The Captain Emad controversy did not expose any fatal flaws in Australia's border policing
There was considerable public consternation after the ABC's Four Corners
alleged last month that people smugglers, in particular ''Captain
Emad'' (or Ali al-Abassi), had arrived among asylum seekers and
continued to run their smuggling activities from Australia. However,
while it's easy to blame a lack of effective intelligence or failings
around criminality and identity processes, the public debate in
Australia has not risen to the complexity of the issues involved.
Whether Australian intelligence failed in Emad's case is
far from clear, as the federal police indicated it was aware of the
allegations against him but lacked the evidence to prosecute
successfully. What I can say, from my past experience as the deputy
chairman of the people-smuggling taskforce, is that the quality of
regional intelligence was very high, it was valued by regional partners
and it was used effectively to stifle boat movements. There was never,
under the Howard government, a naval wall of steel around Australia.
Interceptions relied overwhelmingly on intelligence-directed locations,
as one fishing boat looks much like another from the air in busy sea
lanes. It's also noteworthy that people smugglers' past attempts to
relocate to Australia were foiled. In 2006, for example, Kais Asfoor was
sentenced in Australia to 10 years' jail over seven boats carrying 801
passengers to Ashmore Reef. While he was effectively out of reach of the
law in Indonesia at the time, he thought coming to Australia would be a
useful move. He was more than flummoxed on his arrival in Perth to find
that law-enforcement authorities were at the airport at 3am to greet
him.
As good as our intelligence has been, the public debate
has at times been deeply flawed by the assumption that intelligence can
provide every answer. This was evident in the SIEV X tragedy of 2001,
during which more than 350 asylum seekers drowned. Many critics said
they expected that Australia would begin a search because the boat was
overdue. Yet such boats often leave Indonesia for Australia to end up in
the same or an adjoining port, sometimes on the same day, with
intelligence taking some time to filter back, if at all. The cruel
reality of the economics of people-smuggling from Indonesia is that
disposable and relatively worthless boats must be used, making their
whereabouts and safety highly unreliable. The fact that we have not had
many unauthorised boat arrivals from Sri Lanka, for example, is not due
to them lacking the ability to make the long sea voyage to the
Australian mainland, but because the boats needed to navigate to the
mainland are too expensive to risk confiscation.
The question of criminality and Refugee Convention
obligations has caused considerable angst for many countries, not only
Australia. Put simply, some refugees are criminals but this does not
necessarily relieve a country of the obligation to take them. In the
case of Emad, if the allegations against him had proven true, it cannot
be assumed that the operation of law would have resulted in his removal
from Australia. To understand this, it's necessary to consider briefly
the convention and associated removal processes.
The Convention and Protocol Relating to the Status of
Refugees sets a very high bar. The fundamental principle within the
convention is that no contracting state, such as Australia, can expel or
return (refoule) a refugee if their life would be threatened on
convention grounds (e.g. race, religion, nationality, membership of a
social group). There are a couple of exceptions that limit such
obligations. Article 1(F) excludes cases involving crimes against peace,
a war crime or a crime against humanity, and serious non-political
crimes outside the country of refuge. Article 33 covers circumstances
where the person is a danger to national security or their crime is
particularly serious and constitutes a danger to the community. In other
words: terrorists, repeat axe murderers and those orchestrating
genocide, look out!
If the convention removal bar could be met, the process
by which a visa is cancelled or a person is removed from Australia under
the Migration services Act can be, and often is, challenged through the courts.
Even then, it may come to pass that the person simply cannot be
practically removed. For example, while Iran will take back failed
asylum seekers, it requires the agreement of the person involved, which,
unsurprisingly, is often not given. Returning asylum seekers to Iraq
has also proved particularly problematic.
Identity, in many respects, is the pervasive underlying
issue because, without identification, the threat posed by some asylum
seekers or the nature of their claims might not be able to be assessed.
