The Australian government sparked considerable controversy last October when it introduced new legislation toughening asylum laws for illegal immigrants. The legislation does three things: 1. Illegal immigrants who are found to be genuine refugees are now only given 3-year temporary visas, not permanent residence. After the three years, they can then apply for permanent residence if the situation in their home country has not improved; 2. Boat people who have the right to remain safely in any other country cannot apply for refugee status; 3. The government gave itself the right to use fingerprinting, DNA and other tests to ascertain the identity of refugees.

These measures were strongly criticised by refugee and human rights groups, such as Amnesty International, who argued that the first and second elements, especially, violated Australia’s international obligations under the 1951 Refugee Convention.

Statistics make it clear that there is a genuine upsurge in illegal arrivals. Furthermore, these arrivals represent a new source of refugees. Most are from the Middle East, especially Iraq and Afghanistan, in contrast to earlier waves of boat people, who came mostly from Southeast and East Asia. According to government figures, there were 3503 boat people who arrived between July 1, 1999, and mid-February, and this does not include the additional 1000 predicted to arrive shortly. This compares with the 926 who arrived in all of the 1998-99 financial year and the mere 157 who arrived the previous year. Numbers of asylum seekers who arrive by plane are also increasing.

Of the 2896 boat people who arrived in the second half of 1999 (figures are not yet available for those who arrived in 2000), 2710 are identified as coming from the Middle East. The biggest group are Iraqis -1166, then Afghanis - 797, with a smattering of people from Turkey, Iran, Kuwait, Syria, Pakistan etc. The statistics also speak of 656 as merely from "the Middle East". These people do not have documentation or deliberately destroy their papers to avoid being sent back. The department confirms they suspect that a large proportion of these individuals are probably Iraqis and Afghanis.

Given their different origins, the current spate of illegal arrivals by boat is essentially a different phenomenon than previous such waves of immigration. In considering our public policy response, it is important for Australians to understand who these people are, why they are coming, and how they are getting here.

The majority of Middle Eastern refugees who come to Australia by boat and plane are fleeing real persecution, and genuinely dangerous situations at home. Estimates are that upwards of 80% of those arriving by boat and seeking refugee status will be given it. Indeed, in 1998-99, the last year for which there are figures, 97% of Iraqi claimants and 92% of Afghanis were found to meet the criteria to be deemed genuine refugees. Both Iraq and Afghanistan remain significant sources of human rights abuse, often with an ethnic component

Iraq has been a repressive totalitarian state for decades. According to Amnesty International, "Gross human rights abuses are taking place systematically in Iraq." Among those most at risk are various ethnic and religious group seen as threatening to Saddam Hussein’s regime, including Shi’ite Muslims, Kurds and marsh Arabs. Amnesty talks about the "disappearance" of "hundred of thousands" of Shi’as and Kurds, and forced expulsions of thousands of minority families, as well as the use of arbitrary arrest, torture, and summary execution.

Similarly, Afghanistan has been in a continuous state of civil war since before the Soviet invasion of 1979. Afghanis make up the world’s single largest refugee grouping, according to the United Nations High Commission on Refugees (UNHCR). The war intensified after the Soviet withdrawal in 1992, but since the Taleban grouping suceeded in conquering most of the country in the 1990s, the fighting has been more confined and limited. Of course, the Taleban regime has been notorious for its use of force to impose a very rigid version of Islamic law on the population, targeting especially women, who are all but confined to the home. In addition to their repressive politics, backed by repressive force, the Taleban has also been accused of several well-documented massacres of civilian populations in areas seen as disloyal, or areas captured in their military operations. Where populations have not been massacred openly, villages have been burnt and their populations forced out in a scorched earth policy.

There is a significant ethnic element to the depredations of the Taleban. The current Afghan government is dominated by Pathan-speaking ethnic Pushtuns, related to other groups in Pakistan. The Farsi (Persian) speaking Tajiks had dominated the previous government and have suffered under the current regime.

Even more serious is the plight of Hazara minority, Farsi speakers of more Asian appearance who are mainly Shi’i Muslims. According to Amnesty International’s Carolyn Graden, the majority of the Afghan boat people currently arriving in Australia are Hazaras, who have been particularly targeted by the Taleban government because of their different physical appearance and Shi’i faith. Amnesty reports massacres, village burnings and confiscation of lands from Hazaras, designed to make them flee the area, as well as a major massacre of thousands of Hazara at the city of Mazar e-Sharif in August 1998.

