Refugees: Why seeking asylum is legal and Australia's policies are not

By Jane McAdam and Fiona Chong

Stopping the boats, blocking queue-jumpers, and proving who is a "real" refugee have become national obsessions. Misconceptions about refugees and asylum-seekers seem to be increasing, and governments and media continue to exploit anxieties in the community. This clear-headed book rejects spin and panic to explain what our obligations are and who the refugees and asylum-seekers are. It shows that there is a gap between the rhetoric and the legislated rights of refugees, who have been resettled from camps abroad, and asylum-seekers, who arrive by boat. It explains the difference between asylum-seekers, refugees, and migrants. It shows why asylum-seeker policies, developed over decades, are at odds with legal obligations. With real-life examples, the book reminds us that we are talking about real people and their children.

• Language: English
• Publisher: Independent Publishers Group
• Release date: Nov 26, 2014
• ISBN: 9781742241852

Book preview

REFUGEES

JANE MCADAM is Scientia Professor of Law and Director of the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW Australia. She holds an Australian Research Council Future Fellowship, and is a non-resident Senior Fellow at The Brookings Institution in Washington DC and a Research Associate at the University of Oxford’s Refugee Studies Centre. Professor McAdam has published many books and articles on international refugee law and forced migration. She is joint Editor-in-Chief of the International Journal of Refugee Law.

FIONA CHONG is a recent law and economics graduate of UNSW Australia. She was the Research Assistant to Professor Jane McAdam in 2012 and 2013, during which time she undertook research on international refugee law, complementary protection and climate-change-related displacement.

REFUGEES

WHY SEEKING ASYLUM IS LEGAL AND AUSTRALIA’S POLICIES ARE NOT

JANE McADAM AND FIONA CHONG

A UNSW Press book

Published by

NewSouth Publishing

University of New South Wales Press Ltd

University of New South Wales

Sydney NSW 2052

AUSTRALIA

newsouthpublishing.com

© Jane McAdam and Fiona Chong 2014

First published 2014

This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act, no part of this book may be reproduced by any process without written permission. Inquiries should be addressed to the publisher.

National Library of Australia Cataloguing-in-Publication entry

Author: McAdam, Jane, 1974– author.

Title: Refugees: why seeking asylum is legal and Australia’s polices are not/Jane McAdam and Fiona Chong.

ISBN: 9781742231396 (paperback)

9781742247076 (ePDF)

9781742241852 (ePub/Kindle)

Notes: Includes index.

Subjects: Refugees – Legal status, laws, etc.

Refugees – Government policy – Australia.

Australia – Emigration and immigration – Government policy.

Other Authors/Contributors: Chong, Fiona, author.

Dewey Number: 362.8756

Design Josephine Pajor-Markus

Cover design Xou Creative

All reasonable efforts were taken to obtain permission to use copyright material reproduced in this book, but in some cases copyright could not be traced. The authors welcome information in this regard.

Note The names of some refugees and asylum seekers have been changed to protect their identity.

This book is printed on paper using fibre supplied from plantation or sustainably managed forests.

Contents

Acknowledgments

Abbreviations

Introduction

1   Refugees and international law

2   Identifying who is a refugee

3   Addressing some common myths about asylum seekers (I)

4   Addressing some common myths about asylum seekers (II)

5   Mandatory detention

6   Offshore processing

7   Turning back boats

8   A regional protection framework

9   Legal assistance

10   Why international law matters

Conclusion

Notes

Index

Acknowledgments

We would like to thank the following people for graciously responding to queries and/or commenting on draft sections of the book: Joyce Chia, Claire Higgins, Tanya Jackson-Vaughan, Mary Anne Kenny, Ben Lewis, Lucy Morgan, Kate Purcell, Steve Roberts, Kunal Sharma and Ben Saul. Any errors or omissions remain, of course, our own. We would also like to thank Jean Kingett for her guidance and patience throughout the editing process, and the team at UNSW Press – in particular Phillipa McGuinness and Heather Cam – for their enthusiasm and support.

