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Submission: MIGRATION AMENDMENT (DESIGNATED UNAUTHORISED ARRIVALS) BILL 2006

Legal Legal
Friday 14 December, 2012

SUBMISSION OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
to the SENATE LEGAL AND
CONSTITUTIONAL
LEGISLATION COMMITTEE

ON
THE

MIGRATION
AMENDMENT (DESIGNATED UNAUTHORISED ARRIVALS) BILL 2006

22 May 2006


1. INTRODUCTION

1.1 The Human Rights and Equal Opportunity Commission (‘The
Commission’) has been invited by the Senate Legal and Constitutional
Legislation Committee (‘the Committee’) to make submissions on the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (‘the Bill’).

1.2 The Commission welcomes the opportunity to make this submission and
thanks the Committee for its invitation.

2. THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

2.1 The Commission is established by the Human Rights and Equal
Opportunity Commission Act 1986
(Cth) (‘HREOC Act’). It
is Australia's national human rights institution.

2.2 Its functions are set out in section 11(1) of the HREOC Act and include
the power to promote an understanding and acceptance, and the public discussion,
of human rights in
Australia.[1]

3. SUMMARY OF COMMISSION’S
SUBMISSION

Summary

3.1 The Commission
recognises the importance of border control in protecting border security. The
Commission recognises it is necessary, proper and desirable to facilitate the
detection of unauthorised boat arrivals in Australian territorial waters.
However, the Commission is of the view that once detection of unauthorised boats
has occurred, any unauthorised arrivals should be processed onshore in a manner
which is consistent with Australia’s human rights obligations.

3.2 The Commission believes that the proposal to process all unauthorised
boat arrivals in Offshore Processing Centres (‘OPCs’) is
inconsistent with Australia’s international obligations. In particular,
the Commission is concerned that the Bill will:

    • (a) Breach Australia’s obligations under the Convention on the
      Rights of the Child
      (‘CRC’) including the obligation to act in
      the best interests of the child (Article 3(1)) and the principle that children
      should only be detained as a measure of last resort (Article 37(b));

    • (b) Undermine Australia’s obligations under the International
      Covenant on Civil and Political Rights
      (‘ICCPR’) by failing to
      act in accordance with the principle of non-discrimination (Article 26), failing
      to provide effective remedies for potential breaches of ICCPR rights (Article
      2(3)) and exposing asylum seekers in OPCs to the risk of arbitrary detention
      (Article 9).

    • (c) Undermine the fundamental human rights principle of non-refoulement by
      failing to provide adequate procedural safeguards to ensure that cases in which
      a person has a fear of persecution are justly decided. The Commission is
      particularly concerned that the Bill does not provide for any form of
      independent merits review.

    • (d) Undermine Australia’s commitment to the Convention Relating to
      the Status of Refugees
      (‘the Refugee Convention’). The
      Commission is concerned that a number of features of the Bill may place
      Australia in breach of Article 31 of the Refugee Convention which
      provides asylum seekers should not be penalised for arriving
      illegally.

3.3 If the unauthorised
boat arrivals are processed offshore the Commission believes that, in light of
the serious human rights concerns about OPCs, it is imperative that OPCs are
subject to the same level of independent scrutiny that applies to immigration
detention centres in Australia. In particular, the Commission and the
Commonwealth Ombudsman and should have the same role in relation to OPCs as they
do in relation to Immigration detention centres in Australia.

Recommendations

Recommendation 1: The Commission recommends that the Bill is not
passed.

Recommendation 2: The Commission recommends that the policy of
processing unauthorised arrivals in offshore processing centres be abandoned.

Recommendation 3: In
the event that the policy of offshore processing is not abandoned, the
Commission recommends that there should be an independent review of the impact
of offshore processing on the rights of children.

Recommendation 4: In the event that the Bill is passed, the Commission
recommends that asylum seekers processed in OPCs have, at a minimum, access to
independent merits review.

