Australia is a nation fixated on two phenomena: its sporting achievements and the arrival of asylum seekers by boat. Reconciling and comprehending Australia’s determination to invoke its sovereignty to deny the human rights of asylum seekers it has agreed to accept under international law is difficult given its abundance of natural resources, vast land mass, multiculturalism and acceptance of refugees in the past.
Only a relatively small fraction of the world’s asylum seekers seek refuge in Australia (only around 2 percent of worldwide claims for asylum) and a high percentage of these asylum seekers are deemed to be refugees (88 percent of asylum seekers are recognized as refugees). Given these facts, Canberra’s official policy of deterring, detaining and deporting asylum seekers, and its 2013 policy innovation of transferring maritime arrivals to remote islands of neighboring countries for offshore processing, looks even more inhumane.
Australia has one of the strictest immigration detention regimes in the world. Detention is mandatory for maritime arrivals; detention is not subject to a time limit; and asylum seekers arriving by boat are unable to access the courts to challenge their detention.
All non-citizens who arrive in Australia by boat are subject to a regional processing framework in third countries—Nauru and Papua New Guinea’s Manus Island—where conditions are extremely harsh. Both locations are isolated with small populations, with minimal infrastructure and limited or no community services.
The asylum seekers in detention are exposed to a high risk of developing severe psychological disorders, including depression and anxiety, leading to self-harm and suicide. Critical incidents including violent protests and high rates of self-harm including lip sewing, self-laceration, hunger strikes and suicide have been directly attributed to the extended periods in detention, coupled with overcrowding.
Asylum seekers in Australia are subjected to prolonged and indefinite detention by the application of the “no advantage” principle (whereby maritime arrivals will not be processed any faster than they would have been had they been in a refugee camp in a third country) that actively encourages long delays in processing claims for asylum and exploration of re-settlement options, thus failing the requirements of appropriateness, justice and predictability.
Australia’s immigration policy does not distinguish between children and adults. Children arriving in Australia by boat, including unaccompanied children, also face mandatory detention and transfer to a third country. Consequently, Australia is breaching its obligations under the Convention on the Rights of the Child (CRC) to ensure that children are only held in detention as a measure of last resort and for the shortest appropriate period of time.
What then are the human rights of asylum seekers arriving in Australian territory by boat? What remedies are available to these seekers of refuge from persecution when their human rights are not respected, protected or fulfilled by a sovereign state that has agreed to do so?
The right to seek and enjoy asylum from persecution is enshrined in the Universal Declaration of Human Rights (UDHR) and is regarded by the UNHCR as “among the most basic mechanisms for the international protection of refugees.”
However the UDHR is non-binding upon the signatories and other international human rights treaties are silent on the right to seek asylum. Some contend the provisions of the UDHR are approaching the status of jus cogens or customary law and therefore may be regarded as holding significant standing and approaching the nature of a binding obligation upon all states.
Australia is a signatory to both the 1951 Refugee Convention and the 1967 Optional Protocol. Both are silent on the right to seek asylum. The 1951 Refugee Convention does however provide protection to asylum seekers and refugees against refoulement (the expulsion of persons who have the right to be recognized as refugees) and discrimination. Also, importantly, the Convention stipulates that, subject to specific exceptions, refugees should not be penalized for their illegal entry or stay, thus recognizing that the seeking of asylum can require refugees to breach immigration rules.
A refugee, according to the 1951 Refugee Convention, is someone 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 group, or political opinion.
Notwithstanding its international obligations, Australian legislators have revoked the positive obligation under international law to assist any person seeking asylum. Australian law has reduced what was a claimable right to asylum to a discretionary grant contrary to the purpose and intention of the 1951 Refugee Convention.
Asylum seekers are however are entitled to the full universe of human rights that are enshrined in international human rights law, including treaties and conventions to which Australia is a signatory. Additionally, the human rights of refugees are strengthened and the obligations of states expanded by four main principles of international law.
The first principle relevant in the context of asylum seekers being transferred to third countries is that Australia’s human rights obligations extend to acts done outside its territory. This was the decision of International Court of Justice (ICJ) in its advisory opinion in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (the Israel Wall Case).
Successive Australian governments have unequivocally asserted sovereignty over human rights insofar that they have maintained the view that the 1951 Refugee Convention only applies to persons in Australia’s territories.
The second principle is based on decisions of the European Court of Human Rights, which held that states are obliged to treat people they have transferred to third countries and have “effective control” over, in a manner consistent with the human rights obligations they have agreed to be bound by. Australia has failed to meet these obligations to refugees in Australia and there are documented accounts and UN reports of these obligations not being fulfilled in its transfer of refugees to third countries.
The third principle holds that where there is alleged serious threats to physical security, a state is to exercise “due diligence” to determine whether the requisite level of risk exists. Australia is heavily criticized for its failure to fully assess the appropriateness of transferring asylum seekers to Nauru and Manus Island.