2 Debating the Asylum Legacy Caseload

The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 introduced by the Australian coalition government deals with the so-called ‘Asylum Legacy Caseload’, which refers to the backlog of protection claims by asylum seekers who arrived unauthorised by boat between August 2012 and December 2013, of whom some were transferred to offshore processing centres on Nauru or Manus Island in Papua New Guinea, while others were transferred back to Australia for processing. We will focus on two of the six amendments implemented by the act: Schedule 2, which deals with visas, and Schedule 5, which deals with references pertaining to international law.

The proposal in Schedule 2 concerns the reintroduction of the so-called Temporary Protection Visa (TPV) and the introduction of a new visa called the Safe Haven Enterprise Visa (SHEV).Footnote ⁶ The reintroduction of the TPVs (granted for a maximum of three years) would prevent asylum seekers from obtaining permanent residency or citizenship. More specifically, people granted this visa will be barred from ever making a valid application for a permanent visa. Although they would be allowed to work and have access to social security or Medicare, they will not have access to family reunion or the right to re-enter Australia should they travel overseas.

The SHEV (granted for a maximum of five years) concerns a new visa that will be available to people from the legacy case-load who are found to be refugees, and who will be required to live in a ‘designated region’ and encouraged to fill job vacancies in regional areas. Those who can show they have worked in a regional area without accessing income support for three and a half years will be permitted to apply for other onshore visas, such as family and skilled visas (but not permanent protection visas). They would have the same restrictions on family reunion and re-entry to Australia as TPV holders.

Responding to queries from the media about the Bill (before it passed and became the act), the Australian minister for immigration, Scott Morrison, invoked the words of former Prime Minister John Howard when he explained that the newly proposed Bill on Asylum was

Notwithstanding the debate of who defines the cultural contours of the Australian ‘we’, the point Morrison makes is about regaining the powers to have control over the admittance of refugees in Australia. It is about recovering decisions back to the sovereign state so that they (the executive), rather than some abstract law (the judiciary), can determine which people are most beneficial to Australia. For countries in the Global North, including Australia, this benefit is predominantly defined through economic values.

This economic stance is consolidated in the act by the introduction of the new SHEV, which expects from the recognised refugee that s/he ‘earns’ her or his citizenship. It has to be beneficial to Australia and deploying labour to the regional areas of Australia, where there is a shortage in labour attending to the mining business, asylum seekers can make themselves useful and earn their ways to becoming a member of Australian society, although, even then, as the minister stresses, it will still be difficult to get permanent residency:

Such economic (as well as paternalist and parochial) language has been commonplace in the communication of deterrence in Australia. Statements such as ‘good luck to them’,Footnote ⁹ ‘we're taking the sugar off the table’Footnote ¹⁰ and the use of strong language such as ‘flood gates’ in describing the arrival of refugees conjure highly economised (and masculinised) rhetoric in managing asylum. The persistence of such rhetoric in politics and media normalises deterrence politics in the public arena. It also pushes the idea that it is up to the executive government, rather than domestic or international jurisprudence, to decide upon the fate of refugees. This is made strikingly evident in the discussion on the act's relation vis-à-vis the Geneva Convention.

In Schedule 5 to the act, changes have been implemented that minimise Australia's obligation vis-à-vis international law.Footnote ¹¹ Besides removing literal references to the 1951 Refugees Convention, the changes would formalise that Australia's non-refoulement (non-return) obligations under international law are irrelevant for the purposes of removing unlawful non-citizens. It also proposes a new statutory framework to arrange the government's interpretation of its international obligations towards assessing asylum seekers. One of such interpretations relates to the definition of ‘well-founded fear’ and proposes that asylum seekers will be deemed not to have a ‘well-founded fear’ if they can relocate to another place in their country, change their occupation and/or modify their behaviour so as to avoid persecution. It is proposed that it will no longer be a requirement that the decision-maker assess whether it is reasonable for them to do so. While this does not formally ignore Articles 31 and 33 of the 1951 UN Convention and 1967 Protocol relating to the status of refugees, it deeply undermines its core intentions.Footnote ¹²

