Obligations of Australia to protect asylum seekers and refugees
Australia is obliged to protect the human rights of all asylum seekers and refugees who arrive in Australia. The commission has been working hard to promote the rights of this people since last decade. Asylum seekers are the people who have applied for protection as a refugee and have fled their own country. Refugee refers to the person outside their own country for safety. Asylum seekers and refugees cannot return to their own country unless the situation that forced them to leave improves. Australia has international obligation to protect these people irrespective of how they arrived and hold visa or not. The aim of the essay is to outline the legislation, structures and processes in Australian society that are designed to protect Asylum seekers and refugees including the courts and the tribunals. The essay identifies the legislation that relates to the issue and identifies the limitations in the legislation. The essay evaluates the effectiveness of the court systems or tribunals in upholding the relevant human rights.
The government of Australia has obligations under various international treaties to protect the asylum seekers and the refugees while they are in Australian territory or otherwise engage in Australia’s jurisdiction. The treaties include “International Covenant on Civil and Political Rights (ICCPR)”, “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 (CRC)” (Hartley et al., 2015). These treaties include the rights that are not to be arbitrarily detained. Australia has agreed to the Refuge convention as a party and ensures that refuges in the country are not sent back to their own country if they meet the definition of the refugee. They will be not be sent back to their own country because they may be persecuted or their freedom and life will be threatened. This is known as the “principle of non-refoulement.” Further, Australia is obliged to protect these people if they are at risk of being violated of their human right under the CAT, ICCPR and the CRC. Australia is also obliged to not send these people to any third country where under these instruments they will face the violation of the human rights (Phillips & Spinks, 2013).
Every year Australia accepts certain people who are refugees under the Humanitarian program (Archbold, 2015). The two main components of the program are-
- Offshore resettlement for refugees- it includes protecting people who have been recognised as refugees and have been acknowledged for their need for protection in any other country prior to their arrival in Australia
- Offshore protection- is ensured to people who have visited Australia with a valid Visa and have successfully claimed for asylum after the arrival
Humanitarian program for accepting refugees
In 2014-2015, the Australian government has indicated its intention to provide 14250 places in the humanitarian program. The program was designed to offer temporary support to the asylum seekers who have visited Australia without a valid visa and have not been transferred to Manus Island or Nauru. These people are granted temporary protection visas under the humanitarian program. These visas are also called safe heaven enterprise visas (Effeney & Mansouri, 2014).
In Australia the asylum seekers and refuges are in immigration detention. It is due to the possibility that these people may arrive in Australia for various reasons without documentation or valid visa. For instance a refugee in his or her own country may fail to obtain a valid visa due to the feeling of persecution by the government of their own country and lack of support from the officials in that country. Therefore, these people may travel to Australia without any documentation to reduce the risk to themselves and their loved ones. Hence, Australia under the Migration ACT 1958, withhold these people under the immigration detention until they are removed from the Australia or have been granted the visa (Phillips & Spinks, 2013). However, the limitation of this system is that it does not define the length of the detention. Some people wait for too long time for the approval or the assessment of the refugee claim. They spend long time in the detention waiting to finish the health checkups, security checks and are removed once they are found not to be a refugee. The other limiting factor is that despite the legal framework for immigration detention in place, there is a growing number of asylum seekers in the Australian community over the last few years (Phillips, 2013). ). They been allowed to reside in the community after putting them under close detention and assessing their claims for protection.
There are limitations to the detention system of Australia. It was argued by Newman et al. (2013) that there should be a case by case basis of assessing the need to detain and should consider the individual circumstances. It was claimed by the “United Nations Human Rights Committee” that the detention system of refugees is indefinite. The committed reported that during detention psychological harm was caused to the refugees including cruel and inhuman treatment. Around 8450 such cases were reported in 2012 (Phillips & Spinks, 2013). The commission is concerned about thousands of other refugees and asylum seekers who are still retained in the immigration detention facilities inspite of using alternatives such as grant of bridging visas and community detention. There is the limitation to this system because denying the work rights to refugees on bridging visas may lead to breach of multiple human right and poverty (Hendriks, 2016).
