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Legal and Constitutional Affairs Legislation Committee - 23/05/2011 - Estimates - IMMIGRATION AND CITIZENSHIP

Senator Hanson-Young I want to follow on from questions in relation to the so-called Malaysian solution. I want to tease out some of the responses that you were giving in relation to particular parts of the Migration Act. Of course, we know that section 198A requires a declaration of a country where people can be taken to in order to have their claims assessed rather than being done here on Australian soil. You implied that there were other parts of the Migration Act that could be used to remove people if indeed you were not able to declare a country under that section. Is that because you cannot specify a declared safe country for Malaysia?

Mr Metcalfe : No.

Senator Hanson-Young: Why would you not be using and invoking that particular part of the Migration Act?
Mr Metcalfe : I was just being very correct with Senator Cash and simply pointing to the fact that section 198A does permit an offshore entry person to be taken to a declared country but section 198 itself allows the removal from Australia of unlawful noncitizens.

Senator Hanson-Young: But it is not illegal to seek asylum, so these people were not necessarily unlawful citizens.

Mr Metcalfe : I think you are confusing two concepts there-

Senator Hanson-Young: No, I am just quoting the convention.

Mr Metcalfe : No, you are not.

Senator Hanson-Young: Yes, I am.

Mr Metcalfe : No, an unlawful noncitizen is a term of art as described in the Migration Act and it applies to a person who is not an Australian citizen and who has no visa.

Senator Hanson-Young: But they are not necessarily illegal or unlawful, are they, if they are seeking asylum?

Mr Metcalfe : It is an entirely different concept as to whether they are can assert a right under international law seeking asylum in a country. But Australian law has forever treated a person who does not hold a visa, or entry permit in the old days, as being unlawfully in Australia. The Migration Act now for many, many years requires officers of my department to detain such a person and remove them. That is a clear statutory obligation. It is quite a different concept as to whether a person who arrives without a visa is able to engage Australia's international protection obligation and assert that they are in fact in need of international protection and that Australia should provide that protection.

Senator Hanson-Young: In order to invoke section 198 you would be ignoring Australia's obligations?

Mr Metcalfe : No, because as I explained-

Senator Hanson-Young: If you were to remove asylum seekers who were asking for protection.

Mr Metcalfe : If we were to remove a person to a place where they would be persecuted or to a place which would send them back to a place of persecution, that would be a breach of international law.

Senator Hanson-Young: How do you know if you are sending somebody to a country of persecution if you have not assessed their claim for protection?

Mr Metcalfe : Because in the case of Malaysia we would be talking about persons who were not Malaysian nationals and therefore are not making any claim in relation to Malaysia. We are talking largely about people from Afghanistan, Iran, Iraq or Sri Lanka where we have undertakings from Malaysia backed up by involvement of UNHCR that Malaysia would not refoule such a person.

Senator Hanson-Young: Except that we have obligations not to send people to places where they may face harmful conditions, where they may not be given protection. If you have not assessed these people's claims, how do you know they are not seeking protection from Malaysia?
Mr Metcalfe : Because that would be quite clear that they were not nationals of Malaysia.

Senator Hanson-Young: Are you suggesting that there are individuals within Malaysia who are not subject to torture, persecution and physical and emotional abuse who are other than Malaysian nationals?

Mr Metcalfe : I would not want to talk about that issue in this forum. But I think we are at real risk here of conflating and confusing several different concepts, with respect. There is a clear legal power-indeed obligation-under the Australian Migration Act for people who do not have a visa and who are not a citizen to be removed from Australia.

Senator Hanson-Young: But there are obligations to Australia to not deport people to countries where they may face harm?

Mr Metcalfe : At international law as a signatory or a party to the United Nations convention on refugees, Australia does not return people to a place of persecution.

Senator Hanson-Young: Except you do not know if you have not given them some type of assessment.

Mr Metcalfe : All I can say is-

Senator Hanson-Young: Tell me how you can guarantee-

CHAIR: Senator, I know you are keen to ask questions. I am just going to ask you to let Mr Metcalfe finish his answer because that might assist with further clarification of what you are seeking.

Mr Metcalfe : What I would refer you to is that this particular proposed transfer agreement with Malaysia will be occurring under the auspices of the regional cooperation framework done at Bali on 30 March this year. It incorporates concepts of protection and human rights for persons who may be travelling through the region in an irregular manner. Indeed, it seeks to promote their safety by finding ways of preventing people from employing people smugglers and placing themselves at great risk of death or serious injury through taking irregular forms of transport such as we so tragically saw before Christmas when many people died because they were using people smugglers.
The issue of the protection of international law will be the subject of the agreement between Australia and Malaysia. I would note the supporting comments of the international body responsible for these matters, the United Nations High Commissioner for Refugees.

