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.

The arrangements now in place with New Zealand, Nauru and Papua New Guinea, will ensure Australia’s protection obligations are met whilst also sending extremely strong anti-people smuggling messages.

The Australian approach to subsequent attempted unlawful arrivals is also consistent with our international obligations. In accordance with the Migration Act 1958, unauthorised vessels detected approaching Australian territorial waters are warned that they cannot enter these waters without proper authorisation.

When considering this approach, due regard needs to be given to Australia’s geographic position and the facts concerning the particular vessels. The vessels are almost universally Indonesian flag ships, are crewed by Indonesians, and are most likely to have left from an Indonesian port. It is a reasonable supposition on our part therefore to consider that, if escorted back to the edge of the contiguous zone, vessels would return to Indonesia.

If a vessel chooses to return to Indonesia, we are confident that such action does not constitute refoulement by Australia, either directly or indirectly, because:

• Indonesia is part of a cooperative arrangement whereby people without legal status in Indonesia who are intercepted on their way to Australia are interviewed by IOM, who refer any who raise protection claims to UNHCR (funded by Australia);
• UNHCR has the capacity to undertake refugee status determination in Indonesia (funded by Australia);
• resettlement arrangements are in train for persons determined to be refugees by UNHCR in Indonesia;
• Indonesia meets its non-refoulement obligations and has announced its intention to ratify the Refugees Convention and other international human rights instruments.

In addition, any action to deter arrival in Australia is discretionary and may take into account the seaworthiness of the vessel, the weather conditions and the country of origin of the persons being smuggled. Should a situation arise that suggests refoulement may occur or the safety of passengers may be jeopardised if a vessel were to be deterred, Australia has the capacity and would act differently and to allow arrival on Australian territory to ensure our protection obligations continue to be met.

Any people on vessels that proceed despite warnings and enter Australian territorial waters come under the coverage of Australia’s protection obligations. None of these persons have been, or will be, denied access to fair and effective refugee determination procedures. But there is nothing in the Convention that directs where those procedures take place.

Under the new legislation, a person who arrives in an excised offshore place (eg Ashmore Reef) may be taken to a ‘declared place’. The legislation includes safeguards to ensure that any declared place must not refoule and must meet basic human rights standards with respect to any persons taken there under these provisions of the Act.

Should status determination be undertaken on an excised offshore place (eg Christmas Island), procedures will meet the standards as followed by UNHCR. That is, refugee status decisions will be taken by trained officers in a manner consistent with the UNHCR Handbook and a review by an officer different from the one who made the initial decision will be available.

Access to Australia’s visa regime will be available only to those where the Minister considers it to be in the public interest to allow their making a valid visa application. Thus the mechanism to provide right to stay to refugees is available, but the costly access to tiers of review is denied to those without protection need.