Immigration Law

Australia became the sixth country to ratify the Convention Relating to the Status of Refugees in 1954. Not more than a few months later the Australian government became embroiled in the Petrov Affair. This incident was a significant international headline during the Cold War period whereby Russian diplomat Vladimir Petrov defected to Australia based on a fear of persecution should he return to Russia. Petrov was granted asylum in Australia due to the determination of being a refugee under Article 1 of the 1951 Convention.
In 1977 newly appointed Governor of South Australia, Hieu Van Le arrived by boat in to Darwin as a refugee fleeing communist Vietnam. He claimed he was greeted by an Australian fisherman who held up a beer and said ‘G’day mate’ as his vessel packed with refugees chugged in to Darwin harbor. He too was granted residency due to being determined a refugee.
In 2015 Australia’s society and cultural make up is substantially different to that of the 1950’s and 70’s. This article discusses the development of the Australian government’s domestic approach to Refugee Policy, with particular reference to unauthorized maritime arrivals. This is then viewed in the context of International Refugee Law and comparative to its obligations under International Law and how its first world peers have approached this issue.
Whilst Australia is party to the 1951 Convention Relating to the Status of Refugees (1951 Convention) and the 1967 Protocol a substantial number of Australia’s Asian neighbours are not signatories to either. This arguably makes Australia a prime target for illegal migration because of the implied protections offered by a country that is signatory to the 1951 Convention.
This paper argues that whilst Australia’s refugee policies specific to illegal migrants and unauthorized maritime arrivals appear out of step with many other developed countries, the actual refugee policy for complying applicants is in fact world leading. Sadly, its border control policies for illegal migrants have provided easy cannon fodder for global media which has contributed to Australia’s global perception as harsh and unwelcoming for asylum seekers, substantially outweighing the good Australia does.

Australia’s International Obligations
When Australia signed the 1951 Convention in 1954, it gained the privilege of being a founding member of the UNHCR Executive Committee.
Since this date Australia has also become a signatory to the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Affairs (ICESCR), the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and the Convention on the Rights of the Child (CRC).
This article focuses primarily on Australia’s obligations under the 1951 Convention and subsequent 1967 Protocol. Initially, when Australia signed the 1951 Convention it was limited to persons fleeing events prior to 1951 primarily making it a response to the issues created by the Second World War. On 13 December 1973 Australia became a signatory to the 1967 Protocol which removed these restrictions and therefore provided unlimited coverage for when events that might cause a person to seek asylum in a foreign country.
The definition of refugee is set out in Article 1 of the 1951 Convention. This definition sets out that a person who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social, or political group.
Importantly, the 1951 Convention sets out that refugees should not be penalized for entering a country illegally to seek protection, furthermore the convention recognizes that refugees may be required to breach immigration rules in order to seek asylum in a foreign country. Specifically, the convention prohibits the charging of offences for breach of immigration rules for seeking asylum, or being arbitrarily detained because a person was seeking asylum.
The three key articles in the 1951 Convention that have had bearing on Australia’s domestic policies are Articles, 31, 32 and most importantly Article 33.
Article 31 (2) provides a provision that has considerable bearing on Australia’s response to unauthorized maritime arrivals. This section states that a Contracting State must not restrict a person’s movement other than is necessary until such time as the person’s status in that country is regularized or they obtain admission to another country.
Article 32 prohibits a State from expelling a refugee who has lawfully entered their territory save for grounds of national security or public order.
Article 33 takes this prohibition further and sets out that no Contracting State may expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality or membership of social or political group.

Australia’s Current Policy
Despite being signatory to these conventions practical domestic policy has increasingly become more restrictive for people wishing to seek refugee status in Australia. In particular Australia’s policies on ‘unauthorized maritime arrivals’ have developed substantially in more recent times to include offshore processing and detention. To look at the reasons for this we can look to the wording of the 1951 Convention. Two words are critical in the legal application of Australia’s policy for ‘Unauthorised maritime arrivals’.

