The ten men staring through the bars at me ask me questions I cannot answer. 'Why are we here? What have we done that so hurts the Indonesian government? Why does Australia do nothing?' Mr Daud, an Afghani asylum seeker, also doubts the UN: 'The United Nations is the whole world, they must accept us, they need all people, the poor and those from war.' Like his fellow asylum seekers in detention in Denpasar, Daud has taken too many risks to consider the possibility that he will not be granted refugee status.
Daud, 'the Commander', fought with the United Front against the Taliban. When the Taliban captured and killed his brother, also a United Front commander, he put his wife and six children into hiding and fled. He has been in detention in Bali since he was arrested there on 14 June 2000 for overstaying his tourist visa. He has not yet been able to contact his family.
An officer from the United Nations High Commissioner for Refugees (UNHCR) interviewed the asylum seekers in mid-July. Five months later, they have heard nothing, and hopes are sinking. Time stretches endlessly. The treatment of Daud's group is inconsistent with the UNHCR's own guideline advocating a 'rapid, flexible and liberal' process of status determination. Nor has the Indonesian Immigration Office in Denpasar, responsible for the 'quarantined' group, been kept informed.
The Immigration Department, meanwhile, lacks the funds to put Mr Daud on trial for breaking immigration law, so it treats his overstay as a procedural offence and is holding him in immigration detention. Officials hope the UNHCR will take him off their hands as a refugee. They are confused with the lack of policy guidelines to direct their response not only to the asylum seekers but also the various international bodies which also claim a role, the UNHCR and international organisation for migration (IOM).
If Daud does not get refugee status, he will in theory be blacklisted and deported from Indonesia. This would mean waiting in detention until either Indonesia has the funds to deport him or his home embassy agrees to pay. The latter is unlikely, and in any case, Daud would refuse to be repatriated. Immigration sources acknowledge that people in this situation have been detained for over forty years in the Kalideres detention centre in Jakarta. Over five hundred asylum seekers like Mr Daud are now stuck in Indonesian detention centres.
Indonesia's 'selective policy' on immigration means it does not accept the principle of naturalisation, nor does it permit itself to become a processing centre for refugees. However, while not party to the Refugee Convention, Indonesia has chosen not to remain blind to the global issue of asylum and refugees. The Department of Foreign Affairs and that of Justice and Human Rights both speak of a new 'humanitarian approach' to the refugee issue, which is in fact at odds with domestic law. This stance has allowed UNHCR and the IOM to become involved in the refugee determination process as representatives of the international community. Thus Mr Daud's future is determined by several often incompatible bodies - the Indonesian and Australian governments, and these international agencies.
The two governments each effectively have isolationist policies. Indeed, Indonesia is operating in a legal and policy vacuum regarding the current flow of Middle Eastern asylum seekers. There is no issue-specific memorandum of understanding on it between them. The Indonesian Department of Foreign Affairs argues that a framework for a MoU should be taken from the UN Convention on Transnational Organised Crime, held in December 2000. While this MoU remains unrealised, cooperation is largely informal and carefully understated.
Since the beginning of 1999, Indonesia has become the key staging point for the movement of people from the Middle East to Australia. Eighty five percent of those illegally entering Australia come by boat via Indonesia. Most asylum seekers enter Indonesia legally and try to reach either Christmas Island or Ashmore Reef. An asylum seeker is a person who applies to a national government for recognition as a refugee, and for permission to stay because they face persecution on the grounds of race, religion, political opinion, nationality or because they belong to a particular social group.
However, asylum seekers in Indonesia do not have their applications considered by the Indonesian government, as Indonesia has not yet signed the UN Convention relating to the Status of Refugees 1951 (the Refugee Convention) and its 1967 Protocol. Instead, the UNHCR branch in Jakarta considers their applications. If successful, they will await resettlement in a third country.
