Asylum seekers and the law

The situation of asylum seekers arriving to Australia by boat was never put into perspective more than in an Australian Policy Online’s article (PDF 308KB) by Nancy Viviani where she states: “Boat people are around one percent of total migration and they have one hundred percent of the Media’s attention.”

Putting aside the fact that this issue is completely blown out of proportion by Australian media, an important issue that we often fail to ask is: what are the hard and real international obligations relevant to Australia here? Is Australia in contravention of international law? If so, how is Australia in Contravention of these laws? What is Australia’s international legal position in regards to the interception of boats of asylum seekers headed to Australia and is it legal for Australia to arrange the processing of these individuals in offshore detention centres in collaboration with non-signators to the refugee convention such as Indonesia?

Australia is first and foremost a member of the United Nations and ipso facto has a duty to uphold the principles encompassed therein. This is important not only for Australia’s standing and reputation in the international community but also as a reflection of the vital interest in human rights that Australians wish to embody.

My first point of reference in terms of Australia’s International obligations here is the 1948 Universal Declaration of Human Rights. Article 14(1) stipulates: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” The term “seek” is key here, everyone has the right to seek asylum. Interception of boats of asylum seekers on the high seas travelling to Australia, and sending them to offshore processing centres where the applicants have less access to rights, is effectually circumventing this stipulated convention right, which allows individuals the right to “seek” asylum.

The declaration term “enjoy” here does not hold any reference to a right to receive asylum. Not every person seeking asylum in Australia has the right to gain refugee status, however, every individual via international law is accorded with the right to seek asylum. The granting of asylum status is at the sole discernment of the state in its interpretation of the Convention definition.

As a signator to the 1951 Refugee Convention, this means that applications for asylum to Australia are tested against the specific definition of a refugee as detailed in the 1951 Refugee Convention, Article 1, (2):

... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it ...

In Australia the receiving of asylum or reaching “refugee status” is evidenced with a protection visa after the stringent processing requirements are met. Interestingly enough, applicants that go through Australian processing centres are more likely to meet the convention definition as above than those who are processed through the UNHCR (PDF 308KB).

The most prominent reference in regard to a general rule which shows how states must deal with asylum seekers can be evidenced within the 1951 Convention Relating to the Status of Refugees, Article 31(1), states:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Within debates regarding Australia’s policies towards refugees, this has often been referred to as the most obvious provision where Australia is in violation of international law. The current asylum seeker dilemmas Australia faces today are a result of policies which are often believed to be in contravention of this law, and may not exist, should a more compliant strategy be adopted.

While the Rudd government abolished many aspects of the “Pacific Solution”, where temporary protection visas were abolished and detention was limited to 90 days for health and security checks, and the closing of detention centres in Nauru and Manus Island were announced, however, now the Gillard Government is in negotiations with Indonesia to open processing/detention centres and has resumed discussions regarding implementation of a temporary protection visa program.

Australian domestic law governing Mandatory Detention is extremely controversial. It applies to asylum seekers travelling without the prior consent of Australia, making them “unlawful non citizens”, as stipulated in the 1958 Migration Act, Division 6, Section 189(1):

1. If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
2. If an officer reasonably suspects that a person in Australia but outside the migration zone:
   (a) is seeking to enter the migration zone (other than an excised offshore place); and
   (b) would, if in the migration zone, be an unlawful non-citizen; the officer must detain the person.

The position of mandatory detention as evidenced above is generally accepted as being in contravention of Article 31 of the Refugee Convention insofar as that it imposes the mandatory detention penalty of asylum seekers on account of their unauthorised travel and arrival to Australia. Through being a signator of the convention, Australia is bound by Article 31 not to impose penalties on asylum seekers on account of their illegal entry or presence.

The position that it is in violation of international law is further supported within Article 9 of the Universal Declaration of Human Rights and in Article 9 of the International Covenant on Civil and Political rights which deals with arbitrary detention.

The legislations were also presented as acts to discourage asylum seekers arriving unlawfully to Australia via boats and submitting to people smugglers. The changes appealed to the Australian population during a tense time in the world. It emphasised the possibility that the “unauthorised” boat arrivals could be harbouring terrorists. It introduced mandatory sentences to those convicted of people smuggling and was aimed at preventing both the unauthorised arrivals situation and the people smugglers issue, about which there was a heated political issue during the time of enforcement of these acts and which proved to be quite powerful political actions in terms of the election at the time (Gentry, Katherine, 2007, “How Tampa became a Turning Point” Amnesty International, Human Rights article).

