Labor a sitting duck as border control fails

AUSTRALIA'S humiliation at the hands of people-smugglers is now complete: our borders are easily penetrated, our refugee program is critically compromised and elusive smuggler Captain Emad has made Australia a double fool, arriving illegally and departing untouched.

Last week seven boats arrived. Last month 1100 boatpeople arrived. Forty-five boats have arrived since Labor's Malaysian policy was deadlocked in the parliament. The pattern is irregular but the trend is relentless -- more boats are coming because people-smugglers know our borders are relatively open and they are feeding asylum-seeker demand.

Australia today has no effective border control policy. Labor no longer even pretends. Boat arrivals have descended into a purely blame game. In an ignominious failure the parliament has betrayed the national interest by refusing to legislate an offshore processing policy despite in-principle support for such policy by both Labor and Coalition.

Last week the ABC's Four Corners program, with reporter Sarah Ferguson, offered a brilliant insight into the boatpeople trade. It showed the ruthlessness of the industry, the perpetual risk of death at sea, the ease with which Australia's refugee assessment process can be flouted, the fact criminals enter this country pretending to be refugees and the intimidation of asylum-seekers that makes prosecution of leading smugglers extremely difficult for the police.

What is required is a bipartisan national effort to end this trade, restore border controls, implement offshore processing and seek new regional arrangements. Yet there is no prospect of this happening.

The situation is costing the nation many billions each year in terms of naval, immigration, detention, police, intelligence and welfare commitments. Our courts are the site of long queues by non-citizens seeking refugee status. If the current rate of arrivals continues, it will threaten the viability of Australia's long-established offshore refugee program and undermine public support for the present high annual immigration intake running at 190,000.

There is another certainty -- sooner or later this rate of boat arrivals will erupt in an inflammatory and extreme brand of politics, given the already rising irrationality and prejudice about foreign workers and Chinese investment. Labor's tragedy is that it has a policy in the Malaysian agreement but this is moribund because it is opposed by the Greens and the Coalition. The evidence is that it would have deterred boats. So the Gillard government is now a sitting duck. How many boats will arrive during the next election campaign?

Four Corners exposed the fragility of our refugee determination system. It reported that Captain Emad, an Iraqi who used the name Ali al-Abassi to enter Australia, first sent his wife and children by boat. They got refugee status using different names to those they used in Malaysia and Indonesia. They claimed their father had died in Iraq and were provided public housing in Canberra.

Captain Emad came by boat with six agents and all got refugee status. A number of people-smugglers now live in Australia. Australian Federal Police Commissioner Tony Negus said his force had been investigating the Emad syndicate for two years. But there was insufficient evidence to lay charges or prevent Emad leaving Australia the night after the ABC program. The evidence points to a breakdown in communications between the AFP and the Immigration Department.

Labor's embarrassment is extreme. This weekend Tony Abbott and immigration spokesman Scott Morrison will use the event to unveil significant tightening of the refugee determination process to be applied as soon as they form government. The immediate fallout from Captain Emad is obvious: it means a tough determination process. This is a gift for Abbott and Morrison.

Morrison said: "The assessment process is a guess, it's a best-guess approach. It's a benefit-of-the-doubt approach. That's what the smugglers are playing on and that's how they're selling their product."

There are grievous grounds for concern. Immigration Department figures reveal a startling gap between initial low rates of refugee acceptance at the first stage but high rates at the end of all the review process.

Initial refugee acceptance rates in 2010-11 were 37.9 per cent for boatpeople. For the March quarter in 2011-12 it was 51.9 per cent (with the figure for Iran as low as 39.8 per cent). Yet the overturn rates at the review stage for those who had been rejected was extraordinary: running at 71.9 per cent in 2010-11 and 77.8 per cent for the March quarter of 2011-12 (with the figure for Iran as high as 75.6 per cent).

