Refugees: Fleeing Security Threats While also Becoming One?
Photo source: a Syrian refugee entering Hungary from Serbia (AP/Darko Bandic) <http://www.cbc.ca/radio/thecurrent/the-current-for-september-02-2015-1.3212382/migrant-crisis-follow-the-path-of-refugees-seeking-eu-asylum-1.3212395>
Around the world, various conflicts and terrorist threats have tested the ability of states to perform two very different responsibilities – protect refugees who are among the world’s most vulnerable, and defend against perpetrators of violence who are among the world’s most menacing. However, these two issues are increasingly being conflated into a single mindset of securitisation and suspicion. In Europe, anti-immigration sentiments have been fuelled by recent terrorist attacks in Paris and Brussels as well as migrants committing mass sexual assault and robberies in Germany. Such concerns are however not exclusive to western countries. Recently the Kenyan government decided to close a major refugee camp that was previously exploited for terrorist planning and radicalisation purposes by Somali extremists. In the end, the dual imperatives of humanitarianism and national security tend to conflict in favour of the latter and increasingly at the expense of refugees’ rights, with Australia being no exception.
In line with policy stances seen in other countries, the Australian government views the safety of the nation as well as its citizens as a priority over the welfare of incoming refugees. Countries aim to preserve community cohesion and internal stability when receiving foreign newcomers, especially considering a small number of cases where refugees have in fact been arrested on terrorism charges. In Australia, extensive screening, mandatory detention and offshore processing policies delay the granting of protection visas and mean refugees are often treated like criminal perpetrators rather than victims in the situation. This has an evident impact on Australia’s intake numbers, as so far only 29 Syrian refugees have been resettled out of a promised 12 000, compared to Canada where the resettlement rate has been 750 times faster.
A specific issue that has captured the United Nation’s attention is the indefinite detention of refugees who received adverse security assessments from the Australian Security Intelligence Organisation (ASIO). Under the Australian Security Intelligence Organisation Act 1979, “security” is defined broadly as the protection of Australia, its people and its territory from various threats, including sabotage, politically-motivated violence and the promotion of communal violence. Following a 2014 Migration Act amendment, refugees assessed as risks to security do not meet the criterion for a protection visa and cannot be permanently resettled in Australia. At the same time, the international legal principle of non-refoulement states that refugees cannot be returned to their countries where they would be endangered by persecution. Consequently, these refugees remain detained for indefinite periods of time, demonstrating how counter-terror security concerns take precedence over humanitarian protection, even where international law dictates that such protection is owed to the detainee due to their recognised refugee status.
This security-driven policy is detrimental to a range of human rights which preserve a person’s liberty and prohibit arbitrary detention. As these refugees do not hold an Australian citizenship, permanent visa or special category visa, ASIO is not legally required to disclose information or reasons pertaining to its security assessment. Not only are refugees unable to apply for merits reviews of ASIO’s decisions (in relation to the facts and evidence relied upon) but their lack of information prevents them from properly mounting legal challenges in court. As a result, there is no past or future hearing at which the refugee’s side can be presented, denying them procedural fairness and the right to contest the lawfulness of their detention.
Such prolonged imprisonment also breaches the right of detained refugees to be free from cruel, inhumane and degrading treatment contained in Article 7 of the International Covenant on Civil and Political Rights (ICCPR). Surrounded by an environment of violence and self-harm, refugees also experience abuse from immigration officers and have poor access to healthcare and support services. The UN Human Rights Committee found that even the psychological harm caused by these arbitrary and brutal conditions was sufficient to contravene Article 7 of the ICCPR.
The necessary question is therefore whether such excessive measures can be justified in the name of counter-terrorism and community protection. While particular refugees have committed terrorism-related offences in Australia, it is misguided to target them as a group with overly antagonistic policies. Any terrorist who is determined to infiltrate Australian borders would face a greater risk of detection and failure if they attempt to enter as a non-genuine refugee. This is because, compared to other entrants to Australia, refugees must undergo a far more extensive series of security checks, including verifications of identity and good character. Nonetheless, refugees continue to be demonised as hidden terrorists, leading their social and emotional detachment from mainstream political values and the wider community. This is problematic as it cultivates their radicalisation into homegrown terrorism, which is becoming one of the most likely threats to Australia. In support of this, research showed that 30% of Australian jihadists were children when they immigrated, and most of them were not Muslim or very religious originally. As a result, there is a credible risk that community alienation and government maltreatment can ultimately exacerbate the security threats they so dread by creating newly disillusioned recruits.