Senator Hanson-Young: In relation to people's refugee protection, not necessarily in the protection of other complementary issues-that is where I am going-what type of agreement will you be able to establish to ensure that, if you do not assess somebody's claim, what they are fleeing from and what they are in danger of, how can you guarantee their safety and protection?

Mr Metcalfe : We would have agreement between the governments of Australia and Malaysia that does go to the issue of their human rights and their dignity while they remain in Malaysia and ensures that if they wish to avail themselves of refugee determination processes that would occur. Indeed, the United Nations High Commissioner is being involved by both Australia and Malaysia as part of this process.

Senator Hanson-Young: What part of the Migration Act is the government relying on in order to implement this agreement?

Mr Metcalfe : Section 198 and possibly section 198A.

Senator Hanson-Young: Primarily section 198?

Mr Metcalfe : As I have said several times now, 198 requires the department to remove people from Australia if they do not hold a visa. At the moment people who arrive in an irregular manner by boat do not have a visa. They are held while any claims they may wish to raise are considered. That exists outside the statutory framework of the Migration Act and ultimately leads to an issue for the minister as to whether he is prepared to allow a formal application for a protection visa under the act.
Senator Hanson-Young: Lifting the bar.

Mr Metcalfe : The legal provisions that we are relying upon in terms of removal are section 198 and 198A and, in relation to their detention, section 189.

Senator Hanson-Young: What part of the refugee convention is Australia relying on in order to fulfil our obligations to remove people under section 198?

Mr Metcalfe : The refugee convention requires state parties not to refoule a refugee, a person where there is a real chance of persecution for a ground as set out in the refugee convention for reasons of ethnicity, nationality, religion or membership of a particular social group, for example. The transfer agreement between Australia and Malaysia, in the same way as previous bilateral agreements with Nauru and Papua New Guinea, allows Australia to give effect to its international obligations of nonrefoulement because another country is prepared to undertake that they will not refoule a person who is a refugee. The agreement as announced by the prime ministers of the two countries makes it clear that persons subject to this arrangement would not be summarily removed from Malaysia but that they would be subject to the availability of a refugee determination process and that would be undertaken by the United Nations.

Senator Hanson-Young: Except there is no agreement.

Mr Metcalfe : There is a joint statement between the prime ministers.

Senator Hanson-Young: It is a statement, not an agreement.

Mr Metcalfe : As I have indicated to Senator Cash, an agreement is being finalised.

Senator CASH: It is extensive. It is really extensive.

Senator Hanson-Young: Yes, one page. I am sure that is going to protect the lives of very vulnerable people. The requirements for us under the convention as you have outlined mean that we would have to have some understanding of the people, their cases and their needs for protection before we are to send them to a country like Malaysia to ensure that we are upholding those obligations.

Mr Metcalfe : With respect, I disagree.

Senator Hanson-Young: How do you guarantee that you are upholding the convention and being able to remove somebody to a given country, Malaysia, under section 198 if you have not assessed their need for protection and what they are asking protection from?
Mr Metcalfe : With respect to their transfer to Malaysia that would be done on the basis that it was safe for that to occur, and that is the subject of the agreement.

Senator Hanson-Young: Which agreement is that?

Mr Metcalfe : The agreement that is currently being finalised with Malaysia. Were we to undertake a refugee protection process here there is not much point in transferring somebody somewhere else. And I would go back to the original policy setting that the government is determined to stop the irregular travel of people coming to Australia seeking to avail themselves of Australian refugee processes and placing themselves and their children at great risk of death or major injury as a result. There is a better way. There is a more orderly way for this to occur and that is removing the people smugglers from the equation.

Senator Hanson-Young: But of course we will not be resettling the 4,000 nominated people unless 800 people take that boat trip, will we?

Mr Metcalfe : We will be resettling 4,000 people from Malaysia over the next four years.

Senator Lundy: It is not conditional.

Senator Hanson-Young: Where does the agreement say it is not conditional?

Mr Metcalfe : I think the Prime-

Senator Hanson-Young: The statement from the Prime Minister says it is conditional.

Senator Lundy: That is what I am referring to.

Senator Hanson-Young: Why do we not take the 4,000 people now?

Mr Metcalfe : We take 30,750 people per year. As I have said-

Senator Hanson-Young: And we will have an increase of 1,000 this year.

Mr Metcalfe : That is right. My maths is not really good but I think that takes us somewhere towards 55,000 to 56,000 people in the next four years. This is something Australians should be proud of.

Senator Hanson-Young: Why has the statement and the foreshadowed agreement presented a one for five swap if there is no condition on that one person being returned?

Mr Metcalfe : I think that word ‘swap' and all that sort of thing comes from-

Senator Hanson-Young: ‘Transfer' is your word. Let us use ‘transfer'.