Recommendation 5: In the event that the Bill is passed, the Commission
recommends that provision be made for independent scrutiny of OPCs by the
Commission and the Ombudsman to ensure that OPCs are subject to the same level
of independent scrutiny as immigration detention centres on the Australian
mainland.

Recommendation 6: In the event that the Bill is passed, the Commission
recommends that the Bill should not have retrospective application.

4. GENERAL CONCERNS

Background

4.1 The Bill can be seen as a continuation and extension of the so-called
‘Pacific Solution’ developed by the Australian Government in 2001.
Under this regime unauthorised boat arrivals arriving in an ‘excised
offshore place’ were defined as ‘offshore entry persons’ and
removed to ‘declared countries’ where their asylum claims were
processed.[2] For this purpose OPCs
were established in two declared countries: Nauru and Papua New Guinea.

4.2 The Bill will expand the offshore processing regime to apply to
effectively all unauthorised arrivals who entered Australia by sea in Australia
on or after 13 April 2006. The Bill omits the current definition of an
‘offshore entry person’ and inserts a definition of
‘designated unauthorised
arrival’.[3]

Justification for the new Bill

4.3 The Government has
stated that the objective of the Bill is to:

    • ‘strengthen border control measures in relation to
      unauthorised boat arrivals’[4];
      and
    • address the ‘incongruous’ situation whereby an
      unauthorised boat arrival in an excised offshore place is subject to offshore
      processing arrangements, where an unauthorised boat arrival that reaches the
      Australian mainland is able to access the onshore protection arrangements, with
      the consequential opportunities for protracted merits review and litigation
      process. [5]

4.4 The Commission recognises the importance of border control in protecting
border security. The Government has invested considerable resources in
patrolling Australia’s northern
waters.[6] The Commission recognises
it is necessary, proper and desirable to facilitate the detection of
unauthorised boat arrivals in Australian territorial waters. However, the
Commission is of the view that once detection of unauthorised boats has
occurred, any unauthorised arrivals should be processed onshore in a manner
which is consistent with Australia’s human rights obligations.

4.5 The Commission believes that the ‘incongruous’ distinction
between asylum seekers processed offshore and asylum seekers processed onshore
results in unequal access to independent merits review and judicial review. The
Commission challenges the implication contained in the second reading speech
that this Bill creates a level playing field for all asylum seekers. Rather, it
creates an incongruous distinction between asylum seekers processed offshore and
asylum seekers processed onshore, resulting in unequal access to independent
merits review and judicial review.

4.6 The Commission observes that the consequence of the Bill will be that
the refugee status determination process will distinguish between asylum seekers
who are processed onshore (for example, where an asylum seeker applies for
protection visa after lawfully arriving on another kind of visa, or the
applicant holds a bridging or other visa providing lawful
status[7]) and asylum seekers arriving
illegally by sea who are processed offshore.

4.7 The Commission believes that the solution to the situation where one
group of people are able to access review rights and the other group is not
should be to provide both groups with access to review rights. Expanding the
size of the group to whom the rights are denied simply further entrenches an
inequitable situation.

Recommendation 1: The Commission recommends that this Bill is not
passed.

Rolling back recent reforms

4.8 The Commission is concerned that the proposed Bill represents a backward
step in Australia’s treatment of asylum seekers. Recent reforms, including
the Migration and Ombudsman Legislation Amendment Act 2005 and Migration Amendment (Detention Arrangements) Act 2005 have introduced
important reforms to the processing of asylum seekers in Australia,
including:

    • Requiring that the determination of protection visa applications for
      detained asylum seekers occur within 90 days;
    • Introducing the principle that the children should only be detained as a
      measure of last resort into the Migration Act 1958(Cth);
    • Requiring reports by DIMA to the Commonwealth Ombudsman on persons being
      held in detention for more than two years.

