Refugee Rights and Policy Wrongs: A frank, up-to-date guide by experts

By Fiona Chong and Jane McAdam

Everyone has the right to seek asylum under international law. However, successive governments in Australia have declared the need to stop the boats' whatever the cost, be it human, economic, moral or legal.In this new book, Jane McAdam and Fiona Chong find that Australia's policies towards refugees have hardened since their bestsellingRefugees: Why seeking asylum is legal and Australia's policies are notwas published in 2014. Now,Refugee Rights and Policy Wrongs provides a wholly updated account of Australian refugee law and policy.Bringing facts to bear on a highly politicised debate, McAdam and Chong explain why Australia falls short of its own international commitments when it comes to policies on offshore processing, detention and boat turnbacks, among others. This up-to-date account of Australia's refugee laws and policies could not come at a more crucial time and is compelling reading for anyone seeking to understand the human impacts of Australia's practices.

• Language: English
• Publisher: Independent Publishers Group
• Release date: Oct 1, 2019
• ISBN: 9781742244570

Book preview

JANE MCADAM is Scientia Professor of Law and Director of the Andrew & Renata Kaldor Centre for International Refugee Law at the University of New South Wales. She is a Visiting Professor at Harvard Law School and at New York University; a Research Associate at Oxford University’s Refugee Studies Centre; an Associated Senior Fellow at the Fridtjof Nansen Institute, Norway; and a Senior Research Associate of the Refugee Law Initiative, London. Jane publishes widely and is Editor-in-Chief of the International Journal of Refugee Law. In 2017, she was awarded the Calouste Gulbenkian Prize for Human Rights, becoming the first Australian recipient of the award.

FIONA CHONG is a lawyer and was recently a Human Rights Fellow in the Master of Laws program at Columbia University. She has previously worked as a lawyer at the Refugee Advice and Casework Service and as a Postgraduate Public Interest Fellow at Refugees International.

Jane and Fiona are the authors of Refugees: Why seeking asylum is legal and Australia’s policies are not.

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 2019

First published 2019

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.

ISBN:  9781742236520 (paperback)

9781742244570 (ebook)

9781742249063 (ePDF)

Design Josephine Pajor-Markus

Cover design Luke Causby, Blue Cork

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.

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

CONTENTS

ACKNOWLEDGMENTS

ABBREVIATIONS

INTRODUCTION

1  REFUGEES AND INTERNATIONAL LAW

2  IDENTIFYING WHO IS A REFUGEE

3  DEBUNKING COMMON MYTHS

4  MANDATORY DETENTION

5  OFFSHORE PROCESSING

6  TURNING BACK BOATS

7  REGIONAL PROTECTION

8  LEGAL ASSISTANCE

9  WHY INTERNATIONAL LAW MATTERS

CONCLUSION

NOTES

INDEX

ACKNOWLEDGMENTS

We would like to acknowledge a number of people who gave generously of their time to respond to queries and share their knowledge with us. In particular, we thank the team at the Kaldor Centre for International Refugee Law, especially Kelly Britto, Emma Dunlop, Madeline Gleeson, Guy S Goodwin-Gill, Claire Higgins, Khanh Hoang, Regina Jefferies, Lauren Martin, Sangeetha Pillai, Frances Voon, Tamara Wood and Natasha Yacoub; Tanya Jackson-Vaughan from the Refugee Advice and Casework Service; Joyce Chia and Asher Hirsch from the Refugee Council of Australia; Ben Saul from Sydney Law School; Divya Venkataraman for some assistance with style guiding; and the team at NewSouth Publishing for their encouragement and ideas, including Kathy Bail, Rosina Dimarzo, Helen Koehne, Phillipa McGuinness and Sophia Oravecz. Any errors or omissions remain, of course, our own. Finally, we would like to thank UNSW, in particular the Dean of Law, George Williams, as well as Andrew and Renata Kaldor for their ongoing support.

This book is dedicated to the memory of Peter McAdam, who saw the need for it long before we did.

ABBREVIATIONS

INTRODUCTION

No one becomes a refugee by choice; but the rest of us can have a choice about how we help.¹

Filippo Grandi, UN High Commissioner for Refugees

A few months ago, I was talking to a taxi driver who asked me what I did for a living. When I mentioned that I was writing this book, he said, ‘I have mixed feelings about refugees. There are too many of them coming here and they’re just a drain on our economy.’ I explained to him that, first, refugees represent less than 10 per cent of Australia’s annual immigration intake, and, secondly, the evidence shows that they are among the best-educated and most entrepreneurial members of the community.² He was genuinely taken aback. ‘Wow, I’d never heard that. Ray Hadley never men-tions that stuff on 2GB radio.’

That exchange encapsulates why we wrote this book – and our previous book, Refugees: Why seeking asylum is legal and Australia’s policies are not. We were concerned that a range of problematic assumptions about refugees and asylum seekers had taken root in the Australian community, fuelled by political rhetoric and media scare campaigns. We knew that many of these assumptions were not based on evidence, and yet they were leading a growing number of ordinary Australians – decent, kind and well-meaning people – to support inhumane approaches to people in need of protection.

Over time, the slogans of successive governments may have changed, but the general sentiment has not. People seeking asylum by boat are now described in Australian legislation as ‘illegal’ maritime arrivals – even though everyone has the right to seek asylum under international law. And while we are told that the ‘boats have stopped’,³ there are record numbers of refugees in the world without durable solutions. At a time when international solidarity is most needed, Australia has simply pushed the problem away – out of sight, out of mind.

This book provides an updated account of why many of Australia’s asylum policies, developed over the past three decades, are at odds with the international legal obligations that our government has voluntarily accepted. It provides a straightforward account of how international refugee law operates, and where Australia’s laws and policies fall short of what international law demands. It also brings facts to bear on a highly politicised debate. As Dr Munjed Al Muderis, a refugee who fled Iraq and came to Australia by boat, has observed:

Of course I understand the raw popularity of the ‘Stop the boats’ catchcry. But I believe politicians should take a more compassionate approach to asylum-seekers rather than attempt to portray them as the evil enemies of the state. Mostly, they’re not. To my knowledge, thirteen qualified doctors were in detention at Curtin while I was there. Twelve of them are now working as medical professionals in Australia, many of them specialists. Plenty of others were engineers, trained craftspeople and skilled tradespeople.⁴

We begin this book with an overview of the definition of a ‘refugee’ in the Refugee Convention and 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 international 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 refugees and those in need of complementary protection. Then, in chapter 3, we address some common myths about refugees and people seeking asylum in Australia.

In the next part of the book, we evaluate 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 turn to Australia’s policy of off-shore processing in Nauru and Papua New Guinea, created by the Howard Coalition government in 2001 and reinvigorated by the Gillard Labor government in 2012. In chapter 6, we analyse Australia’s policy of turning back boats of asylum seekers before they can reach Australia. In chapter 7, we consider what a truly cooperative and effective regional protection framework might look like (in contrast to offshore processing), while in chapter 8, we examine the impacts of curtailing government-funded legal assistance to people seeking asylum. In chapter 9, we explain why international law matters, despite the difficulties of enforcing it in Australian courts. And finally, in our Conclusion, we point to Australia’s success as one of the world’s most harmonious, multicultural and socially mobile countries, arguing that we have the capacity to accommodate and celebrate diversity, and to be generous towards those who seek our protection.

Throughout the book, we draw on examples to illustrate the human impact of Australia’s aberrant approaches to refugee law and policy.

Keyhan, a Hazara refugee from Afghanistan now living in Australia, encourages us to see refugees and asylum seekers as people, with their own lives and stories:

People around the world have very different views about refugees and unfortunately many are either against or don’t care at all about refugees. But refugees and asylum seekers are also human. I really hope that more people will care about humanity, be kinder, and respond positively to this refugee crisis and treat us as fellow human beings.⁵

Dr Munjed Al Muderis echoes this sentiment:

Don’t forget, we’re dealing with real human beings – unlike the treatment I received in Curtin, people are not just numbers or statistics. Every human being deserves something better than having their lives dismissed in a flood of simplistic rhetoric, posturing and crass political point-scoring.⁶

People seeking asylum in Australia have become an easy target for a range of anxieties, from unemployment to national security and population size. They are prone to being scapegoated because their voices are often unheard – they do not have the right to vote, and many feel scared or powerless to speak out. Some fear that they may be denied refugee status if they express objections to their treatment, while others are afraid of more general repercussions in a climate hostile to refugees. To compound these problems, people seeking asylum by boat are turned back at sea or sent offshore – which means that many of us don’t have the chance to meet refugees in our daily lives. This entrenches a divide between ‘them’ and ‘us’, hindering us from getting to know each other as friends, colleagues and neighbours – in other words, as fellow human beings with shared values, interests and dreams.

Apart from the tyranny of distance, other obstacles also prevent us from getting to know and understand refugees and people seeking asylum – immigration detention centre staff are required to sign confidentiality agreements, committing them to silence about what occurs within detention centres, and the government commonly justifies its own silence about the treatment of asylum seekers by citing ‘operational reasons’, likening this to the non-disclosure of information to an enemy during wartime. Most of us cannot imagine how intolerable the circumstances must be when risking your life on a dangerous journey becomes a rational decision. But most of us can imagine doing everything within our power to protect our loved ones and ensure their safety – and this is the impulse that drives so many refugees.

Many of Australia’s laws and policies violate Australia’s obligations under international law – obligations to which our government has voluntarily agreed. This 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. It also doesn’t make sense when official figures show that the vast majority of people who seek asylum by boat in Australia are, in fact, refugees entitled to legal protection.

