Over the last decade the Commission has worked to promote and protect the rights of asylum seekers and refugees in Australia. The Commission aims to provide clear, factual information to highlight the human rights issues involved in the treatment of these groups of people.
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An asylum seeker is a person who has fled their own country and applied for protection as a refugee.
The United Nations Convention relating to the Status of Refugees, as amended by its 1967 Protocol (the Refugee Convention), defines who is a refugee and sets out the basic rights that countries should guarantee to refugees. According to the Convention, a refugee is a person who is outside their own country and is unable or unwilling to return due to a well-founded fear of being persecuted because of their:
- membership of a particular social group or
- political opinion.
Asylum seekers or refugees and migrants have very different experiences and reasons for moving to another country. Migrants choose to leave their home country, and can choose where to go and when they might return to their home country. Asylum seekers and refugees, on the other hand, flee their country for their own safety and cannot return unless the situation that forced them to leave improves.
Australia has international obligations to protect the human rights of all asylum seekers and refugees who arrive in Australia, regardless of how or where they arrive and whether they arrive with or without a visa.
While asylum seekers and refugees are in Australian territory (or otherwise engage Australia's jurisdiction), the Australian Government has obligations under various international treaties to ensure that their human rights are respected and protected. These treaties include the International Covenant on Civil and Political Rights (ICCPR), the 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). These rights include the right not to be arbitrarily detained.
As a party to the Refugee Convention, Australia has agreed to ensure that asylum seekers who meet the definition of a refugee are not sent back to a country where their life or freedom would be threatened. This is known as the principle of non-refoulement.
Australia also has obligations not to return people who face a real risk of violation of certain human rights under the ICCPR, the CAT and the CRC, and not to send people to third countries where they would face a real risk of violation of their human rights under these instruments. These obligations also apply to people who have not been found to be refugees.
Under its Humanitarian Program, Australia accepts a certain number of people every year who are refugees or have special humanitarian needs. The Humanitarian Program has two main components:
- offshore resettlement for people who are found to be refugees (and others whose need for protection has been acknowledged) in another country before they come to Australia, and
- onshore protection for people who come to Australia and make a successful claim for asylum after they arrive.
In August 2012 the Australian Government announced that it would increase the total number of people it will accept per year across both components of the Humanitarian Program from 13,750 to 20,000. The Commission welcomed this increase.
Resettling people who have been found to be refugees overseas (offshore resettlement)
Refugees and other ‘humanitarian entrants’ who apply for a visa from outside Australia can be granted one of two kinds of visas:
- Refugee Visas - granted to people who satisfy the Refugee Convention definition of ‘refugee’ and who are in need of resettlement because they cannot return to their home country or stay where they are.
- Special Humanitarian Program Visas - granted to people outside their home country who have experienced substantial discrimination amounting to a gross violation of their human rights in their home country. An applicant for this type of visa must know someone or an organisation in Australia (an Australian citizen, Australian permanent resident, eligible New Zealand citizen or organisation based in Australia) who can sponsor their application.
Protecting people who come to Australia and seek asylum (onshore protection)
Refugees and other people can seek protection if they are already in Australia by applying for a Protection Visa. Protection Visas are granted to people in Australia who either:
- meet the definition of a refugee who is owed protection under the Refugee Convention, or
- are owed ‘complementary protection’ because if they were to be sent to another country there is a real risk they would suffer certain types of harm, in violation of human rights under other international human rights treaties (see above).
Asylum seekers may arrive in Australia without a valid visa or other documentation for a number of reasons. For example, a person who is fleeing persecution by the government of their country of origin might not be able to obtain a passport from officials in that country. Alternatively, a person fleeing persecution might travel without documentation to avoid being identified as they leave their country of origin in order to reduce the risk to themselves and their family.
Under the Migration Act 1958 (Cth) (the Migration Act), asylum seekers who arrive in Australia without a valid visa, whether on the mainland or at an 'excised offshore place', must be held in immigration detention until they are granted a visa or removed from Australia.
There are currently thousands of asylum seekers, as well as some recognised refugees, being held in immigration detention around Australia (click here for the latest detention statistics). Hundreds of asylum seekers who arrived in Australia are also being detained in Nauru and on Manus Island in Papua New Guinea under the Australian Government’s third country processing regime.
There is no limit under Australian law to the length of time for which a person may be held in immigration detention. Some asylum seekers spend long periods of time in immigration detention waiting for their refugee claim to be assessed; waiting for the completion of health, identity and security checks; or awaiting removal from Australia if they have been found not to be a refugee nor someone who is owed ‘complementary protection’. Click here for more information about immigration detention and human rights.
While the legal framework for mandatory detention remains in place, over the past few years, increasing numbers of asylum seekers have been permitted to reside in the community while their claims for protection are assessed, after spending an initial period in closed detention. The Commission has welcomed the increased use of alternatives to closed immigration detention such as community detention and the grant of bridging visas, but remains concerned that thousands of asylum seekers and refugees are still held in closed immigration detention facilities.
Asylum seekers who arrive by plane
Asylum seekers who arrive in Australia by plane have their claims for protection assessed through the refugee status determination and complementary protection system that applies under the Migration Act.
The Department of Immigration and Citizenship (DIAC) will make a primary assessment as to whether the person is a refugee according to the criteria set out in the Refugee Convention. If a person is found to be a refugee, and satisfies health, identity and security requirements, they will be granted a protection visa.
In some cases, a person may not be a refugee, but may nevertheless face significant human rights abuses, such as torture, if returned to his or her country of origin. If an asylum seeker is found not to be a refugee, DIAC will assess whether he or she meets complementary protection criteria – that is, whether he or she is owed protection under the ICCPR, CAT or CRC. If a person is found to be owed complementary protection, and satisfies health, identity and security requirements, he or she will be granted a protection visa.
People who are refused protection by DIAC at the primary stage have access to independent merits review by the Refugee Review Tribunal (RRT), or in some circumstances the Administrative Appeals Tribunal (AAT). In some circumstances, they can seek judicial review of decisions made by the RRT or the AAT. In some exceptional circumstances they can seek Ministerial intervention to allow them to remain in Australia on other humanitarian or compassionate grounds.
For further information see DIAC’s factsheet ‘Seeking Protection Within Australia.’
Asylum seekers who arrive by boat
In August 2012, the Australian Government introduced a system of third country processing for asylum seekers who arrive in Australia at an ‘excised offshore place’ (such as Christmas Island) by boat. In May 2013 this system was extended to apply to asylum seekers who arrive by boat anywhere in Australia. Under this system, asylum seekers who have arrived by boat must be transferred to a third country as soon as is reasonably practicable unless the Minister for Immigration exercises his discretion to exempt them from transfer.
If asylum seekers are transferred to a third country, their claims for protection will be processed under that country’s laws.
If asylum seekers who arrive by boat are allowed by the Minister to remain in Australia, their claims will be processed under Australian law. However, as of June 2013, the Australian Government had not yet started processing any claims by asylum seekers who had arrived after 13 August 2012. The Australian Government has announced that all asylum seekers who arrive by boat (whether they are sent to a third country or remain in Australia) will be subject to the ‘no advantage’ principle.
The Australian Government has said this principle means that even if those people are determined to be refugees, they will not be granted a protection visa until they would have been resettled ‘under normal regional arrangements’ – that is, if they had not taken a boat to Australia. The Australian Government has said it expects this waiting period may be in the order of five years.