Essay \"Essay On Australian Law Around Asylum Seekers \" - Grade D PDF

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Essay on Australian Law around Asylum Seekers ...

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The perennial issue in Australian politics is asylum seekers. Examine the debate and proposed solutions using the lenses provided by jurisprudence? Provide a robust critique encapsulating both legal and policy issues on the matter. Over the last two decades seeking asylum in Australia has become a less welcoming proposition to applicants. The general position of the “closed borders” advocates take the position that position that Australia as a sovereign state in international law may determine who may enter this country and under what circumstances they may enter. In opposition the “open boarder” advocates take the position that Australia as a sovereign state under international law has entered into conventions which place obligations on the State in its admission of people seeking refugee status and once received the appropriate treatment of people in line with human rights law. This essay shall examine the conflicting nature of a human rights based approach and a sovereign state approach to the issue of asylum seekers. It will examine this in reference to both Australian domestic law and its international obligations.

Definition of a Refugee under International Law A refugee is someone who has been recognised under the 1951 Convention relating to the status of refugees ('Refugee Convention') and its protocol. The Convention defines a ‘refugee’ at Article 1A(2) as any 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 an 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 An asylum seeker is someone who is seeking international protection but whose claim for refugee status is yet to be determined. By granting asylum the state makes an individual inviolable to their state. The status of asylum places an individual beyond the authority reach of their sovereign, sheltering them against prosecution or punishment by immunising them against their sovereign’s claim to exercise jurisdiction over them. The Convention does not impose on the state the process or procedures that deal with granting asylum. Instead, this is left to the state to determine and allowed for under their sovereign rights found at international customary law. The right to seek asylum is universally applicable and found in the United Nations Declaration of Human Rights which states at article 14 that "everyone has the right to seek asylum".

Criticism of the Refugee Convention Critics of the Convention note that it was speciacally devised for a “particular geographic problem at a particular time”— namely, the post–World War II European refugee problem— and “was not a model for general application”. In a modern context, the definition of refugee has made less sense as the nature of why people leave their countries of origin have changed. Since the end of the cold war, refugee movements have been more likely to come as a result of civil, ethnic and communal conflicts or due to natural disasters or famine than individuals who have been targeted by an oppressive regime. From this arises the difficulty that fewer people could demonstrate a personal 'well-founded fear of persecution' on a Convention ground.

The Convention based approach has allowed for the presentation of asylum seekers as either “political” and therefore 'genuine, legitmate and deserving' or as “economic” and thus 'abusive' and 'illegitimate' and 'undeserving'. Closed boarder advocates have often made the argument that refugee are essentially coming to Australia to take advantage of a generous welfare system provided by the Australian government. Public debates on asylum seekers are often based on the assumption that such clear-cut distinctions actually exist. Most asylum seekers however come from countries where economic failure and political instability and persecution and poverty are inextricably mixed.

Australian law in respect to Migration Under section 51(xix) of the Australia Constitution parliament is provided the power to make laws in regards to the naturalisation of persons and aliens. This power is expressed in the form of the Migration Act 1958 (Cth) ('Migration Act') which regulates the entry, presence, departure and deportation of all non-citizens into and out of Australia. The Migration Act delineates between both "lawful" and "unlawful" non-citzens for the purposes of the Act, the former being those who hold a valid visa and the latter being those who do not. In regards refugee status Section 36(2)(a) of the Migration Act gives effect to the definition of "refugee" in Article 1 of the Convention and its protocol and through Part 4 Schedule 1 of the Migration Regulation provides for "Protection, Refugee and Humanitarian visas"19. Section 36(2)(aa) gives effect to the ICCPR in its definition of "significant harm" which establishes grounds on which an individual who is not a 'refugee' may apply for a visa of the grounds that they will be the subject of serious human rights violations but like the Convention does not fully incorporate these instruments into the Migration Act 20 For an asylum seeker to receive a protection visa under the Migration Act the Australian government through the Minister for Immigration must be satisfied that the applicant is a person to whom it has an obligation to protect under the Refugee Convention and its Protocol 21. There is no further definition of “asylum seeker” in the Migration Act, instead this is found by examining the four key elements found in MEIA v Guo 22("Guo") which state that an applicant must be outside his or her country of nationality; must fear persecution; must fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion; and must have a "well-founded" fear of persecution for a convention reason. "Persecution" is not defined in the Convention but there are a number of cases that assist in providing for its definition. The leading case of Chan Yee Kin v MIEA (‘Chan’) denotes that persecution has traditionally taken a variety of forms of discrimination24. Under the Migration Act "persecution" is qualified under section 91R of the Migration Act which states that that Article 1A(2) of the Convention does not apply unless it involves "serious harm" and is characterised by "systematic and discriminatory conduct". Section 91R(2) provides a non-exhaustive list of examples of serious harm25 while systematic and discriminatory conduct is defined through case law as meaning deliberate discrimination on the part of the persecutor 26. In VBAO v MIMIA29 it was stated that section 91R of the Migration Act defines "persecution" for the purposes of Australian law which suggests that any asylum seeker who makes an application must justify their claims against additional hurdles that are not outlined in the Convention 30. Finally, the test for determining a "well rounded fear" was highlighted in Chan where the court held that the applicant must demonstrate both a subjective and objective element. The subjective element will be satisfied if the applicant can show genuine fear founded upon a "real chance" of persecution27 while the objective element will be satisfied if the applicant can demonstrate a factual basis for that fear. This will generally involve the consideration of the conditions in the applicant's country as well as any other materials in support of the applicant

