Friday, September 30, 2011

Reflections on Protection Strategies- South Asia and Beyond

Sahana Basavapatna and Ishita Dey
[Sahana Basavapatna is a lawyer, practicing in the Delhi High Court in the areas of intellectual property law and has been associated with the Calcutta Research Group for the last 3 years
Ishita Dey is a research Scholar of Department of Sociology, University of Delhi and Member, Calcutta Research Group]

This edition of Refugee Watch Online includes articles and contributions that indicate that the meta-narrative of migration can be written and re-written, especially in the South Asian context. These contributions, contrasting and located in its specificities indicate the various ways in which the “migrant” has been conceptualized and how these compartmentalizations affect the socio-juridical discourses in each specific context.

The various regimes of protection of migrant populations and/or refugees is central in understanding the way state and non-state actors have responded to situations of forced migration. On the one hand, the age old debate of whether or not the ratification of 1951 Convention on the Status of Refugees will help resolve the arbitrariness of the state responses towards refugee crisis and on the other, the need for national legislations to ensure state responsibility towards migrant populations, are some of the key ways of looking at the protection and care of people in situations of forced migration. If this is the yardstick, then clearly the Australia-Malaysia Refugee Swap arrangement, concluded by the Australian and Malaysian governments – as this joint edition, among others, focuses on - is a clear indicator that ratification of the most important instrument of refugee protection is not a guarantee of protection.

On the other, the decision of the trial court in Delhi to turn down the Government of India's plea to deport a Tamil refugee who has been in India for the past twenty years reveals that the arbitrary nature of the host states towards refugee communities prevail and India is no exception. Thus, the conflation of a refugee/migrant in legal discourse becomes obvious when “refugee/s” issue/s in court of law have to be resolved through the Foreigner’s Act, 1946. Thus the case of the Sri Lankan refugee who the Government of India sought to deport on the ground that he did not carry valid travel documents is not uncommon, but the trial court's decision to disagree with the submissions of the Government in holding that a refugee should be protected precisely because he cannot be sent back to his native country where he is likely to face persecution is. Additionally, a significant point that the court has raised in its decision is the need to distinguish between a migrant and a refugee and the lack of any legal avenue for the refugees as the Refugees Asylum Seekers,(Protection) Bill 2006 is yet to see the light of the day.

In the section on News, we provide a brief summary of the court proceedings as reported by J. Venkatesan in an article titled “Magistrate: How Can court become party to persecution of refugee?”, The Hindu, dated 21 September 2011 followed by another news on the recent decision by the Indonesian government to regulate the migration of domestic workers to Saudi Arabia. This came in the heels of the beheading of a domestic worker of Indonesian nationality after the latter was convicted of murdering her employer because she was not allowed to return to her native land. Lastly, in the section on news is a report in the Guardian titled More than 30 million climate migrants in Asia in 2010, report finds by Fiona Harvey, its environment correspondent. According to the Asian Development Bank, as this Guardian article reports, more than 30 million people were said to have been displaced by environment and weather related disasters across Asia in 2010 and this is predicted to get worse in the years to come. This last article is yet another example of how the neat categories of displacement we are conversant with, need to be rethought and reframed.

In the section on Views, RWO brings an article by Savitri Taylor, on the Australia-Malaysia refugee swap arrangement. In recent times, several reports of refugees from Srilanka, Bangladesh and other countries in South and South East Asia taking to the high seas for passage to Australia and other European nations have been reported. These also included reports of the arbitrary manner in which the Australian Government responded to refugees who had taken to the high seas. It is a well known fact that Canary Islands, Malta and Christmas Islands continue to remain the transit points for the “boat people” who are often mixed. For instance they could be economic migrants, refugees, asylum seekers and trafficked victims as well.

In this background, it is worth recalling that the member states of the United Nations are expected to abide by the United Nations Convention on the Law of the Sea, 1982 and the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol, particularly the principle of non-refoulement and the right to seek asylum. Additionally, the 1974 International Convention for the Safety of Life at Sea and the 1979 International Convention on Maritime Search and Rescue also have to be taken into account by member states.

In its attempt to secure its maritime borders, the Australian Government entered into a swap deal with Malaysia on 25 July 2011, which has attracted severe criticism. Despite being a signatory to the 1951 Refugee Convention, Australia has been facing severe criticism for the recent “interceptions” and controversies relating to the arbitrariness of asylum procedures. The main aim of the policy, in the words of the Prime Minister of Australia, Ms. Julia Gilliard, and reported in the news piece, “Australia firm on Refugee Swap deal” is ostensibly to “smash people smugglers’ business model…”, She continues by adding that, “…our aim is not to see people put themselves in boats and be at the risk of losing lives”. According to an article published in the Bangkok Post, “Australia plans to send up to 800 asylum seekers to Malaysia in return for accepting 4,000 registered refugees from that country over four years under a deal designed to stop boatpeople from landing in Australia”. Incidentally Malaysia is not a signatory to the 1951 Refugee Convention.

Following this deal, on 31 August 2011, the High Court of Australia held invalid and unconstitutional the Minister for Immigration and Citizenship's declaration of Malaysia as a country to which asylum seekers who entered Australia at Christmas Island can be taken for processing of their asylum claims and also decided that any unaccompanied asylum seeker under 18 years of age cannot be taken from Australia without a written consent under the Immigration (Guardianship of Children) Act, 1946. Subsequently, the High Court of Australia prevented the government from sending the first batch of asylum seekers. Though the present Government is adamant on resolving the plight of boat people through an amendment to the Migration Act, 1958 to go ahead with the transfers, they are yet to receive the opposition’s support to the amendments. In a joint media release, issued on 12 September 2011, the Minister of Immigration and Citizenship, Chris Bowen and Prime Minister Julia Gillard have stated that amendments relating to third country provisions in the Migration Act, 1958 will ensure smooth transfers under the arrangement with Malaysia and Memorandum of Understanding with Papua New Guinea

Dr. Savitri Taylor’s article in the section on views brings to the forefront the legal and human rights dimension of the Refugee Swap deal but as the recent statement noted above shows, we will need to wait and watch if at all the Australian Government manages succeed with the amendments.

We have three contributions in the section on Reports including a review of the Women's Refugee Commission's Report published in July 2011, following a fortnight long study of the livelihood issues and survival strategies of refugees living in Delhi, a photo-essay by a young photo-journalist, Rohit Jain, who has spent time with the Burmese refugees in West Delhi in order to understand the living conditions of the community and an in-depth report by Javed Khan on one of the flaming fields of battle within India and the rising IDPs in Khamman district of Andhra Pradesh.

To conclude, we have flagged issues concerning the mixed nature of migration through seemingly unrelated and apparently contrasting situations of migration/forced migration. In doing so, the aim is to identify and highlight the complexities inherent in freezing identities, providing convenient (legal) labels and in the ambivalent way of addressing forced migration in absence of a coherent framework that would make sense of the reality of migration in its various forms in South Asia.


“Australia firm on Malaysia Refugee Deal” in; Accessed on 11 September 2011
“Australia’s Malaysia Refugee Swap under Fire” in; Accessed on 15 September 2011; Accessed on 21 September 2011


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