Finally, it is worth noting that refugee policy in Australia is a dynamic and regularly changing area of policy. 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 – including offshore processing, immigration detention, boat turnbacks and temporary forms of protection – evaluating 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.

Note

In recent years, the name and structure of the government department responsible for refugees and people seeking asylum has undergone a number of changes. It is currently the Department of Home Affairs, which was created in December 2017 and incorporated a number of other departments, including the former Department of Immigration and Border Protection. In August 2018, the Minister for Immigration, Citizenship and Multicultural Affairs was appointed to oversee immigration matters, which were previously within the remit of the Minister for Home Affairs. For ease of reference, in this book we will simply refer to the ‘Immigration Department’ and the ‘Immigration Minister’ (or the ‘Department’ and the ‘Minister’) to describe those with responsibility for refugees and people seeking asylum. The laws and policies described in this book are current as at April 2019.

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 (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 the Convention’s 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 (become parties to) it agree to abide by the Refugee Convention as well.

Treaties are part of international law. They are agreements between countries (known in international law as ‘States’). A State’s decision to be bound by a treaty is purely voluntary. This means that obligations – like those Australia has assumed under the Refugee Convention and Protocol – are not forced upon us, but are accepted voluntarily by our government. Australia acceded to the Refugee Convention in 1954 and the Protocol in 1973. In fact, it was Australia’s accession to the Refugee Convention that brought it into force. Today, 149 States are parties to the Convention and/or Protocol.

When a country accedes to or ratifies the Refugee Convention and/or Protocol, it signals its commitment to treat refugees in accordance with internationally recognised legal and humanitarian standards, and its willingness to share the global responsibility for protecting refugees. By acceding to the Refugee Convention, Australia promised all the other countries that are parties to it that Australia would abide by the principles and obligations it sets out. These include respecting the principle of non-refoulement – that is, the requirement not to send refugees to a place where they fear persecution, or to a country that might send them to such a place; affording refugees a certain legal status, including access to employment, education and social security; and not punishing refugees for entering ‘illegally’ (without passports or visas).

The obligations contained in a treaty do not become part of Australian law (known as ‘domestic law’) unless and until Parliament passes laws 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 international obligation to protect refugees was incorporated into domestic law by the Migration Act 1958 (Cth), which is Australia’s national immigration legislation. Although the year of the Act is 1958, it has been amended many times since then. Notably, in 2014, Parliament passed legislation that removed most of the Act’s references to the Refugee Convention and the international obligations it prescribes. This is because the government wanted to create an ‘Australianised’ version of refugee law that could be interpreted without reference to international law. As a consequence, parts of Australian law no longer comply with the international treaties Australia has promised to uphold.²

Of particular concern is that the 2014 amendments inserted a new provision into the Migration Act (section 197C), which states that Australian officials may remove a person (including someone who fears persecution or other serious harm in their country of origin) from Australia without considering whether or not they are at risk of refoulement.³ This is wholly at odds with the most fundamental principle of international refugee law and is, to our knowledge, unprecedented. Domestic refugee legislation should seek to safeguard the principle of non-refoulement, not strip it away.

A basic 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’.⁴ 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.⁵ 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’.⁶ 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.⁷

A secondary objective of the Refugee Convention is to facilitate responsibility-sharing among the countries that are parties to it. This objective emphasises the need for international cooperation – not unilateral action by individual countries – to ensure that refugees’ rights are protected globally.

Finally, interpreting the Refugee Convention in its broader context also means that its provisions must be understood in light of developments in international human rights law.

There is no specialist international refugee court or tri-bunal 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 State to do or refrain from doing something, it is tasked with super-vising the way in which countries apply the treaty’s provisions – and, in accordance with article 35 of the Refugee Convention, countries agree to cooperate 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 specify broader refugee definitions, which also protect people 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 (or universal) refugee definition contained in the Refugee Convention. Under this 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 in article 1A(2).

The Refugee Convention does not define ‘persecution’. However, it is generally accepted under international law that persecution involves a serious violation of human rights, including threats to a person’s life or freedom.⁸ As the High Court of Australia has held, persecution can take an ‘infinite variety of forms’.⁹ It may include 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.¹⁰ Persecu-tion may be the result of a single incident or cumulative incidents or conditions. It may stem from action (or inac-tion) by government officials or private actors. The key point is that the government is unable or unwilling to offer protection.

A refugee is someone whose fear of persecution is based on a characteristic that they possess (or that the persecutor thinks they possess) – their race, religion (or lack thereof), nationality, political opinion or their membership of a particular social group (for example, being a woman, homosexual or from a particular social class). Like the other Refugee 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 them.

A refugee is someone who has a ‘well-founded’ fear of being persecuted. This means that their fear of persecution must not only be subjectively held, but also be objectively reasonable, having regard to conditions in their country of origin.¹¹ In Australia, this requirement has been interpreted to mean that the person must face a ‘real chance’ of being persecuted on the basis of at least one of the five grounds set