Mr Metcalfe : I am using the word ‘transfer'. ‘Swap' is a word that is sort of a device of the media to try to explain things in their terms. We are talking about a transfer agreement where we would transfer people from Australia to Malaysia to undergo internationally recognised refugee determination processes and where Australia will increase its already generous overseas resettlement program by 1,000 persons per year to assist Malaysia, which has currently around 92,000 asylum seekers. This gives an opportunity for people who have been found to be refugees to have a durable solution. It is designed to stop people who have not been found to be refugees from risking their lives seeking to come to Australia.

Senator Hanson-Young: Why would we wait for 800 people to come here before we take all 4,000?

Mr Metcalfe : Senator Lundy has made it clear that the 4,000-

Senator Hanson-Young: Maybe the minister would like to answer.

CHAIR: I am just going to remind you to let the officers at the table finish their answers first.

Senator Lundy: As the secretary has painstakingly explained a number of times even in the short time I have been in the room, this policy is designed to-

Senator Hanson-Young: I know what the policy does.

Senator Lundy: stop the trade of people smuggling and the 4,000 per year from Malaysia-

Senator Hanson-Young: No, 1,000.

Senator Lundy: Sorry, 1,000 per year from Malaysia-4,000 over four years-allows us the capacity to be able to settle those humanitarian entrants successfully into Australia. I think you would understand all at once would present some particular challenges, but I think we can manage 1,000 additional over the four-year period.

Senator Hanson-Young: There is no agreement for a one to five person exchange?

Mr Metcalfe : No, if you read the Prime Ministerial statement it makes it clear that Malaysia will accept up to 800 persons. As I discussed earlier with Senator Cash, one would certainly hope that those places will not be needed because it changes the business model. There is no guarantee now that if you come to Australia you will come into the Australian system. The 4,000 places are to be provided over the next four years as part of an increase to our annual resettlement program which is already 13,750 and it will be expanded to 14,750.

Senator Hanson-Young: Even if not one of those 106 people currently being detained on Christmas Island are sent to Malaysia?

Mr Metcalfe : I do not think I can be clearer.

Senator Hanson-Young: You are saying to me that the representation-and now you are blaming it on the media-of the media that this was a one for five exchange is bollocks. That is what you have just said.

Mr Metcalfe : I have not used any of those words. You are completely putting words in my mouth.

Senator Hanson-Young: Is there an exchange of one asylum seeker for five people to be transferred from Malaysia?

Mr Metcalfe : Can I just refer you to the first two dot points of the operative paragraph of the prime ministerial statement which says,'800 irregular maritime arrivals, who arrive in Australia after the date of the effect of the arrangement, will be transferred to Australia for refugee status determination. In return, over four years, Australia will resettle-

Senator Hanson-Young: In return?

Senator Lundy: To Malaysia.

Mr Metcalfe : To Malaysia for refugee status determination. In return, over four years Australia will resettle 4,000 refugees who are currently-

Senator Hanson-Young: How are the words ‘in return' not conditional?

Senator BRANDIS: That is what I was wondering too, Senator Hanson-Young. That is not what he said.

Senator Hanson-Young: How are the words ‘in return' in that statement not conditional?

Mr Metcalfe : I do not understand the point you are making.

Senator Hanson-Young: You have sat here for the last five minutes, as has the minister, to tell me that there is no link between the 800 people that Malaysia will agree in this foreshadowed agreement to take in exchange for the resettlement of 4,000 people.

Mr Metcalfe : I have not said that. What I have said is that Malaysia has agreed that it will take up to 800 people from Australia who arrive here in an irregular manner and that Australia will take 4,000 people from Malaysia.

Senator Hanson-Young: In return?

Mr Metcalfe : What I specifically disavowed were suggestions of a swap.

Senator Hanson-Young: I would like Mr Metcalfe to explain to me how the phrase ‘in return' is not a condition by which the transfer of the two different groups of people will occur.

Mr Metcalfe : I see. What I think is quite clear is that Australia has indicated it will take the 4,000 people and Malaysia has indicated it will take up to 800 people.
Senator Hanson-Young: In return?

Mr Metcalfe : The two things are linked but I rejected the simplistic terminology of a swap, of a five to one swap. I think that you need to have a look at the fact that we will be taking 55,000 or 56,000 refugees. This will mean that we are taking 58,000 refugees and we will stop people smugglers selling dangerous voyages to Australia. That is a good deal.

Senator Hanson-Young: Not if you are one of those 800 people who has to risk their lives on the high seas to get here.

Mr Metcalfe : That is right, not if you are one of the 800 people who get onto a boat and die off Christmas Island.

Senator Hanson-Young: As a result, if they did happen to survive that treacherous trip, arrive in Australian waters to then be returned or sent to Malaysia-

Mr Metcalfe : The whole idea is that you would not get on that boat if you are not going to get entry to Australia.

