Australia, Human Rights, Refugees and Asylum Seekers:
A comment on the current human rights issues faced by Australia in the processing of refugees and asylum seekers
By Gillian Triggs, published in Issue 3 2013, Volume 2 of the International Advocate
It is clear that Australia is currently facing challenges with respect to asylum seekers and refugees, particularly those who arrive by boat. Over the last several months the rate of asylum boat arrivals has increased significantly.
The Australian Human Rights Commission (the Commission) recognises the importance of effective border management and acknowledges that Australia has a right as a sovereign State to exclude non-citizens from its territory. However, Australia also has international obligations in relation to asylum seekers who come to Australia, including those who arrive by boat, which must be observed in its border management and migration practices.
The international legal regime sets out a comprehensive framework for the protection of refugees and asylum seekers. It is comprised of the Convention relating to the Status of Refugees and its subsequent Protocol (the Refugee Convention),1 and the key human rights treaties, including the International Convention on Civil and Political Rights (ICCPR),2 the International Convention on Economic, Social and Cultural Rights (ICESCR),3 the Convention Against Torture (CAT)4 and the Convention on the Rights of the Child (CRC).5
In particular, States have non-derogable non-refoulement obligations under the Refugee Convention, ICCPR, CAT and CRC, and indeed under customary international law.6 That is, States must not send any person to a country where they are at real risk of arbitrary deprivation of life, torture or cruelty, inhuman or degrading treatment or punishment, including arbitrary detention. Non-refoulement obligations extend to indirect refoulement, meaning Australia also must not send any person to a country from which he or she might subsequently be refouled.7 The principle of non-refoulement also requires ‘access to fair and effective procedures for determining status and protection needs.’8
The Australian Government’s current approach to processing asylum seekers includes several aspects which raise serious concerns about Australia’s compliance with international human rights law. Some of those aspects include third country processing, the current freeze on processing protection claims on the mainland and the removal of work rights for asylum seekers granted bridging visas.
The Third Country Processing Regime
In September 2012, the Australian Government reinstituted third country processing for asylum seekers who arrive unauthorised by boat after 13 August 2012. This followed the release of the Expert Panel on Asylum Seekers report, which recommended the re-commencement of regional processing as part of a package of measures to deter asylum seekers from risking their lives getting on a boat.9 In September 2012 the Australian Government began transferring people to Nauru and in November 2012 to Manus Island, Papua New Guinea. Over 730 people have been transferred to Nauru or Manus Island, including around 30 children. As at 24 June 2013, there were 430 asylum seekers detained in the ‘regional processing centre’ on Nauru and 232 on Manus Island, including around 10 children.10
International law does not prohibit third country processing of asylum seekers’ claims. However, in transferring asylum seekers to third countries, Australia must ensure that adequate safeguards are in place in those countries. If Australia has ‘effective control’ over the treatment of asylum seekers whom it has transferred to another country, then it is obliged to continue to treat them consistently with the human rights obligations it has agreed to be bound by.11 Even if Australia does not have effective control over the situation in Nauru and PNG, it cannot avoid its own international law obligations by transferring asylum seekers to those third countries – it may remain liable for the consequences of its action of transferring them.12 The UN Human Rights Committee has stated that a State Party will be responsible for extra-territorial violations of the ICCPR if its actions expose a person to a ‘real risk’ that his or her rights will be violated,13 and this risk could reasonably have been anticipated by the State.14
The Australian Human Rights Commission made a detailed submission to the Parliamentary Joint Committee on Human Rights regarding the many human rights concerns with the third country processing regime. Those concerns include: the conditions in which people are detained, such as the remoteness and lack of facilities in the detention centres; the lack of healthcare facilities on the islands generally; the lack of established procedures for determining claims for protection; the delays in beginning the processing of asylum claims; and the lengthy period of time asylum seekers are spending in detention with no freedom of movement.15 These concerns were affirmed by the JCHR in its report on the package of legislation regarding the regional processing regime. The JCHR concluded that the overall regime significantly risks being incompatible with Australia’s human rights obligations.16
The Australian government has effectively placed a ‘freeze’ on the processing of claims for protection by those who have arrived by boat after 13 August 2012.17 As at late-June 2013, the Department of Immigration and Citizenship had still not begun processing claims for protection from this group of asylum seekers.