The coalition government explained their proposal in their Statement of Compatibility with Human Rights:

Here, the Australian government attempts to displace judicial power in the matter of asylum. While the government's desire to avoid the court could be regarded by some as entering the space of non-law, lawlessness or just a less generous interpretation of existing law, this feature, as we will argue in the next section, denotes instead a legal novelty and is part of what we call ‘legal pragmatics’ in the management of asylum.Footnote ¹⁴

3 On picking commas: the legal pragmatics of ‘un-signing’

Instructive for our discussion on legal pragmatics is the following exchange, as described in the Sydney Morning Herald (14 November 2014), between the liberal senator Ian Macdonald and a member of the Migration Institute of Australia, Nicholas TebbeyFootnote ¹⁵:

Macdonald's interjection reveals a number of things. First, it suggests that the state's ‘un-signing’ cannot entirely be equated with a complete rejection of their humanitarian obligations under international law. This means that – in principle – the state stands by their commitment to the Geneva Convention, underscoring the importance of the Geneva Convention for the nation's moral standing. Second, it reveals the extent to which ‘boat people’ – as the category of refugees who are not coming in an orderly fashion through the UNHCR channels – are seen as an exceptional case, deserving of scrutiny and stringent observation, rather than compassion and hospitality. Finally, it concerns an indictment of the courts – in particular the High Court – and discloses the tensions that have been culminating in the past few decades between the powers of the executive and the powers of the judiciary.

The separation of powers in the political configuration of the asylum question reveals a politico-legal playing field in which the pro-border-protection executive stands against the pro-Geneva Convention judiciary. Both institutional parties would attest and critique the other party of politicising law – a forceful claim in light of the conventional assumption that law operates outside of conventional politics. On the one hand, contemporary politics of border control – across the political spectrum – increasingly attempt to legalise their approach in domestic law despite contradictory principles of protection that states have signed themselves up for. On the other, although it is testing for the courts to implement international law (and most refugee cases involve statutory construction or constitutional interpretation), some important cases in the past that were brought to the High Court have proven the executive in legal violation.Footnote ¹⁶ In sum, the politicisation of domestic law runs parallel with the perceived politicisation of the High Court.

It is ‘the picking of every comma’ that alludes to the a ‘legal pragmatics’, in which opposing sides find administrative and lawful ways of ‘doing’ and ‘undoing’ law from within law. Whereas ‘legal pragmatics’ can be seen as a way in which legality protects refugees by giving them legal arguments, it can also be seen as a way to stop them by creating new legal requirements that narrow the definition of ‘genuine’ refugee-hood. Humanitarian rhetoric is central to these operations and, again, is used on both sides of the political spectrum. As MacDonald makes clear in his view of the High Court, it is important in the name of real refugees (read: those who in an orderly manner queued up to register with the UNHCR) that this irregularity is dealt with conclusively. Or, in other words, if the High Court would not stand in their way (by picking every comma), then real (and deserved) refugees would have better access to the country.

One of the measures that narrowed the definition of refugee-hood involved an amendment to the notion of ‘well-founded fear’. The proposed alteration articulated that the fear must relate to the whole country. In other words, an applicant must show country-wide persecution – a requirement not expected from the refugee convention. The amendments have been proposed in direct relation to Australian High Court cases (as well as cases in foreign jurisdictions such as the US, Canada and New Zealand) where outcomes have been in favour of the applicants turning over decisions made by full federal courts. The spatio-legal clause gives further evidence to a ‘legal pragmatics’ by merely changing the territorial requirement in which ‘well-founded fear’ is experienced. The principle of ‘well-founded fear’ remains intact. The act, then, remains committed to the spirit of the Geneva Convention, albeit simultaneously intervening in a key aspect of it.

Critics would simply say that this dynamic concerns a classic instance of finding loopholes in law in order to pursue one's own political interests. Although not unsympathetic to this critique, we are interested in the pragmatic (and moral) structures of these loopholes: what does it mean when law tries to find out what the law can get away with as legal? There is an apparent reason why holding onto the letter – despite violating its spirit – remains essential for Australia's credibility. Nonetheless, their active attempts to find loopholes in law hollows out the essence of the law and breaches law's internal morality.