Of particular interest in regards to these changes, was the power granted that allowed ejection of any persons who have crossed certain borders. This was affected through the change of the Migration Act via section 7a under the heading “Effect on executive power to protect Australia’s borders” which states:

The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia’s borders, including, where necessary, by ejecting persons who have crossed those borders.

These powers present implications in international law in regards to non-refoulment principles associated with refugees and the Safety of life at Sea Convention (SOLAS). This issue is still quite prominent in light of ongoing negotiations of Australia with Indonesia in proposing a bilateral treaty of intercepting boats of asylum seekers and processing in centres on Australia’s behalf for processing. As stated by Professor Gillian Triggs in The Australian on October 22, 2009, a treaty that can potentially withdraw the right of asylum seekers to have their claims assessed will mean Australia “would appear to be shirking its international responsibilities” to international law.

SOLAS stipulates that Masters of Ships have the right to land rescued people at sea to the nearest port. Section 7a of the Migration Act allows Australia to act in violation of this law, allowing the government to enter negotiations within a regional framework to facilitate processing of refugees abroad.

Principles of non-refoulment and ejection of individuals are fully articulated in the 1951 Refugee Convention through Articles 32, “Expulsion” and further within Article 33, “Prohibition of Expulsion or return (‘Refoulment’)” of the Convention Relating to the Status of Refugees. These articles effectively provide that states party to the Convention must not expel a refugee except where conditions prove that national security is at stake, and that this must be adhered to unless compelling circumstances relating to national security are present. Article 32(2), deems that additional to non-refoulment principles, states must also allow a refugee to submit evidence to:

... clear himself, and to appeal to and be represented for the purpose before the competent authority or a person or person specially designated by the competent authority.

However, the enacting of section 7a of the 1958 Migration Act effectively gives Australia power to err in this regard, despite international law against such actions and the standing that non-refoulment as codified in the convention.

Further to these implications, through accession to The Convention on the Status of Refugees, Australia is bound to uphold the underlying intentions of the treaty. I refer particularly to the final Act, Item D, “International co-operation in the field of asylum and resettlement”, in this part of the Convention, it is recommended that governments:

… continue to receive refugees in their territories and that they act in concert in a true spirit of international cooperation in order that these refugees may find asylum and the possibility of resettlement.

The Refugee convention encourages signators to work in concert with each other and in the international community to absolve the refugee and asylum seeker issues. Negotiation with countries for interception of asylum seekers and processing in offshore detention centres who are not signatories to the international convention and protocol for refugees, can hardly guarantee that the Convention obligations are met, this is a major question in regards to negotiations with Indonesia to establish detention centres for Australia. This raises the question as to whether Australia has presented a willing effort to adhere to such ideologies as embodied in the Convention; which are important issues to be taken into consideration.

Given existing evidence that Australia has been operating largely in contravention of international laws in regards to asylum seekers, I am convinced that the current structures need to be changed rather than seeking alternative solutions with our neighbours.

Australia should take responsibility for these people as it has signed the international convention and is a participating member of the international community. It is embarrassing that Australia uses its neighbours who are not signators to the Convention in order to circumvent asylum seekers reaching its shores.

It is important to remember that there is no such thing as an illegal asylum seeker. The right to seek asylum is enshrined in the bases of international law in the declaration of human rights. As a member of the UN, Australia must do what it can to ensure that it does not deny anyone this essential human right.

Furthermore, principles of non-refoulment have been long enshrined in international laws and Australia is obliged to comply with these laws be they a signator to the convention or not.

There is sufficient evidence in international law that these policies are unacceptable and are not adequate long-term solutions to the problem of Australia’s unauthorised arrivals, not just in terms of deterring people-trafficking, but also in terms of participating at a global level to maintain the absorption of refugees worldwide and making a concerted effort accept responsibility for these people.

Australia needs to change its approach to asylum seekers. Due to the geographical location of Australia, it can be expected that people seeking asylum via boat will continue. Rather than taking bilateral measures with neighbours to send away asylum seekers, Australia can demonstrate a more humanitarian approach by more willingly taking responsibility for these people as it has agreed to through the international conventions.