However, even given the reality of the persecution experienced by Iraqi and Afghani boat people, there has not been an intensification of this persecution in recent years, so the persecution cannot in itself explain the sudden upsurge in their arrival in Australia. Iraq is no worse than it has ever been, while Afghanistan has at least seen the fighting more confined in recent years.

In fact, with some exceptions, the majority of those arriving are probably long-term refugees, people who have already been displaced from their homes for several years. And there has been one very real "push" factor which is driving refugees, particularly from Afghanistan and Iraq to come to Australia, and this involves changes to their status abroad, especially in Iran.

Iran has hosted in excess of 1.4 million Afghanis over the last 10 years but has been growing increasingly impatient with their presence in recent years as the Iranian economy has deteriorated. Afghanis have generally not been bound to refugee camps, and though most are legally forbidden to work, until the last few years the Iranian authorities had largely turned a blind eye to Afghanis who took low-paying and undesirable jobs throughout the country. But today these refugees are under increasing pressure from Teheran, which wants them to return to Afghanistan, or, at the very least, confined to refugee camps.

In 1998 and 1999, there was a campaign of forced expulsions. While Teheran reached agreement with the UNHCR last May for a program of voluntary repatriation of refugees, and has promised officially not to deport genuine refugees, deportations reportedly are continuing. There are reports of armed police entering houses in Afghan neighbourhoods, and giving families minutes to gather their belongings and then forcing them onto trucks. One refugee agency estimates that at least 34,000 forced deportations occurred in 1998. There has also reportedly been an announced plan to remove all Afghan refugees within a year.

Iraqis in Iran are also under increased threat. Iran had generally welcomed Iraqis, especially Shi’as, fleeing the violence in Iraq which followed the Gulf War. But with Iran now seeking warmer relations with Baghdad, Iranian officials have also said they want all Iraqi refugees out of the nation within a year, or at least confined to camps. However, to date the Shi’as appear to have been relatively immune from forced expulsion.

In Pakistan, there have also been resentments against the Afghanis, also not confined to camps until now. There are now plans afoot to confine them to camps. Another major problem is that armed Afghan militia groups associated with the Taleban, which Pakistan supports, have been victimising political opponents in the refugee camps of Pakistan, while Pakistani authorities refuse to do anything about it. A number of Taleban opponents have been murdered in the refugee camps, and according to Amnesty International, "Pakistan authorities are reported not to have taken serious measures to investigate." There were also reports that Taleban supporters attacked and beat a group of women demonstrating in Quetta in 1998, accusing them of breaking Taleban law against leaving their homes without their husbands. Pakistani police refused to protect the woman at future demonstrations, so they had to be abandoned.

There is little doubt that the efforts of organised people smugglers contributes substantially to the sudden upsurge in illegal migrants seeking asylum from the Middle East. These people are available in Middle Eastern countries, especially Pakistan, Jordan and Iran, and market their services to local refugee populations. A trip to Australia can cost $10,000 or more, huge fees for largely destitute people from poor countries. People smugglers can also be encountered at Jakarta airport, some arrivals report, if asylum seekers can get themselves that far.

The information people smugglers supply to potential "customers" is often a mixture of genuine analysis of Australian laws and conditions in detention and fraudulent claims. An example of the former is the claim in November by Immigration Minister Phillip Ruddock that detainees arrived requesting "Pert 2-in-1 shampoo," and orthodontic care for their children (things to which they were indeed entitled). An example of the latter is the misinformation many arrivals say they receive about the boat passage from Indonesia to Australia. For instance, one Iraqi man told The Bulletin magazine that he had been told that the trip from Indonesia to Australia was just a short trip across a "channel", and would occur in a ship. In fact, it is of course hundreds of kilometres from even the nearest parts of Indonesia (islands off Timor) to Australia, and the trip often takes days in the rotting hulks generally used for the purpose, overcrowded with asylum seekers given little water and bad or no food.