The 1951 Convention sets out signatories responsibilities once a refugee ‘arrives’ in a signatory country and clearly states that those people are entitled to seek refugee protection.
Once a refugee has arrived Article 33 of the 1951 Convention sets out a non-refoulement provision stating ‘No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social or political opinion’
When looking to the underpinnings of today’s refugee policy we can look back to the Fraser government in power in 1977 when then Minister for Immigration and Ethnic Affairs, Michael Mackellar established four key principles to be upheld.
• Australia fully recognises its humanitarian commitment and responsibility to admit refugees for resettlement.
• The decision to accept refugees must always remain with the Government of Australia.
• Special assistance will often need to be provided for the movement of refugees in designated situations or for their resettlement in Australia.
• It may not be in the interest of some refugees to settle in Australia. Their interests may be better served by resettlement elsewhere. The Australian Government makes an annual contribution to the United Nations High Commissioner for Refugees (UNHCR) which is the main body associated with such resettlement.
These principles largely echo those set out in the 1951 Convention.
Despite this however the Australian government is often condemned by human rights activists claiming that its arguably confronting border protection policies breach its Human Rights obligations.
The Migration Act 1958 provides a specific provision for Unauthorised Maritime Arrivals. This section is purposefully broad, capturing any person who enters Australia and becomes an unlawful citizen as a result. Importantly, the same section provides a provision that potentially captures the unborn child (whom may be later born within Australia following the unauthorized maritime arrival) making them also an Unauthorized Maritime Arrival.
In order to prevent ‘arrival’ of illegal immigrants in to Australia that might be captured by the 1951 Convention Australia has rigorously protected its oceanic borders, particularly on the west coast with areas neighboring SE Asia.
In 2012 the Migration Legislation Amendment (Offshore Processing and Other Measures) Act 2012 (Cth) (MLAA) was passed. The Act received widespread condemnation by Human Rights organisation’s who argued that the Act breached fundamental human rights. The Human Rights Law Centre provided submissions to a parliamentary enquiry as well as joining in an open letter to the then Prime Minister, Hon Julia Gillard.
Within the MLAA s 198AB provides a provision for what is commitment from a regional processing country to abide with the 1951 Convention. This arguably can be seen as complying with s 32 of the 1951 Convention by not practically expelling a person more so as providing an alternative place of processing for refugee status determination.
S 198AD of the MLAA sets out the power with which a person may be taken to a regional processing country. This section provides power for an officer to use reasonable force to restrain, remove or place a person on a vessel.
S 189 of the Migration Act 1958 (Cth) provides the basis for Immigration Detention that is to unauthorized maritime arrivals.
In July 2015 the Border Force Act 2015 (Cth) (BFA) came in to effect. This Act significantly expanded the restrictions placed on the flow of information to and from Immigration Detention facilities. For example S 42 of the BFA sets out a prohibition that makes it an offence for an entrusted person to record or disclose information with a maximum penalty of two years in jail. S 24 of the BFA requires officers to make an oath or affirmation before the Australian Border Force Commissioner or a person appointment by the Commissioner.
The myriad of legislative responses to possibly avoid Australia being captured by the 1951 Convention is somewhat confronting not only to a Human Rights Activist but often to the rational, reasonable member of the public. Whilst it is understandable that strict border control policies must be enforced to maintain Australia’s sovereignty and to prevent a mass illegal migration episode that could jeopardise public order, responses such as the BFA appear to be at least one step too far.
With such legislation being introduced not only to enforce border control policies but to then completely control the flow of information it does raise questions to what end the government wants to take this issue.
Where Does Australia Stand in the International Spectrum
Following the cessation of World War 2 the Australian Government embarked on an extensive immigration policy that contributed to almost doubling Australia’s population by 1975 to around 13 million. Since 1975 migration has been central to Australia’s economic development, its Humanitarian program forms a substantial component of that permanent visa’s issued.
In 2014-15 Australia plans to issue 13,750 permanent visas under its humanitarian program consisting of 6,000 refugees from other countries. This is a continuation of a similar number of humanitarian visa numbers issued for the past 20 years. These targeted figures will likely to continue its 2013-2014 global ranking for refugee resettlement where it was placed second in the global refugee statistics and first relative to both per capita and total GDP.
Comparing this with other first world countries such as the United Kingdom whose Home Office committed to issuing just 750 refugee visa’s per year for 5 years, Australia’s commitment seems more than fair. In being deemed eligible for resettlement in the UK not only does a refugee have to meet the eligibility criteria set out in the UNHCR’s Resettlement Handbook they must also meet the Home Office’s ‘Gateway Protection Program’ admissibility criteria that places further restrictions on who can apply for refugee status.