The work of Lon L. Fuller (Reference Fuller1969) attends to such an internal morality. In The Morality of Law, he lays out eight core principles that together comprise the ‘internal morality of law’: law should be ‘general, publicly promulgated, clear, non-contradictory, possible to comply with, relatively constant through time, non-retroactivity, and that there be congruence between official action and declared rule’ (Rundle, Reference Rundle2016, p. 500, quoting Fuller, Reference Fuller1969, p. 41). In this respect, one could argue that the inner morality of international refugee law is currently being hollowed out in domestic applications. Through the act, the Geneva Convention is stripped bare of its core principles: it is not clear anymore how it should be adhered to, its core subject – the refugee – is contradictory or ill-defined, there is abuse of retroactive legislation and, finally, there is a failure of congruence between the rules announced and their actual administration. According to advocates of Fuller's framework, this ‘hollowing out of law’ does not simply mean that the result is a bad form of law. Rather, it suggests that it is not law at all.Footnote ¹⁷

Nonetheless, until loopholes are fixed via new judgments, precedents or new legislation, it is the legal legitimation that permits loopholes. What we would like to emphasise with the term ‘legal pragmatics’ – in addition to Fuller's internal morality of law – is not only that the legitimation processes operate through internal boundaries of law, but also that they produce new meaning and norms. ‘Legal pragmatics’, then, should be understood as the turf on which the executive and the judicial powers legitimate their positions: the playing field in which the content and meaning of principles and laws are debated, but also are re-established. It is through the act that the status and definition of refugee-hood is disputed. For both the state and the courts, the contestation follows binaries of in- and exclusion. As we will explain in the next sections, the criminalisation of the refugee by the state and the juridification of the refugee by the courts form the normative effects of legal pragmatics. This legal discourse on refugees stigmatises some people and groups as criminal and threatening, just as it purifies others as real and deserving.

4 Neoliberal states and the criminalisation of refugees

Australia has always presented itself outwardly (and particularly in relation to its neighbouring Asian countries) as a state that strongly upholds principles of human rights, humanitarianism and the rule of law. For the past few decades, however, the topic of asylum functioned as a lightning rod to parties across the political spectrum and led to stroppy positions vis-à-vis humanitarian allegiances. Whereas, in the 1980s, refugees from Eastern Europe and Asian communist countries such as Vietnam and Laos were welcomed as dissidents and seen as valuable to the moral fabric of the nation, today's refugees from Africa and the Middle East are instead seen as so-called ‘bogus refugees’ who strip the nation of its resources and jeopardise the welfare state. Despite the highly mediatised language of ‘threat’ and ‘fear’ that come with the ‘flood’ of refugees, humanitarian rationales remain important in justifying restrictive policies.

This is particularly evidenced in the language of deterrence. Deterrence scripts can follow the more neoliberal language of incentives and disincentives, risks and benefits, advantage and non-advantage, and at the same time deploy a humanitarian approach to deterrence, making the distinction between irregular arrivals and illegal people smugglers (Pickering and Weber, Reference Pickering, Weber, Stanley and McCulloch2013). The amendments culminating in the act attend to such a politics of deterrence and confirm a recent change to the figuration of the refugee, namely that of conflating it with the figuration of the economic migrant. In general, media discourse portrays the figure of the refugee within the context of distant suffering and that of a collective of displaced persons in vast landscapes of emergency tents in dire need of care and compassion. In line with the Geneva Convention, the refugee is defined and understood as evicted from their home or in exile from religious, ethnic or political prosecution. They are morally distinguished from ‘economic migrants’, deserving exceptional attention and treatment because of their precarious and vulnerable position.

