The Legal Status of Australia’s ‘Boat People’

The Legal Status of Australia’s ‘Boat People’

‘This is the Australian Government’s message for anyone associated with people smuggling: if you come here by boat without a visa, you won’t be settled in Australia’.

Australia’s new policy to deter boat people from illegally entering Australian waters to seek asylum has sparked international controversy. At the helm of global criticism is Australia’s position as a signatory to the United Nations’ 1951 Convention Relating to the Status of Refugees (UNCRSR), and subsequent 1967 Protocol Relating to the Status of Refugees (UNPRSR).

As a signatory, Australia has made an internationally recognised commitment to assist asylum seekers by providing protection for those fleeing persecution. Yet, Australia’s new policy raises questions that need to be explored in order to appreciate the gravity of the new policy. Who are ‘boat people?’ What does it mean to ‘seek asylum’ or to be a ‘refugee’? Who legislates on policy to prevent people from breaching Australia’s borders? What factors have affected Australia’s decision to take a tough stance on asylum seekers? Are Australia’s actions ethical? All these will be considered in a domestic and international context.

Australia’s refugee policies

Since 1992, Australia’s policy on refugees has been one of mandatory detention, with some variation. Under section 13 of the Migration Reform Act 1992, Australia detained people suspected of being ‘unlawful non-citizens’ (i.e. those without a valid visa). Between 2001 and 2007, Australia toughened the policy. Mandatory detention was still in force, but involved offshore processing.

This process removed asylum seekers to a developing country outside of Australia’s migration zone, which are the parts of Australia’s territory where a non-citizen must hold a visa to legally remain – see section 5 of the Migration Act 1958. These areas include Papua New Guinea (PNG), Nauru, Christmas Island and Manus Island. Once at these locations, asylum seekers were processed to determine their status as genuine refugees.

…Australia subjects them to harsh and inhumane conditions in both Australia’s offshore and onshore processing facilities.

In 2013, asylum seeker policy is at the forefront of the Federal election (Australia’s election is on 7 September 2013). The current government under Prime Minister Kevin Rudd has signed a deal with PNG whereby they will resettle refugees in their country or elsewhere, with Australia supporting some of the cost. It is worth noting that the cost to resettle asylum seekers for Australia amounts to approximately A$1.3 billion a year (approximately £750 million), or approximately A$24,000 per person.

Furthermore, resettling asylum seekers is entirely at the discretion of the government. Australia only has 20,000 places a year for asylum seekers under its Refugee and Humanitarian Program: 12,000 for offshore places and 8,000 for onshore places. It is worth noting that Australia is the only country in the world where these places are linked; i.e., if an onshore visa is granted, another asylum seeker misses out on an offshore place.

This makes the attempt to be granted protection in Australia even more difficult for asylum seekers. Even if they are granted protection, Australia subjects them to harsh and inhumane conditions in both Australia’s offshore and onshore processing facilities. Conditions are often crowded, with limited services. In 2012, Amnesty International visited Nauru and found that refugees slept in cramped tents with no ventilation, in a place where temperatures soared to over 40 degrees in the summer. People were and continue to suffer mental anguish in all facilities: rates of self-harm and suicide attempts are high and hunger strikes are common. With no fixed date for their application to be processed, if it is processed at all, an asylum seeker can be held in a state of flux for years.

To add to the difficulty, Australia has what are known as ‘excised zones’, meaning that if an asylum seeker lands at one of Australia’s excised territories (such as Christmas Island), they are barred from applying for a protection visa, except under the procedures of the United Nations High Commissioner for Refugees (UNHCR). In a new unprecedented move, the government has excised the Australian mainland from the migration zone, meaning that asylum seekers who reach Australia by boat have absolutely no legal rights under Australian law, despite their international rights under UNCRSR. This clearly raises huge ethical issues that will be examined shortly.

Legal issues of Australia’s actions

Who is an asylum seeker?

Article 1(2) of the UNCRSR defines a refugee as:

A person 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, owing to such fear, is unwilling to return to it.

It is worth noting that an asylum seeker is a person who has not yet been given refugee status, and is still in the process of having their application reviewed. In Australia, the negativity associated with asylum seekers arriving by boat is the perceived view that they are ‘jumping the queue’ in the migration process. This is factually incorrect, as individuals applying for citizenship and permanent residency in Australia are subject to a different process to refugees.