In the face of unprecedented refugee flows, states increasingly see the need to prioritise their own national security and community safety over their international refugee obligations. However, this trade-off is not always effective at protecting the community, as it tends to create more social fragmentation and undermines respect for all human rights. While the security of the individual state needs to be preserved, domestic refugee policies should not unjustifiably violate the rights and freedoms protected under international law, particularly when they concern the people who are most in need of humanitarian assistance.
References
[1] Steve Erlanger, ‘Brussels attacks fuel debate over migrants in a fractured Europe’, New York Times (online), 23 March 2016 <http://www.nytimes.com/2016/03/23/world/europe/belgium-attacks-migrants.html?_r=0>.
[2] Ayla Jean Yackley, ‘Kenya will close world’s biggest refugee camp this year’, Reuters (online), 23 May 2016 <http://www.reuters.com/article/us-humanitarian-summit-kenya-somalia-idUSKCN0YE2E8>.
[3] Prime Minister of Australia, ‘National Security Statement’ (Media Release, 24 November 2015) <https://www.pm.gov.au/media/2015-11-24/national-security-statement>.
[4] Manny Fernandez and Liam Stack, ‘Iraqi refugees in Texas and California accused of terrorism ties’, New York Times (online), 7 January 2016 <http://www.nytimes.com/2016/01/08/us/iraqi-refugees-in-texas-and-california-accused-of-terrorism-ties.html>; Sam Clark and Dan Oakes, ‘Five men charged with counter-terrorism offences over alleged boat escape to join fighting in Syria’, ABC (online), 14 May 2016, < http://www.abc.net.au/news/2016-05-14/five-arrested-over-alleged-boat-escape-to-join-fighting-in-syria/7415066>.
[5] Stephanie Anderson, ‘Fewer than 30 refugees resettled since November as part of 12,000 agreed in Syria, Iraq deal’, ABC (online), 17 March 2016 <http://www.abc.net.au/news/2016-03-17/29-refugees-resettled-under-government-12000-intake/7254784>.
[6] Australian Security Intelligence Organisation Act 1979 (Cth) s 4 (‘ASIO Act’).
[7] Migration Amendment Act 2014 (Cth) sch 3 item 1.
[8] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) art 33(1).
[9] Ibid art 32, 33.
[10] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 9 (‘ICCPR’).
[11] ASIO Act s 36.
[12] Human Rights Committee, Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No.2233/2013, 116th sess, UN Doc CCPR/C/116/D/2233/2013 (2 May 2016) 2 [2.3-2.4] (‘F.J. et al v Australia’).
[13] Australian Human Rights Commission, Submission to the Independent Review of the Intelligence Community, April 2011, 6.
[14] ICCPR art 9(4).
[15] Ibid art 7.
[16] F.J. et al v Australia, UN Doc CCPR/C/116/D/2233/2013, 5 [3.14].
[17] Ibid 18 [10.6].
[18] Department of the Prime Minister and Cabinet and NSW Department of Premier and Cabinet, Martin Place Siege: Joint Commonwealth – New South Wales review (2015) 19-20.
[19] Stephanie Anderson, ‘Some refugees refused asylum in Australia over security concerns, Justice Minister says’, ABC (online), 22 March 2016 <http://www.abc.net.au/news/2016-03-23/several-refugees-seeking-asylum-a-security-risk-to-australia/7270704>.
[20] Janet Phillips, ‘Asylum seekers and refugees: what are the facts?’ (Research Paper, Parliamentary Library, Parliament of Australia, 2015) 8.
[21] Alex Wilner and Claire-Jehanne Dubouloz, ‘Homegrown terrorism and transformative learning: an interdisciplinary approach to understanding radicalization’ (2010) 22(1) Global Change, Peace & Security 33, 38.
[22] Phil Mercer, ‘Tackling Australia’s home-grown jihadists’, BBC News (online), 6 August 2014 <http://www.bbc.com/news/world-asia-28672826>.
[23] Andrew Zammit, ‘Who becomes a jihadist in Australia? A comparative analysis’ (Paper presented in Understanding terrorism in an Australia context: radicalisation, de-radicalisation and counter-radicalisation, Global Terrorism Research Centre, Monash University, 2010) 8-10.