Senator Hanson-Young: Because receiving those 4,000 people is in return for us sending 800 people to Malaysia.

Mr Metcalfe : I agree with the formulation you have just used.

Senator Hanson-Young: The idea that this is unconditional is not true. The minister said it was unconditional and that is clearly not the case.

Senator Lundy: It is on the basis that it is up to 800. Your comments imply that there have to be 800 people to go to Malaysia in return for 4,000. What I am making clear is that it is up to 800-

Senator Hanson-Young: So only 100 people have to risk their lives?

Senator Lundy: Mr Metcalfe made it very clear in repeating the prime ministerial statement again and again that it was up to 800 people-

Senator Hanson-Young: You said it was not conditional.

CHAIR: Just let Senator Lundy finish what she is saying.

Senator Lundy: On the basis that we do not take a smaller proportion of the 4,000 if 800 people do not go, that is my explanation of saying it is unconditional. Part of the agreement that is still being finalised is that we will take 4,000 people over four years and up to 800 will be returned to Malaysia. Mr Metcalfe is absolutely accurate when he says it is not a one for five swap or somehow a formal exchange based on those numbers. Both the up to 800 and the receiving of 4,000 are part of the same agreement, but I maintain those numbers are not conditional in the way that you tried to imply.

Senator Hanson-Young: I am just using the language that has been used by the Prime Minister and the minister for immigration actually.

Senator Lundy: That is why we are referring to the statements in response to your question so we can be very clear as to what the Prime Minister has said.

Senator Hanson-Young: For the last two weeks the government and various ministers spruiking this policy have been saying that it is a good deal because we get to have 4,000 people in exchange for 800 being sent to Malaysia.

Senator Lundy: It is a good policy because it will have the effect of spoiling the business case of people smugglers.

Senator Hanson-Young: What evidence do you have of that?

Mr Metcalfe : I think, as I explained in my opening statement and then in various comments to Senator Cash earlier, Australia has been receiving people in an irregular manner for over 30 years.

Senator Hanson-Young: Yes, of course. We do not have to start swapping people in order to change that.

CHAIR: Let Mr Metcalfe finish.

Mr Metcalfe : It is quite clear that certain policy arrangements have been more effective than others. I could talk for hours if you wish, but I am sure you do not, in relation to that. What is clear though is that there is a business model now operating for people smugglers that they can virtually guarantee that if people pay them $15,000 or $20,000 to fly down to South East Asia to be smuggled between Malaysia and Thailand and then to get on a boat, which may or may not end up in Australia, which may sink or disappear, or which may crash into the rocks on Christmas Island, that they are going to profit from that particular motive. I do not think anyone wants people risking their lives in that way.

Senator Hanson-Young: No, of course.

Mr Metcalfe : Therefore, the whole intention here is to say to the people smugglers: you cannot guarantee that anymore. You cannot guarantee that you can get someone to Australia. That is why this policy, which is devised from a sense of humanity to stop people risking their lives-

Senator Hanson-Young: What sense of humanity?

Mr Metcalfe : Are you encouraging people to travel illegally to Australia on leaky boats?

Senator Hanson-Young: No, I am not but you are.

Mr Metcalfe : Absolutely not.

Senator Hanson-Young: You have said that in return for Australia resettling 4,000 people that Malaysia has to take some of the people who have come here by boat. Your policy is inherently inconsistent.

Mr Metcalfe : Your rationale is missing the key point. The key point is: would you, sitting in Pakistan, being offered a voyage to Australia for $15,000 with a guarantee of getting there, mortgaging your house, mortgaging your kids' future, still make that decision if you knew that you would not actually get to Australia even if you get on that boat and you arrive here?

Senator Hanson-Young: With all due respect I think I have spoken to enough people who have taken that journey to know that that type of idea of a simple, rational decision when you are fleeing for your life and the safety of your family-people take whatever measures are available to them. With all due respect to the families who have risked their lives, families who have lost their lives on the high seas, I think the idea that here in cushy Canberra people in the bureaucracy can sit there and say-
Senator Lundy: I take offence at that remark.

Senator Hanson-Young: that here is a logical argument for you not to-

Senator Lundy: What do you mean by ‘cushy Canberra'? Can I just go back to that? I take offence at that. I am the Senator for the ACT and what does ‘cushy Canberra' mean?

Senator BRANDIS: It probably means it is a very agreeable place.

Senator Lundy: Thank you.

CHAIR: If you have got questions of the department I would ask you to concentrate on those questions, please.

Senator Lundy: There are plenty of families doing it hard here, too.

CHAIR: Senator Hanson-Young, I am going to direct you and ask you to concentrate on your questions to the department, please.

Senator Hanson-Young: I do not think there is anybody who would argue that here in Parliament House we have it pretty good.

Senator Lundy: Is that what you meant by ‘cushy Canberra'?

Senator Hanson-Young: I meant parliament house.

Senator Lundy: The people of Canberra do get offended when generalisations are made about their city in this way. I am very happy to pull other parliamentarians up on that fact.

Senator Hanson-Young: Thank you. I am more than sure that you have done that for your constituents. I am also very sure that families who have risked their lives for safety and freedom from persecution and torture to be presented with the idea that there is some kind of logical analysis of what is most likely as a result of fleeing their homeland, that somehow some argument being laid out by parliamentarians in Canberra is going to make them choose whether to flee for the safety of their families. With all due respect, the stories of these people are horrendous. I do not think we can water them down.

CHAIR: Do you have any further questions?

Senator Hanson-Young: I do.

CHAIR: There are other senators waiting to ask questions.

Senator Hanson-Young: I would like to know if in exchange of 4,000-in return, sorry. I will use the wording of the statement: 4,000 people in return for 800 people being sent-

Senator Lundy: Up to 800.

Senator Hanson-Young: Up to 800, does that mean that we will take all 4,000 people from Malaysia with zero returns to Malaysia?

Mr Metcalfe : I think we made it clear that the two aspects of the arrangement will operate and so we have indicated that we will increase our refugee intake-it is in the forward estimates-to 14,750, including the 1,000 from Malaysia. Malaysia, in undertaking this particular agreement with Australia, I think is pleased that it is able to provide permanent resettlement options for people who are in fact refugees. If that helps us get the people smugglers out of the international game of sending people to different countries, well that is a good thing.

Senator Hanson-Young: Will Australia resettle all 4,000 people from Malaysia if zero people are sent to Malaysia in return?

Mr Metcalfe : I think I have said yes about six times.

Senator Hanson-Young: So the wording in the statement of ‘in return' means nothing?

Mr Metcalfe : It does mean something because as Senator Lundy and I have made clear, Malaysia is undertaking to take up to 800 people.

Senator Hanson-Young: My very clear question is: will Australia resettle all 4,000 even if we do not send one person to Malaysia?

Mr Metcalfe : I think I have said it seven times now, yes.

Senator Hanson-Young: I would like a yes or a no.

Mr Metcalfe : I have said yes before.

Senator Hanson-Young: In terms of the protections for people beyond the standard refugee protections under the convention as administered by the UNHCR in places like Malaysia, what is the guarantee that somebody seeking complementary protection will be looked after if they are returned to Malaysia?

Mr Metcalfe : The core obligation, as you point out, is non-refoulement of a person who is a refugee. In relation to so-called complementary or additional human rights standards the United Nations is familiar of course with those particular obligations. Although people may not be refugees they may be regarded as persons of international concern or international protection.

Senator Hanson-Young: What is the guarantee that those people will receive protection?

Mr Metcalfe : The guarantees are as outlined in the statement. I cannot take you further than that.

Senator Hanson-Young: It does not talk about complementary protection.

Mr Metcalfe : It talks about our core obligations in relation to human rights standards.

Senator Hanson-Young: How will we know that we are not returning people to Malaysia who need complementary protection and that is not what is assessed by the UNHCR?

Mr Metcalfe : The government has made it clear that everyone who arrives will be sent to another country. The UNHCR is involved. The regional cooperation framework provides a framework. This is a very substantial increase in protecting the rights of refugees and at the same time taking people smugglers out of business and preventing deaths at sea.

Senator Hanson-Young: Of the people who are currently being held on Christmas Island, of the boat arrivals since this announcement was made, have they had any access to legal advice?

Mr Metcalfe : My understanding is no.

Senator Hanson-Young: Why is that?

Mr Metcalfe : There is no obligation to provide them with access to legal advice.

Senator Hanson-Young: Have they had access to anybody outside of the department?

Mr Metcalfe : I would need to check on the specific circumstances.

Senator Hanson-Young: What type of assessment will be conducted into these people's cases before they are removed to another country?

Mr Metcalfe : None.

Senator Hanson-Young: How will we know that we are not sending any of those people wherever they are sent to a country where they may face persecution and issues to do with their safety?

Mr Metcalfe : We would only send people to a country where we had an agreement as to respect for their human rights and dignity and where they would have access to an internationally recognised refugee status determination process similar to the millions of other people in that circumstance. Millions of people are in a similar situation.
Senator Hanson-Young: A few estimates sessions ago I asked both you and your colleagues about the conditions of detention in Malaysia. I asked about the particular standards and of course in specific reference to the treatment of children. Can you remember what your response to me was?

Mr Metcalfe : I cannot recall that. We deal with thousands of questions.

Senator Hanson-Young: That is why I thought I would ask if you remembered.

Mr Metcalfe : You might refresh my memory.

