Refugee fact sheets from the UNSW Kaldor Centre for International Refugee Law

The University of NSW Kaldor Centre for Internaltional Refugee Law has published some excellent fact sheets on its website, including Debunking Myths and Turning Back Boats. A summary of the fact sheets is provided here.

Are asylum seekers who arrive by boat ‘illegal’?

It is not a crime to seek asylum from persecution or other serious human rights abuses, but rather the right of every individual under international law. The right to seek asylum is enshrined in Article 14 of the Universal Declaration of Human Rights.

Moreover, Article 31 of the Refugee Convention provides that actions that would otherwise be illegal, such as entering a country without a visa, must not be treated as illegal (that is, by the imposition of penalties) if a person is seeking asylum. This is because the very nature of refugee flight might make it impossible to obtain travel documents.

Are asylum seekers who arrive by boat ‘queue jumpers’?

Australia sets an annual refugee quota of 13,750 places. In recent years, 6,000 resettlement places have been set aside for ‘offshore’ refugees from overseas who have been recognized by UNHCR as having a protection need. The remaining 7,750 places have been allocated to Australia’s ‘special humanitarian program’.

The Australian Government has a policy that the more ‘onshore’ refugees who arrive in Australia (that is, people who arrive by boat or plane, claim protection in Australia, and are found to be refugees), the fewer places remain for entrants under the ‘special humanitarian program’.

However, it is inaccurate to say that ‘boat people’ are taking the places of refugees waiting overseas. This is because the number of onshore refugees is linked to the special humanitarian quota, not the refugee quota. Moreover, asylum seekers who come to Australia by plane affect the places available in the special humanitarian program in the same way that boat arrivals do.

It is a common misconception that if refugees just waited in the so-called ‘queue’ overseas, they would eventually be resettled. UNHCR’s resettlement process does not operate like a queue, but more like a triage system in which needs are constantly reassessed.

Are asylum seekers who arrive by boat ‘economic migrants’?

Historically, most asylum seekers who have arrived in Australia by boat have been found to be refugees fleeing persecution. Figures from the Department of Immigration show that, in 2012–13, 88 per cent of asylum seekers arriving by boat were found to be refugees.  This is consistent with data from previous years: in 2011–12, 91.3 per cent of boat arrivals were refugees, and in 2010–11, 93.5 per cent were refugees.

Is Australia being ‘flooded’ with asylum seekers?

Australia receives a very small number of the world’s asylum seekers, both in absolute terms and when considered in relation to other countries.  In 2012, Australia received 17,202 asylum seekers by boat, its highest annual number, and only 1.47 per cent of the world’s asylum seekers.

This is a tiny number compared to Australia’s migrant intake. In the year to 30 June 2013, Australia accepted 190,000 migrants through its skilled and family migration scheme.

It is also important to remember that the overwhelming majority of the world’s refugees reside in developing countries.  At the end of 2012, 81 per cent of the world’s refugees (that is, 8.5 million refugees) were being hosted by developing countries.

Do asylum seekers arriving by boat pose health or security threats to Australia?

Upon arrival, asylum seekers arriving by boat undergo comprehensive health, identity and security checks.

Do ‘tough’ border protection policies deter asylum seekers from coming to Australia by boat and therefore ‘save lives at sea’?

The need to ‘save lives at sea’ has been invoked by politicians to justify policies of deterrence, such as the regional resettlement arrangement with PNG, temporary protection visas, offshore processing, and turning back boats.  However, the problem with this political response is that it has lost sight of the underlying human rights violations that prompt asylum seekers to make dangerous sea journeys in the first place, as well as the other factors that prompt people to engage the services of people smugglers.

If Australia is serious about doing more than simply sparing itself the discomfort of being witness to, or even complicit in, the suffering and death of those who seek Australia’s protection – whether at sea or more generally – then it needs to consider a multidimensional response that positions the asylum seeker at the centre of its concern. This calls not only for a significant expansion of Australia’s resettlement intake, but also for an approach that strengthens the quality of protection in regions or countries of asylum.

Do refugees receive higher welfare payments than Australians?

A refugee who has permanent residency in Australia has the same social security entitlements as other permanent residents – refugees do not receive higher benefits.  Moreover, refugees must meet the same requirements as other Australians for public housing – they are not accorded preferential treatment and must remain on waiting lists, just as do other Australians.

In recognition of the circumstances in which refugees come to Australia, they are exempt from the waiting times that usually apply to migrants who are newly arrived residents in Australia and are seeking to access social security or concession cards.  Refugees also have access to short-term settlement services from the Department of Immigration to assist them in their initial period of settlement.

Is turning back boats consistent with international law?

Obligations under law of the sea

Under the UN Convention on the Law of the Sea, vessels on the high seas (all parts of the sea, except the territorial sea or the internal waters of a country) are subject to the exclusive jurisdiction of the State in which the vessel is registered (the ‘flag state’). Hence, without the consent of the flag state, Australia has no right to intercept and turn back boats on the high seas.

Moreover, although Australia is permitted to ‘exercise the control necessary’ to prevent infringement of its immigration laws within the contiguous zone,  the requirement of necessity mandates a proportional response in each case. One may well question whether boarding a boat and forcibly returning it to Indonesia constitutes a proportional response in the circumstances.

Australia also has obligations to render assistance to those in distress at sea. Australia could be in breach of these treaties if it turned back unseaworthy boats and thereby placed lives at risk. Under international law, Australia would remain responsible if asylum seekers who were placed onto lifeboats and towed back into international waters by Australian authorities ended up in a situation of distress.

Obligations under human rights and refugee law

Australia would be at risk of breaching international refugee law and human rights law if it turned back boats without assessing refugee claims made by people on board.

Specifically, Australia would be at risk of breaching its obligation of non-refoulement under the Refugee Convention, the International Covenant on Civil and Political Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which require Australia not to return people to countries where they face a risk of persecution and other forms of serious harm.  Indonesia is not a party to the Refugee Convention and refugees in Indonesia are treated as illegal migrants, liable to detention and deportation. Sri Lanka is not a party to the Refugee Convention and there are reports of human rights violations by Sri Lankan security forces.  By turning boats back to Indonesia or Sri Lanka, Australia is therefore at risk of breaching its non-refoulement obligations.

The likelihood of Australia breaching the principle of non-refoulement is significant, especially since the overwhelming majority of people coming to Australia by boat are, in fact, refugees.