This concern confronts every government and is not confined to the
border. However, it is important to understand that identity deception,
such as the use of false documents, does not in itself relieve a country
of its obligations under the Refugee Convention. It would also be wrong
to assume that discarded identity documents would necessarily disclose
the actual identity of the person concerned. Some refugees, by the very
nature of their being a refugee, cannot secure exit documents. In some
countries, official, and therefore ostensibly legitimate, documents can
be bought, with the identity tailored to the traveller's needs. People
smugglers have bought high-quality passport blanks in South-east Asia
for as little as $US20, and have used them in the people-smuggling
process.
Nonetheless, governments are right to focus on the
identity of unauthorised boat arrivals given that sophisticated controls
govern those arriving through legitimate international passenger
services. Take one family, arriving by plane into Australia without
documents, who claimed refugee status. Their documents were presumably
flushed down the toilet in flight. Their claims were so strong that the
Australian refugee process was rapidly moving towards conferring refugee
status. However, border-security officials, through the advance
passenger processing system (which maintains details of identity
documents and associated visas and effectively provides the ''lift''
permission for travellers to Australia) identified the passengers as
Dutch nationals. They were returned to the Netherlands, which had
already provided them with effective protection. They simply preferred,
for family reasons, to live in Australia.
This wish to identity-shift is a common phenomenon. There
was one initially puzzling case of a person found outside a controlled
area at Sydney Airport, suitcase in hand, claiming refugee status. There
was no record of his entry and there was no evidence of flight
documents, which he claimed to have discarded. He finally admitted that
he was a permanent resident who wanted the housing benefits and other
aid provided to refugees. More bizarrely, a person already granted
refugee status sought asylum, claiming to have just jumped ship. In his
case, he simply wanted a new start, but his identity was established
from fingerprints on a police database after a minor, unrelated
incident.
Australia's border control systems remain powerful tools
for tracking and identifying people born overseas. Unlike many European
countries, Australia has continued to collect exit data so that its
systems can determine the day that someone becomes illegal, by comparing
their entry and exit data and their associated visa status. This
capability was no better illustrated than by a case in which a detained
Asian man refused to reveal his identity. He had been in the community
for years but there was no record of his entry under the name he was
using. He would only speak in English, preventing the identification of
his first language. Officials suspected he was Malaysian, which led to a
fruitless exchange of information with the Malaysian government. It
seemed he would remain unidentified until a small piece of paper was
found in his room with three dates, two of which were recognised as
relating to his detention. An immigration officer compiled a report on
people who were in Australia illegally who had arrived on that third
date, more than a decade before, and the name of one Malaysian male came
up. This time, the Malaysian government confirmed his identity and he
was on his way.
This leads to the question: why has the accuracy of our
immigration systems been derided? Some of this was due to an
extraordinary misinterpretation of a 2004 auditor-general's report on
onshore compliance. The auditor-general had referred to a 30 per cent
error rate in the unlawful non-citizen file, a relatively small matched
file, but did not find any problems with its statistical treatment.
Nonetheless, the media reported that the auditor-general had discovered
an error rate within immigration systems of about 30 per cent, which was
nonsense. The actual error rate was about 0.0001 per cent, given that
the file examined by the auditor-general was derived from matching over
300 million records.
Despite some unauthorised arrivals' lack of documents,
biometric capability is critical. In a few cases, unauthorised boat
arrivals will be identified from international databases, particularly
through fingerprints. Even if people cannot be identified, the
collection of biometric data on arrival provides a basis for anchoring
the identity of an unauthorised arrival, so that the Australian
community can be confident it is dealing with one person and that
further identity-shifting is difficult. It also leaves open the
possibility of identification in the future.
The criminality and identity issues around asylum seekers
are not new. With the great outflow from Europe after the war,
Australia accepted large numbers of refugees despite difficulties in
confirming their identities, and knowing that a few might have been
concentration camp guards or Nazi collaborators. We survived that.
The lesson from the Emad controversy is not that it
exposed any fatal flaws in Australia's law-enforcement and border
arrangements. That capability remains powerful but far from infallible.
Any analysis of the incident does, however, reveal some of the
complexity in handling unauthorised boat arrivals and the challenges
that face policymakers.
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