Australian Government position on the MV Tampa refugees

Despite Australia’s clear commitment to its Convention obligations and its contributions to the international protection framework, some argue that Australia’s recent actions are an unfortunate precedent that dilutes the spirit and intent of the Refugees Convention.

The question can be asked in another way: did the founders of the Convention envisage that it would become the enabling tool of organised crime?

There are some who state that Australia’s action constitutes a precedent that undermines the international protection regime and the institution of asylum. There is concern that it will be used by other states to justify the closure of borders between a country of origin and a country of asylum, thereby denying the capacity of a refugee to flee and seek and obtain asylum.

These people need to differentiate between those directly fleeing and those making secondary movements for migration reasons. The Convention itself contemplates that difference in the reference to direct flight in Article 31. Failure to think clearly about the difference can lead to unsubstantiated criticism and plays into the smugglers’ hands.

Does the abuse mean that a new way of thinking about the asylum system is needed?

Australia’s actions are not in contravention of its protection obligations. Australia is neither directly nor indirectly refouling persons to persecution.

Nor is Australia denying access to refugee status determination – all asylum seekers who enter Australian territory in this manner continue to have access to full and effective procedures through the arrangements in place. We believe that UNHCR procedures are adequate.

Australia is however managing its absolute commitment to refugee protection in ways that also robustly fight people smuggling and that deny migration outcomes to those making unnecessary secondary movements.

The Australian Government’s stance is deliberately tough but necessary in order to protect the capacity of Australia to continue to meet its protection obligations to maintain a managed and active commitment to resettlement focused on assisting those most in need, whilst at the same time attacking smuggling practices and sending the strongest possible message to smugglers and their clients.

Australia’s obligations under the Refugees Convention are not to refoule, either directly or indirectly, to a country where the person has a well-founded fear of persecution for a Convention ground.

If a vessel approaching Australian territorial waters is boarded and warned that the passengers cannot enter these waters without proper authorisation and the vessel returns to Indonesia, this does not constitute refoulement on the part of Australia.

Francois Fouinat, the then head of UNHCR’s Asia Bureau, at UNHCR’s Reegional Consultations at Macau this year, conceded that it is valid for states to make differential responses to unnecessary secondary movements. This does not mean States may refoule in these circumstances but that a different response to secondary movers is entirely appropriate in the context of refugee protection.