In contrast to sentimentalised and ‘humanized’ media representations of displaced people ‘out there’,Footnote ¹⁸ refugees that cross international borders are redefined as always-already suspicious. In Australia, the terms ‘bogus refugee’, ‘queue-jumper’ and the more general ‘boat people’ help to construct the ‘asylum seeker’ as insincere and deceitful at best and fraudulent and criminal at worst. Such constructions distances emotion and lessens a need for compassion. Symptomatically, then, some states in the Global North are de-sentimentalising refugees or ‘effacing’ refugees, which refers to the growing evidence that Western liberal democratic states intentionally withhold journalists and human rights workers from making photographs from asylum seekers, thereby erasing their plight (James, Reference James2014).Footnote ¹⁹ In Australia, numerous images are reproduced of suffering refugees in UNHCR tents in unnamed African, Asian or Middle Eastern sites, but the refugee knocking on the door of the state to ask for asylum does not enter the Australian representational field anymore. This suggests a clear departure from how politics used to distinguish between the ‘real refugee’ and the ‘mere migrant’. The refugee far away is now the ‘real refugee’, while the asylum seeker who makes it to our door is seen as a queue-skipping ‘mere migrant’.Footnote ²⁰

What does come into the imagination of people are the myriad of substantive assumptions that come with the procedural term of ‘illegal’ and ‘asylum seeker’. Within a deterrence logic, ‘illegals’, ‘asylum seekers’ and ‘irregular arrivals’ are imbued within the stereotype of the ‘poor, brown, and destitute’ (Dauvergne, Reference Dauvergne2008). The reason for omitting to humanise asylum seekers has, of course, a hidden but commonly rationalised reason, namely that states want to avoid a confrontation with their publics when carrying out their actions and policies of deterrence. When refugees are portrayed as suffering and in need of protection, as set out by international conventions, their justifications for deterrence are overruled. While the migration system allows the sovereign state to decide who is and who is not allowed to become a citizen in the country, the moral force of international refugee law narrows the powers of the state to block people whom they deem of no interest to the benefit of the country.

The act, then, redraws the contours and conditions of ‘real’ refugee-hood and criminalises other refugees who do not fall within these categories. In the Australian case, ‘real’ refugees are limited to the anonymous crowds of innocent people in UN tent camps (‘out there’) who require urgent care, though wait patiently (and orderly) to access international assistance that can bring them to a safer place. Those who skip the queue are deemed deceitful and therefore undeserved of legal status. In a literal sense, the ‘real’ refugees, as understood by the act, are those who are prosecuted throughout the country, who are prosecuted even if they would change their occupation and who are prosecuted even if they would modify their behaviour. In other words, the conditions of ‘well-founded fear’ is put back on the actions and responsibilities of the individuals themselves. Rather than understanding refugees as being exiled out of their country, the act approaches them as active agents in their own predicaments.

This is interesting in light of ‘exceptions’ that can be observed in asylum policies elsewhere. Child asylum, for instance, receives an exceptional standing in many countries, often leading to moral appeals to treat children differently than the gross of asylum seekers. The Global Child – as the sentimentalised subject with no agency – is seen as embodying separate rights and assigned moral compassion by its sheer status of dependency.Footnote ²¹ Another instance is the way in which gender and sexuality play an exceptional role in asylum politics. In the Netherlands, for instance, a strong moral force demands recognition for refugees who have fled their country because of their sexual orientation (De Leeuw and van Wichelen, Reference De Leeuw and Van Wichelen2012; Fassin, Reference Fassin2010). In France, female genital mutilation suddenly became a dominant inclusion principle and eventuated in a surge of refugees from Sudan (Fassin, Reference Fassin2013). Finally, the ill body too can serve as the exceptional vector in asylum cases. Through the so-called illness clause in France, the ill body has become a humanitarian condition under which to allow people residency (Ticktin, Reference Ticktin2011).Footnote ²²

What we can draw from these comparisons is that the definition of the ‘real’ refugee is more and more dependent on (fixed) identities or biologies. So being a child, a woman, a homosexual or someone with an ill body becomes the site of truth. They are given exceptionality because they cannot do anything to change their being – they are that which is prosecuted. The act in Australia illustrates this same tendency by defining conditions of refugee-hood as having to be unchangeable. This is not entirely surprising, since ‘immutability’ has always been key in civil rights struggles. However, it is now being stressed at the same time that the political figure of prosecution is made malleable. By suggesting that the asylum seeker can maybe move places, change occupations or modify behaviours, s/he becomes – ironically – less relevant in the acquisition of refugee-hood. On the contrary, malleability becomes proof of fraudulence and feeds the eventual criminalisation of refugees.

