Refugees: Why seeking asylum is legal and Australia's policies are not
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Refugees: Why seeking asylum is legal and Australia's policies are not
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| ISBN-13: | 9781742241852 |
|---|---|
| Publisher: | UNSW Press |
| Publication date: | 11/26/2014 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 240 |
| File size: | 323 KB |
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Refugees
Why Seeking Asylum Is Legal and Australia's Policies Are Not
By Jane McAdam, Fiona Chong
University of New South Wales Press Ltd
Copyright © 2014 Jane McAdam and Fiona ChongAll rights reserved.
ISBN: 978-1-74224-707-6
CHAPTER 1
Refugees and international law
What is the Refugee Convention and how does it affect Australia?
The 1951 Convention relating to the Status of Refugees (otherwise known as the Refugee Convention) is an international treaty. It was drafted in the aftermath of World War II, which saw many millions of people displaced across Europe. Because of this historical background, the Refugee Convention as originally drafted only applied to people who had been displaced as a result of events occurring before 1 January 1951. Countries could also choose to limit its application to refugees displaced by events within Europe, rather than more broadly.
Today, the Refugee Convention applies to refugees all over the world. This is because of the 1967 Protocol relating to the Status of Refugees, which removed the Convention's temporal and geographical restrictions. There is a provision in the Protocol that says that countries that ratify (become parties to) it agree to abide by the Refugee Convention as well.
Treaties are agreements between countries (or States). A decision to be bound by a treaty is purely voluntary. This means that obligations – like those Australia has assumed under the Refugee Convention – are not forced upon us, but are accepted voluntarily by our government. Australia ratified the Refugee Convention in 1954 and the Protocol in 1973.
Treaties are part of international law. The obligations they contain do not become part of Australian law unless Parliament passes domestic law to give effect to them. This is because Australia has what is known as a 'dualist' system, where international law and domestic law operate on two parallel planes. Some countries, especially in Europe, have a 'monist' system, which means that international obligations automatically become part of domestic law. Australia's obligation to protect refugees has been incorporated into the Migration Act 1958 (Cth), which is our domestic immigration legislation.
When a country ratifies the Refugee Convention, it shows its commitment to treating refugees in accordance with internationally recognised legal and humanitarian standards, and its willingness to share the global responsibility for protecting refugees.
By ratifying the Refugee Convention, Australia has promised all the other countries that are parties to the Convention that it will abide by the principles and obligations set out there. These include respecting the principle of non-refoulement – that is, not sending refugees back to a place of persecution, or to a country which might send them back to a place of persecution; affording refugees a certain legal status, including access to employment, education and social security; and not punishing refugees for entering 'illegally' – that is, without passports or visas.
A fundamental rule of treaty interpretation is that a treaty must 'be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose'. As the High Court of Australia has affirmed, a purely literal or textual interpretation is erroneous: the Refugee Convention's provisions must be understood in light of the treaty's context, object and purpose, and not read in a vacuum. The High Court has said that the 'chief object' of the Refugee Convention is 'to impose obligations on the signatories to the Convention to provide protection and equality of treatment for the nationals of countries who cannot obtain protection from their own countries'. Its 'humanitarian aims' are paramount, based on the idea that refugees should enjoy the widest possible exercise of their fundamental rights and freedoms without discrimination. A secondary objective of the Convention is to facilitate burden-sharing among the countries that are parties to it. In essence, this objective underscores the Convention's primary aim by emphasising the need for international co-operation – not unilateral action by individual countries – to ensure that refugees' rights are protected. Finally, interpreting the Refugee Convention in its broader context also means that its provisions must be understood in light of developments in human rights law.
There is no specialist international refugee court or tribunal that monitors whether countries respect or violate the Refugee Convention. However, the United Nations High Commissioner for Refugees (UNHCR) has supervisory responsibility in relation to the Refugee Convention. While it does not have the authority to compel a country to do or refrain from doing something, it is tasked with supervising the way in which countries apply the treaty's provisions – and, in accordance with article 35 of the Refugee Convention, countries agree to co-operate with UNHCR in carrying out this role.
Who is a refugee?
The international legal definition of a 'refugee' is set out in article 1A(2) of the Refugee Convention and applies to a person who has a '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'.
Regional agreements in Africa and Latin America include broader definitions of who is a refugee, which also protect those who have fled foreign aggression or domination, generalised violence, internal conflicts, massive violations of human rights, or other events seriously disturbing public order.