An important consideration for Australia’s domestic refugee policy is the geo political landscape of its neighbours and their own domestic policy. Australia is surrounded by countries who are not signatories to any refugee convention, many of whom are classed as developing countries.
Refugees either domiciled in these countries or using these countries as a gateway represent the highest number of attempted unauthorized maritime arrivals in Australia. This creates a unique issue for the Australian government that’s sets it apart from many of its developed country peers.
Australia potentially offers a lot with its unique status as the largest, developed first world island nation in the Asia Pacific region. Australia has high levels of health care, an excellent social security system and is a signatory to both the 1951 Convention and the 1967 Protocol therefore potentially offering an excellent safe haven.
The reality would appear to be that if Australia did not maintain strict border control policies preventing illegal maritime arrivals it could potentially face an enormous influx of refugees seeking to enter Australia illegally to then rely on the protections of the 1967 Protocol.
How does this impact Australia’s policy on Unauthorised Maritime Arrivals?
Australia’s domestic policies, which have become increasingly draconian over recent times, sadly they appear to be a response to political pressures from the polling booths. The polls continue to make border control a key political motivator.
A 2010 Poll asked whether voters agreed with the policy of turning back the boats, 58% totally agreed with the current policy. Astoundingly, when the question was amended to ask whether voters agreed with the policy of turning back the boats, with the added caveat that even when many of the people on these boats cannot safely return home or enter another country, a total of 60% totally agreed with the current policy.
Such strong feedback from polls is unlikely to water down Australia’s domestic immigration policy even when facing increasingly loud voices from international Human Rights Activist’s. It would appear that in our democratic society we are unsympathetic to those who might need our help the most.
A Poll conducted by the Australian National University however provided some insight in to a differentiation between illegal migrants and the general acceptance of authorized migration. The poll asked about Australian attitudes towards national identity and specifically asked questions about immigration levels, whether they should be maintained, increased or decreased and asked whether people where concerned about migrants taking away jobs from Australians.
A total of 69% favored either increasing migration levels or keeping them the same. When asked about crime, culture, jobs and the Australian culture 86% said that migrants improved society by bringing diversity and new cultures. 67% said the migrants did not affect crime rates and a further 66% said that Australia’s culture was generally unaffected by migrants.
It would appear that Australia is generally accepting and welcoming to both migrants and refugees, in fact it has been world leading for many years in the numbers of refugees it accepts relative to population and GDP. Despite this however it appears that its people frown upon persons attempting to circumvent its policies and enter the country illegally. This appears to be widely supported by the general public, bolstering support for more strict control mechanisms such as the Border Force Act (2015) (Cth).
The legislative control of information about border issues seems to suggest that the Australian public are content with government to police the borders as long as they do not have to hear about the consequences for the persons attempting to enter the country illegally.
In order for Australian policy to change it is likely that a substantial change in attitude towards the perception of refugees attempting to enter Australia illegally by boat is required.
Clearly with the appointment of Hieu Van Le to the position of Governor of South Australia and successes of other refugees who have arrived illegally by boat like prominent surgeon Dr Munjed Al Muderis, businessman Huy Truong and Queensland based property developer Maha Sinnathamby refugees do have a significant role to play in Australian society.
Perhaps what can be read in to Australia’s draconian policies about unauthorized maritime arrivals is that they do not appear to be a practical application of how grass roots Australian society sees these refugees. Refugee policy continues to be a key political topic and the legislative response appears to be to find ways to circumvent Australia’s obligations under the 1951 Convention.
These legislative responses are perhaps a sad mix of an easily manipulated journalistic topic, the speed and scale at which modern day technology can transmit these ideas, a disconnection of the broader Australian community to the plight of many of the refugees being captured by these laws and a political landscape that will maximize these differences to further its own agenda.
A more effective solution to Australia’s humanitarian efforts might be to try and effect a social change by focusing more publicity on the importance and benefits that many of Australia’s refugees bring to society. This may, over time bring about the social change required to dilute the effect of ‘stop the boats’ political campaigns.
The democratic nature of Australian is displayed in full force in light of Australias immigration policy for Unauthorised Maritime Arrivals, as is the power of the media to manipulate a public perception. Sadly the majority of the population appear welcoming towards refugees they have met and learnt to appreciate. Unfortunately the power of the media will likely continue to affect this key political issue in a negative way for potential refugees who are unable to fall within Australia’s generous legal refugee program.

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