As Australia moves ahead with a plan to resettle some 1,000 refugees in Cambodia, its government is trying to change a range of laws so as to give it a freer hand to dismiss future asylum claims.
Earlier this year, Immigration Minister Scott Morrison touted the Cambodia transfer as, "an arrangement where people are being resettled in a country that has signed the Refugee Convention, being supported by another signatory to the Refugee Convention."
Then, introducing the "Migration and Maritime Powers Legislation Amendment" in September, he argued: "The new statutory framework will enable parliament to legislate... without referring directly to the Refugee Convention and therefore not being subject to the interpretations of foreign courts or judicial bodies which seek to expand the scope of the Refugee Convention well beyond what was ever intended by this country or this parliament." The controversial bill is now in its third reading.
"It's a sudden and unilateral reinterpretation of a treaty which has been signed by 145 countries around the world and has been the cornerstone of international refugee protection for over 60 years," Daniel Webb, director of legal advocacy at the Human Rights Law Centre (HRLC) in Melbourne, told IRIN.
Meanwhile, immediate protection concerns have been raised as Cambodian government officials are reportedly travelling to Nauru, where Australia operates an off-shore processing centre for asylum seekers, for what Webb calls "an active selling of the refugee transfer arrangement by members of the regime that stands to profit from it". Some 1,000 detainees from Nauru are slated to be transferred to Cambodia in exchange for US$35 million in aid.
Opponents point to Cambodia's poor treatment of asylum seekers in the past, the country's limited capacity to care for 1,000 newcomers, and murky details about the plan - saying the move is part of Australia's broader attempts to deter asylum seekers. In October 2014 a Member of Parliament wrote to the International Criminal Court asking it to investigate the current administration for crimes against asylum seekers.
IRIN looks at Australia's moves to deter would-be refugees.
What is the purpose of Operation Sovereign Borders?
In September 2013 Australia launched Operation Sovereign Borders (OSB), a military-led initiative which includes the interception of boats carrying asylum seekers towards its shores, and detaining them at off-shore processing centres in Nauru, a small island nation, and Manus Island (part of Papua New Guinea).
According to government data, as of 30 September there were 1,060 people on Manus Island (all adult men) and 1,140 on Nauru, including 239 women and 186 children. Australia's off-shore processing centres,which house migrants mostly from Iran, Vietnam, Afghanistan, and Sri Lanka, have come under repeated criticism for their conditions of detention, including in 2013 when the UN Refugee Agency (UNHCR) said: "The physical conditions within detention, together with the slowness of processing and the lack of clarity regarding safe and sustainable solutions for refugees were likely, together, to have a serious and negative effect on the health and welfare of people transferred from Australia."
The Australian government describes OSB as an effort to "to combat people smuggling and protect Australia's borders", and has lauded it for humanitarian successes in combating people smuggling, claiming that "lives are being saved at sea" due to no loss of life in 2014 in "smuggling ventures", and only one boat making it to Australia so far this year. President Tony Abbott has declared his 2013 campaign call, "stop the boats" a success.
OSB includes policies and tactics aimed at deterring asylum seekers from attempting to reach the country's shores, such as off-shore processing, fast-tracked deportations and information campaigns: Recent multi-lingual "No Way" posters warn people they will not be given asylum in Australia.
Why is Australia moving refugees to Cambodia?
On 26 September, Australia revealed a plan to transfer some 1,000 detainees from Nauru to Cambodia. At the launch event, Morrison said: "A number of those found to be in genuine need of protection will now have the opportunity and support to re-establish their lives free from persecution." Cambodian Interior Minister Sar Kheng explained: "Offering the settlement of refugees is considered a humanitarian activity which will help them start a new life in accordance with Cambodian laws."
In exchange, Cambodia will receive a $35 million assistance package, which will be delivered over a period of four years. According to Morrison, the money will go towards projects ranging from rice-milling to landmine-clearance.
