Comment: Unpacking the 'no advantage' myth

By Kerry Murphy, Australian National University

In August 2012, the Report of the Expert Panel on Asylum Seekers created a new myth in the language of asylum seekers and refugees. That was the idea of “the no advantage principle”. It is a variation on the “refugee queue' myth and is taking on a life of its own. This is because the Government is struggling to explain the fiction of "no advantage” as a fact.

In the Panel Report at 3.49- 3.50 it states:

3.50 Irrespective of whether IMAs stay in Nauru for the period of their status determination or are moved to Australia, the same principle would apply to all. Their position in relation to refugee status and resettlement would not be advantaged over what it would have been had they availed themselves of assessment by UNHCR within the regional processing arrangement.

Thus the myth begins. The problem is there is no processing time for refugee cases anywhere on the planet. The case takes the time it takes. The reason why some wait years for resettlement is not due to any “queue” or “no advantage test” but simply about quotas. Australia has now increased the total program to 20,000 places, onshore and offshore together. So when the number of visas to be issued is reached in a certain year, other cases are left in an administrative storage until the next visa year begins.

The number of visas and the allocation to various regions can vary from year to year. Some years the priority has been on African cases, sometimes on the Middle East. It is not as if you receive a number and wait for your number to be called. Refugee A's case may be identified to be in urgent need of resettlement due to the facts of the case, so A may be resettled more quickly than B who arrived at the UNHCR office the same day. Then the next year, C is resettled before B because C is from a minority at high risk due to the new circumstances in the country.

Whatever happens, there is a certain arbitrariness in the process which is why some people come on a boat because they believed that at least their case would be looked at sooner. Hence the “no advantage myth” was created to punish such people. The Minister is unable to say how long the waiting time will be, simply because there are no criteria for working that out.

The “no advantage myth” is now part of the deterrence strategy. It characterises the refugee who comes by boat as bad and makes them wait for an unknown period. You will wait in a tortuous limbo in Nauru or on Manus Island – Australia's neo colonial centres for refugee warehousing. Or maybe you will wait in Australia on a restrictive bridging visa with no permission to work, wondering when the knock on the door will come and you will be shunted off to Nauru. At least the Temporary Protection Visa (TPV), for all its faults, allowed people to work and look after themselves.

Meanwhile the Opposition is working itself up into a lather over the numbers arriving. The main difference between the Government and Opposition policies is the TPV, everything else – Nauru, offshore processing, Manus Island, is the same. The TPV was introduced in October 1999 and after it was introduced, there was a spike in arrivals, not a decline. There is no objective evidence to support the view that the TPV had any impact on “stopping the boats”.

All the reports on it refer to the serious mental health deterioration it caused while refugees awaited their fate and a chance to reunite with families from whom they had been separated for years.

A flaw in the debate is the focus on 'stopping the boats' a main plank in the political debate and also the Panel Report. This is a complex area for policy, and simplistic solutions that fit into 30 second news bytes fail to respect the human rights issues or dignity of all the people involved in this area.

Good policy requires a balance to be struck between competing demands. Good policy does not cave into the populist chant which will only require Governments to become crueller in their treatment of people.

One other aspect of the Panel Report that is more realistic but harder to implement is the call for a regional solution. This is longer term and involves good political will from countries in the region, few of whom have signed the Refugee Convention or other Human Rights Conventions. This process will take a long time, which makes it unattractive to the 24hour news and 3 year election cycles.

Policy development will take longer, and not be the instant reactive policies we have seen in this area since 1989. Meanwhile the conditions for the refugees predictably deteriorate and become more complex and uncertain.

Kerry Murphy is in private practice as a solicitor doing migration cases.