More than five hundred more illegal immigrants are feared to have died en route to Australia in 1999 alone. Yet, Indonesia and Australia both ignore this tragedy. Commenting on a report in December 2000 that 163 illegal immigrants had probably drowned while sailing to Ashmore Reef, Australia, Australia's Immigration Minister Mr Ruddock said: 'The incident appeared to have happened outside the area of responsibility'. What a contrast to the enthusiasm (and the money - an estimated A$2 million) the Australian Maritime Safety Authority exhibited to save Isabelle Autissier, the solo yachtswoman in 1995, and Tony Bullimore in 1997! Australia knows Indonesia does not have the capability to mount a 'coastwatch' service. Australia cannot hide behind its national boundaries.
Each year illegal people trafficking moves an estimated four million people worldwide, and generates proceeds of US$10 billion. Daud paid US$3,000 to an agent in Karachi, Pakistan, whom he met through an agent in Kabul, Afghanistan. For this fee he obtained an Afghanistan passport, Indonesian visa, and travel to Indonesia. In Indonesia, he contacted agents in Bali and Jakarta, and paid another US$2,000 in his attempts before arrest. Most of the asylum seekers I spoke to indicated they would try to reach Australia, even if it meant using up all their savings on up to three attempts. Indonesian police and immigration officials at remote ports, who lack the means to look after a sudden influx of foreigners, can sometimes be bribed just to let them leave. Their last resort was to contact the UNHCR and submit to status determination.
Australia attracts asylum seekers because of its wealth, peace, and stability. Mr Daud says: 'If our life is not in danger, why leave our children, our wife? I do not want to see Indonesia or Australia, I come here for safety.' The current flow is different only because they enter illegally. Does this make them criminals?
A recent letter to the editor in the Sydney Morning Herald stated 'illegals can nowadays not only drift in at will anywhere along our coastline but also demand the right to this and that'. Mr Ruddock himself claims illegal migration costs the Australian taxpayer millions of dollars in coastal surveillance, detention, litigation and removal costs. It is this perception that must be challenged. Firstly, from the 6,808 overstayers found in Australia in 1999, only 920 arrived as asylum seekers by boat. A media beatup. Secondly, the majority of those arriving by boat tend to apply to remain permanently in Australia as a refugee and as such contact Australian immigration. If any deception is involved it will be discovered when processing the claim for refugee status.
Asylum seekers rely on their own initiative and savings to reach safety. They face great dangers for a second opportunity at life. They use the established channels available to them - that is, narcotic and weapons networks. Restricted opportunity for legal migration has forced their hand. For those fleeing persecution, being smuggled is a reasonable alternative to bureaucratic, time consuming and therefore life endangering legal migration.
Each party is merely concerned with re-directing the flow away from their respective boundaries. There is no real recognition that this flow is due to migration issues such as reduced opportunity for legal migration combined with labour pressures, economic hardship, civil unrest, and persecution. The need is not for criminal but for migration solutions. The IOM does talk of resettlement and voluntary repatriation, but its counter-trafficking project gets substantial funding from Australia, so it has to concern itself with Australian views. It is senseless for individual states to act independently in the face of this global concern. Asylum seekers cannot call upon their homelands for protection. We cannot allow their plight to be viewed within the framework of individual nation states' interests.
For Australia, the 'boat people' are a hot topic, but they only become one at the moment they arrive in Australia and start affecting Australians. Those who make it that far are the lucky few. We should take a hard look at the asylum seeker situation before reaching Australian shores.
The global refugee flow is having an impact on our region. Australia should translate its global human rights rhetoric into regional action. This would ensure regional cohesion and security. People trafficking and smuggling networks should be destroyed. But criminal solutions should not be used to answer what is essentially a migration issue. Legal migration avenues should be improved. Australian obligations regarding the Refugee Convention should be fulfilled in the Australian spirit. Australia should also not be afraid to use its offshore humanitarian program to assist regional humanitarian migration issues such as the current flow. Regional benefits mean Australian benefits.
Only when nation states recognise that their global obligations transcend borders will people like Mr Daud know that their future is not arbitrarily determined by a political game of 'national interests'.
Anita Roberts (email@example.com) is a law student at the Australian National University, Canberra. She wrote a longer report on this topic while a participant in Acicis, the Australian Consortium for In-Country Indonesian Studies (wwwsshe.murdoch.edu.au/acicis/).