Violations of Human Rights Law found in the Migration Act Section 36(2B) sets out three exceptions, stating that there is no ‘real risk’ of significant harm if the applicant can safely relocate to another part of the country; if an authority within the country can provide protection; or if the risk is faced by the population generally and not by the non-citizen personally. 31 Section 36(2C) sets out exclusion clauses. These render an applicant ineligible for complementary protection if there are serious reasons for considering that he or she has: committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or committed a serious non-political crime before entering Australia; or been guilty of acts contrary to the purposes and principles of the UN. 32 These grounds for exclusion also apply to Convention refugees. However, the exclusions also allow for significant ministerial discretion which can see an asylums seeker disallowed from making an application on the grounds that they: are a danger to Australia’s security, have been convicted of a serious crime, are a danger to Australia’s community 33. Ministerial intervention is non-compellable34, non-delegable35 and non-reviewable36. The Minister is under no obligation to consider whether or not to exercise their discretionary powers under section 417 and under what circumstances that discretion should be used. It is important to note that the use of their discretion, the exercise of discretion or the failure to exercise discretion can be reviewed. By its very nature is not transparent or subject to procedural fairness and outside Australia’s protection obligations under international law. As noted, the Refugee Convention nor its associated instruments give effect to the prescribed manner of how a State must enforce its obligations it is obvious that a non-compellable and non-reviewable discretion of an individual minister is at odds with Australia’s duty to respect both the principle of non-refoulement and its duty under article 2 of the ICCPR37 However, the greatest limitation placed on the rights of those seeking asylum is found in section 46A which prevents a person who is found to be an "unauthorised maritime arrival" from making an application for a visa, including a protection visa 38. An unauthorised maritime arrival is any person who entered Australia by sea, at an offshore place, and became an unlawful non-citizen because of entry39. Asylum seekers who arrive by boat must be taken 'as soon as reasonably practicable" 40 to either a Regional Processing Country with which Australia has an agreement which at present is Nauru and PNG41. Furthermore, this is a clear and discriminatory distinction between ‘unauthorised maritime arrivals’ and other lawful and unlawful non-citizens who have stayed longer than their visa has allowed. This other group will most likely be given temporary but lawful status through the grant of a bridging visa and will have access to any number of services that allows them to make arrangement for departure or a further visa. This is a clear violation of the Convention under Article 31 which prohibits a State from discriminating against an asylum seeker for their method of arrival42.

