Right: the Christmas Island shipwreck tragedy. Australian governments have argued that the current attitude to boat arrivals is a result of wanting to avoid deaths at sea.
Arguments against permanently denying access to Australia to asylum seekers who attempt to arrive by boat
1. Asylum seekers attempting to come to Australia by boat are not breaking international laws and should not be considered to be breaking Australian law Opponents of Australia's current refugee policies argue that those who seek to come to Australia by boat are only exercising their rights under international law. The conflict between international law and Australia's internal laws is explained in a Parliamentary paper titled 'Asylum seekers and refugees: what are the facts?' and published on March 2, 2015. The paper, written by Janet Phillips, Social Policy Section, states, 'Although those who come to Australia by boat seeking Australia's protection are classified by Australian law to be "unlawful non-citizens", they have a right to seek asylum under international law and not be penalised for their mode of entry.' Phillips further explains, 'Generally speaking 'illegal immigrants' are people who enter a country without meeting the legal requirements for entry (without a valid visa, for example). However, under Article 14 of the 1948 Universal declaration of human rights, everyone has the right to seek asylum and the 1951 Refugee Convention prohibits states from imposing penalties on those entering 'illegally' who come directly from a territory where their life or freedom is threatened.' Phillips explains why the designation 'illegal immigrant' should not be applied. She writes, 'The UNHCR emphasises that a person who has a well-founded fear of persecution should be viewed as a refugee and not be labelled an "illegal immigrant" as the very nature of persecution means that their only means of escape may be via illegal entry and/or the use of false documentation.' The Refugee Council of Australia (RCOA) similarly notes the practical difficulties encountered by asylum seekers in obtaining the requisite documentation prior to departure and argues that they should not be penalised as 'illegal entries' as a result of these difficulties. The RCOA states, 'It is not a crime to enter Australia without authorisation for the purpose of seeking asylum. Asylum seekers do not break any Australian laws simply by arriving on boats or without authorisation. Article 31 of the Refugee Convention clearly states that refugees should not be penalised for arriving without valid travel documents. What may be considered an illegal action under normal circumstances (e.g. entering a country without a visa) should not, according to the Convention, be considered illegal if a person is seeking asylum. ...[I]nternational law make[s] these allowances because it is not always safe or even possible for asylum seekers to obtain travel documents or travel through authorised channels. Refugees are, by definition, people fleeing persecution and in most cases are being persecuted by their own governments. It is often too dangerous for refugees to apply for a passport or exit visa or approach an Australian Embassy for a visa, as this could put their lives, and the lives of their families, at risk. Refugees may also be forced to flee with little notice due to rapidly deteriorating situations and do not have time to apply for travel documents or arrange travel through authorised channels. In other cases, refugees may be unable to obtain travel documents because they do not have identity documentation or because they cannot meet the necessary visa requirements. Australia has very restrictive policies which work to prevent citizens of countries where persecution is widespread from getting access to temporary visas of any kind. These policies leave many people seeking to flee to Australia with no way of entering in an authorised manner. Permitting asylum seekers to enter a country without travel documents is similar to allowing ambulance drivers to exceed the speed limit in an emergency - the action may ordinarily be illegal but, in order to protect lives at risk, an exception is made.' 2. Australia has a legal obligation to accept asylum seekers, irrespective of how they arrive Critics of the proposed amendment to the Migration Act 1958 claim it contravenes Australia's obligations under international law. Australia is a signatory to both the United Nations Universal Declaration of Human Rights and the United Nations Refugee convention, each of which give asylum seekers rights which Australia is currently denying. On November 14, 2016, The Conversation published a comment by Michelle Foster, Professor, Melbourne Law School, University of Melbourne titled 'Turnbull's asylum seeker ban violates Australia's human rights obligations' Professor Foster argues, 'If passed, this bill will be in direct contravention of the Refugee Convention and Australia's other international obligations.' Professor Foster explains the contravention as follows. 'The people who will be affected by this law are predominantly asylum seekers who came to Australia by boat and have been assessed as refugees in an offshore detention centre. There's no dispute that these people are genuinely in need of international protection. There is no visa available for people travelling to Australia to seek asylum. Nor is there an orderly international queue for recognised refugees. For most refugees, the chances of being resettled are extremely low. This makes their travel to Australia in search of protection without a visa understandable.' The United Nation's Refugee Convention allows for these circumstances. Professor Foster states, 'The drafters of the Refugee Convention foresaw this dilemma. This is why Article 31 exists. Article 31 prohibits states from imposing penalties on refugees who illegally enter or stay in a country if they come directly from a place where their life or freedom was threatened. Even if a refugee travels through or spends time in a transit country, they're considered as having "come directly" so long as they were not granted protection in that intermediate country. This is the case for most asylum seekers who come to Australia by boat.' Professor Foster further notes, 'It's worth reflecting on the fact that some of the refugees who will be affected by this bill were taken by Australia, against their will, to countries in which at least some have suffered serious human rights violations. International law prohibits countries from returning asylum seekers to persecution. A country must also not transfer, deport or send an asylum seeker to a place where she or he will face torture or inhumane or degrading treatment. Australia is arguably in violation of this obligation, having exposed at least some asylum seekers to precisely such treatment. The UN Special Rapporteur on Torture made this assessment in relation to Australia's offshore detention centre on Manus Island. The allegations of physical and sexual assaults on Nauru suggest that some refugees may have suffered inhuman and degrading treatment there, too.' 3. Asylum seekers arriving by plane are not subject to such penalties There are three main ways a person may attempt to come to Australia as a refugee: i. arrive on short-term visas (e.g. tourist, student or business visa) by plane and then seek protection; ii.arrive by boat