The point is that domestic particularities to border control are endorsed in domestic courts and the legal operation of determining refugee status is moulded into an administrative process that allows domestic limits to the understanding of suffering. This creates a paradoxical situation. On the one hand, the judicial and administrative practice of processing asylum seekers defines the human subject in universal legal terms – often stripping them of their context and history. The vernacularisation of international law, on the other hand, allows one's own politics of border control to be enshrined in legal processes. Hence, while the refugee in international law is universalised, s/he becomes particularised in domestic law. This is evident in the act's proposal to eliminate references to international law in domestic law.

It is ironic – though inherent to the mechanisms of cultural binaries – that the increased mistrust in asylum seekers informed by measures such as the act also contributes to the increased value of asylum to justify this stance (see also Fassin, Reference Fassin2013, p. 47). In this way, northern states are able to argue that they are ‘un-signing’ from refugee conventions in order to actually live up to what they signed up for. While remaining within the boundaries of the law, liberal legality is turned against what was thought to be its liberal promise. The result is that we can in fact only morally – and not legally – base ourselves on human rights and humanitarianism. Such a paradox also informs the judiciary and their apparatus of human rights organisations. Confined to liberal legality, institutions defending international refugee law necessarily draw on the juridical humanisation of refugees to argue for inclusion.

5 Human rights and the juridical ‘humanisation’ of refugees

The act has been met with great critique. As such, human rights scholars and organisations – in particular organisations specialising in refugee law – have reacted strongly to the act by publicly stating their incompatibilities or breaches with international law.Footnote ²³ The president of the Human Rights Commission, Gillian Triggs, voiced her concern in a public statement and specified that the Bill raised serious problems for the rule of law in Australia:

The critiques voiced by these groups attend to what you could call the moral force of international law and the legal community of refugee lawyers. They hold the government accountable and counter governmental strategies of finding legal loopholes that can assist their policies.

As noted by the legal anthropologist, Fleur Johns, ‘A notion has prospered among refugee lawyers that international law relating to refugees tends to operate as a restorative, tempering or disciplinary influence upon immoderate state action (or inaction) in this context’ (Johns, Reference Johns2004, p. 587). International law, then, is often summoned as an institution that restraints and corrects the sovereign state in the name of universal human rights. Along with Johns, however, we argue that international law ‘is as much a producer of instincts associating migration with pathology, as it is their ostensible therapy’ (Johns, Reference Johns2004, p. 588). Hence, as Fassin indicates in the case of French immigration politics, ‘criminalization and humanitarianization do not simply function as alternative policies … [t]hey often operate in a dialectical way’ (Reference Fassin2013, p. 50). Fassin illustrates this by describing how the French state combined both repression and compassion in the treatment of refugees, displaced persons and forced migrants. Similarly to this approach, the Australian state attempts to mitigate the flow of refugees against the asylum seekers’ loss of credibility by deterring most of them through repression, while accepting some of them with compassion. Our demonstration of ‘legal pragmatics’ points to such a dialectical relationship between the executive and the juridical powers, and the way in which their dynamic is constitutive of a certain form of biopolitics.

Without dismissing the importance of human rights critiques, it is important to point to some of the limitations that a ‘self-referentiality’ of law brings to the politics of asylum. With ‘self-referentiality’, we mean that human rights lawyers and their advocates tend to rely on law as a closed system ‘which produces and reproduces its own elements by the interaction of its elements’ (Varela et al., Reference Varela, Maturana and Uribe1974, p. 187, quoted by Teubner, Reference Teubner1984, p. 292). Here, one seems to always ‘get away’ with law, hence the frustration felt by the executive powers that lawyers ‘pick every comma in the wrong place to allow someone in’, as specified by the quote presented earlier in the article.