In summary, either the first stage is denying some genuine refugees or the review stage is approving people who are not refugees. Figures suggest the numbers being waved into Australia are running between 80 per cent and 90 per cent at the final point.

This is very high by global standards. It is far higher than people arriving by air who have documents.

Immigration Department deputy John Moorehouse told the Senate committee the backdrop: "We know that most IMAs (boatpeople) destroy their passport because they are told to do so by the people-smugglers in order not to facilitate their prompt return." It is standard practice. Some retain other documents such as birth certificates. "So you go to a particular country and ask for a birth certificate to be verified," Moorehouse said. "In one country it might be back in two days; in another country it might take four months."

Officials said in 2011-12 about 90 per cent of boatpeople arrived with no passports and no documents. The task facing our determination process is immense. It is worse given the greater rate of boat arrivals. Many arrivals are genuine refugees fleeing persecution and many are not. Many are seeking a better life as de facto migrants, often with the assistance of family networks. Any idea that everybody on boats is a genuine refugee is fanciful.

As Morrison said, most boatpeople fly into Malaysia or Indonesia with necessary documents but get rid of them for their Australian entry.

Home Affairs and Justice Minister Jason Clare told the ABC that 4 per cent of people who get on a boat in Indonesia never make it here.

"They end up at the bottom of the Java Sea," he said. "Two hundred people died in December. Four days after I got this job I had to advise the Australian people that 200 people had died. We had 11 people die off the coast of Malaysia back in February."

The Four Corners report revealed another boat with 97 passengers leaving Indonesia last November was lost with the smugglers lying about its disappearance in order to collect final payments from the relatives who lost their loved ones and lost their money.

The futility that has become Australian non-policy was revealed in Senate estimates by the acting head of the Immigration Department, Martin Bowles, saying: "Some of the people who have gotten into Indonesia knew a hell of a lot about what was going on. So the network in that context is very good. Word-of-mouth is unbelievable. I probably should not describe it this way, but the network is better than Telstra because the network is phenomenal. It is something that we constantly come up against."

The smugglers watch every Australian move. Bowles said when Labor announced the Malaysian deal, "we saw quite a significant drop in number of arrivals for a period of time". But the High Court veto of the policy followed by parliament's failure to re-validate Labor's policy meant "we saw quite a significant jump in activity in November and December last year".

The smugglers have filled the gap left by the failure of our parliament. It is that simple. It is a stark failure of our democratic institutions. Politicians from both sides know the deadlock in parliament is leading to more boats, more deaths and more smugglers but they cannot resolve their bitter differences over Nauru and Malaysia.

Four Corners showed the boatpeople are intimidated by the smugglers. "Police don't have enough evidence to arrest him," Clare said of Emad. There is a Faustian pact between the smugglers and boatpeople.

Fake media anger that Clare and Immigration Minister Chris Bowen were not running the police operations is absurd. As minister, Bowen would be involved only if visa revocation was sought.

Cancellation of a visa is not easy. The main grounds specified by law are character and giving false information. But the ghost of the Haneef affair hangs in the closet of every immigration minister. Get it wrong and you end up in court with a team of lawyers waiting to pounce on any executive government over-reach.

Kevin Andrews felt he was on firm ground in the Haneef affair but was badly advised. He never recovered. After the Four Corners show Bowen asked his department for advice on Emad's visa. But Morrison put the critical question: when was Bowen told he had given a visa to an alleged people-smuggler? Was he ever told before the program? For Morrison, it is more evidence of a dysfunctional government with agencies not communicating properly.

The Coalition will ride high on Labor's latest embarrassment. But its decision to oppose the Malaysian deal in parliament last year is pivotal. There is no senior official involved in asylum-seeker policy who thinks the Abbott-Morrison policy can stop the boats. Yet this is their pledge and, in office, they must deliver. Claims that Nauru will do a job are a joke.

Australia is without effective asylum-seeker management and without effective border controls. And nobody knows how or when this failure can be overcome.