The result of the ‘freeze’ is that over 19,000 asylum seekers who arrived in Australia after 13 August 2012 have not been able to formally lodge claims for protection and have spent many months waiting to do so, often in detention. Although many have now been released into the community on bridging visas, they still have no idea when processing of their claims for protection will begin. The backlog of claims which has accumulated means it could take years for people’s claims to be determined once they commence processing.
The lengthy delays in processing mean that there are many asylum seekers who have been in mandatory detention for extended periods. As at 30 April this year, there were about 8,800 asylum seekers in closed immigration detention in Australia (including Christmas Island). This number includes over 1,600 children.18 The Commission is concerned that the prolonged mandatory detention of these asylum seekers may be arbitrary in breach of Australia’s obligations under article 9(1) of the ICCPR.
Removal of Work Rights
Since November 2011, the Australian Government has had a policy of releasing asylum seekers who arrived by boat into the community on bridging visas, after initial health and security checks, while their claims for protection are finalised. As of April 2013, there were around 10,300 asylum seekers in the community on bridging visas.19
The Commission has repeatedly emphasised the damage caused by long-term immigration detention on asylum seekers’ health and mental health and has therefore welcomed the use of alternatives to detention such as community detention and bridging visas.20 In order to comply with the prohibition against arbitrary detention, the increased use of these alternatives should continue wherever possible.
On 21 November 2012 the Minister announced that asylum seekers who arrived by boat to Australia on or after 13 August 2012 and remained in Australia would be considered for the grant of bridging visas, but they would not be given permission to work and would only be given ‘basic accommodation assistance, and limited financial support’.21 In combination with the ‘no advantage’ principle, this means that thousands of people, including families with children, will be living in the community on less than the dole (89% of the Centrelink Special Benefit Rate) for potentially many years.
The Commission is concerned that Australia may be in breach of its obligations under ICESCR, including the right to work and the right to an adequate standard of living, especially if people are living on such limited means for such periods of time that they are forced into poverty.22
While the increasing number of asylum seekers arriving by boat presents a challenge for the Australian Government, the international legal framework sets out clear guidelines to ensure that asylum seekers and refugees are protected and treated with dignity. The third country processing regime, the current freeze on processing protection claims on the mainland and the removal of work rights for asylum seekers granted bridging visas are three specific aspects of Australia’s current system for processing asylum seekers which raise serious questions about Australia’s compliance with international human rights law. They suggest that Australia needs to do better in designing policies that meet the international responsibilities Australia has voluntarily agreed to assume.
1 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (Refugee Convention).
2 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR).
3 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICESCR).
4 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (CAT).
5 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (CRC).
6 Article 33, Refugee Convention, articles 6 and 7, ICCPR; article 3, CAT; articles 6 and 37, CRC.
7 See for example, Committee on the Rights of the Child, General Comment No 6 - Treatment of unaccompanied and separated children outside their country of origin, UN Doc CRC/GC/2006/6 (2005), para 27. At http://tb.ohchr.org/default.aspx?Symbol=CRC/GC/2005/6 (viewed 24 June 2013).
8 United Nations High Commissioner for Refugees, Addendum to the report of the United Nations High Commissioner for Refugees, UN Doc A/53/12/Add.1 (30 October 1998), p 8. At http://www.unhcr.org/refworld/docid/3ae68c950.html (viewed 24 June 2013). See also United Nations High Commissioner for Refugees, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (26 January 2007), paras 19-20. At http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=45f17a1a4&… (viewed 24 June 2013).
9 A Houston, Air Chief Marshall AFC (Ret’d), P Aristotle & M L’Estrange, Report of the Expert Panel on Asylum Seekers, Australian Government (2012).
10 J Robertson, ‘Children taken off Manus Island’, The Sydney Morning Herald, 20 June 2013, at http://www.smh.com.au/opinion/political-news/children-taken-off-manus-i… (viewed 24 June 2013).
11 See the decisions of the European Court of Human Rights in Bankovic v Belgium and others (dec.) [GC]  ECHR 890 and Al-Skeini v United Kingdom [GC]  ECHR 1093.
