REFUGEES AND ASYLUM SEEKERS IN THE ASIA-PACIFIC REGION

Human Rights Delender

Volume 19 : Issue 3 : December 2010 editorial
Justine Nolan and Merry Zhao

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Contents
This edition of the Human Rights support and awareness of refugee issues within their country. According
to Nah, such organisations are uniquely placed to act as a voice for
Defender looks at the challenges refugee rights and advocate reform, due to their innate understanding
of the domestic political and legal environment. Leaving aside
Editorial surrounding the recognition of refugee academic critiques, both Jessie Taylor and Merry Zhao provide a
Justine Nolan and Merry Zhao ... 1 rights within the Asia pacific region personal. in depth look at the experience and challenges faced by
those seeking asylum by recounting personal experiences of refugees.
- in particular, focusing on Australia,
Missing the boat on a regional solution Finally, this edition closes with a feature of a remarkable man who, like
Papua New Guinea and areas of South many refugees around the world today, was forced into exile because
Jane McAdam ... 2
East Asia. Within all these regions, of the persecutory behaviour of his own government. In September,
Albie Sachs visited Australia as a guest of the UNSW Law Faculty and the
Australia's role in the interception and detention of there exists a clear need for increased Australian Human Rights Centre to accept an Honorary Degree in Law

Managing Editors asylum seekers in Asia: Advocating for transparency accountability, transparency and by UNSW and deliver the Law Faculty's Annual Hal Wootten Lecture. In
their interview with Albie Sachs, Cheng and Sultana examine human
Justine Nolan and accountabilily
Janice Gray
compassionate regional cooperation rights, as perceived by a man who has worked as an activist, lawyer
Bassina Farbenblum ... 5 and judge of the new South African Constitutional Court. We also
Claudia Tazreiter between governments. feature the introductory comments of Andrea Durbach to Albie's 201 0
Consultant Editor Hal Wootten Lecture and the response to that lecture by Hal Wootten.
Between the devil and the deep blue sea: Fear. Asylum seekers and refugee rights have historically been, and still
Andrea Durbach
flight and the politics of asylum remain, a divisive subject due, in part, to its Inherently political
Managing Student Editor nature. The topiC appears to experience a revival during every Justine Nolan is a sen/or lecturer in the Faculty of Lavv, UNSW and the
Merry Zhao
Jessie Taylor... 9 election campaign in Australia, when media sensationalism creates Deputy Director of the Australian Human Rights Centre
Email: hrd@unsw.edu.au exaggerated caricatures of our national interest and border security
'Scum of the earth'? People smuggling. concerns. Often lost In the fray is the recognition of asylum as a
Layout & Design fundamental humanitarian and human right concern founded on
criminalisation and refugees Merry Zhao is the student editor of the Human Rights Defender 52.
Amber Rowe basic notions of safety and human dignity. 2010.
Printing
Michael Grewcock... 14
The sheer scale of human displacement is clear from UNHCR's latest
Print&Mail Pty Ltd Marrickville
global report. The number of people forcibly displaced from their
Finding a durable solution for West Papuall refugees homes rose by 1.3 million in 2009, to reach the staggering figure of
Artwork
All images are donated courtesy of the artists and in Papua New Guinea: A role for Australia? 43.3 million persons. From this, as McAdam notes in her article, Australia
the galleries that represent them. took only 13,750 people into its refugee visa program in 2009.
Savitri Taylor... 1 7 Currently, Australia's cooperation with other Asia-Pacific countries
Impressions on Paper Gallery on the Issue of asylum is diversion focused rather than protection
www.impresslonsonpoper.com.au orientated. Under the present policy, substantial funding is provided by
Strengthening refugee protection in South and
the Australian government to South Asian countries for the interception
Macquarie University Art Gallery Southeast Asia: The significance of civil sociely and detention of asylum seekers bound for Australia. In her article,
www.artgallery.mq.edu.au
Alice M. Nah ... 20 Farbenblum highlights the multiple shortcomings of such policies and
Morl Gallery emphasises the need for a durable regional solution. Such solutions
www.artnews.com .0 u/mori/ga Ilery are further examined by Savitri Taylor in her article addressing the plight
In conversation with Amir Javan of West Papuan refugees In Papua New Guinea. What is needed is a
NG Art Gallery
sustainable regional refugee framework rather than ad hoc knee jerk
www.ngart.com.au/ Merry Zhao ... 24
reactions by the various governments in the region.
Ray Hughes Gallery
www.rayhughesgallery.com Introducing Albie Sachs (UNSW Hal Wootten lecture The issue of people smuggling in relation to asylum seekers is a far
2010) more complex issue than Is often portrayed in the media. In his
Front Cover Artwork
article, Grewcock examines the domestic and internatIonal regulatory
Lawrence Finn. Oceans Today, 35cmX45cm, Andrea Durbach ... 26 environment surrounding the issue and highlights the inadequacy
Collage, acrylic and Ink on canvas. Courtesy of the of criminal sanctions as a deterrent. Instead, he makes the point
artist and Impressions on Paper Gallery, Canberra. that smuggling is an integral part of the refugee experience and
Response to Albie Sachs
undercutting it requires governments to facilitate entry, rather than
Disclaimer
The views expressed herein are those of the Hal Wootten ... 27 engage in increasing elaborate border controls.

authors. The Australian Human Rig-ht-s Centre

In conjunction with governmental approaches to strengthening regional
accepts no liabilIty for any comments or errors In conversation with Albie Sachs refugee protection, there also exist non-governmental schemes such
of fact. Copyright of articles is reserved by the
Joy Cheng and Sephora Sultana ... 30 as national civil society groups. These organisations are voluntary
Human Rights Defender.
associations composed entirely of private citizens who aim to increase
ISSN 1039-2637

Editorial
... the 173 al/eged smugglers then detained in Australia were predominantly
fishermen and undeserving of mandatory five year prison sentences. Imposing
mandatory sentences on such people might be regarded by the major parties
as a valuable 'get tough' strategy for domestic political purposes but it is
difficult to see how it operates as a meaningful deterrent or a blow against
'organised crime'.
53 Vietnamese refugees in a boat owned and skippered by Tran in July
2003. After successful appeals on the grounds that they were acting
'in response to circumstances of sudden or extraordinary emergency'
Tran was acquitted on re-trial and the prosecution discontinued
against Nguyen after the jury failed to reach a verdict. By 2005, all 53
passengers were granted protection or humanitarian visas and Tron has
successfully appealed against the decision by Customs to destroy his
boat in July 2003. 16
In 2004, Iraqi national Ali AI Jenabl stood trial on charges related to
smuggling 359 passengers on four boats and eventually pleaded
guilfy to charges relating to two boats carrying 258 passengers. In
September 2004, he was sentenced to concurrent terms of six years
and 3 months and eight years with a four year non-parole period,
When sentencing AI Jenabi, Judge Mildren accepted that 'his principal
motivation was to get his family to Australia, although he was clearly
in need of money and whatever else may be said of his motives, this
activity provided him with his means of Iiving.'17 AI Jenabi was released
from prison in June 2006 but taken immediately into immigration
detention, The Australian govemment has acknowledged that it has
protection obligations to Al Jenabi, whose family has a history of
persecution in Iraq. However, his convictions as a smuggler have been
used to deny him a visa on character grounds and he remains In
community detention, 18
ConclUSion
The main effect of the criminalisation of people smuggling is that it
legitimises policing operations deSigned to prevent refugees seeklng
protection on their own terms, While it is not suggested that people
smugglers are characterised by the highest mora! scruples, individuals
such as Hadi Ahmadi and Ali PJ. Jenabi can claim to have provided a
humanitarian service in circumstances where their passengers were
denied forma! routes of entry,
There is limited published research on the attitudes of refugees towards
smugglers l9 but one of the refugees who PJ. Jenabi assisted recently
commented, 'I think he is the best smuggler, He had a good heart,
He was not hard, not a greedy person,'20 Such comments reflect the
complex overlap between forced migration, illicit travel and border
controls that is denied by the increasingly punitive response to people
smuggling, However, unless we acknowledge that smuggnng operates
as an integral part of the refugee experience, and that undercutting
it requires that governments faCilitate entry, rather than engage in
increasing elaborate border controls, refugees will continue to take
risks, some smugglers will continue to make money and a lot of
fishermen will serve mandatory prison sentences for no good purpose
in Australian gaols,
Dr.Mlchoef GrewGock teaches criminal law and criminology in the
Faculty of LC1v\t University of New South Wales, He is the author of Border
Crimes: Australia's war on illicit migrants, Institute of Criminology Press,
2009.
Human RIghts Defender 16 'Scum of the earth'?
Finding durable solutions for West Papuan refugees in
New Guinea: A role for Australia?
Savitri Taylor
I
.~
Endnotes
1 Project Safecom, The cose of Mr.Hodi AAmodi, at hftp://www.safecom.org.au/
ahmadi-case.htm accessed 18 September 201 O.
2 'Trial casts light on people smuggl'lng', Sydney Morning Herold, accessed 12
August 2010.
3 'Hadi Ahmadi gets minimum four years for people smuggling', PM, Radio
National, 24 September 201 0
4 Article 2.
5 Article 3(a).
6 Article 5.
7 See Anti-People Smuggling and Other Measures Act 201 O.
8 S233A(1) MigratIon Act 1958; s73.1 Commonwealth Criminal Code Act
1995.
9 SS233B and 233C Migration Act 1958; SS72.2 and 72.3 Commonwealth
Criminal Code Act 1995.
10 Senate Legal and Constitutional Affairs Legislation Committee (201 0) Report
on Anti-People SmugglIng and Other Measures Bill, p.4.
11 Out of approximately 1,000 allegations, there were 19 prosecutions and 17
convictions be1ween June 2000 and June 2005, Deportment of Immigration,
Multiculturalism and Indigenous Affairs, Annual Report 2004-2005, p.95.
12 'Detainees rioting at Darwin immigration centre', Sydney Morning
Herald, 29 August 2010; WP won't explain why Indonesians left to languish',
ABC News, 3 September 201 0, online at http://WWW.abc.net.auJnewS/
stories/201 0/09/03/3002251.htm, accessed 6 September 201 O.
13 '648 yeorsjail for smugglers', The Age, 7 September 2010.1
14 'People smugglers should rot in hell: Rudd' PM ABC Radio Notional, 17
April 2009, transcript at http://www.abc.net.au/pm/content/2009!s2546098.htm.
accessed 20 April 2009.
15 Jhe Queen and Mohamid Tahir and Beny, NTSC, SCC 20918263 and
20918261, transcript of proceedings, 28 October 2009,
16 Nguyen v The Queen [2005J WASCA 22: Tron v The Commonwealth [2010]
FCAFC 80.
17 Jhe Queen and AI Hassan Abdo/amir AI Jenabi, NTSC SCC 20302840 and
20302843, transcript of proceedings, 21 September 2004.
18 Chris Bowen MP. Media release, 7 February 2008.
19 See, for example, Sue Hoffman, 'Reoching Australia: Iraqi asylum seekers
in transit In south-east Asia', Paper presented at the Second Multi-disciplinary
Conference of the International Association of Contemporary Iraqi Studies,
Philadelphia University, Amman, Jordon, June 2007, online at: h1tp://www.
safecom.org.auJhoffman2007.htm, accessed 18 September 201 O.
20 Quoted, 'People Smuggler defended as fair, decent man', Sydney Morning
Herold, 4 February 2008.
Fiona White, In the morning, 88 x 12cm. Courtesy of the artist and NG Art Gallery.
There are almost 10,000 West Papuan refugees living in Papua New Guinea (PNG). Most of them either fled into
PNG in 198485 in the wake of an Indonesian crackdown on the Free Papua Movement or are the descendants of
those who did so. The West Papuans initially settled themselves informally at about 17 sites along the Indonesia/PNG
border. However, in order to placate Indonesia, which considers the informal settlements to be a security threat,
the policy of successive PNG governments has been to pressure West Papuans into relocating to an official camp
which was established in East Awin in Western Province in 1987. Today about 2,300 West Papuans live in the East
Awin camp, 2,400 live in various urban locations and 5,000 or so continue to live in informal settlements near the
Indonesia/PNG border.'
Human Rights Defender' 17 Finding durable solutions for West Papuan refugees in New Guinea: a role for Australia?
...Australia's neighbours believe that whatever either side of Australian politics
may say to the contrary, their real agenda in pursuing a regional protection
framework is not achieving an equitable sharing of the region's refugee
protection burden but rather shifting Australia's own relatively slight burden to
the rest of the region.
Edward Duncan, To See a Metropolis Growing from your Body: 201 a
Collage and drawing on paper, 28 x 21 em. Courtesy of the artist and
Ray Hughes Gallery.
Residency Permits
Since about 1996, West Papuans in PNG have been able to apply
for Permissive Residency Permits (PRPsj. A PRP needs to be renewed
every three years but after eight years the permit holder is eligible
for PNG citizenship. Those who have a PRP get important rights
such as freedom of movement, the right to work.. access to health
and education services and better access to the courts. There are,
however, condftions placed on the grant of a PRP prohibiting residence
In the border areas of Western and Sepik Provinces and I1miting
freedom of association and freedom of political activity in PNG or West
Papuan politics. Breach of these conditions leads to revocation of
status.
In order to obtain (or renew) a PRP a West Papuan must reside in
the East Awin camp for at least six months. There are also other
bureaucratic barriers to accessing PRPs such as English language
application forms which cannot be completed by the many West
Papuans who do not speak English and are unable to obtain the
assistance of someone who does. 2 Most residents of the East Awin
camp and the majority of the West Papuans living In urban areas
have at some stage been granted PRPs, but many have not renewed
their PRPs every three years as they are supposed to do. The West
Papuans living in the informal border settlements are, of course, not
Humon Rights Defender 18 Finding durable solutions for West Papuan refugees in New Guinea: a role for Australia?
entitled to PRPS.3 Among other things, all of this means that few West
Papuans presently qualify for a grant of citizenship despite long periodS
of actual residence in PNG. Even those who qualify are unlikely to be
able to access citizenship in practice, because the application cost is
unaffordable for most.
Repatriation
At present, the PNG government refrains from forcible repatriation
of non-citizen West Papuans out of a sense of Melanesian solidarity.
This sense of Melanesian solidarity has also meant that even those
non-citizen West Papuans who do not hold PRPs are in practice
treated much like Papua New Guineans. For example, they are often
able to work in PNG even though they have no legal right to do so.
Nevertheless, from the PNG government's perspective, the 10,000 West
Papuans it hosts are both an obstacle to maintainIng good relations
with IndoneSia and an economic burden. Its preference, therefore, is
for the West Papuans to voluntarily repatriate. 4 It argues that the fact
that there has not been a mass influx from West Papua for many years
is evidence that things have improved on the Indonesian side of the
border. Many West Papuans, especiaIJy those who were Involved in
the West Papua independence movement remain unconvinced. 5
However, there have also been many West Papuans who over the
years have seemingly made a vOluntary choice to return to Indonesia
from PNG.
Over the course of 2009, the Indonesian government worked with the
PNG government to facilitate the voluntary repatriation of 700 West
Papuans. In November 2009, 311 of these 700 West Papuans actually
returned to Indonesia. 6 According to the Indonesian embassy, the
individuals concerned made the decision to return after learning about
improved conditions there. 7 However others argue the reason for their
return is due more to frustration with their ongoing uncertain status In
PNG. One West Papuan man now living in Port Moresby explained that
a group of West Papuans including his brothers, sister and a cousin
retumed from East Awln to IndoneSia in 2002 because after 'almost 20
years their status never process by PNG government and they fed up
with the situation in PNG.'8 In other words, it may well be the case that
many of these returns are not in a true sense voluntary but rather a
response to the stress of living In an extended state of legal limbo.
Other 'solutions'
Once voluntary repatriation is ruled out, the durable solutions which
remain are third country resettlement and local integration. The fact
that West Papuans theoretically have access to PRPs followed by
citizenship means that UNHCR does not consider it appropriate to
seek out third country resettlement opportunities for them except in
rare indIVidual cases. Moreover, while there are a few West Papuans
in PNG who have a desperate desire for third country resettlement,
most would prefer to remain in PNG at least until they are able to
return to an independent homeland. UNHCR is hoping to convince
the government to allow all 10,000 of the West Papuan refugees in the
country to integrate locally. However there is a long way to go before
this goal is fully realised.
At present the only refugees in PNG who have been incorporated
Into development plans at any level of government are those living in
the East Awin camp. UNHCR and the Western Province authorities are
working in partnership on a project to create an arterial route from the
Fly River up into the East Awin settlement and beyond. but the project is
progressing at a snail's pace. The refugees, who have been promised
the road since 1987 and have seen similar projects commenced
and abandoned in the intervening period, have little confidence that
the road will be completed. In the meantime, UNHCR, the provincial
government, local businesses and others are working in partnership to
create livelihood opportunities for refugees living in the East Awin camp
and surrounding local communities, However, the long-term viability
of many of these livenhood projects would seem to be dependent on
completion of the road project.
Land tenure
PNG's system of land tenure also presents a considerable practical
obstacle to any of the West Papuans achieving true local Integration.
Ninety seven per cent of land in PNG is held under customary forms
of land tenure. 9 Ownership is communal and traditionally access
rights have been 'based on a mixture of descent, co-residence and
partiCipation in communal actlvities.'l0 The remaining 3 per cent
of land in PNG is covered by a land tenure system borrowed from
Australia. However, the PNG Constitution provides that, even under this
system, only citizens may acquire freehold title to land. 11 The difficulties
caused by limited and insecure access to land are now being
experienced by the grandchildren and even great-grandchildren of
the West Papuans who crossed into PNG decades ago. Since PNG's
land tenure system also presents an impediment to economic growth,
the PNG Government has in fact started down the path of land tenure
reform.12 It remains to be seen however, how quickly reforms are
implemented and how successful they are.
Australia's responsibility?
What though has all this got to do with Australia? It would appear
that for the past 15 years or so the answer given to this question by
successive Australian governments is 'nothing'. Until 1995 Australia
provided the bulk of the funding for UNHCR assistance to the West
Papuans living in the East Awln camp. Since then, however, West
Papuan refugees in PNG have not been the beneficiaries of Australian
aid except incidentally.13 Yet, whatever indicator of host country
contribution relative to capacIty one considers (refugees to GDP per
capita, refugees to 1000 'Inhabitants or refugees to 1000 kfn2), PNG's
refugee burden Is higher than that of Australia. The spirit of the burden
sharing principle 14 surely requires a country positioned as Australia Is
to engage with PNG in a manner calculated to reduce the burden
imposed upon it by refugees. Instead, the Howard government
inveigled PNG into participating in the 'PacifiC Solution' by providing an
offshore processing facility for asylum seekers diverted from Australia
and, in the lead up to the August 201 a federal election, the Gillard
government raised the possibility of reopening that facility.
No wonder Australia's neighbours believe that whatever either side of
Australian politics may say to the contrary, their real agenda in pursuing
a regional protection framework is not achIeving an equitable sharing
of the region's refugee protection burden but rather shifting Australia's
own relatively slight burden to the rest of the region. Australia has no
hope of dispelling this well-founded skepticism unless it starts walking its
talk. A good first step would be for Australia to assist PNG to provide a
local integration solution for the 10,000 West Papuans refugees living
in PNG by ensuring that the needs of those refugees are exp!lcitly
considered and Incorporated into aU aspects of its development
assistance program.
Savitri Taylor is a Senior Lecturer In the School of Law at La Trobe
University. This article Is a product of a research project entitled 'The
Impact on the Human Rights of Asylum-Seekers and Host Communities
of Australia's Border Control Cooperation with IndonesIa and PNG'
which commenced in September 2007. The author wishes to
acknowledge the research funding provided by the Australian
Research Council Linkage Projects Scheme, the Jesuit Refugee
Human Rights Defender. 19 Finding durable solutions for West Papuan refugees in New Guinea: a role for Australia?
Service Australia, Oxtam Australia. the La Trobe Refugee Research
Centre and La Trobe Universffy's Faculty of Law and Management.
She also acknowledges with gratitude the assIstance provided by
her cO-investigator on the Linkage Project, Professor Sondra Gifford,
the projecfs manager and research officer, Brynna Rafferty-Brown.
and PNG field researcher, Nancy Sullivan and the following volunteer
researchers: Katherine Brabon, Scott Bulman, Emma Frean, JeSSica
Gatenby, Natalia Gould, Samantha Hazlett, Jane Hodge, Nic Nelson,
Yuta Noguchi and Febriansyah Soebagio. Responsibilffy for content
lies, of course, wlth the author alone,
Endnotes
1 UNHCR PNG, The UN refugee agency' December 2009, online at http://www.
unhcr.org.aufpdfs/UpdatedPNGfactsheet.pdf, accessed 17 August 201 O.
2 Interview with PNG lawyer on 25 September 2008.
3 UNHCR, Country operations pion 2007 Papua New Guinea (2006); US
Committee for Refugees and Immigrants, World refugee survey 2008: Papua
New Guinea, online at http://www.refugees.org/countryreports.aspx?id=2163,
accessed 17 August 201 O.
4 'Papuan refugees campaign for resettlernent rights', Correspondents Report,
19 October 2008, online at http://www.abc.net.au/correspondentS/content/2008/
s2394775.htm, accessed 17 August 201 0; Foreign Minister Sam Abal; Sam
Abal quoted in 'PNG defends decision to repatriate West Papuans', Radio New
Zealand International, 17 May 2009, online at hftp://WWW.mzLcom/pageS/news.
php?op=read&ld=46601, accessed 17 August 201 O.
5 M Griva, Information and Advocacy Officer, Jesuit Refugee Service PNG,
'West Papuans at the border' in UNHCR PNG, ConsultatIons with Authorities, NGOs.
Partners, Private Sector and Donors - 24 and 25 March 2009 - Port Moresby
Findings and Recommendations, 2009.
6 C Trinh, 'More than 300 West Papuans Repatriated to Jayapura',
Impunity Watch, 24 November 2009, online at htfp:/Iwww.impunily watch
oceania/2009/11/more-than-300-wesf-papuans-repatrlated-to-joyOpura. -
htm, accessed 17 August 2010; Indonesia, '311 return home in strong start of
repatriation programme from PNG', Embassy News (London), online at http://www.
deplu.go.idllondonfPages/Embassies.aspx?IDP= 15&I=en, accessed 17 August
2010.
7 Hakim Abdul quoted in I Gridneff, 'PAC: Indonesia to fly West Papuan
refugees home from PNG', Australian Associated Press General News, 9 January
2009 accessed on Factiva.
8 Interview with West Papuan man Jeremiah {pseudonym) in Port MoreSby in
August 2008.
9 G Koczberski, G N Curry and B Imbun, 'Property rights for social inclusion:
Migrant strategies for securing land and livelihoods In Papua New Guinea' (2009)
50(1) Asia Pacific Viewpoint 29, 40-41 endnote 1.
10 Ibid.
11 PNG Constitution, s 56(l)(b).
12 The Land Groups Incorporation (Amendment) Act 2007 and Land
Registration (Customary Land) (Amendment) Act 2007 were passed in March
2009: S Chand, 'Commentary: The Pacific can learn from PNG's land reform',
Pacific Islands Report, online at http://archives.plreport.org/archive/2009/May/05-
07-comhtm, accessed 17 August 201 O.
13 For example, AusAlO is supporting the land tenure reform initiatives of the
PNG Government through its Pacific Land Program: B McMullan, Parliamentary
Secretary for International Development Assistance (Australia), Speech at launch
of Making Land Work - Poclffc Land Conference, Port Vila, 12 June 2008, online
at http://www.ausald.gov.au/media/release.cfm?BC=Speech&ID=2528 8235
_2115_7707_4349, accessed 17 August 2010. This will assist in overcomIng the
obstacle to locallntegratlon of West Papuans presented by the current system of
land tenure.
14 For a discussion of the burden sharing prinCiple see, for example, B Chimni,
'Development and Migration' In T AJeinikoff and v Chetoil (eds), Migration and
Internat/onal Legal Norms, TMC Asser, The Hague, 2003, pp. 266-7.