Yet despite the deceptions and outright cheating of refugees, the people smugglers are basically exploiting a contradiction in international law. In general, sovereign states have the power to define their own immigration intakes, which is used by nations to limit the total number of refugees they will accept. And this is fully consistent with the various treaties on refugees. However, the 1951 Refugee Convention also specifies that governments cannot penalise refugee claimants who arrive illegally, or expel genuine refugee claimants. In other words, people who meet the criteria defined under the convention can short-circuit the bureaucratic processes designed to limit numbers and be guaranteed asylum simply by finding a way to arrive on Australian territory. Australia is hardly alone in this problem, nor is the scale of our problem particularly large compared to other countries, thanks to Australia’s lack of a land border with other states.

Europe is also finding increasing numbers of Afghanis seeking asylum. 23,000 Afghanis sought asylum in Britain alone last year. The problem was also illustrated by the bizarre hijacking of an Afghan airlines internal flight in February with, it is becoming clear, no other purpose than for the hijackers to carry themselves, friends and relatives on board to Britain where they could seek asylum.

Afghanis, according to local community representatives, overwhelmingly travel to Australia via Pakistan, where it is possible to bribe local officials to give them fake passports. People smugglers in Pakistan, for the payment of large fees, arrange for the passports and also have contacts with corrupt police in the airports. Afghanis are then sent on to Indonesia often via Malaysia. Further contacts are waiting for them in both countries. They are then placed on boats and sent to Australia.

Iraqis in Iran also travel via Pakistan. Iraqis actually in Iraq often travel via Jordan, which is relatively easy to reach across the desert border. The arrival of people in Indonesia is facilitated by the Indonesian and Malaysian immigration laws, which make it relatively easy for people from Islamic countries like Jordan and Pakistan to arrive without a visa.

While it is clear the vast majority of boat people who arrive here are genuine refugees who deserve compassion, there is little doubt that their arrival brings about some genuine policy dilemmas.

The government claims that those who arrive by boat are "queue-jumpers", taking the place of those who apply legally. Immigration Minister Phillip Ruddock announced on February 14 that the processing of overseas applications to come to Australia as resettled refugees would be frozen until the end of the financial year. Ruddock said the decision was necessary because the department expected to receive more than 6000 claims this year from people already in Australia, and the government only set aside 2000 of its 12,000 refugee immigration places for onshore applicants. Ruddock said, "It’s not inconceivable that you could get to the point of not having an offshore program at all and having our entire refugee and humanitarian program dictated to us by people-smugglers." There are also substantial costs involved: the government says illegal immigrants will cost $200 million this year, up $68 million from last year.

However, to put the problem in perspective, Australia accepts only a fraction of the number of refugee claimants who arrive in Germany (98,644 in 1998-99) or North America (427,000 in the same year). Furthermore the vast majority of illegal immigrants are in fact those who come into the country on legal visas and overstay - the government says there were at least 50,000 of these at the end of 1998. Finally, refugee groups point out that the government could vastly cut its costs if it did not insist on placing refugees in detention centres.

But even those most sympathetic with the refugees agree that there is an element of queue-jumping in the illegal arrivals. Abdul Fazal, President of the Afghan Australian Association of Victoria told The Review that as refugee advocates, his organisation did not want those who are legitimately awaiting permission on their visa applications in a hostile country to continue to live in fear of their lives for a prolonged period, while those who arrive illegally fill up the annual quota of refugees, leaving behind the poor who do not have money to bribe officials.

It is also true that the refugees selected by Australia for our resettlement program are in part selected on the basis of identification by the UN High Commission for Refugees (UNHCR) as particularly in need if resettlement. On the other hand, there have been attacks on the government for its refusal to expand the refugee quotas, and especially to expand the number of Afghanis able to come here.

Dr Nouria Salehi, Chairperson of the Afghan Australia Council, told The Review that Australia needs to increase its Afghan quota and particularly to concentrate on women and children, who she says are particularly at risk. She said that woman, since they are forbidden to work by the Taleban have more trouble obtaining the money to bribe people smugglers and officials. They are also discriminated against by the Australian point system used to select migrants, since education is extremely important, but Afghanistan makes it very hard for women to obtain a higher education.

Similarly, Abdul Fazel of the Afghan Australia Association said that the Australian quota system had allowed no more than 12,000 Afghanis to come here since 1992, and this is a drop in the ocean compared to the more than 2 million Afghanis who are internationally displaced persons.