12 G Goodwin-Gill and J McAdam, The Refugee in International Law (3rd ed, 2007), pp 408-411.
13 See Human Rights Committee, General Comment No 31  Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (2004), para 12. At http://www.unhchr.ch/tbs/doc.nsf/0/58f5d4646e861359c1256ff600533f5f (viewed 24 June 2013), and the following decisions of the Human Rights Committee: Kindler v Canada, Communication No. 470/1991, UN Doc CCPR/C/48/D/470/1991 (1993), paras 13.1-13.2. At http://www.unhcr.org/refworld/publisher,CAN_SC,,USA,3ae6b6ed0,0.html (viewed 24 June 2013); Ng v Canada, Communication No. 469/1991, UN Doc CCPR/C/49/D/469/1991 (1993), paras 14.1-14.2. At http://www1.umn.edu/humanrts/undocs/html/dec469.htm (viewed 24 June 2013); Cox v Canada, Communication No. 539/1993, UN Doc CCPR/C/52/D/539/1993 (1994), paras 16.1-16.2. At http://www.unhcr.org/refworld/publisher,HRC,,USA,4028ba144,0.html (viewed 24 June 2013); ARJ v Australia, Communication No. 692/1996, UN Doc CCPR/C/60/D/692/1996 (1997), paras 6.6 - 6.14. At http://www.unhcr.org/refworld/country,,HRC,,AUS,,4028adfa7,0.html (viewed 24 June 2013); Judge v Canada, Communication No. 829/1998, UN Doc CCPR/C/78/D/829/1998 (2003), paras 10.2-10.7. At http://www.unhcr.org/refworld/docid/404887ef3.html (viewed 24 June 2013); GT v Australia, Communication No. 706/1996, UN Doc CCPR/C/61/D/706/1996 (2007), para 8.1. At http://www.unhcr.org/refworld/country,,HRC,,AUS,,4ae9acbfd,0.html (viewed 24 June 2013); Nakrash and Qifen v Sweden, Communication No. 1540/2007, UN Doc CCPR/C/94/D/1540/2007 (2008), para 7.3. At http://www.unhcr.org/refworld/country,,HRC,,CHN,,4a93a2362,0.html (viewed 24 June 2013); Bauetdinov v Uzbekistan, Communication No. 1205/2003, CCPR/C/92/D/1205/2003 (2008), para 6.3. At http://www.worldcourts.com/hrc/eng/decisions/2008.04.04_Yakupova_v_Uzbe… (viewed 24 June 2013); Munaf v Romania, Communication No. 1539/2006, UN Doc CCPR/C/96/D/1539/2006 (2009), para 14.2. At http://www.unhcr.org/refworld/publisher,HRC,,ROM,4acf500d2,0.html (viewed 24 June 2013).
14 Human Rights Committee, Munaf v Romania, para 14.2 (and the jurisprudence cited therein).
15 For further details, see Australian Human Rights Commission, Submission to the Joint Committee on Human Rights’ Examination into the Migration (Regional Processing) package of legislation (2012). At http://www.humanrights.gov.au/submissions/examination-migration-regiona… (viewed 24 June 2013).
16 Parliamentary Joint Committee on Human Rights, Ninth Report 2013: Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation (19 June 2013), at http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committe… (viewed 24 June 2013).
17 Department of Immigration and Citizenship, Senate Estimates, 27 May 2013, p 33.
18 Department of Immigration and Citizenship, Immigration Detention Statistics Summary, 30 April 2013, at http://www.immi.gov.au/managing-australias-borders/detention/facilities… (viewed 24 June 2013).
19 Department of Immigration and Citizenship, Senate Estimates, 27 May 2013, p 19.
20 See for example Australian Human Rights Commission, Submission to the Joint Select Committee on Australia’s Immigration Detention Network (August 2011), Section 12. At http://www.humanrights.gov.au/australian-human-rights-commission-submis… (viewed 24 June 2013); Australian Human Rights Commission, Submission to the Senate Standing Committees on Legal and Constitutional Affairs Inquiry into Australia’s agreement with Malaysia in relation to asylum seekers (September 2011), para 76. At http://www.humanrights.gov.au/inquiry-australia-s-agreement-malaysia-re… (viewed 24 June 2013); Australian Human Rights Commission, Community arrangements for asylum seekers, refugees and stateless persons (2012). At http://www.humanrights.gov.au/publications/community-arrangements-asylu… (viewed 24 June 2013).
21 The Hon C Bowen MP, Minister for Immigration and Citizenship, ‘No advantage onshore for boat arrivals’, (Media Release, 21 November 2012). At. http://www.minister.immi.gov.au/media/cb/2012/cb191883.htm (viewed 24 June 2013).
22 Articles 6 and 11, ICESCR. For further information see the Australian Human Rights Commission, note 15, section 14.