In this book, we focus on the international refugee definition. A refugee is someone who has already fled from their country, and who cannot go back because they have a well-founded fear of being persecuted for one or more of the five reasons set out above. The risk may stem from persecutory conduct by the country's government itself or by non-government (private) actors. The key point is that the country's government is unable or unwilling to offer protection.
Persecution involves a serious violation of human rights. While human rights are supposed to be universal, we know that, in practice, some people are more equal than others. Some of us may have never had to think about our own rights through this lens, while others may know all too well the injustice and indignity that comes from discrimination, whether because of one's gender, ethnicity, religion, sexuality or some other feature. It is the aspects that define a person's individuality that can become the very target of abuse. That is why human rights violations strike at the very core of a person's being – they deny a part of a person's humanity and what makes a person who they are. This is so whether a person is denied the ability to live in accordance with their beliefs, or the freedom to express their views, or the capacity to work, be educated or live in safety.
The Refugee Convention does not define 'persecution'. It can take an 'infinite variety of forms' but, at a minimum, it encompasses threats to life or freedom. It may also encompass severe social, political or economic discrimination, denial of access to employment or education, or other restrictions on freedoms traditionally guaranteed in a democratic society, such as freedom of worship and freedom of assembly. Persecution may be the result of a single incident or cumulative incidents or conditions.
A refugee is someone whose fear of persecution is based on a characteristic that they possess (or that the persecutor thinks that they possess) – their race, religion (or lack thereof), nationality, political opinion, or their membership of a particular social group (for example, being a woman, or homosexual, or at risk of female genital mutilation). Like the other Convention grounds, the 'particular social group' category relates to characteristics that are so fundamental to, or inherent in, a person's identity that they either cannot, or should not be expected to, change those characteristics.
A refugee is someone whose fear of persecution is 'well founded'. In Australia, this means that there must be a 'real chance' of persecution on the basis of at least one of the five grounds set out in the Convention. Hence, refugee law is not like other areas of law in Australia, where decision-makers have to determine whether a certain set of circumstances has been proven 'on the balance of probabilities' (as in a civil case: for example, whether a contract was breached or whether a school failed in its duty of care towards a student) or 'beyond reasonable doubt' (as in a criminal case: for example, whether a person committed larceny). Rather, in refugee law, the decision-maker is required to assess whether there is a 'real chance' of persecution, considering – cumulatively – the conditions in the asylum seeker's country of origin and the asylum seeker's own particular circumstances. A 'real chance' of persecution does not require persecution to be probable or 'more likely than not'. It may be less than a 50 per cent chance. Nevertheless, the risk of harm must be credible. Refugee law does not offer pre-emptive protection in anticipation of some distant, purely speculative future event.
The inquiry is forward-looking in nature: the relevant question is whether there is a real chance that the asylum seeker will be persecuted if they are sent back home, rather than whether persecution has already occurred. Past persecution may provide a rational basis for concluding that future persecution is likely, but it does not automatically mean that a person is still at risk.
Section 91R of Australia's Migration Act sets out the elements that must be met in Australia for a person to demonstrate a risk of persecution. An asylum seeker must show that the essential and significant reason for the persecution is their race, religion, nationality, political opinion or membership of a particular social group; that the persecution involves systematic and discriminatory conduct; and that the persecution involves serious harm, which may include:
» a threat to the person's life or liberty
» significant physical harassment of the person
» significant physical ill-treatment of the person
» significant economic hardship that threatens the person's capacity to subsist
» denial of access to basic services, where the denial threatens the person's capacity to subsist
» denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
What are refugees' rights and responsibilities?
The Refugee Convention provides a framework for the international protection of the rights of refugees, which together constitute 'refugee status'. Indeed, the treaty's full name is the Convention relating to the Status of Refugees. Refugees are accorded a special status under international law (compared to other non-citizens) in recognition of the fact that they have lost the protection of their own country.
Some of the important rights set out in the Convention are:
• the right to non-discrimination (article 3)
• freedom of religion (article 4)
• free access to the courts (article 16)
• the right to work (article 17)
• the right to housing (article 21)
• the right to public education (article 22)
• the right to public relief and assistance (article 23)
• the right to social security (article 24)
• the right to freedom of movement within the territory (article 26)
• the right to travel documents (article 28)
• the right not to be penalised for illegal entry (article 31)
• the right not to be expelled from a country unless the refugee poses a threat to national security or public order (article 32)
• the right not to be sent back to any country where the refugee's life or freedom would be threatened on account of at least one of the five Convention grounds (the principle of non-refoulement) (article 33).
