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.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
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.
The fourth principle is found in the Vienna Convention on the Law of Treaties that provides that states have a responsibility to implement their treaty obligations in good faith. This principle obliges states to not by act or omission or combinations thereof to render the fulfillment of treaty obligations obsolete, or defeat the object and purpose of a treaty. Australia has undoubtedly failed to fulfill its responsibility to implement its treaty obligations in good faith.
International human rights law thus converges with and supplements refugee law in creating a broad framework that strengthens the protection of asylum seekers against arbitrary detention, physical harm, threats to life and security, and separation from family members, as well as ensuring access to health, education, food and shelter, including those of unaccompanied children and those that are considered vulnerable. These rights are enshrined in the ICCPR; the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and the Convention on the Rights of the Child.
What mechanisms then are available to asylum seekers whose right to seek asylum has been violated by the Australian government?
Article 1 of the First Optional Protocol to the ICCPR provides that complaints may be filed by individuals subject to the jurisdiction of a “State Party” to the Optional Protocol “who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant.” According to Article 22 of the Convention against Torture, complaints may be filed by or on behalf of individuals subject to the jurisdiction of a State Party who claim to be victims of a violation of a provision of the Convention. There are no complaint mechanisms available to children under the Convention on the Rights of the Child and Australia is yet to accede to the CRC Optional Protocol that provides a complaint mechanism.
The ICCPR empowers a judicial body to release asylum seekers wrongfully detained; and the CRC provides that children shall only be held in detention as a measure of last resort, for the shortest appropriate period of time and taking into account the best interests of the child.
There are limited mechanisms available to asylum seekers in Australia to protect their right not to be arbitrarily detained. The Australian government has legislated away the right of judicial review of detention by an Australian court or tribunal, in direct breach of its obligations under ICCPR Article 9(4).
Asylum seekers that have been transferred to a third country are subject to the national laws of those country, which either currently make no provision for judicial review, or are in the process of being drafted. Nauru’s legal system is run by Australian judges and lawyers; has adopted Australia’s immigration system; and the rule of law is in crisis. The rights of asylum seekers on Manus Island are still unclear. In any event, according to the ICJ in its advisory opinion in the Israeli Wall Case, Australia maintains responsibility for those asylum seekers transferred to a third country.
The 1951 Refugee Convention provides no mechanisms for asylum seekers to challenge arbitrary detention. For those asylum seekers transferred to a third country, there will be the complexity of determining whether to complain against Australia or the country in which they are being detained, or both.
In any event asylum seekers in Australia rarely employ the complaint mechanisms that might be available to them to protect and enforce their human rights. Asylum seekers held in detention are geographically isolated from legal services, have language barriers, and are ill informed about the complexities of the immigration system and their human rights. Moreover, asylum seekers want to seek refuge in Australia and are reluctant to complain for fear of reducing their prospects of approval by the authorities.
What is the rationale behind Australia’s aggressive attitude to asylum seekers?
Since 1992, Australia has invoked its sovereignty to justify an absolute authority over asylum seekers, independent of any other authority, including international human rights law and refugee law.
This invocation of sovereignty is based on the argument that asylum is a right granted by the State, not a duty or an obligation; where the sovereignty of the State is viewed as indivisible, not to be limited by international law.
The rational behind Australia’s immigration policy is a complex mix of politics, xenophobia and nationalism.
Australian politicians have fueled anti-asylum seeker sentiment among the populace to capture votes, labeling them “queue jumpers”; as engaging in a criminal enterprise with people smugglers; and more recently with a campaign to “stop the boats” to reduce the number of asylum seekers drowning at sea.
Australia’s xenophobia first manifested with the now defunct White Australia policy. More recently it has been the incarceration of innocent asylum seekers with adverse ASIO assessments; and in 2013 it was efforts by the former government to put foreign workers at the back of the queue for Australian jobs.
Australia’s rise in nationalism goes some way in explaining it’s anti-asylum seeker sentiment, since nationalism can ultimately be expressed as human rights violations.
In 2013, the UN Human Rights Committee found that Australia had violated the International Convention on Civil and Political Rights (ICCPR) through detaining refugees arbitrarily, failing to provide an effective judicial remedy and subjecting detainees to conditions of detention which are “cumulatively inflicting serious psychological harm upon them.” Australia has largely ignored the findings of the Committee as it relates to the wider refugee population.
Notwithstanding wide ranging criticism of Australia’s immigration policy, its politicians continue to impose cruel and inhumane suffering upon men, women and children escaping persecution and seeking refuge in what once was a sympathetic and generous nation that accepted its humanitarian responsibilities and obligations.
Hugh Tuckfield is a Visiting Lecturer at the Kathmandu School of Law and a PhD Candidate at the University of Sydney.