The self-referentiality of law strengthens an overall juridification of society. More and more people do not debate a conflict or injury; they see each other in court (Blichner and Molander, Reference Blichner and Molander2008). The management of life, institutions and politics has become entrenched in legal contracts and the proliferation of contracts in the world of border security shifts the issue of accountability to a neoliberal and globalising market rather than to an accountable state (Feldman, Reference Feldman2011; Menz, Reference Menz2009). Besides limiting the responsibility of government, the growing hegemony of legal orders – as explained by John Comaroff – tends to also:

This is not a new observation. The juridification of society has been observed in the US since the 1980s and the perspectives do not privilege a particular political side.Footnote ²⁵ Yet, while these observers remain within the realm of law, the Comaroffs direct our attention to what happens beyond the courts. It is essential to recognise for instance, that humanitarian rationales allowed the global security apparatus to operate legally. Hence, while humanitarianism has at its core principle the humanisation of people, it is also capable of producing harmful effects despite or because of humanisation. Reports have indicated how refugees fleeing persecution of violence have felt betrayed when confronted by the pernicious effects of the immigration system of countries where they stop to apply for asylum. The mistrust and criminalisation inherent to the process of humanisation for asylum seekers (Pickering, Reference Pickering2005; Fassin, Reference Fassin2013) allow the rule of law to be capable of producing as well as justifying its own violence.Footnote ²⁶

The legal process of humanisation in international law, much like the affective forms of compassion in media or the political form of appealing to humanity in governance, can be seen as a technology of ‘humanitarian government’ (Fassin, Reference Fassin and M2007, pp. 149–159) that produces a relationship of subjection between the non-liberal subject of the refugee, the asylum seeker, the (irregular) migrant and the non-citizen on the one hand and the universalised liberal citizen-subject on the other. Western humanitarianism, then, as it is inscribed in international law, operates as an effect of legal pragmatics. Such effects figure prominently in labouring the work of domestic politics into domestic law and what happens now is that culture and humanitarian sentiment are juridified in domestic legal processes, thereby undoing international law on behalf of the state.

In the highly securitised world of global migration regimes, law produces the very subject of humanity. This technology of law resonates with colonial technologies of law described by Samera Esmeir in her work, Juridical Humanity, which is situated in colonial Egypt. Esmeir rejects the juxtaposition that colonialism destroys and dehumanises while law regenerates and restores. Instead, locating the production of the human subject within the law itself, she examines how law functions as a vehicle of violence and domination (Esmeir, Reference Esmeir2012, p. 8). Her work demonstrates how the human emerged as a juridical category: ‘an effect and outcome of modern law that sought to humanize Egyptians by declaring them subjects of the rule of law’ (Esmeir, Reference Esmeir2012, p. 4). We can argue in the humanitarian present that Western states are doing the same thing with non-liberal subjects as they come into liberal democratic countries in the Global North. There is, then, a post-colonial dimension to the pragmatics of law. And this moment can be traced back to the very beginning of the formation of the Geneva Convention, when representation of countries from the Global South was very restricted.Footnote ²⁷ Notably, by limiting the notion of the refugee – and, by extension, of the human – to a juridical understanding, other notions of refugee or humanity are excluded.

This is not to say that law is merely a technology of neo-imperialism or neocolonialism. Rather, as explained by Esmeir in the context of modern law in the time of colonialism, ‘extreme violent measures were the vehicle for the production of a sphere of idealized juridical humanity; idealized humanity produced its own violence in order to safeguard the authority of its ideals’ (Esmeir, Reference Esmeir2012, p. 282). Returning to the act, we can say that the criminalisation of the refugee enabled the production of the ‘real’ refugee. Hence, while we can approach and critique this development as a form of epistemic violence, it also provides us with the normative foundations in which to voice these injustices. It is therefore paramount that we do not see politics and law as opposing or closed systems, for the criminalisation of the refugee is intimately connected to the humanitarianisation of the refugee, operating dialectically in shrewd and effective ways.