…Australia can never be ‘the lucky country’ for asylum seekers

However, many questions have been raised on the subject of people smugglers, i.e. people who are paid to bring asylum seekers by boat to Australia. The general consensus in Australia is conflicting: if people can afford to pay a smuggler to take them to Australia, why don’t they use the money to apply for visas and passports legally through their home country or Australian embassy? There is evidence to suggest that people who come to Australia via Indonesia have passports, but en route to Australia, the documents are destroyed. The very act of destroying the documentation does seem to dispute genuine refugee status, and this is why the whole issue of seeking asylum raises such debate.

To complicate matters further, locals on Australia’s Christmas Island detention centre have spotted ‘refugee’ arrivals who have a significant amount of money and electronics with them, sparking concern as to who is and is not a genuine refugee.

Australia’s role in the UNCRSR

Article 31 of the UNCRSR states that refugees who are unlawfully in a contracting country seeking asylum shall not have penalties imposed on them merely for being a refugee, and that the contracting country shall not restrict the movements of said refugee unless necessary, and until ‘their status in the country is regularised or they obtain admission into another country’. This is to be done in a ‘reasonable period’.

Australia’s policy directly contravenes this. Section 13 of the Migration Reform Act 1992 permits Australia to detain any ‘unlawful non-citizen’ indefinitely if they do not have a valid visa. The High Court of Australia has approved this in a controversial case of Al-Kateb v Godwin [2004] 219 CLR 562.

Al-Kateb v Godwin

Al-Kateb was an asylum seeker, who applied for a protection visa under the UN’s Convention Relating to the Status of Stateless Persons after coming to Australia in 2000. He argued that under the Convention, Australia had an obligation to protect him, as he was stateless (i.e. not recognised as a citizen of any country). After being in detention for two years, Al-Kateb wanted to leave Australia to return to Kuwait or Gaza, but government attempts to do this were unsuccessful.

Al-Kateb brought a claim in the Federal Court of Australia under habeas corpus, whereby he should be released from unlawful detention because by this stage his detention lacked sufficient cause or evidence. He also argued that under section 198 of the Migration Act 1958 he needed to be released because his application for a visa was rejected and, thus, he should be removed from the country as soon as possible.

His case eventually went to the High Court and it was determined that under the Australian Constitution, the Migration Act was not unconstitutional in allowing people to be detained indefinitely. How can this possibly be reconciled with Australia’s obligations under the UN?

Ethical considerations

In 2013, Australia’s multicultural broadcasting station known as SBS released a documentary titled Go Back to Where You Came From, which chronicled the journeys of six prominent Australians with outspoken views on asylum seekers. The Australians interacted both overseas and at home with asylum seekers who were fleeing persecution from some of the most dangerous places in the world, including Kabul in Afghanistan.

It costs taxpayers A$1.3 billion annually to support asylum seekers in the system.

One participant was Peter Reith, who acted as the Minister for Defence during 2000-01 under the Howard Government when the mandatory detention policy became more intense. He was involved with enacting the Pacific Solution and deciding the fate of asylum seekers’ applications. Whilst in Afghanistan, Reith came face to face with an Afghani whose friend sought asylum in Australia by boat. His application was rejected by Reith, and, on return to Afghanistan, rebel forces killed him.

The reality of the documentary sparked massive public debate in Australia, and really put asylum seeker policy on the political agenda. Many would argue there is a fine line between balancing the needs of genuine refugees with those of the people of Australia.  We are facing a crisis where we may in fact condemn a person to death in denying their application for protection. But how can that truly be determined, even with the tribunals in place for this purpose?

It costs taxpayers A$1.3 billion annually to support asylum seekers in the system. It is expensive, ineffective and, ultimately, Australians are fed up. The policies in the current election from both opponents are tough and inhumane; there is no question about that. People seeking asylum will die when they are refused entry into Australia. There have already been several instances of boats capsizing near Christmas Island, resulting in hundreds of deaths. The rationale is that if the boats are stopped, deaths will stop.

Australia has accepted over 750,000 refugees since federation. Should we be doing more? For many Australians, the cost of living is rising, and people are struggling. There is a growing need to put Australia’s own people first before refugees. It is a fine balancing act that is dividing many people in the community.

Despite all arguments, there is one thing that is clear: under current government policy, Australia can never be ‘the lucky country’ for asylum seekers.

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