At present, PNG has been questioned as an appropriate place to send asylum seekers as the country has high rates of violence against women, intolerance of religions other than Christianity and violence against homosexuals49. Furthermore, PNG has not developed into domestic legislation its obligations under the refugee convention. This is an important distinction as article 33 should be read in conjunction with Article 3 of the Convention against Torture, which similarly prohibits states from ‘expelling or returning a person to countries where there is a substantial risk that they will face torture, inhumane or degrading treatment’ 50. PNG, while a signatory to the 1951 Refugee Convention, is not a signatory to the Convention against Torture 51. Mandatory and Indefinite Detention Immigration detention has been a core component of Australia's immigration policy since 1992 52 . Under section 189 of the Migration Act, immigration detention is an automatic statutory requirement for all ‘unlawful noncitizens’ 53.There is no provision in the Migration Act allowing a court to consider the detention of an ‘unlawful non-citizen’ Rather, under section 196, release is possible only if the person has ceased to be an ‘unlawful noncitizen’ either by leaving Australia or being granted a visa54. The legal justification for immigration detention has been confirmed by the High Court in Al-Kateb v Godwin55 where a 4:3 majority determined that the Migration Act authorises unlawful non-citizens to be detained until they are removed from Australia, even when there is no prospect of their removal in the reasonably foreseeable future56. Furthermore, the detention of non-citizens by the Executive pursuant to ss 189, 196 and 198 of the Migration Act did not contravene Ch III of the Commonwealth Constitution, even if the removal of the noncitizen from Australia was not reasonably practicable in the foreseeable future 57. In dissent, Justice Kirby argued that the executive powers provided for in the Migration Act be read narrowly and that the provisions of the

Migration Act should t be interpreted by reference to international law 58. Prohibition to arbitrary detention is found in article 9(1) and 9(4) of the ICCPR which highlight two broad principles. The first as a prohibition against “arbitrary arrest and detention” and second as a prohibition against deprivation of unless in accordance with such procedure as are established by law59.The most relevant opinion of the Human Rights Committee to immigration detention in Australia is the successful challenge to detention in A v Australia60. The Human Rights Committee agreed with Australia that it is not, “per se arbitrary to detain individuals requesting asylum61" but State was required to justify the reasons for their detention. Examples provided in their testimony included "likelihood of absconding and lack of cooperation" which may justify detention for a period but that period should not continue on what can be justified by the State 62. However, Australia has never adopted an individualized approach to immigration detention and has moved away from legislative measures that limit detention. Under the Migration Act, it has been determined in advance that all ‘unlawful non-citizens’ will be detained which is arbitrary by its nature 63. Based on the interpretation of article 9 of the ICCPR adopted by the Human Rights Committee in A v Australia, the current regime of immigration detention in Australia would breach both article 9(1) and article 9(4) of the ICCPR, by failing to involve any individual justification of detention, by failing to meet tests of necessity and reasonableness in any event, and by failing to provide for adequate review of the fact and conditions of detention by a court Violations of Human Rights Law - Conditions of Detention The Migration Act provisions dealing with the detention of ‘unlawful non -citizens’ makes no reference to the conditions of detention and provides no basis for the concerns of the human rights of the detainees 64. Since Australia has no constitutional or legislative Bill of Rights the plight of detainees is often likened to those of prisoners who are unable to challenge their detention on the basis of the conditions of their detention. Under international law article 10 of the ICCPR which states that Key “all persons who are detained are treated with humanity and respect for their inherent dignity” 65. Amnesty International’s December 2013 (‘Amnesty Report’) report into conditions in the Manus Island Detention Centre found a range of human rights violations including overcrowded “prison-like” conditions without adequate hygienic conditions such as too few showers and latrines to accommodate the number of people detained. The supply of basic necessities such as water is also insufficient amounting to less than a single 500ml bottle per person66. The remote location of the Manus Island detention centre makes it difficult for asylum seekers to receive adequate medical aid. Medical facilities in the centre are limited and insufficient for the continued growing demand for health services by detainee’s especially mental health services. According to the Amnesty Report, the staff of the centre has asked that detainee have greater opportunities for mental stimulation, freedom to walk outside the detention centre, shade and protection from the elements in the compound, a sufficient supply of drinking and bathing water and soap in all latrines 67. In addition, medical advice to send asylum seekers for further testing or specialised treatment in Port Moresby, or if necessary, Australia, has been ignored or refused, resulting in deteriorating health problems. The consequences of this prison like conditions have been confirmed to have serious mental and physical repercussion68. Asylum seekers have shown a range of mental illnesses from depression, anxiety and sleep disorders to post-traumatic stress disorders, suicidal ideation and self-harm. In the 2012–2013 financial years there were 846 incidents of self-harm across the immigration detention network which included six suicides 69. The UN Human rights Committee found that Australia had violated the right of an individual not to be the subject of cruel, inhuman or degrading treatment or punishment70...