Australian Government position on the MV Tampa refugees

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.