Asylum tide swamping solution

Christmas Island
Asylum-seekers are taken from Christmas Island by aeroplane last night. Source: Supplied

Marty Natalegawa and Bob Carr
Foreign Minister Bob Carr with his Indonesian counterpart Marty Natalegawa at the asylum-seeker summit in Jakarta yesterday. Picture: Tri Saputro Source: TheAustralian

KEVIN Rudd's plans to halt the influx of asylum-seekers are buckling under the weight of nearly 3000 new boat arrivals and the failure of his regional people-smuggling summit to produce any concrete measures, as another five people drowned off Christmas Island.

The Jakarta meeting, agreed to six weeks ago between Indonesian President Susilo Bambang Yudhoyono and the Prime Minister, was undermined by a boycott by Iran, the main origin country for asylum-seekers arriving in Australia this year, and the non-attendance of Iraq.

As the one-day people-smuggling conference opened, rescuers were rushing to the scene of the second fatal sinking since Mr Rudd sought to quell the traffic by announcing that no asylum-seekers arriving by boat would be allowed to settle in Australia.

Five asylum-seekers were presumed dead and 106 were plucked from the water after their boat listed, then sank.

With the survivors due to arrive at Christmas Island this morning, the first family groups to be sent to Nauru left the Australian territory last night on a charter flight.

A government charter landed on Christmas Island at about 7.15pm local time to collect families for transfer to Nauru under Mr Rudd's new policy to deny boatpeople settlement in Australia.

The families including children were under heavy guard as they were taken aboard the plane which took off last night for Nauru via Darwin.

Two men held their hands above their heads, wrists together, in an apparent protest as they were led aboard the plane.
Sources said the charter was one of three planned transfers this week for families, but only those with children aged seven and above.

Since Labor announced its PNG Solution on July 19, more than 2890 asylum-seekers have ventured to Australia, compared with 3330 in the corresponding 32-day period before the announcement.

GRAPHIC: Asylum boats

A total of 316 single men have been transferred to Manus Island under the plan, which this week came under fresh doubt after PNG Prime Minister Peter O'Neill and Foreign Minister Rimbink Pato acknowledged that asylum-seekers transferred to Manus Island could be resettled elsewhere, including Australia.

Yesterday's regional summit, which was aimed at devising "action-orientated" measures to combat people-smuggling, failed to produce concrete agreements.

Immigration Minister Tony Burke said the summit had been a success.

"It brought together some outcomes which build momentum in a way which the Bali Process to date had not been able to build," he said.

Mr Burke cited two aspects of the new "Jakarta Declaration": a non-binding commitment by the 13 countries attending to change visa policies that were being abused for people-smuggling purposes; and an acknowledgement of the need for involuntary repatriation of people found not to need protection. While the countries involved in the Bali Process to deter people-smuggling still preferred voluntary repatriation, Mr Burke said the new language acknowledged there would be situations when people without valid claims would have to be returned without their agreement.

He said the commitment of participating countries to review visa policies regularly and change those that were being abused was a significant advance. Mr Burke described Indonesia's decision to dump visa-on-arrival status of Iranians arriving in the country, effective yesterday, as "a down-payment" on the tougher policy.

The conference fell short of the goals set by Mr Rudd and Dr Yudhoyono, who conceived the idea during the Prime Minister's visit last month. In announcing the summit, which offered a political circuit-breaker to Mr Rudd nine days after he had toppled Julia Gillard, Dr Yudhoyono said it was not fair that Australia and Indonesia bore the burden for what had become a regional problem.

Mr Rudd said at the time that the conference would explore "concrete operational policy responses, including new regional responses and actions to enhance border security (and) addressing the problem of irregular movements of persons".

Last night, opposition immigration spokesman Scott Morrison welcomed Jakarta's willingness to extend co-operation on asylum issues. "But you can't stop the boats with communiques," Mr Morrison said. "At the end of the day, it requires Australia to do things on our side of the line and, if elected, we will."

Yesterday's summit came as lawyers for the Iranian asylum-seeker challenging his removal to PNG confirmed they would move the matter from the Federal Court to the High Court, casting more uncertainty on the future of Labor's PNG Solution.

Barrister Mark Robinson SC, acting for the 27-year-old known by the pseudonym S156, expressed confidence the challenge would invalidate what he said was the government's "silly" PNG policy.

"I'm not into wasting my time," he said. "I've been doing administrative law for over 20 years. It's a silly decision and also an unlawful decision. It's an almost inhumane system of refugee management."

Mr Robinson said he was not seeking an injunction that would halt transfers to Manus Island while the lawfulness of the deal was being tested, suggesting the policy would continue, at least until a decision was handed down.

Mr Robinson said his client would argue that in declaring PNG an offshore processing country, then immigration minister Chris Bowen sought the opinion of the UN High Commissioner for Refugees, who had serious reservations about the arrangements, but then disregarded it.

"In legal terms, that's called a jurisdictional error," he said.

University of NSW law professor George Williams said amendments to the Migration Act in the wake of the successful challenge against the Malaysia Solution had made such cases much harder. Provisions relating to human-rights safeguards and the adequacy of processing arrangements had been stripped.

"(They have been) replaced by a sole criterion that the minister be satisfied that sending asylum-seekers to a particular country is in the national interest," he said. "But that's not to say it's without foundation."

Additional reporting: Paige Taylor