The Australian Government yesterday (17 January) entered into a Memorandum of Understanding (MoU) with the Afghan Government and the United Nations High Commissioner for Refugees (UNHCR) to return unsuccessful Afghan asylum seekers to Afghanistan.

According to the Minister for Immigration and Citizenship, Chris Bowen, the arrangement is part of the Australian Government's broader efforts to reduce the incidence of people smuggling and, in order to dissuade people from "risking their lives by joining people smuggling ventures, it is important that Afghans found not to be owed protection by Australia are returned to Afghanistan".

But Professor William Maley, the foundation director of the Australian National University's Asia-Pacific College of Diplomacy and member of the Refugee Council of Australia, told Lawyers Weekly that deterrence is an unlikely outcome from the MoU, largely because there is little evidence to suggest that Afghan asylum seekers would actually be aware of the MoU and its consequences.

"There has been research ... on the capacity of campaigns or measures of this sort to deter people, and there is very little evidence that people are actually deterred," he said.

"They tend not to know about developments of this sort and, at the same time, they often confront compelling push factors; dire circumstances in their country of origin which, in a place like Afghanistan, can include having 11 of your co-ethnics decapitated, which is what happened in June last year to members of the Hazara ethnic group in Oruzgan province.

"Under those circumstances, you just want to get out and you won't necessarily be dissuaded from travelling by an MoU between governments."

Dr Jane McAdam, the director of the international refugee and migration law project at the Gilbert + Tobin Centre of Public Law, said that while repatriation is a necessary part of a workable asylum system, it will not deter those who are genuinely in danger from using people smugglers, whether they can be classed as refugees or otherwise.

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"If people are fleeing general violence in the first place, while they may not be refugees, they are still trying their best to get out of there. And if that means engaging people smugglers to do that, then that may well continue," she said.

"[The Immigration Minister] may be correct to the extent that people will start to think that Australia is not a place where you can even get some form of temporary safe haven, but that suggests that people are making very calculated decisions about where to go and when, and often that is not the case at all.

"They are fleeing violence and they are getting out of there as quickly as they can."

Maley also expressed concern that the political nature of the asylum seeker issue in Australia has shifted the focus from individual circumstances to more general conditions - which can be perilous when information relied upon to determine refugee status is inaccurate.

"Last year, the success rate among applicants for protection was very high until April, when the foreign minister, the minister for immigration and the minister for home affairs put out a joint statement asserting - without any evidence - that the situation in Afghanistan was improving," he said.

"There was probably not a specialist in the world who would have agreed with that, but virtually overnight the success rate of applications plummeted. That [creates] the impression that it is not so much the circumstances of the individual applicants that shape the outcome, but rather a wider set of political goals. Where that is the case, one needs to be very skeptical of what may happen when individual cases are appraised."

However, there is a positive side to the MoU, says Maley, in that provision 3(a) of the agreement says that before Afghans who are found not to be in need of international protection under the Refugee Convention are repatriated, an assessment against other international non-reforma obligations and compelling humanitarian needs must be made, and any major changes to the security situation in Afghanistan must also be taken into consideration.

"That potentially, if it is not just for show, could open the door for proper assessment in light of what has been called 'complimentary protection'," explained Maley.

"It's possible that this will actually facilitate a more sensible approach to some of these cases, but we'll need to see what happens in practice."

Claire Chaffey