Following is an extract from the UNHCR paper on asylum seekers in relation to Australia. Asylum seekers were processed on shore until Paul Keating introduced mandatory detention during his time as Prime Minister of Australia. The Howard government took this policy one step further with the 'Pacific Solution'. It would appear that in doing so, Australia is failing to fully comply with its legal obligations under the treaty.
What happened to turn a nation with a compassionate, generous attitude towards the plight of refugees, to an attitude that borders on xenophobia? Was Paul Keating reacting to the wishes of the nation, or did the nation merely accept his views on how this situation should be handled, exacerbated by the Howard government's Pacific Solution and media hype that the country was about to be overrun by its Asian neighbours?
There is much talk about 'legal' and 'illegal' immigrants in the asylum seeker debate which totally disregards the fact that asylum seekers/refugees are not included in immigration numbers, i.e. people who apply to migrate to Australia for any number of reasons other than loss of life, liberty or torture; that is a totally separate issue. Not all asylum seekers have access to 'legal' means of applying for entry to our country. What are they supposed to do when life and limb is at stake?
Why is it not possible for asylum seekers to apply for temporary visas at our embassies (we have one in Indonesia - the main jumping off point for boat people), enter the country by legal means, and be processed on shore while living and working in the community? Would this not be a more humane, practical solution that would also save this country millions of dollars every year, not to mention stopping the people smuggling trade dead in its tracks, something both sides of the political spectrum insist is their main reason for mandatory off shore detention?
This is a complex issue that is creating concern world wide, but surely at the core of the debate should be the protection and humane treatment of people who have already experienced the worst we humans have to offer? Are 'concentration camps' really the answer? Is there really 'no room at the Inn?'
What are the Commission's views about the refugee assessment process?
Asylum seekers who arrive on the mainland
Asylum seekers who arrive on the Australian mainland (or in any non-excised part of Australia) and apply for protection are assessed through the refugee status determination system that applies under the Migration Act.
Under this system, the Department of Immigration and Citizenship (DIAC) makes a primary assessment as to whether an applicant meets the criteria for refugee status and whether they should be granted a protection visa. If an asylum seeker is refused a protection visa by DIAC, they have access to independent merits review by the Refugee Review Tribunal (RRT), or in some circumstances the Administrative Appeals Tribunal (AAT). In limited circumstances, they can seek judicial review by the Federal Magistrates Court or the Federal Court of decisions made by the RRT or the AAT.
The Commission raised concerns about Australia’s refugee status determination system, as it applies to child asylum seekers, in the report of its national inquiry into children in immigration detention, A last resort?
The Commission has also made a number of submissions about Bills relating to various stages of the refugee status determination process, arguing that the human rights of asylum seekers and refugees should be protected throughout the process:
Asylum seekers who arrive in excised offshore places
Asylum seekers who arrive in excised offshore places such as Christmas Island are barred from the refugee status determination system that applies under the Migration Act.
These asylum seekers are not able to submit a valid visa application unless the Minister for Immigration exercises his or her personal discretion to allow them to submit an application. They have no access to the Refugee Review Tribunal. Instead, their refugee claims are assessed through a ‘non-statutory’ process.
In the Commission’s view, this two-tiered system for determining whether an asylum seeker is a refugee undermines Australia’s international human rights obligations and obligations under the Refugee Convention.
The Commission has recommended that the Australian Government should repeal the provisions of the Migration Act relating to excised offshore places and abandon the policy of processing some asylum claims through a separate ‘non-statutory’ process. All unauthorised arrivals who make claims for asylum in Australia should have those claims assessed through the refugee status determination system that applies under the Migration Act.
For further information see:
What happens to people who are not determined to be refugees but still need protection?
In some cases, a person may not meet the Refugee Convention definition of a refugee, but may nevertheless face significant human rights abuses such as torture if returned to their country of origin.
Currently, the only avenue of protection for such people is to apply to the Minister for Immigration to request that the Minister exercise his or her personal discretion to issue a visa under section 417 of the Migration Act.
The Commission has raised concerns that the section 417 Ministerial discretion is not an adequate mechanism to protect people from refoulement. In particular, the Minister’s discretionary power is non-compellable and the Minister’s decisions are not reviewable. The Minister is also not obliged to give reasons for his or her decisions.
The Commission has recommended that the Australian Government adopt a legislated system of complementary protection to implement Australia’s non-refoulement obligations under the International Covenant on Civil and Political Rights, the Convention against Torture, and the Convention on the Rights of the Child.
In September 2009 the Australian Government introduced the Migration Amendment (Complementary Protection) Bill 2009 (Cth) into Parliament. While the Commission welcomed the Bill, it expressed some concerns about the scope of protection proposed by the Bill and recommended a number of amendments.
The Commission welcomed the introduction into Parliament of an amended version of the Bill, the Migration Amendment (Complementary Protection) Bill 2011 (Cth), in February 2011. While the Commission still has some concerns about the scope of protection proposed, the adoption of the Bill would be a positive first step in establishing a legislated complementary protection regime. The Commission hopes to see the Bill passed.
For further information see: