measures should be dismantled. Hence the message in the minister’s laughter: any realistic alternative to Ruddockism will contain its own stiff dose of exclusionary measures, whether human rights advocates like to admit it or not.

  Ruddock offered an additional rationale for his government’s policies. It was to counter the “incentive pull factors” that drew people to Australia. In Ruddock’s view, most of the people coming by boat were not genuine refugees. Rather, they were economic migrants who risked their lives to reach Australia in order to improve their standard of living. As Ruddock put it in a 2001 speech in Geneva, “People are forsaking opportunities for protection in neighbouring countries and are using people-smugglers and the asylum system to seek access to Western countries and some are tragically dying in the attempt.” There was thus a humanitarian justification for policies such as mandatory detention. When they were in effect, word would get back to the Middle East and other refugee-producing regions, causing fewer people to take voyages like the one that killed Mohammad Al Ghazzi’s family.

  How sound is the case for Ruddockism? It is undeniable that we live in a world of border control and that there is no sign of that changing any time soon. But as a justification for mandatory detention, the need to control Australia’s border was a red herring. Many countries receive asylum claimants, often in greater numbers than Australia, yet it alone responded to their arrival by incarcerating them en masse. As the United Nations noted in 2002, “a system combining mandatory, automatic, indiscriminate and indefinite detention without real access to court challenge is not practiced by any other country in the world.” Australia’s emphasis on keeping people out reached such an extreme that between 1999 and 2005, there were fifteen instances in which rejected asylum-seekers were killed after being deported from Australia. Ruddock’s government could have avoided these and other preventable outcomes while still maintaining border control.

  This brings us to Ruddock’s second argument. It drew attention to the route Iraqis, Afghans and asylum-seekers coming by boat took to Australia, one that saw them travel through other countries. At first glance this may seem a strike against people like the asylum-seekers on board the Tampa, who insisted that the captain take them to Australia. Should asylum-seekers really be allowed to pick and choose their destination in this way?

  This question overlooks a key point: Middle Eastern and Asian refugees could not actually receive protection in the countries they travelled through. Mohammad Al Ghazzi was typical in this regard. Syria, the first country to which he fled, was not really a safe haven. This was evident not only in the difficulty he and his family experienced there but also in the fact that Syria has not signed the Refugee Convention. That means it does not even pretend to respect the minimal right of non-refoulement, or the right of a refugee not to be returned to a place of persecution (one reason why Raghed was vulnerable to extortion).

  As for Malaysia, which Al Ghazzi also passed through, it has not signed the Refugee Convention either. And although it may be willing to admit foreign Muslims as visitors, letting them settle in Malaysia is quite a different matter. Sue Hoffman, who has interviewed dozens of refugees as part of an academic research project, notes that Malaysia admits Muslims on the condition that they stay only for two or three weeks and do not seek work: “When you start to see how the Malays treated refugees from within that part of Asia, countries neighbouring Malaysia, they were horrendously treated. Malaysia had no system at that time of recognizing asylum-seekers. Once your visa ran out you were illegal, full stop. And you were subject, if you were caught, to any or all four of being lashed, detained, fined and deported. That was the standard procedure.”

  The situation in Indonesia was no better. It too has yet to sign the Refugee Convention. A UNHCR office in Jakarta does try to resettle refugees abroad, but of the 476 cases it approved between August 1999 and August 2001, it could find governments willing to take only 18. As for seeking refuge in Indonesia itself, it is legally impossible. “Indonesia unequivocally refuses to grant any legal status that would facilitate the local integration of refugees,” Human Rights Watch noted in a 2002 report, which described asylum-seekers being attacked by Indonesia mobs, among other terrors. For refugees, stopping in Indonesia or Malaysia would have prolonged their pe
rsecution rather than ended it.

  This situation highlights the central paradox of mandatory detention. In time, over 90 percent of the people who experienced it were recognized by Ruddock’s own government as refugees. Almost twelve thousand people arrived by boat between 1999, when the harshest measures were introduced, and 2002, when boat arrivals fell to zero. Of this group over eleven thousand were eventually recognized as refugees. This meant that the primary burden of detention was placed on people who had already experienced persecution by their own governments. This was the opposite of what Australia had pledged to do when it signed the Refugee Convention. “Often refugees have come from situations in which they’ve been arbitrarily detained,” notes refugee scholar Matthew Gibney. “If the first thing that they encounter is that [they are detained], not on the basis of some individual action but as a group … that is a very scary, a very horrific situation for them to face. It sends out a very bad message for the respect of human rights in the country in which they’ve arrived.”

  Philip Ruddock had something in common with Bill Clinton and other defenders of the Haitian interdiction program. Like them, he appealed to “incentive pull factors” to justify his government’s actions. The frequency with which this argument is made by politicians in the United States, Australia and many other countries today captures something about the political universe we inhabit. It has been said that economics is the study of incentives. By that standard, asylum policy is one of many areas governments increasingly understand in economic terms. Not in the sense that it is a money-maker, but in the sense that policies are designed with an eye to what their long-term incentives will be. In the case of Australia, refugees who arrived there were dealt with harshly to send a message to future refugees not to come.