Great expectations of Immigration defy the realities of border protection

Opinion

The Captain Emad controversy did not expose any fatal flaws in Australia's border policing

There was considerable public consternation after the ABC's Four Corners alleged last month that people smugglers, in particular ''Captain Emad'' (or Ali al-Abassi), had arrived among asylum seekers and continued to run their smuggling activities from Australia. However, while it's easy to blame a lack of effective intelligence or failings around criminality and identity processes, the public debate in Australia has not risen to the complexity of the issues involved.

Whether Australian intelligence failed in Emad's case is far from clear, as the federal police indicated it was aware of the allegations against him but lacked the evidence to prosecute successfully. What I can say, from my past experience as the deputy chairman of the people-smuggling taskforce, is that the quality of regional intelligence was very high, it was valued by regional partners and it was used effectively to stifle boat movements. There was never, under the Howard government, a naval wall of steel around Australia. Interceptions relied overwhelmingly on intelligence-directed locations, as one fishing boat looks much like another from the air in busy sea lanes. It's also noteworthy that people smugglers' past attempts to relocate to Australia were foiled. In 2006, for example, Kais Asfoor was sentenced in Australia to 10 years' jail over seven boats carrying 801 passengers to Ashmore Reef. While he was effectively out of reach of the law in Indonesia at the time, he thought coming to Australia would be a useful move. He was more than flummoxed on his arrival in Perth to find that law-enforcement authorities were at the airport at 3am to greet him.

As good as our intelligence has been, the public debate has at times been deeply flawed by the assumption that intelligence can provide every answer. This was evident in the SIEV X tragedy of 2001, during which more than 350 asylum seekers drowned. Many critics said they expected that Australia would begin a search because the boat was overdue. Yet such boats often leave Indonesia for Australia to end up in the same or an adjoining port, sometimes on the same day, with intelligence taking some time to filter back, if at all. The cruel reality of the economics of people-smuggling from Indonesia is that disposable and relatively worthless boats must be used, making their whereabouts and safety highly unreliable. The fact that we have not had many unauthorised boat arrivals from Sri Lanka, for example, is not due to them lacking the ability to make the long sea voyage to the Australian mainland, but because the boats needed to navigate to the mainland are too expensive to risk confiscation.

The question of criminality and Refugee Convention obligations has caused considerable angst for many countries, not only Australia. Put simply, some refugees are criminals but this does not necessarily relieve a country of the obligation to take them. In the case of Emad, if the allegations against him had proven true, it cannot be assumed that the operation of law would have resulted in his removal from Australia. To understand this, it's necessary to consider briefly the convention and associated removal processes.

The Convention and Protocol Relating to the Status of Refugees sets a very high bar. The fundamental principle within the convention is that no contracting state, such as Australia, can expel or return (refoule) a refugee if their life would be threatened on convention grounds (e.g. race, religion, nationality, membership of a social group). There are a couple of exceptions that limit such obligations. Article 1(F) excludes cases involving crimes against peace, a war crime or a crime against humanity, and serious non-political crimes outside the country of refuge. Article 33 covers circumstances where the person is a danger to national security or their crime is particularly serious and constitutes a danger to the community. In other words: terrorists, repeat axe murderers and those orchestrating genocide, look out!

If the convention removal bar could be met, the process by which a visa is cancelled or a person is removed from Australia under the Migration Act can be, and often is, challenged through the courts. Even then, it may come to pass that the person simply cannot be practically removed. For example, while Iran will take back failed asylum seekers, it requires the agreement of the person involved, which, unsurprisingly, is often not given. Returning asylum seekers to Iraq has also proved particularly problematic.

