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Asylum seekers and refugees

Who are asylum seekers and refugees?

An asylum seeker is someone who has fled their own country and applies to the government of another country for protection as a refugee.

According to the United Nations Convention and Protocol relating to the Status of Refugees (also called the Refugee Convention), a refugee is someone who is outside their own country and cannot return due to a well-founded fear of persecution because of their:

The term ‘asylum seekers’ refers to all people who apply for refugee protection, whether or not they are officially determined to be refugees.

To get a protection visa to live in Australia, asylum seekers must show that they satisfy the definition of ‘refugee’ in the Refugee Convention and that Australia has an obligation to protect them.

Asylum seekers can apply for the protection of Australia either offshore (in another country) or onshore (from within Australia). Under Australian law, asylum seekers who arrive onshore without a valid visa must be detained while their claims for protection are being processed.

What are the human rights of asylum seekers and refugees?

Australia has an obligation to protect the human rights of all asylum seekers and refugees who arrive in Australia, regardless of whether they arrive with or without a visa.

As a state party to the Refugee Convention, Australia has agreed to ensure that people who meet the definition of ‘refugee’ under the Refugee Convention are not sent back to a country where they risk persecution. This is known as the principle of non-refoulement.

In addition, Australia has an obligation not to return those who face a real risk of violation of their rights under the International Covenant on Civil and Political Rights (ICCPR, articles 6 and 7) and the Convention Against Torture (CAT), even if they do not meet the definition of ‘refugee’ under the Refugee Convention. The Convention on the Rights of the Child (CRC) also requires Australia to provide special protection to refugee children and children seeking asylum in Australia.

What does HREOC do to monitor conditions and treatment of asylum seekers in immigration detention?

Some asylum seekers are detained in immigration detention.

Under the Migration Act 1958 (Cth), asylum seekers who have arrived by unauthorised means, by boat or airport arrival, without a visa, must be kept in immigration detention until they are granted a protection visa, or a bridging visa, or are removed from Australia. As a result, some asylum seekers have been in immigration detention for prolonged periods of time.

While in detention, asylum seekers may have a variety of needs including counselling for torture and trauma, access to family tracing services, interpreting and translation, medical services, education and recreation activities.

HREOC has conducted several inquiries which focus on the treatment of asylum seekers and refugees in immigration detention in Australia. These inquiries make a number of recommendations to protect the human rights of asylum seekers and refugees in immigration detention. The inquiries include:

What does HREOC say about visas granted to asylum seekers and refugees living in the community?

HREOC is concerned about asylum seekers on bridging visas (especially Bridging Visa E) living in the Australian community, some of whom have been released from immigration detention facilities after prolonged periods of detention.

These visas often have a range of restrictive conditions. HREOC is concerned that many bridging visa holders live below the poverty line and are denied the right to work and access Medicare.

What does HREOC say about the process for determining refugee status in Australia?

Asylum seekers who apply for protection within Australia are assessed through Australia’s refugee status determination system. Under this system, the Department of Immigration and Citizenship (DIAC) makes the primary assessment of an applicant’s refugee status. If an asylum seeker is rejected by DIAC, they can apply to have the merits of this decision reviewed by the Refugee Review Tribunal (RRT), an independent Commonwealth statutory body. If the RRT upholds DIAC’s original decision, in limited circumstances, an asylum seeker can appeal the decision to the Federal Court. Asylum seekers can also appeal directly to the federal Minister for Immigration to be granted a visa. However, the Minister’s powers to grant a visa are discretionary and non-compellable.

HREOC has made a number of submissions on laws relating to various stages of refugee status determination, arguing that the human rights of asylum seekers and refugees must be protected throughout the process. Click on the links below to read HREOC submissions on the relevant laws:

What happens to people who are not determined to be ‘refugees’ but still need protection?

There are some people who are found not to be refugees by Australia’s refugee status determination system, but who otherwise may face significant human rights abuses if returned to their countries.

Currently, the only avenue of protection for such people is to apply to the Minister for Immigration to exercise his personal discretion under section 417 of the Migration Act 1958 (Cth).

HREOC recommends the development of a complementary protection system for these asylum seekers.

HREOC has commented on the inadequacy of the section 417 Ministerial discretion to protect against non-refoulement in its submission to the Senate Select Committee on Ministerial Discretion in Migration Matters in 2003 (see Submission).

In particular, HREOC noted that the section 417 discretion is non-compellable, non-reviewable and very poorly suited to protecting against non-refoulement under the ICCPR, the Convention against Torture and the CRC.

See also a seminar on complementary protection: http://www.humanrights.gov.au/human_rights/UDHR/seminars/complemtary_protection.html

What is HREOC doing to help increase community understanding about refugees and asylum seekers?

Asylum seekers and refugees have been subjected to prejudice and misunderstanding in Australia, especially in recent years when public debate on race issues has coincided with debate on national security.

HREOC has attempted to provide clear and factual information on migrants, asylum seekers and refugees so as to increase community understanding of asylum seekers and refugees and the human rights issues facing them.

For more information on projects on human rights and asylum seekers and refugees, see the Race Discrimination Unit.