Senator Hanson-Young: The response that you gave me was that Australia already spends some money in Malaysia for detention and support of the processing of people's claims through the UNHCR, through the IOM. The response that you gave me was that the conditions in which people are held, including children, was solely an issue for Malaysia. Do you still agree with that statement?

Mr Metcalfe : I would regard the situation in relation to the 92,000 asylum seekers currently in Malaysia as an issue for Malaysia.
Senator Hanson-Young: Do you agree that while we may have our own set of standards of how we think people should be treated and looked after here in Australia, they may not be the same standards by which people are treated and cared for in Malaysia?

Mr Metcalfe : There will be different arrangements and different standards amongst the different countries of the world.
Senator Hanson-Young: Do you agree that the standards in Malaysia for the treatment of asylum seekers are different from the accepted standards of treatment here in Australia?

Mr Metcalfe : Yes.

Senator Hanson-Young: Do you agree that the detention of children in Malaysia would be something that would be unacceptable here in Australia?

Mr Metcalfe : It is not something that I wish to comment on as to the applicable standards in any other country. But what I would simply note in relation to-

Senator Hanson-Young: You did two years ago.

Mr Metcalfe : the Australia/Malaysia-no, I think we made it clear that it was a matter for Malaysia if I am right in your refreshing of my memory.

Senator Hanson-Young: You said we had different standards.

Mr Metcalfe : We have indicated that the transferees under this arrangement will be treated with dignity and respect and in accordance with human rights standards. As I have indicated, both the United Nations High Commissioner for Refugees and the International Organisation for Migration will be involved in the implementation of this particular MOU.

Senator Hanson-Young: How do you expect the impact of a special agreement for a special type of treatment for up to 800 people in Malaysia will be seen in Malaysia in comparison to the other type of standards that the remaining 92,000 asylum seekers receive?

Mr Metcalfe : It is a good question. That is something that we are mindful of in settling the arrangements with Malaysia.
Senator Hanson-Young: What do you think the impact will be?

Mr Metcalfe : I would not want to speculate on something that is currently the subject of discussions with another country.
Senator Hanson-Young: What type of safeguards are going to be in the agreement to ensure that those up to 800 people-taking on Senator Lundy's explicit point there-will be treated differently from the 92,000 other asylum seekers in Malaysia?

Mr Metcalfe : I can certainly understand your interest in the question, but as I indicated to Senator Cash before I do not think it is appropriate for me to get drawn into a running commentary on issues that are currently the subject of international negotiations.

Senator Hanson-Young: I think it is appropriate because we are talking about-

Senator Lundy: Perhaps if I could just make a comment that the UNHCR spokesperson, Yante Ismail, is reported to have said that the UNHCR thinks the agreement has potential to enhance the protection for refugees in Malaysia as well as the region as a whole.

Senator Hanson-Young: That is because it is pretty bad at the moment.

Senator Lundy: Yes, but you acknowledge then that at least it is an opportunity for improvement. That is what we are being told as it is being reported; that that is the view of the UNHCR and I think it needs to be acknowledged in this conversation.

Senator Hanson-Young: Of course the UNHCR simply assesses people's claims. It is not up to them to decide how the Malaysian authorities will treat asylum seekers living in their country.

Senator Lundy: I just think it is relevant to the discussion that that comment was made by the UNHCR.

Senator Hanson-Young: I can read newspaper reports as well. How can we possibly take any type of assurance when we are talking about 92,000 asylum seekers in Malaysia where we know the conditions are not good? It is not just the Australian media telling us this. It is international organisations who have monitored this stuff on the ground. It is evidence gathered over years of how asylum seekers are treated in Malaysia. What type of assurance can we possibly get that there will be a special case for a handful of up to 800? Are they going to be kept in a totally separate space?

Mr Metcalfe : As I have said, I am not going to be drawn on that but I-

Senator Hanson-Young: This is my point; this is Senate estimates. There is a budget line item, Australian taxpayers' dollars being put aside to be spent on this particular agreement. If we do not know what type of conditions these are going to be kept in, if we do not know what the assurances are that these people will have their dignity upheld, will have their human rights protected, will be treated with the standards that Australians would expect people who arrive on our doorstep asking for help should be treated, when will the Australian taxpayers know whether this is money that they would actually like to be spent?

Mr Metcalfe : As I have indicated on several occasions, this is the subject of international negotiations with another country, with a close friend of Australia. It is clearly an innovative arrangement. I can understand that some people are a little surprised or confused about it. The detail that you are seeking is a subject of discussions which will doubtless be the subject of further communication by the government when the government is ready to do that. I will leave that to the minister as to when he is ready to make those sorts of announcements.