Immigration detention system and its limitations
There are different procedures by which the asylum seekers claim their rights in Australia. For those arriving in Australia through a valid visa are required to apply for protection. This takes place as a part of the onshore protection program after they have been assessed through the “refugee status determination” and the “complementary protection system” under the Migration Act (Hadgkiss & Renzaho, 2016). There may be other circumstances as well. For instance, an individual may not be refugee, but may face abuse of human rights if they return to his or her own country. In case an individual is not found to be a refugee, the department will assess the person for the eligibility of the complementary protection criteria. In this case the department checks if the individual owes protection under the CRC, ICCPR and CAT. The need of this thorough assessment is to ensure that they are not send to their country of origin where the individual may really suffer risk or harm. An individual is granted a protection visa if he is proved to be refugee or if the person owed complementary protection and have also satisfied the health assessment and the security requirements (Ogawa, 2013).
Australia has established the Refugee Review Tribunal or RRT for the people who have been refused to be protected by the department in the initial stage. These people are independently reviewed by the RRT. In some cases these people are reviewed by the Administrative Appeals Tribunal (AAT). The people denied of protection can seek judicial review of decisions made by the AAT or RRT. In case of the rare and exceptional situation of the asylum seekers and the refugees, ministerial intervention takes place so that these people can remain in Australia under compassionate and humanitarian grounds (Findling & Heydon, 2016).
There are also arrangements for refugees who arrive in Australia by boat without a valid visa. In regards to this process, the government of Australia has introduced a system called “third country processing”. According to this system, the refuges or the asylum seekers who have arrived in Australia by the boat are transferred to third country. They are transferred as soon as possible as much practical reasonably unless intervened by the minister for immigration or decided by the border protection department. In case the refugees or the asylum seekers are transferred to the third country, then the same country will assess their claims for protection as per its law (Ogawa, 2013).
Procedures for claiming asylum seeker rights in Australia
For those people who have arrived in Australia by boat unauthorised after the year 2012 are allowed to remain in the country by the minister. However, they are eligible to apply only for safe haven enterprise visas and temporary protection visas. Further their application may be processed, the manner of which will be depending on the time of arrival. In case they have arrived after 1 January 2014 they will be protected under Migration Act. This occurs after the refuge has applied through the “refugee status determination” and “complementary protection system” in the manner similar to the asylum seekers who hold a valid visa. This process also includes accession to merit review by the RRT (Zhao, 2015).
In case a refugee has arrived by boat between 13 August 2012 and 1 January 2014 in an unauthorised manner are eligible to apply for visa and are permitted by the minister. These cases are also dealt by the fast track assessment process introduced by the Australia in April 2015. In the system of fast track assessment the asylum seekers’ are primarily assessed by the department for their claim for protection. In case of the negative assessment the applicants of the fast track will not be eligible for the merit review by RRT for that decision. In such cases these applicants are eligible to apply under the Immigration Assessment Authority IAA (Kenny & Procter, 2016). IAA does not hold any hearings generally. Any information that is not provided by the applicant during the primary interview is not considered by IAA. IAA do not have the power to grant the temporary protection visa like RRT in case it has wrongly denied or refused the protection initially. It has the power only to send back the matter for reconsideration by the department (Ogawa, 2013). There are limitations to the system as there is a increasing number of asylum seekers who are undertaking dangerous sea journeys and losing lives at sea. It is a complex challenge to the commission to prevent the death at sea with no practical solutions.
The other system in Australia called the “enhanced screening process” was introduced by Australia. It is meant for the refugees or asylum seekers who arrive Australia by boast from Sri Lanka. However, the drawback of this process is that it does not contain sufficient safeguards for removing these refugees to a country where they have the real risk of refoulement. In case it is found that the refugee has claims that meet the criteria of “Australia’s non-refoulement obligations” then the refugee is screened into the “third country processing regime”. If these requirement is not fulfilled then the refugee is screened out of the “protection assessment process” and the applicant is send back to the country of origin. There are limitations to this system. This system does not constitute a fair asylum procedure for the unauthorised arrivals from Sri Lanka. It also includes risk by eliminating those whose claims for protection is legitimate (McAdam, 2014).