without any visa for Australia (this method will immediately have the applicant lodged in offshore detention on either Nauru or Manus Island); iii. be assessed as a refugee while residing in another country and come through Australia's offshore humanitarian resettlement program. Until 2012, the majority of asylum seekers applying for protection in Australia arrived originally by air with a valid short-term visa and then applied for asylum at a later date while living in the community. Historically, boat arrivals only made up a small proportion of asylum applicants-estimates vary, but it is likely that between 96 and 99 per cent of asylum applicants arrived by air. In 2012 the proportions of irregular maritime arrival (IMA) and non-IMA (that is air arrival) asylum seekers shifted due to a significant increase in boat arrivals. However, applications from boat arrivals still only accounted for about half of Australia's onshore asylum claims until 2012-13 when the figure reached 68.4 per cent. However, in 2013-14 the proportions shifted back and the majority of applications (51.5 per cent) were again lodged by air arrivals. Although the proportion of asylum seekers arriving by boat has increased significantly in the last few years, and boat arrivals continue to be the focus of much public and political attention, they are in fact more likely to be recognised as refugees than those who have arrived by air. For example, the final protection visa grant rate for asylum seekers from the top country of citizenship for boat arrivals (Afghanistan) has varied between about 96 and 100 per cent since 2009; while the final protection visa grant rate for those applying for asylum from one of the top country of citizenship for air arrivals (China) is usually only around 20 to 30 per cent. On March 16, 2012, the ABC ran a report titled 'Plane arrivals in widespread rorting of asylum system'. The report stated, in 2011 'more than 6,000 asylum seekers arrived by air. The largest group by far came from China, with much smaller numbers flying in from India and other south east Asian countries. While some might be legitimate, many are not and they are being supported by a network of corrupt officials from China to migration agents in Australia.' Adrienne Millbank from Monash University has claimed that the system is open to manipulation. Millbank stated, 'Once in the country, it is much easier for people to apply for asylum or a protection visa because Australia is bound by the refugee convention. The hypocrisy of parliamentarians is where they're spending so much money keeping people out, extending their borders and controls out onto other countries, but then when people actually get in, they're very welcoming and it must be like winning the lottery.' Critics have noted that there is a particular injustice in the way the system is applied to asylum seekers who arrive by boat. They are dramatically disadvantaged relative to those who are not, while statistically the likelihood of their being refugees is far greater. This latest permanent prohibition on entry to Australia only confirms their relative disadvantage. 4. Placing a life-long ban on asylum seekers arriving by boat is cruel or an over-reaction It has been claimed that placing a life-long ban on an asylum seeker who had attempted to come to Australia by boat is either cruel or an exaggerated reaction, depending on the circumstances. Australian barrister, human rights and refugee advocate, Julian Burnside, has stated, 'In the short term, it will operate to prevent people who are currently in a Regional Processing Centre, and who have been assessed as refugees, from being reunited with members of their immediate family who are presently living in the Australian community. That is a result which most Australians would regard as needlessly harsh.' The cruelty and illegality of the proposed amendment has been stressed in a comment by Ben Saul and Jane McAdam published in The Sydney Morning Herald on November 9, 2016. The authors claim, 'Where refugees already have close family members in Australia, a permanent ban on other family members from coming to live with them would flagrantly violate international law. Australian law would ensure that families remain broken up, and that parents are separated from children. The bill's ban would not apply to children - but would exile their parents.' Where the nature of the ban is less serious, critics see it as an unnecessary over-reaction. Julian Burnside has noted, 'It would mean that people presently in a Regional Processing Centre and who are assessed as refugees and who settle in (say) Canada or Sweden and rebuild their lives there will never be able to visit Australia for tourism, or business, or any other legitimate reason. This has absurd and pointless possibilities.' The same point has been made by leader of the Opposition, Bill Shorten. Mr Shorten has stated, 'It seems ridiculous to me that a genuine refugee who settles in the US or Canada and becomes a US or Canadian citizen is banned from visiting Australia as a tourist, businessman or businesswoman 40 years down the track.' 5. Opponents of the amendment have accused the Coalition of political opportunism If, as the government is claiming, its current deterrent strategies are discouraging asylum seekers attempting to reach Australia by boat, why is it necessary to impose another deterrent. Some critics have suggested that this harsh and dubiously required amendment is an attempt to hold onto the votes of political conservatives within the electorate who might otherwise stray toward One Nation. Labor leader Bill Shorten described Turnbull's new policy initiative as both currying favour with One Nation and an attempt to hold off the opposition of conservatives within his own party. Mr Shorten stated, 'Two weeks ago, Mr Turnbull was happy to trade a vote in the Senate for weaker gun laws, last week his government lied about dodgy data to smear single mums, and now he's shown he's happy to suck up to chase the votes of One Nation senators to fight off Tony Abbott and keep his job. He's earning the praise of Pauline Hanson - I hope he's proud of that. The old Malcolm Turnbull would never have proposed this to keep the extremists in his party happy.' Other critics have suggested that it is a ploy to create division with the Labor opposition, placing Mr Shorten in a position where he would either alienate the radicals within his party if he supported the amendment or appear weak on border control to much of the electorate if he failed to support it. Some of the comments made by Mr Turnbull and Mr Dutton when announcing the amendment at a joint press conference appear intended to wrong foot Mr Shorten. Mr Turnbull said, 'Now, the minister and I are asking the Labor Party and its leader Mr Shorten, to support this legislation. It is entirely consistent with his Party's stated public position - we were disappointed to see what appeared to be some equivocation from his Shadow Minister this morning. Mr Shorten has the opportunity now to express clear unequivocal support for this very strong statement of long-standing, Coalition and so far as we understand, Opposition policy.' |
Found a word you're not familiar with? Double-click that word to bring up a dictionary reference to it. The dictionary page includes an audio sound file with which to actually hear the word said.