But I do think it is important that, while of course there has to be a very proper focus on people who may be able to access a people smuggler and come to Australia, we are also mindful of the other people who do not have those resources, of the fact that Malaysia is hosting 92,000 asylum seekers and is doing so with a population roughly the same as Australia; it is hosting a very large number of people. We have to deal with the reality that not many countries in this region are signatories to the convention but that the regional cooperation framework does provide some movement towards a protection arrangement. So we have to work in the real world, not an abstract world or a world as you would like it to be. I think the minister has made it very clear how shocked he was at the tragic loss of life associated with CF221, the rumours about other people having disappeared at sea. The government is quite determined to try to remove the incentive for people to use irregular methods and to normalise the movement of people in the region. That includes providing additional refugee places for people who are in fact refugees.

Senator Hanson-Young: If people are going to be treated with a higher standard of care, respect, dignity and protection when they are sent to Malaysia, why do you think this will be a deterrent?

Mr Metcalfe : It is clearly a deterrent if your intention is to come to Australia and you are denied accessing the Australian system. You made a comment before about people not having choices. Some people do have choices and some people quite intentionally seek to come to Australia, because it is a great country.

Senator Hanson-Young: Most of those people come in through Qantas Airways.

Mr Metcalfe : That is absolutely right. Millions of people come and go every year. For the people who bypass the system, who forge visas or use people smugglers to get on boats, we are trying to bring some order into what is clearly a dangerous situation that people are facing, to remove that incentive for that travel and to encourage people to access protection arrangements in countries in their immediate area or region.
We need to be careful about falling into the trap of thinking that all irregular maritime arrivals are the same. We are talking about different nationalities, people, motivations, circumstances, situations that they are coming from and reasons for coming to Australia. We are not talking about a homogenous group. The one thing we do know, though, is that they are risking their lives once they start dealing with people smugglers, and we are determined to provide an international system through the regional framework that provides for a more orderly method of managing this type of migration.

Senator Hanson-Young: Why would we not simply resettle more people directly from those countries?

Mr Metcalfe : Australia, per capita, resettles as many people as any other country in the world.

Senator Hanson-Young: Why would we not resettle more people directly from Malaysia and Indonesia, if we did not want people boarding boats out of desperation because they cannot stay where they are?

Mr Metcalfe : There are always going to be more people in the world who want to come to Australia than Australia could possibly ever take. We are incredibly fortunate living here in cosy Canberra, Adelaide and Perth, to live in a First World country with great democratic rights and freedoms. Many people do not enjoy that. Unlike many other countries, we provide places for some of the most needy people in the world to come here.

Senator Hanson-Young »: There will always be people desperate for relief from persecution and torture.

Mr Metcalfe : The only way to stop that is by denying them that opportunity, by saying, ‘There's no point risking your life because if you come here you won't stay here.' I would argue this is a very clear policy in relation to a very difficult set of circumstances. The alternative is to do nothing and we will keep seeing people coming to Australia-because Australia is a great place and because the people smugglers market Australia as a destination-drowning; risking their lives; sending young people out without their parents in the hope their parents will rejoin them; going into a detention environment, which I am sure we will talk about; becoming depressed or disenchanted if they do not receive what they want, which is a life in Australia; and experiencing all of the ills and evils associated with that. The government at least is seeking to do something to provide an orderly process as opposed to an illegal process of travel.

Senator Hanson-Young: Except that of course those people who arrive here will be sent to a place like Malaysia, where they will have more rights and more protection than the majority of other people seeking asylum in that country.

Mr Metcalfe : I have not been drawn into making a comment on that issue.

Senator Hanson-Young: We know that the conditions for asylum seekers in Malaysia do not measure up to the protections of people under the refugee convention. If we do not have those guarantees of protection for people, we will not only not fulfil our own obligations under our own migration act; we will not be fulfilling our obligations under the convention. That is why you have said there will be an agreement that upholds people's dignity and human rights.

Mr Metcalfe : Absolutely.

Senator Hanson-Young: So those people will get more rights?

Mr Metcalfe : No. I have not gone into comparative issues. That is one thing I have been hesitant to do. I know Senator Lundy has indicated there is a view from the relevant international United Nations body that this is a positive development.

Senator Hanson-Young: Because the current rights of people are substandard.

Mr Metcalfe : No. It is about trying to reduce incentives for people to risk their lives.

Senator Hanson-Young: The comments made by the UNHCR were specifically around the ability perhaps under this type of agreement to enhance the standards of protection for all asylum seekers.

Mr Metcalfe : That is a very positive thing, if we can achieve that.

Senator Hanson-Young: Because currently the standards are pretty poor.

Mr Metcalfe : Yes. In the real world you have to work with what you have got.

Senator Hanson-Young: Yet for some reason the Australian government is trying to tell the Australian people that the 800 people we send to Malaysia will receive different rights and protections from those of the majority of other asylum seekers in Malaysia.

