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.