"It is clear that Australia held some money back in their aid budget for this contingency in this agreement," said Phil Robertson, deputy Asia director at Human Rights Watch (HRW). "What it shows is a further politicization of foreign aid by Canberra, where projects are not determined by development needs but rather by political convenience."
A team from the International Organization for Migration (IOM) visited Cambodia at the request of the government in October to assess whether they would be able to assist in the relocation process. "We appreciate that a member state asked us for help due to our expertise in migration, so we sent a team to assess if we can respond positively or otherwise," said Joe Lowry, regional spokesman for IOM in Bangkok.
"Cambodia will be an incredibly difficult place for refugees. And that's precisely the point," argued Webb. He explained: "The motivation behind sending people to Cambodia is the same as the motivation behind detaining them in camps on Nauru and Manus, turning back boats and denying permanent visas to the 30,000 people already - deterrence."
What is Cambodia's record on refugees?
Cambodia currently has only 68 refugees and 12 asylum seekers. The Jesuit Refugee Service (JRS) provides most of their support, such as filing paperwork and finding accommodation. However, Sister Denise Coghlan, JRS Cambodia director, told reporters that JRS would not have enough money to support the additional refugees.
According to Vivian Tan, regional press officer for UNHCR in Bangkok, "local integration has been challenging for the existing refugees [in Cambodia]. Sending large numbers of refugees to Cambodia could challenge its ability to absorb them in a sustainable way."
Cambodia ranks 136 out of 187 countries in the UN's 2014 Human Development Index; 20 percent of the population lives on less than $1.15 per day, according to the World Bank, and "many people who have escaped poverty are still at high risk of falling back into poverty." The country of 15 million people received $1.06 billion in foreign aid in 2013; $68 million came from Australia.
In December 2009 Cambodia forcibly returned 20 ethnic Uighurs from China who were seeking political asylum, drawing widespread criticism: Cambodia failed to adhere to its obligations under the 1951 Refugee Convention, which forbids such returns. It received Chinese aid within days of the move.
What are the remaining grey areas?
The Australia-Cambodia MoU does not specify how much money will be allocated for temporary accommodation and basic needs - or who will decide how the money is budgeted. For example, the MoU mandates that temporary accommodation be provided until the refugees have achieved "basic Khmer language skills", a threshold that is undefined in the guidelines.
"It is not currently clear how much or by what mechanisms support will be provided to the refugees," said Wan-Hea Lee, representative of the Office of the High Commissioner for Human Rights (OHCHR) in Cambodia. "Whether this should be a concern will depend on the clarity that is shed by both governments on the level and areas of financial support to be provided."
In Australia, money remains at the centre of the debate. Morrison claims OSB has saved the country billions by reducing the number of people reaching Australia's shores. In March 2014 he cut free legal services for asylum seekers, saving US$88 million.
Others see cuts and spending as misdirected. According to the Refugee Action Coalition, detaining a single asylum seeker on Manus or Nauru costs $309,000 per year, whereas the cost of supporting those living outside detention centres and in communities is only $9,300 per year.
"We should be investing some of the billions of dollars we currently spend on border protection and detention into an efficient UNHCR-led refugee determination process in Indonesia," said officials at the Victoria-based Asylum Seeker Resource Centre, pointing to the bottlenecking in the asylum system there as Australia's deterrence regime heaps pressure on neighbouring countries.
According to HRLC, if the Australian bill passes, it will amend the Maritime Powers Act to "widen ministerial discretion, marginalise international law and due process, and wind back the ability of Australian courts to scrutinise the Government's treatment of people seeking Australia's protection."
This will mean, among other changes, that asylum seekers who arrive by boat can be subjected to rapid administrative assessments, deportation proceedings for them can skip the step of first considering their asylum claims (a departure from Australia's non-refoulement obligations), and children born to "unauthorized maritime arrivals" (UMAs) on Australian soil be classified as UMAs automatically as well, triggering mandatory detention and possible transfer to Nauru.