The last of these – protection from refoulement – is fundamental because it protects refugees and asylum seekers from forcible return to places where they fear persecution. It is often described as the cornerstone of refugee protection. Thus, while article 1A(2) of the Convention defines who refugees are, article 33 prohibits countries from sending them back. As one of the most fundamental rights of refugees, this applies to asylum seekers as well – that is, people who are waiting to have their status determined. This is because respect for the principle of non-refoulement requires that a country refrain from sending an asylum seeker back to their country of origin unless and until it is determined that the asylum seeker is not a refugee or otherwise in need of protection (see 'What is "complementary protection"?', page 31).
Some rights apply as soon as an asylum seeker arrives in a country. Most relevantly, these include the right not to be returned (the principle of non-refoulement), the right not to be discriminated against, the right not to be penalised for illegal entry, the freedom to practise one's religion, the right of access to courts, and the right to access elementary education.
Once a refugee is lawfully admitted to a country, they are entitled to more rights – such as access to employment, social security, and so on. On the question of how extensive such rights should be, the Convention provides that, at a minimum, refugees must receive the same standard of treatment as other foreigners in the country. Some rights – such as the right of access to the courts and legal assistance, the right to elementary education, the right to social security, public relief and assistance, and the right to practise one's religion – must be accorded at the same level as citizens of the host country.
Under the Refugee Convention, refugees also have responsibilities: they must abide by the law and any measures in force for the maintenance of public order in the country that grants them protection (article 2).
What rights do refugees have in Australia?
When a refugee is granted a protection visa, they are entitled to the rights accorded to permanent residents. Permanent residents have most of the same rights as Australian citizens, with a couple of exceptions. Firstly, most cannot vote in Australian government elections. Secondly, whereas citizens can freely leave and re-enter Australia, permanent residents must ensure they have a visa with a valid travel authority if they want to travel overseas and return to Australia. Refugees are entitled to apply for citizenship after four years as permanent residents.
Refugees do not receive higher welfare payments than Australians but have the same social security entitlements as other permanent residents. Moreover, refugees must meet the same requirements as other Australians for public housing – they are not accorded preferential treatment and must remain on waiting lists, just as other Australians do.
In recognition of the circumstances in which refugees come to Australia, they are exempt from the waiting times that usually apply to migrants who are newly arrived residents in Australia and are seeking to access social security or concession cards. Refugees who are brought to Australia from overseas to be resettled have access to short-term services to assist them in their initial period of settlement (usually anticipated as a 6–12 month period).
What are Temporary Protection Visas?
Historically, Australia granted all refugees permanent protection visas. As noted above, this gave them access to the rights accorded to permanent residents. However, since the late 1990s, successive Coalition governments have sought to curtail such rights for refugees who arrived 'unlawfully' by granting them only temporary protection. This is a much more limited type of protection, both in terms of its duration and the rights it provides.
The idea of giving Convention refugees only temporary, rather than permanent, protection in Australia was first proposed by Pauline Hanson's One Nation party in 1998. At the time, Philip Ruddock, Immigration Minister in the Howard Coalition government, categorically rejected the idea:
Can you imagine what temporary entry would mean for them? It would mean that people would never know whether they were able to remain here. There would be uncertainty, particularly in terms of the attention given to learning English, and in addressing the torture and trauma so they are healed from some of the tremendous physical and psychological wounds they have suffered. So, I regard One Nation's approach as being highly unconscionable in a way that most thinking people would clearly reject.
(Continues...)
Excerpted from Refugees by Jane McAdam, Fiona Chong. Copyright © 2014 Jane McAdam and Fiona Chong. Excerpted by permission of University of New South Wales Press Ltd.
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Table of Contents
Acknowledgments vi
Abbreviations vii
Introduction 1
1 Refugees and international law 9
2 Identifying who is a refugee 37
3 Addressing some common myths about asylum seekers (I) 50
4 Addressing some common myths about asylum seekers (II) 69
5 Mandatory detention 88
6 Offshore processing 113
7 Turning back boats 135
8 A regional protection framework 150
9 Legal assistance 162
10 Why international law matters 170
Conclusion 181
Notes 187
Index 214