Review process for denied protection
Several researchers tend to evaluate the effectiveness of the court systems or tribunals in upholding the relevant human rights. In addition to some of the limitations mentioned above in relation to detention system and third country processing system, it was found that Australia’s Its immigration detention system is one of the most restrictive systems in the world. The evaluation of this system were published in the paper by Effeney & Mansouri, (2014). It concluded that the deterrence measures are contrary to international humanitarian obligations. It also obscures empirically grounded understandings of “forced migration as a complex social phenomenon”. The system do not meet the objectives stated publicly of stopping on-shore asylum seeking in the long term. The criticism and limitations are consistent with the case scneraio of 2015. In 2015, The Saturday Daily paper reported on 31st July Mohammad Nasim Najafi, who was a 28 year old asylum seeker died in Yongah Hill Detention Centre. He was reported to be victimised by the criminal gangs in that centre. At the time of death he was in solitary confinement. There is further coronial inquest into his death.
Conclusively, there are number of policy changes in the Asylum seeker and refugee policies in Australia. However, there is a significant gap in the Australia’s human rights obligations under the international treaties and the current treatment. It relates to the refugees and the asylum seekers arrival by boat in Australia. However, this system was called for an end as it was found violating the human right obligations under the international treaties. The literature review on the laws and legislative instruments underpinning the regional processing regime shows incompatibility of the regime with many human rights. With the reforms in the policies Australia today stands among world’s top three resettlement countries. It is recommended that the persecuted and vulnerable to be treated fairly and humanely in Australia irrespective of their mode of arrival and provide protection.
References
Archbold, L. J. (2015). Offshore Processing of Asylum Seekers-Is Australia Complying with Its International Legal Obligations. QUT L. Rev., 15, 137.
Effeney, L., & Mansouri, F. (2014). Deterrence policies and asylum seekers: the case of Australia. International Journal of Migration and Border Studies, 1(2), 217-230.
Findling, J., & Heydon, G. (2016). Questioning the evidence: A case for best-practice models of interviewing in the Refugee Review Tribunal. Journal of Judicial Administration, 26(4), 19-30.
Hadgkiss, E. J., & Renzaho, A. (2016). The health status, service needs and barriers to accessing care for detention and community-based asylum seekers in Australia. In Globalisation, Migration and Health: Challenges and Opportunities (pp. 255-289).
Hartley, L. K., & Pedersen, A. (2015). Asylum seekers and resettled refugees in Australia: Predicting social policy attitude from prejudice versus emotion. Journal of Social and Political Psychology, 3(1), 179-197.
Hendriks, A. (2016). Immigration detention in Australia. Is indefinite detention inconsistent with obligations to the International Covenant on Civil and Political Rights?.
Kenny, M. A., & Procter, N. (2016). The fast track refugee assessment process and the mental health of vulnerable asylum seekers. Psychiatry, Psychology and Law, 23(1), 62-68.
McAdam, J. (2014). Refugees: Why seeking asylum is legal and Australia’s policies are not. UNSW Press.
Newman, L., Proctor, N., & Dudley, M. (2013). Seeking asylum in Australia: immigration detention, human rights and mental health care. Australasian Psychiatry, 21(4), 315-320.
Ogawa, M. (2013). Notice of invitation to appear: the statutory notice period in the Migration Review Tribunal and the Refugee Review Tribunal in Australia. International Journal of Public Law and Policy, 3(3), 287-297.
Phillips, J. (2013). Asylum seekers and refugees: What are the facts?. Canberra: Department of Parliamentary Services, Parliament of Australia.
Phillips, J., & Spinks, H. (2013). Immigration detention in Australia. Parliamentary Library, 20.
Zhao, R. (2015). Gendered Narratives of Violence: A Critique of Refugee Review Tribunal Adjudication of Refugee Status. Felix Qui Potuit Rerum Cognoscere Causas, 377, 109.
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