Should we ban the live export of asylum seekers?

In a compelling majority, the High Court seemed to think so, issuing a permanent injunction against the Commonwealth Government, barring them from pursuing the current proposal to trade asylum seekers with Malaysia.
Despite numerous changes to the Migration Act over the decade to expand administrative power, the Act could not be used to justify the transaction of asylum seekers as if they were export goods.
In particular, the High Court emphasised that Malaysia is not a signatory to the Refugee Convention, nor does it have a domestic statutory framework that recognises refugees.
While the High Court expressed no opinion on the merit of Malaysia’s human rights standards, Amnesty International reported last year that the absence of legal protection is supplemented with the practice of caning and congestion in Malaysian immigration detention facilities.
While the decision has drawn considerable praise from a range of refugee advocates, this decision has particular importance for the asylum seekers who flee persecution on the basis of their sexual orientation or gender identity.
Malaysia still criminalises homosexuality. Many lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers flee persecution in Malaysia and seek refuge in Australia.
In 2008, a transgender woman from Malaysia was granted refugee status in Australia on the basis that being unable to change her identity documentation and access employment would result in her inability to subsist.
With cases like this in mind, it seems absurd that LGBTI asylum seekers could have been potentially returned to the country from which they flee.
Even if we ignore the humanitarian or compassionate undertones, economic rationale gestures to a cheaper and more efficient alternative: processing asylum seekers onshore in the community, rather than in detention facilities.
UNHCR identifies the potential cost savings from the switch can range from $333 to $117 per asylum seeker, per day.
Punitive border protection measures do not address the underlying causes of persecution that force individuals to flee and seek asylum. Contrary to popular opinion, asylum seekers do not “google” detention or immigration policies, before getting on a boat to escape torture or abuse.
In numerical terms, it is also worth mentioning that over 85 percent of asylum seekers who arrive by boat are found to be genuine refugees. In comparison, most asylum seekers arrive by plane, and approximately 20 percent are granted asylum.
If this is the case, then surely our concern for border protection should be focused on the skies, rather than the seas?
Many of us feel troubled by the idea of boat arrivals being “queue jumpers”. However, the mythic “queue” that people demand asylum seekers wait in does not exist.
It is legal to seek asylum, even by boat. If we demanded that asylum seekers “wait” in resettlement camp (which a specific form of humanitarian processing), it would be a 135 year wait for the resettlement of all refugees. Not to mention these camps are not accessible or available in countries where people face persecution.
Does it seem reasonable to force such a “queue” upon people who are fleeing terror, violence and war?
Refugee policy should be framed in terms of facts, not fear. If we are committed to a more comprehensive and regional solution to processing asylum seekers, particularly those who flee on the basis of homophobia and transphobia, we should begin by processing asylum seekers here in Australia.
In particular, we should not try to outsource our international obligations to another country, especially to ones that do not even recognise them.
After all, are we no longer the “Lucky Country” that values a fair go for all?
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