Comments on: Crikey clarifier: does Australia’s refugee policy breach UN rules? now with extra source Mon, 30 Nov 2015 00:02:50 +0000 hourly 1 By: Ned Kelly Mon, 03 Dec 2012 21:29:12 +0000 Who gives a damn what the UN thinks ,They are a useless non entity , A toothless ghost of what once was but is of no use to anyone now , The boats should all be sent packing , I didnt ask them to come and dont want what they bring to my shores , I know the bleeding hearts will cry foul but i care even less what they think .

By: Tim Macknay Thu, 29 Nov 2012 05:01:45 +0000 I don’t entirely agree, Rose.

It’s not at all clear that Australia’s current polices, inhumane though they certainly are, are in breach of the 1951 Convention Relating to the Status of Refugees or its 1967 Protocol.

I think your main error is to conflate the categories of “refugee” and “asylum seeker”. A refugee is a person who meets the criteria set out in the Convention and Protocol, i.e. who has fled their country due to a well-founded fear of persecution on grounds of race, religion, nationality, membership of a particular social group or political opinion.

An asylum seeker is a person who claims to be a refugee, but whose status as such has not been determined.

The Convention and Protocol have nothing at all to say about asylum seekers. They are concerned only with refugees.

You say that “Prohibited penalties include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.”

However, those words come from an introductory note, not from the text of the Convention itself. Only the text of the Convention is legally binding - the introductory note is just commentary.

What Article 31 of the Convention actually says is that “Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.

Article 31 then goes on to say that “the Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission to another country”.

The two points to take way from this are -

1) that the prohibition on penalising illegal entry only applies to persons who are coming directly from the territory of persecution, not to persons coming from a third country, and

2) the Convention does authorise detention and other restrictions on movement for the purpose of determining whether or not a person is a refugee (i.e. regularising their status).

So the punitive detention of asylum seekers originating from, say, Afghanistan, but arriving by boat from Indonesia, for example, while inhumane, is not necessarily in breach of Article 31, because Article 31 won’t apply to them.

It also should be noted that the proposed new bridging visas are not for persons who have been confirmed to be refugees, but for asylum seekers whose claims are still being processed. As such, the various obligations imposed on Contracting States by the Convention, such as freedom of movement, non-discrimination and the right to work, don’t apply to the people holding the new bridging visas, because they are not recognised refugees. That’s not to say that this punitive treatment is fair or just of course, only that it doesn’t necessarily breach the Convention.

The quotation from Law Professor Penelope Mathew is quite correct, but note that her comment refers to “recognised refugees”, not asylum seekers.

The reality is that the only substantial obligation the Convention imposes on States with respect to asylum seekers (as opposed to recognised refugees), is that the prohibition on refoulement (Article 33) effectively obliges states to investigate the claims of persons seeking asylum, rather than just deporting them.

It may well be said that current Australian policy violates the spirit of the Refugee Convention, but it doesn’t really violate the text.

Of course, as you say, current Australian policy is probably in breach of one or more provisions of the respective International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights.