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How two lies became accepted folklore

By Marilyn Shepherd - posted Friday, 21 October 2011

When the Refugee Convention was written in 1951 the understanding and spirit of the convention was that signatory nations assess the claims of anyone who applied in their territory. Articles 31, 32 and 33 were written and ratified to ensure this would be the case, yet it is those three articles that have become the most bastardised by our "leaders" over the last 25 years.

Article 31 is very clear – no state shall apply any penalties to asylum seekers if they are "unlawfully" in their territory provided they present to the authorities and state their reasons for being there. Therefore, illegal entry is not a sufficient concern to deprive the individual of the right to have their refugee claim determined.

In 1992, the Keating Labor Government introduced mandatory detention. They instituted a system of imprisonment without charge for the purpose of "administration" in the determination of claims for asylum. The legislation explicitly denied judicial review, but did impose a 273-day limit on detention. In 1994, the Keating government introduced new legislation called the Migration Reform Act 1992, expanding the application of mandatory detention to cover all those who did not hold a valid visa, and removing the 273-day limit. This extension laid the foundation for the indefinite detention we see today.


Perhaps the best description of this insanity can be found in Peter Mares book "Borderline" first released in late 2001:

"People started to go mad, they started to stitch their lips and they started to burn the prisons to the ground and over the last 20 years there have been dozens of reports showing that imprisonment in this manner is indeed punishment for "illegal' arrival, even though the arrival is a right enshrined in the Migration Act almost 20 years ago now."

Article 32 forbids expulsion from host territories for any reason other national security or public order. Yet in the case of TAMPA, Howard expelled asylum seekers to win the votes of the more racist Hansonists and to maintain a lie. It was shown in Peter Van Onselen's and Wayne Etherington's biography of John Howard that Jacquie Kelly, the member for Lindsay, told Howard just before the 2001 election that he had to do something about stopping the "boats," and so he broke the law and turned away those rescued on the TAMPA.

Article 33, the most important of all the protections, forbids refoulement or even indirect refoulement or return to any place of danger for refugees. A State can only deny entry to an individual as long as there is no "real chance" that if denied and returned, the refugee will be exposed to the risk of being persecuted.

So, with such clear rules legally binding on all signatory states and even non-signatory states to some extent through international customary law - the principle of non-refoulement is binding on all States regardless if they have signed the Refugee Convention - how did Australia come to have so little leadership on the three most important and non-derogable articles of the refugee convention?

It started with the misrepresentation that only those refugees who come from refugee camps have any right to claim asylum in Australia. However, those refugees in camps are processed separately, under a voluntary resettlement scheme between UNHCR and Australia.


The DIAC website clearly shows that we have three streams of humanitarian visa applicants.

1. Offshore Resettlement - For those few refugees we accept on a voluntary basis provided that we are the country of last resort, that they suit Australia and that they can work and fit in. It's a well-funded, expensive program but it is not obligatory on us and it has no legal treaty cover or basis.

2. Special Humanitarian Visas - For the family members sponsored by those refugees who are already here. Families must pay all their expenses, but again this is voluntary.

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About the Author

Marilyn Shepherd is a refugee advocate who became interested in the plight of Afghan refugees after the TAMPA. She became particularly involved with the Bakhtiyari family throughout their long struggle to stay in Australia.

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