Mr Metcalfe : I have not offered to comment in a comparative way. I have simply indicated that the agreement is that people returned from Australia will be accorded human dignity and dignity in accordance with human rights standards.

Senator Hanson-Young: And yet we know that asylum seekers in Malaysia are often treated appallingly. We know the conditions; the evidence is there. People are caned, whipped and deported.

Mr Metcalfe : I have not made a comment in relation to that.

Senator Hanson-Young: You said yourself that internal comparison is a concern and that is why it is being worked out in the agreement.

Mr Metcalfe : I do not think I said that, but I am happy to check the record.

Senator Hanson-Young: I am more than happy for you to check the record, because I specifically asked about the perception that 92,000 other people would be treated differently from the 800 under Australia's special deal.

Mr Metcalfe : I agreed it was an issue, but I have not been drawn into a commentary about the situation facing the 92,000 people in Malaysia, noting that Malaysia very generously hosts those 92,000 people, and I am not going to get drawn into commentary or opinions.

Senator Hanson-Young: Do you think it is acceptable that asylum seekers in Malaysia are subject to whipping and caning?

Mr Metcalfe : I believe that people everywhere should be accorded dignity and respect.

Senator Hanson-Young: Do you think whipping and caning are part of that?

Senator Lundy: I do not know whether that is a specific question to the officer.

CHAIR: I think you are asking for a personal opinion from Mr Metcalfe. I do not believe that is appropriate.
Senator Hanson-Young: I will rephrase my question.

CHAIR: If you have questions about the budget or the PBS, please continue.

Senator Hanson-Young: Is upholding human rights and dignity undermined by actions such as caning and whipping?

Mr Metcalfe : I would not want to be drawn into a specific example. What I know is that dying on the high seas is clearly a major loss of your human rights. If the government can come up with international arrangements to protect the rights of refugees and to remove the incentive for them to get on leaky boats and drown on the high seas or smash into Christmas Island, and for children, women and men to drown and for Australian sailors to risk their lives in rescuing them, I personally think that is a good thing.

Senator Hanson-Young: As to the 100-plus asylum seekers that are currently being held on Christmas Island, what types of human rights are being upheld for them at the moment?

Mr Metcalfe : They are being accommodated in accordance with Australian detention standards. We have indicated to them that Australia is not going to process any claims and that they will be removed to another country, where any claims will be considered.

Senator Hanson-Young: Do the Australian detention standards require access to legal advice?

Mr Metcalfe : No.

Senator Hanson-Young: So the government's detention values do not require access to legal advice and support?

Mr Metcalfe : If a person makes a request for legal assistance in relation to their detention, section 256 of the act is applicable and will be given effect. If a person under the previous policy came to Australia they were given not legal advice but migration application advice in relation to the construction of their claim for refugee status in Australia. But the government has made it clear that in relation to boats intercepted those processes will no longer apply and that people will be returned to an overseas destination, where any processing will occur.

Senator Hanson-Young: How many children are being held-106 or 108?

Mr Metcalfe : I will have to check on the precise number. It is over 100.

Senator Hanson-Young: In the group of 100-plus are there human rights under the UN Convention on the Rights of the Child being upheld?
Mr Metcalfe : I would expect so.

Senator Hanson-Young: What rights are being protected under that convention?

Mr Metcalfe : Are there any rights that you do not believe are being upheld?

Senator Hanson-Young: The right not to be detained and the right to support and assistance. They are currently in detention indefinitely.

Mr Metcalfe : They are in the same circumstances as many hundreds of other young people who are accommodated not in detention centres but in alternative places of detention, and that is the circumstance of any particular children in this situation.

Senator Hanson-Young: With the group of 100, including children, are they all being held in the same facility?

Mr Metcalfe : They are being held across the same facility, yes.

Senator Hanson-Young: In the Bravo Compound?

Mr Metcalfe : I will have to check the precise details. That takes us to outcome 4.

Senator Hanson-Young: Yes. I can come back to that, but they are all being held in the same facility?

Mr Metcalfe : That is my understanding at the moment.

Senator Hanson-Young: Men, women and children?

Mr Metcalfe : That is my understanding.

Senator Hanson-Young: So children are being detained in the same way as adults?

Mr Metcalfe : My understanding is that the groups are being held in the same place.

Senator Hanson-Young: What advice have those people been given about their current status?

Mr Metcalfe : I think this takes us to program 4.2. We have moved beyond the policy discussion, where I think we were in Outcome 2, and you are now wanting to talk about conditions of detention on Christmas Island.

Senator Hanson-Young: No, I am asking specifically about these people pending removal.

Mr Metcalfe : I am saying, Chair, that we are moving into program 4.2.

CHAIR: And we do not have those officers available.

Mr Metcalfe : I am certainly happy to talk about that when we get to the right time.

Senator Hanson-Young: That is all of my questions. Thank you.



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