Identity, in many respects, is the pervasive underlying issue because, without identification, the threat posed by some asylum seekers or the nature of their claims might not be able to be assessed. This concern confronts every government and is not confined to the border. However, it is important to understand that identity deception, such as the use of false documents, does not in itself relieve a country of its obligations under the Refugee Convention. It would also be wrong to assume that discarded identity documents would necessarily disclose the actual identity of the person concerned. Some refugees, by the very nature of their being a refugee, cannot secure exit documents. In some countries, official, and therefore ostensibly legitimate, documents can be bought, with the identity tailored to the traveller's needs. People smugglers have bought high-quality passport blanks in South-east Asia for as little as $US20, and have used them in the people-smuggling process.

Nonetheless, governments are right to focus on the identity of unauthorised boat arrivals given that sophisticated controls govern those arriving through legitimate international passenger services. Take one family, arriving by plane into Australia without documents, who claimed refugee status. Their documents were presumably flushed down the toilet in flight. Their claims were so strong that the Australian refugee process was rapidly moving towards conferring refugee status. However, border-security officials, through the advance passenger processing system (which maintains details of identity documents and associated visas and effectively provides the ''lift'' permission for travellers to Australia) identified the passengers as Dutch nationals. They were returned to the Netherlands, which had already provided them with effective protection. They simply preferred, for family reasons, to live in Australia.

This wish to identity-shift is a common phenomenon. There was one initially puzzling case of a person found outside a controlled area at Sydney Airport, suitcase in hand, claiming refugee status. There was no record of his entry and there was no evidence of flight documents, which he claimed to have discarded. He finally admitted that he was a permanent resident who wanted the housing benefits and other aid provided to refugees. More bizarrely, a person already granted refugee status sought asylum, claiming to have just jumped ship. In his case, he simply wanted a new start, but his identity was established from fingerprints on a police database after a minor, unrelated incident.

Australia's border control systems remain powerful tools for tracking and identifying people born overseas. Unlike many European countries, Australia has continued to collect exit data so that its systems can determine the day that someone becomes illegal, by comparing their entry and exit data and their associated visa status. This capability was no better illustrated than by a case in which a detained Asian man refused to reveal his identity. He had been in the community for years but there was no record of his entry under the name he was using. He would only speak in English, preventing the identification of his first language. Officials suspected he was Malaysian, which led to a fruitless exchange of information with the Malaysian government. It seemed he would remain unidentified until a small piece of paper was found in his room with three dates, two of which were recognised as relating to his detention. An immigration officer compiled a report on people who were in Australia illegally who had arrived on that third date, more than a decade before, and the name of one Malaysian male came up. This time, the Malaysian government confirmed his identity and he was on his way.

This leads to the question: why has the accuracy of our immigration systems been derided? Some of this was due to an extraordinary misinterpretation of a 2004 auditor-general's report on onshore compliance. The auditor-general had referred to a 30 per cent error rate in the unlawful non-citizen file, a relatively small matched file, but did not find any problems with its statistical treatment. Nonetheless, the media reported that the auditor-general had discovered an error rate within immigration systems of about 30 per cent, which was nonsense. The actual error rate was about 0.0001 per cent, given that the file examined by the auditor-general was derived from matching over 300 million records.

Despite some unauthorised arrivals' lack of documents, biometric capability is critical. In a few cases, unauthorised boat arrivals will be identified from international databases, particularly through fingerprints. Even if people cannot be identified, the collection of biometric data on arrival provides a basis for anchoring the identity of an unauthorised arrival, so that the Australian community can be confident it is dealing with one person and that further identity-shifting is difficult. It also leaves open the possibility of identification in the future.

The criminality and identity issues around asylum seekers are not new. With the great outflow from Europe after the war, Australia accepted large numbers of refugees despite difficulties in confirming their identities, and knowing that a few might have been concentration camp guards or Nazi collaborators. We survived that.

The lesson from the Emad controversy is not that it exposed any fatal flaws in Australia's law-enforcement and border arrangements. That capability remains powerful but far from infallible. Any analysis of the incident does, however, reveal some of the complexity in handling unauthorised boat arrivals and the challenges that face policymakers.

Vince McMahon is a former head of border security in the Immigration Department and an adjunct professor in economics, immigration and public policy at the University of Canberra