The right to seek asylum is protected under Article 14 of the Universal Declaration of Human Rights. It provides that a person can seek refuge in another country when they fear persecution in their own. In Australia we receive comparatively very little asylum seekers to the rest of the world, with only 11,500 asylum seeker claims lodged here, of the 441,260 worldwide. Considering these low numbers, Australia should be able to effectively care for and efficiently process the asylum seekers they do receive. However, this is not the case as many asylum seekers travelling via boat are subject to human rights violation by Australia’s migration policies. Many boats do not even make it to Australian shores, instead being turned back to countries they have come from, or being exported to offshore detention centres in Nauru or Manus Island. This inability for asylum seekers travelling by boat to gain refuge and protection in Australia violates their right to asylum. In this essay we will explore the international standards relating to “boat peoples’” rights, and how these are applied in Australia, looking at Australia’s political context to understand these decisions fully. We will also look at ways in which Australia’s policies could be reformed in order to prevent these human rights violations.
Under Article 14 of the Universal Declaration of Human Rights 1948 “everyone has the right to seek and to enjoy in other countries asylum from persecution”. This human right is the core basis for other human rights documents in the protection of asylum seekers.
The most relevant international convention is the 1951 Convention Relating to the Status of Refugees (‘The Refugee Convention’). This document defined a refugee as anyone who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, or owing to such fear, is unwilling to return to it.” While the Convention was written for refugees fleeing from persecution in Europe before 1951, the 1967 Protocol Relating to the Status of Refugees removed the temporal and geographical requirements of the Refugee Convention. Under this protocol a refugee cannot be expelled from a country without due process and time to seek admission to another country, and must not be returned to the country from which they fled, if their life or freedom may be threatened. This generally includes the threat or risk of being tortured, killed, given the death penalty, or being subject to cruel, inhuman or degrading treatment. This is known as the principle of non-refoulement. The Protocol also provides that there shall be no penalty for asylum seekers who arrive without documentation, and asylum seekers will not be discriminated against based on their mode of transport, or nationality. It also provides that asylum seekers have access to the court system, specifically to question their refugee status determination.
The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’) also outlines principles of non-refoulement in Article 3, stating that a person shouldn’t be extradited to a state where there are substantial grounds for believing they would be subject to torture. The Refugee Convention provides that non-refoulement rights do not apply to people who have committed a crime against peace, a war crime, or a crime against humanity, or who are a danger to the community. However, under the CAT a person is protected regardless of their character.
Australia’s approach to these international obligations is based upon strong political opinions. Although Australia has developed greatly, to become one of the most multicultural nations in the world, there is still a stigma around asylum seekers, especially “boat people”. At Federation in 1901 the White Australia Policy was introduced, discouraging non-English migrants from moving to Australia. Since this time, however, Australia has gradually accepted more refugees. The first asylum seekers were Jews fleeing Germany in the 1930s, and again in 1945. After the Whitlam government abolished the White Australia Policy in 1973, Malcolm Fraser organised for 56,000 Vietnamese refugees to be flown to Australia, and 2059 “boat people” to be granted entry. They were fleeing persecution from the Vietnam War and became the first boat people in Australia. Since this period of civilised acceptance, Australians’ perception of refugees, particularly those travelling by boat, has changed dramatically. As more asylum seekers reached Australia’s shores by boat, the public became less accepting; worried about the Australian culture, job availability, and public safety. Arriving by boat has connotations of “queue jumping”, many people believing that these immigrants are illegal. In 2012, a survey found that half the population is less sympathetic towards refugees who come to Australia by boat than those who come by other means, and just over half of Australians believe that asylum seekers arriving by boat should not be allowed to settle in Australia. It is due to these perceptions from society that politicians enforce strict and inhumane policies, out of fear of not being re-elected. One of these policies is the Hawke governments’ introduction of mandatory detention for asylum seekers in 1992.
In 2001, the concept of stopping boats before they reached Australian shores was developed. While sailing for Australia, 433 asylum seekers were picked up from a sinking ship by the boat MV Tampa, at the Australian Maritime Safety Authority’s order. The boat was told to take the refugees to Christmas Island, however the Australian government refused it entry into the harbour. After a few days stand off the asylum seekers were transferred to an Australia naval vessel to be taken to Nauru. After this standoff the ‘Pacific Solution’ was introduced. Under this amendment the migration zones of Australia were reduced so that any asylum seekers landing in Christmas Island, Cocos Island and Ashmore Reef could not apply for refugee status in Australia. It also meant that the Australian navy could interject asylum seekers travelling by boat and take them outside the migration zone, as well as providing for offshore detention centres in Nauru and Manus Island. The use of these detention centres has since been abandoned by the Rudd government in 2008, and reintroduced by the Abbott government in 2013. The news of many asylum seeker ships sinking, provides a basis for many governments to push to “stop the boats”. Harsh policies are put in place to act as a deterrent for asylum seekers, even though many of them are unaware of Australia’s policies before they arrive there.
In July 2011 the Malaysian Solution was developed to send asylum seekers travelling by boat to Malaysia, where their refugee claims were to be processed. This policy was overruled by the High Court, claiming the transfer was not legal.
Australia’s harsh policies have come under constant scrutiny by the United Nations and other nation states, however Australians still pressure governments to enforce these strict policies which deprive asylum seekers of their human rights. There are current debates as to whether the Migration Act should be amended to prevent illegal maritime arrivals taken to processing centers on Nauru or Manus Island from ever making a valid visa application in Australia, even as a tourist.
While Australia’s policies of mandatory and offshore detention, and boat turn-backs are viewed as gross breaches of international human rights obligations, there are domestic protections put in place to help protect asylum seekers. Australia became a signatory to the Refugee Convention in 1954, and there are attempts of this being reflected in Australian legislation.
The Migration Act 1958 (NSW) (‘The Act’) is the main form of legislation which deals with asylum seekers. The Act provides for the visas applicable to asylum seekers coming to Australia. There are two forms of protection visas in Australia which are open to refugees. The first of which being a Temporary Protection visa, which allows refugees to stay in Australia for up to three years, being able to work and go to school, access Medicare and Centrelink, and gain access to short-term counselling for torture and trauma. Under the Migration Regulations Act 1994 (Cth) an individual qualifies for a protection visa if they can satisfy to the Immigration Minister that they are a refugee. An asylum seeker may also apply for a Safe Haven Enterprise visa. This visa provides the same benefits as the protection visa, except that the refugee may stay in Australia for five years, and provided that they work or study in regional Australia for at least three and a half years, without receiving certain social security benefits, they may be eligible for a substantive onshore visa. However, neither of these protection visas will allow a refugee travelling by boat to ever hold a Permanent Protection visa, as any Permanent Protection visa applications which were not finalised by 16 December 2014 where converted to Temporary Protection visas. The Immigration Minister also has a discretionary power to grant humanitarian visas when it is in the ‘public interest’ to do so.
These visas are available to refugees, however, the processing stage makes Australia’s asylum seeker policy quite ineffective. Rather than attempting to turn boats back and prevent asylum seekers from entering Australia, money should be invested into ensuring that Australia’s own processing procedures are efficient and effective. If Australia can quickly and easily distinguish who has grounds for seeking refuge and who doesn’t, or who may be a threat to Australian society, then this will prevent the need to send those coming via boat to offshore processing centers. Since 2012 Australia has spent $295 million on boat turn back policies and related operations, and a further $3.619 billion on offshore regional processing. This money could instead be used to employ more people to process refugee applications, and provide financial, psychological and physical support for the refugees arriving in Australia by boat. Given that Australia’s population density is only 2.9 people per square kilometre, Australia has the capacity to host many more refugees than is currently being taken. By providing for this resettlement and refuge in Australia, Australia’s obligations under the Refugee Convention, UDHR and CAT will be fulfilled.
Just like asylum seekers reaching Australia by plane, those coming by boat should be allowed access to Australian shores, and have the option of being granted a Permanent Protection visa eventually. This will prevent Australia from breaching its obligation not to discriminate based on mode of arrival, following the Refugee Convention.
Notice should be given to Germany, with one of the best asylum seeker policies in the world. Asylum seekers should reside within the community while their claims are being processed. They should be interviewed personally by case workers, with their interview and case decision being given to them in writing in their own language, along with information of legal remedies they can take. By doing this, refugees will be given the best chance at a satisfactory standard of living in Australia.
Australia’s current refugee policy grossly breaches the right to seek asylum under Article 14 of the Universal Declaration of Human Rights for refugees arriving in Australia by boat. Many boat people do not even have a chance to have their matter heard before the Immigration Minister, as they are deported to other countries, or back to the countries they have come from. By sending these vulnerable people away, there is no assurance that they will have their human rights accommodated for. Even the boat people who do make it to Australia, and make it through the processing stage, are only subject to visas for a temporary amount of time. Australia needs to spend less resources and money on sending the boats away, and instead implement systems to process asylum seeker claims efficiently and thoroughly. Refugees should be given the opportunity to obtain Permanent Protection visas, and to assimilate into the Australian community.