Abbreviations

Introduction

I am a Hazara, [a] minority ethnic group in Afghanistan that is constantly persecuted by the Taliban. When I was a teenager my father was taken to prison and one of my older brothers went missing … So my family combined their life savings to urgently smuggle me out of Afghanistan. I had never been out of the country before and had no passport or papers. I was 19 years old. I had no idea where I was going or what was happening. I was in Pakistan, then Singapore, then Indonesia. None of these countries offer protection to refugees. I was at the mercy of the smugglers. I was too afraid to go to the authorities in those countries for help because I thought I would be deported back to Afghanistan. One night I was told to get on a small fishing boat. I thought I was going to die. I had never seen the sea and didn’t know how to swim, now I was sitting in one boat with 225 people squashed on top of each other. Only after we were at sea did I find out that we were heading to Australia. We were at sea for two days, through storms and towering waves. Then finally a customs boat found us and took us to Christmas Island. I could now apply for asylum. But there was no freedom and no safety. I was taken to Nauru. In Nauru I was like a bird without wings. I was trapped and full of worry for the family I had left behind. There was no telephone, no internet, no post for me to find out if they were still alive. We didn’t have enough water and we didn’t have enough medical facilities. I didn’t know whether I would ever be released. Many other asylum seekers developed psychological problems. I remember some people making multiple suicide attempts. I don’t want anyone, any Australian, any non-Australian, to live the life I lived as an asylum seeker.¹ (Chaman, Afghan refugee)

Recently, during a quiet evening domestic flight, I was typing away on my laptop when the flight attendant asked what I was doing. I told her that I was writing a book about refugees and asylum seekers. ‘That’s so interesting!’ she exclaimed, clearly sympathetic to the concept. ‘Are you writing about the legal ones or the illegal ones?’

That exchange encapsulates one of the key reasons why we decided to write this book. Certain problematic notions about refugees and asylum seekers appear to have taken root in the Australian community. These have led a growing number of ordinary Australians – decent, kind and well-meaning people – to support tough ‘border protection’ measures, ostensibly designed to ‘stop the boats’ and ‘save lives at sea’.

If you listen to our politicians or much of the media, you might well believe that asylum seekers are ‘illegal’. You might think that asylum seekers pose a potential threat to our national security, and that the government is right to keep them from our shores. The fact that Australia has implemented a policy of mandatory detention since the early 1990s only heightens public concerns that asylum seekers are dangerous criminals who must be locked away. You might also think that asylum seekers should wait their turn until a resettlement place becomes available, so that they can enter ‘the right way’. Or you might take a humanitarian stance, believing that drastic immigration policies, although potentially harsh in effect, are necessary to deter asylum seekers from endangering their lives by taking risky boat journeys to Australia.

However logical these conclusions might seem, the problem is that they are based on flawed understandings. Successive governments (aided by much of the media) have exploited public anxieties about border security to create a rhetorical – and, ultimately, legislative – divide between the rights of so-called ‘genuine’ refugees, resettled in Australia from camps and settlements abroad, and those arriving spontaneously in Australia by boat. They have done little to address the widespread misunderstandings in the Australian community about why people seek asylum, or to explain what the differences are between asylum seekers, refugees and migrants.

Without accurate information, one might quite understandably draw inaccurate conclusions.

In Refugees: Why Seeking Asylum Is Legal and Australia’s Policies Are Not, we seek to provide a straightforward and balanced account of how refugee law operates, and why many of Australia’s policies, developed over the past two decades, are at odds with the international legal obligations that our government has voluntarily accepted.

We begin by looking at the international legal definition of a ‘refugee’ and outlining the rights that refugees have under international law. We also consider the extent to which these rights are realised in Australian law, especially when only temporary protection is granted, and examine the role of human rights law in protecting people from being returned to serious harm (known as ‘complementary protection’). In the second chapter, we assess the processes under Australian law for identifying who is a refugee. Then, in chapters 3 and 4, we address some common myths about asylum seekers and refugees in Australia.

The next part of Refugees evaluates specific aspects of Australia’s asylum policy in light of Australia’s obligations under international law. We consider Australia’s policy of mandatory detention, which has been in operation since the early 1990s, and then examine Australia’s policy of offshore processing in Nauru and Papua New Guinea, a policy created by the Howard Coalition government in 2001 and reinvigorated by the Gillard Labor government in 2012. Chapter 7 analyses Australia’s policy of turning back boats of asylum seekers before they can reach Australia. In chapter 8, we consider what a truly co-operative and effective regional protection framework might look like, in contrast to offshore processing and proposed resettlement arrangements with countries like Cambodia. Chapter 9 examines the impacts of curtailing government-funded legal assistance to asylum seekers. Finally, chapter 10 explains why international law matters, despite the difficulties of enforcing it in Australian courts.

Throughout the book, we draw on examples to illustrate the human impact of Australia’s aberrant approaches to refugee law and policy. Widyan Al Ubudy, who came to Australia as an Iraqi refugee and now works as a journalist, encourages us to see asylum seekers and refugees as real people with individual stories, instead of viewing them as statistics:

We have lost perspective on who these people really are and what they have to offer. These so called ‘illegals’ have faces, names, families, hopes, dreams and aspirations just like you and me. It’s time we acknowledged them for who they are as fellow members of the human race.²

As in many other countries, asylum seekers in Australia are an easy target for anxieties ranging from national security to unemployment and demographic composition. They cannot vote, so their voices are marginalised in political debate. In Australia’s case, the divide between ‘them’ and ‘us’ has been deliberately reinforced by moving asylum seekers outside the Australian community into immigration detention centres, many of which are in remote locations, including in the Pacific island countries of Nauru and Papua New Guinea. Apart from the tyranny of distance, other obstacles also prevent us from getting to know asylum seekers and see how they are treated. Immigration detention centre staff are required to sign confidentiality agreements, preventing them from speaking about what goes on within detention centres. The government commonly justifies its own silence about the treatment of asylum seekers by citing ‘operational reasons’, likening this to non-disclosure of information to an enemy during wartime.

From the comfort of our lives here in Australia, most of us cannot imagine how intolerable the circumstances must be when risking one’s life on a dangerous sea voyage becomes a rational decision. If you are in a burning building and know that if you stay put you will die, but that if you jump you might just survive, then most of us would jump. It is not a choice you would make in other circumstances but, at that moment, it may be a logical one.

The fact is that Immigration Department figures show that the vast majority of asylum seekers who come by boat to Australia are refugees. Yet, because they come without a visa, successive governments have subjected them to very restrictive policies, including mandatory detention, diminished rights to family reunion, curtailed rights of review, offshore processing, temporary forms of protection and threats that they will never be resettled in Australia.

Until very recently, Australia received many more asylum seekers by plane than by boat. Those arriving by plane were not subject to the same restrictions and could live and work in the community while their refugee claim was being determined, rather than being held in closed detention. The distinguishing criterion was that on arrival in Australia they had a visa of some kind, such as a student visa or a tourist visa. It was on this basis that successive governments created distinctions between the rights of the two groups, conferring fewer rights on those arriving by boat. And yet, statistically, those arriving by boat were far more likely to be found to be refugees than those arriving by plane.

As this book seeks to demonstrate, misinformation has enabled the construction of elaborate policies designed to keep out people who are in need of our protection. Many of these policies violate Australia’s obligations under international law. Such an approach is particularly incongruous in a country like Australia, which is one of the most multicultural in the world, with a strong history of immigration and an otherwise striking level of tolerance for diversity and respect for human rights.

As a final note, it is worth observing that refugee policy in Australia is dynamic and changes regularly. This makes writing a book like this tricky. As such, we have focused on the key contemporary themes of Australian refugee policy over the last two decades – offshore processing, detention, temporary forms of protection, and so on – and have evaluated them in light of Australia’s obligations under international law. While the specific details of Australian policy may change from time to time, the international legal analysis presented here remains consistent.

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.¹ There is a provision in the Protocol that says that countries that ratify