4.9 In May 2006 DIMA reported that: ‘[t]here are no children in
immigration detention centres. Children are only detained as a last
resort’.[8]

4.10 The practical effect of the Bill will be that the benefits of the
recent reforms will not apply to unauthorised boat arrivals. The Commission is
particularly concerned that children who arrive unlawfully by sea will be
detained in OPCs.

Problems
exposed by the Pacific Solution

4.11 The Commission is of the view that the experience of asylum seekers who
were detained in OPCs as part of the so-called ‘Pacific Solution’
provides cause for concern that detention in OPCs undermines the human rights of
asylum seekers.

4.12 Since 2001, the Commission understands that, a total of 1509 asylum
seekers have been held on Nauru alone. Of these asylum seekers, Australia
accepted for resettlement 586, New Zealand, 360, Sweden 19, Canada 10, Norway 4,
and 482 were returned to their country of
origin.[9]

4.13 Asylum seekers processed offshore do not have access to independent
merits review by the Refugee Review Tribunal (RRT)or judicial review under
Australian law.

4.14 Some asylum seekers processed offshore under the ‘Pacific
Solution’ were reported to have been detained for up to four years. [10]

4.15 The detrimental effects
of placing asylum seekers in long-term detention are well
known.[11] In 2005 the UNHCR called
on Australia to find a more humanitarian solution for asylum seekers suffering
mental health problems as a result of prolonged detention in OPCS. [12] The UNHCR has subsequently
commented that it had ‘a bad experience with the arrangements set in place
in Nauru in 2001’ where asylum seekers were kept ‘in detention like
conditions for a long period of time with no timely solutions for the refugees,
who suffered considerable mental
hardship’.[13]

4.16 The Commission observes that in October 2005, the Australian Government
announced that all remaining detainees held in OPC on Manus Island and Nauru
(with the exception of two detainees) would be transferred to mainland
Australia.[14] The Sydney Morning
Herald
reports this was in response to an independent expert report warning
of the deteriorating mental health of the remaining
detainees.[15] To the
Commission’s knowledge, this report has not been made publicly available.

4.17 The Commission is concerned about the lack of publicly available
information about the conditions of detention in OPCs; the period of time for
which persons processed offshore were detained; and the mental health
implications of detention in
OPCs.

Recommendation 2: The Commission recommends that the policy of
processing unauthorised arrivals in offshore processing centres be abandoned.

5. AUSTRALIA’S INTERNATIONAL LEGAL
OBLIGATIONS

Civil and Political Rights

Arbitrary Detention

5.1 Forcible removal to an OPC where asylum seekers are held pending refugee
status determination and resettlement has the practical effect of placing people
in detention.

5.2 The Bill does not address the possibility of excessive or indefinite
detention in OPCs. There is no maximum time period for offshore processing of
claims for asylum and no maximum time in which a person who is determined to be
a refugee must be resettled in a third country.

5.3 The potential for asylum seekers to be detained for an excessive period
of time raises serious concerns that the detention may, by reason of its
indeterminacy, breach Article 9(1) of the ICCPR which provides that no one shall
be subjected to arbitrary arrest or detention.

5.4 The Commission is also concerned that the proposed legislation removes
the rights of persons detained offshore to challenge their detention. Under the
Bill court proceedings can not be instituted or continued in relation to the
lawfulness of detention of a designated unauthorised
arrival.[16]

5.5 The Commission notes that Article 9(4) of the ICCPR provides
that:

    anyone who is deprived of his liberty by arrest or detention
    shall be entitled to take proceedings before a court, in order that court may
    decide without delay on the lawfulness of his detention and order his release if
    the detention is not lawful.

5.6 In A v Australia[17] the Human Rights Committee emphasised that every detention decision should be
open to periodic review so that the justifying grounds can be assessed.

5.7 The Commission is concerned that asylum seekers in OPCs will not have an
effective remedy for unlawful arbitrary detention or any other breach of their
rights under the ICCPR. The Commission notes that Article 2(3) of the ICCPR
states:

Each State party to the present Covenant undertakes:

    • (a) To ensure that any person whose rights or freedoms as herein recognised
      are violated shall have an effective remedy, not withstanding that the violation
      has been committed by persons acting in an official capacity;
    • (b) To ensure that any person claiming such a remedy shall have his right
      thereto determined by competent judicial, administrative or legislative
      authorities, or by any other competent authority provided for by the legal
      system of the State, and to develop the possibilities of judicial remedy;
    • (c) To ensure that the competent authorities shall enforce such remedies
      when granted.
    • 5.8 This obliges States to develop effective remedies to prevent future
      breaches of rights and freedoms guaranteed by the ICCPR as well as rectify
      current breaches. [18]

Non-Discrimination

5.9 The Commission is concerned that the Bill potentially breaches Article
26 of the ICCPR which provides that all persons are equal before the law and are
entitled without any discrimination to the equal protection of the
law.[19]

5.10 As the Commission noted above [at para 4.5-4.7] the suggestion that the
Bill creates a level playing field for asylum seekers is erroneous: the Bill
will clearly result in a distinction between the processing of asylum
applications of persons who arrive in Australia by authorised means and
subsequently apply for asylum and unauthorised boat arrivals.

5.11 Such discrimination on the ground of immigration status is inconsistent
with Australia’s obligations on Article 26.

The Rights of
the Child

5.12 The Commission is of the view that, if passed, the Bill will breach
Australia’s obligations under the CRC.

5.13 Article 37(b) of the CRC states:

    No child shall be
    deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention
    or imprisonment of a child shall be in conformity with the law and shall be used
    only as a measure of last resort and for the shortest appropriate period of
    time.

5.14 The Bill will result in children seeking asylum who arrive in Australia
without authorisation being detained in an OPC. The principle that children
should only be detained as a measure of last resort will not be applied.

5.15 The Bill also undermines Australia’s obligations under Articles
3, 20 and 21 of the CRC which provide:

    In all actions concerning children ‘the best interests of the child
    shall be a primary consideration’ (Article 3(1)).

    Unaccompanied asylum seeker children are to be given special protection and
    assistance by the Government (Article 20);

    States should provide special protection to children who are seeking refugee
    status. They are to ‘receive appropriate protection and humanitarian
    assistance in the enjoyment of their [CRC rights and also other human rights and
    humanitarian instruments to which the State party is a party]’ (Article
    22).

5.16 The Commission’s National Inquiry into Children in Immigration
Detention (‘The National Inquiry’) expressed strong concerns about
the impact of the Pacific Solution on the rights of the child:

    Children who are excised offshore persons and are detained on
    Christmas Island or transferred to detention facilities in Nauru or Papua New
    Guinea, have no entitlement to a visa even once they are found to be refugees.
    In other words, even after the processing has finished and the children have
    been recognised as refugees, there is no automatic trigger for release from
    detention. They have no rights to a bridging visa, nor to transfer to an
    alternative place of detention. The children must therefore wait in detention
    until a country offers them resettlement. While it can be argued that asylum
    seeking children in camps in Pakistan, for example, also face a similar hiatus
    after they have been found to be refugees the difference is the waiting period
    does not occur in a detention
    environment.[20]

5.17 The National Inquiry concluded that under international law, Australia
continues to be responsible for any foreseeable breach of the human rights of
the children that it forcibly relocates to third
countries.[21] Therefore, Australia
is responsible for any breaches of human rights that it can foresee will occur
with respect to the children that the Australian authorities transfer to Nauru
and Papua New Guinea. This includes the decision to detain, and the length of
detention of children, in those countries. The Inquiry also observed
that:

    ...since September 2001, when a family or unaccompanied child
    is intercepted by the Australian Navy, or lands on Christmas Island, Ashmore and
    Cartier Islands or Cocos (Keeling) Islands without a visa, detention is strictly
    discretionary. However, as a practical matter the children have either been
    detained on Christmas Island, or transferred to detention facilities in Nauru or
    Manus Island in Papua New Guinea. The Inquiry is unaware of any instances where
    these children have been presented any option other than detention in one of
    these three facilities. Therefore, there is no evidence of detention being
    anything other than the 'first
    resort'.[22]

5.18 Recommendation 5 of the National Inquiry stated: ‘There should be
a review of the impact on children of legislation that creates 'excised offshore
places' and the 'Pacific Solution'’.

5.19 This recommendation was not implemented. The Commission believes that
the unresolved human rights concerns it held about the impact of ‘Pacific
Solution’ on children need to be addressed before this Bill can be
considered.

5.20 .The Commission notes with concern a recent media article by Mary Crock
and Jane McAdam that states 32 of 55 unaccompanied children processed in OPCs in
2002-2003 were returned to Afghanistan; of the 290 children from Afghanistan who
were processed onshore, none were returned during this
period.[23]

Recommendation 3: In the event that the policy of offshore processing is
not abandoned, the Commission recommends that there should be an independent
review of the impact of offshore processing on the rights of children.

Non-Refoulement

5.21 The prohibition on the forced return of a refugee –
‘refoulement’ – is recognised as one of the most fundamental
principles in international refugee law. Article 33(1) of the Refugee
Convention states:

    No Contracting State shall expel or return
    (‘refouler’) a refugee in any manner whatsoever to the frontiers of
    territories where his life or freedom would be threatened on account of his
    race, religion, nationality, membership of a particular social group or
    political opinion.

5.22 The Commission notes that the principle of non-refoulement extends
beyond the limited terms of the Refugee Convention. The United Nations Human
Rights Committee has held that a state will contravene its obligations under the
ICCPR if it removes a person to another country is circumstances where there is
a real risk that their rights under the ICCPR will be
violated.[24]

5.23 Article 7 of the ICCPR provides that 'No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment'. General
Comment 20 to the ICCPR confirms that State parties ‘must not expose
individuals to the danger of torture or cruel, inhuman or degrading treatment or
punishment upon return to another country by way of their extradition, expulsion
or refoulement’.[25]

Review Rights

5.24 The Commission recognises that under a narrow reading of Article 33(1)
of the Refugee Convention a country will still be in accordance with these
obligations if it sends an asylum seeker to a ‘third country’ which
is considered to be safeand he or she will receive ‘effective
protection’.[26]

5.25 However, the Commission is of the view that inadequate procedural
safeguards in the determination of applications for refugee status create an
unjustifiably high risk of a wrong decision being made and a person being sent
to a place where they face persecution.

5.26 The United Nations General Assembly and the UNHCR’s Executive
Committee have affirmed that the duty of non-refoulement encompasses the
obligation that all asylum seekers must be granted access to fair and effective
procedures for determining their protection
needs.[27]

5.27 While the instruments of the UN treaty and charter bodies do not
represent the only interpretation of international obligations, they do
represent the most persuasive interpretation of what should be done to comply
with the Refugee Convention, the ICCPR and the CRC.

5.28 The Executive Committee of the UNHCR (EXCOM) has noted the need for
fair and protective procedures for determining refugee status and protection
needs. EXCOM 8 has laid down some minimum standards for the determination of
refugee status, including:

    • The competent official should have clear instructions for dealing with cases
      which might come within the purview of the Refugee Convention and other relevant
      international instruments.
    • The applicant should receive the necessary guidance as to the procedure to
      be followed.
    • There should be a clearly identified authority with responsibility for
      examining refugee status.
    • The applicant should be given the necessary facilities, including the
      services for a competent interpreter for submitting his case and the opportunity
      to contact UNHCR.
    • There must be provision for
      appeal.[28]

5.29 The existing OPC refugee status determination process is not subject to
the same review mechanisms as the refugee status determination process on
mainland Australia. An asylum seeker processed offshore is able to request an
internal review of a negative decision by a Department officer who is more
senior than the one who made the primary decision. However, there is no
mechanism for independent merits review or independent judicial review. These
restrictions will continue to apply under the
Bill.[29]

5.30 The review mechanisms for independent merits review and judicial review
contained in the Australian refugee status determination process provide a vital
mechanism for checking the validity of the primary decision about refugee status
and reducing the risk of refoulement as a result of a wrong primary assessment.

5.31 The RRT 2004-2005 annual report states that in 2004-2005 the RRT set
aside the primary decision of DIMA in one in three or 33 per cent of
cases.[30] This is a significant
indicator of the importance of an effective review process, including
independent merits review and judicial review, to ensure persons who should be
accorded refugee status are not wrongfully returned or expelled from
Australia.

5.32 The devastating impacts of wrong decision-making at a departmental
level are illustrated by the wrongful detention of Cornelia Rau and the wrongful
removal of Vivian Solon. These cases demonstrate the need for transparency and
accountability in the process for determining a person’s status under the Migration Act 1958 (Cth). [31]

5.33 In the Commission’s view if the Bill is passed, it should be
amended so that asylum seekers processed offshore have, at a minimum, access to
independent merits review.

Recommendation 4: In the event that the Bill is passed, the Commission
recommends that asylum seekers processed in OPCs have, at a minimum, access to
independent merits review.

Article 31 of the
Refugee Convention

5.34 Article 31 of the Refugee Convention provides:

    (1) The Contracting States shall not impose penalties, on account of their
    illegal entry or presence, on refugees who, coming directly from a territory
    where their life or freedom was threatened in the sense of Article 1, enter or
    are present in their territory without authorisation, provided they can present
    themselves without delay to the authorities and show good cause for their
    illegal entry or presence.

5.35 The Refugee Convention recognises that where persons are in fear
for their life or freedom they may be forced to enter a country of refuge
unlawfully. It therefore prohibits nations from penalising refugees on account
of their illegal entry where they are ‘coming directly from a territory
where their life or freedom was threatened’. [32] The term penalties is not
defined in Article 31. Penalties may include but are not limited to prosecution
and fines as well as punitive measures such as detention. [33]

5.36 In Refugee Protection in International Law: UNHRC’s Global
Consultations on Refugee Protection
Sir Guy Goodwin Gill observes it has
been held that ‘any treatment that was less favourable than that accorded
to others and was imposed on account of illegal entry was a penalty with Article
31 unless objectively justifiable on administrative grounds’. [34]

5.37 The Commission observes that there are significant differences between
the offshore processing arrangements proposed by the Bill and onshore processing
arrangements. In particular, the Commission is concerned by:

    • the potential risk of excessive detention in OPCs;
    • the removal of access to independent merits review and judicial review;
      and
    • the unavailability of legal advice or assistance in OPCs.

5.38 The Commission is concerned that the absence of maximum statutory time
limits for processing claims on OPCs and the potential difficulty in locating a
safe third country willing to accept refugees for resettlement will increase the
risk of asylum seekers processed in OPCs being detained for an excessive period
of time.

5.39 If persons are subject to excessively long detention as a result of the
particular features of offshore processing arrangements this may constitute a
penalty in breach of Article 31(1). Relevantly, the Sir Guy Goodwin Gill has
observed:

    Provisional detention is permitted if necessary for and
    limited to the purposes of preliminary investigation. While administrative
    detention is allowed under Article 31(2), it is equivalent, from the perspective
    of international law to a penal sanction whenever basic safeguards are lacking
    (review, excessive duration
    etc).[35]

5.40 The Commission notes that persons detained in OPC are unable to
challenge the validity of their detention in Australian courts. Unlike cases of
long-term detention in immigration detention centres onshore, cases of long-term
detention in OPCs will not be subject to review by the Commonwealth Ombudsman.

5.41 The Commission observes that there appears to be no objective
justification on administrative grounds for differences between offshore and
onshore processing arrangements. It is arguable that aspects of the offshore
processing arrangements of unauthorised boat arrivals are less favourable than
the onshore processing arrangements. As this distinction is made on the basis of
mode of entry to Australia, it is arguable that, insofar as offshore processing
arrangements may produce less favourable treatment for asylum seekers processed
offshore as compared to asylum seekers processed onshore, these arrangements may
constitute a penalty, in breach of Article 31(1) of the Refugee Convention.[36]

6. MINISTERIAL DISCRETION

6.1 A designated non-authorised arrival is unable to apply for a visa in
Australia without the non-compellable personal intervention of the Minister
under proposed section 46A.

6.2 The Commission is of the view that an unfettered and non-compellable
Ministerial discretion to allow asylum seekers processed in OPCs to apply for
visas is an inadequate recognition of Australia’s international human
rights obligations in respect of these persons.

7. DECLARED
COUNTRIES

7.1 The Bill amends the Migration Act 1958(Cth) to enable a
DIMA officer to take a designated unauthorised arrival to a ‘declared
country’.[37] A
‘Declared country’ can be declared under section 198A of the Migration Act 1958 (Cth) which provides that the Minister must declare
that the country:

    • Provides access, for persons seeking asylum, to effective procedures for
      assessing the person’s need for protection;

    • Provides protection for persons seeking asylum pending determination of
      their refugee status;

    • Provides protection to persons who are given refugee status, pending their
      voluntary repatriation to their country of origin or resettlement in another
      country; and

    • Meets relevant human rights standards in providing that protection.

7.2 The Commission is concerned that the relevant human rights standards are
not defined. The lack of a statutory requirement for an undertaking of
non-refoulement by a declared country has been previously noted by this
Committee. [38]

7.3 The Commission is concerned that under proposed section 494AA(1) (d)
there is a bar on designated unauthorised non-arrivals challenging proceedings
relating to the exercise of power under section 198A.

7.4 The Commission believes that it is not possible to accurately assess
whether asylum seekers are going to be able to access effective assessment
procedures in conditions which occur accord with human rights obligations
without ongoing independent scrutiny of the conditions of OPCs and the refugee
status assessment process.

Protecting the institution of
asylum

7.5 The Commission is concerned that the effect of taking designated
unauthorised arrivals to declared countries is to create a system in which
Australia’s non-refoulement obligations are not specifically being
fulfilled by Australia; instead we are ultimately relying on other sovereign
countries behaving appropriately in complying with the non-refoulement even
though this obligation still has its origin in Australia. [39]

7.6 The Commission is concerned that in addition to increasing the risk of
refoulement, as discussed above, the proposed amendments will have the effect of
undermining the ‘institution of
asylum’.[40]

7.7 Signatories to the Refugee Convention are required to interpret the
Convention in good faith. [41] The
Preamble to the Refugee Convention focuses on the notion of international
responsibility and ‘burden sharing’, emphasising that international
cooperation between states and with the UNHCR is vital to deal with the problem
of refugees and to prevent the resolution of the refugee problem being borne
unduly by particular states. [42]

7.8 Following the introduction of the ‘Pacific Solution’ in
2001, the UNHCR has emphasised the damaging effect on the principle of burden
sharing and international cooperation of countries outsourcing refugee claims to
‘safe third
countries’.[43] In response
to the media release announcing the Government’s intention to process all
unauthorised boat arrivals offshore, the UNHCR commented:

    [I]f this
    were to be happen, it would be an unfortunate precedent, being for the first
    time, to our knowledge, that a country with a fully functioning and credible
    asylum system, in the absence of anything approximating a mass influx, decides
    to transfer elsewhere the responsibility to handle claims made actually on the
    territory of the state....[44]

8. INDEPENDENT SCRUTINY OF OFFSHORE PROCESSING

8.1 Immigration detention in Australia is subject to scrutiny from
independent agencies including the Commission and the Commonwealth Ombudsman.

8.2 The Bill includes a requirement for the Secretary of DIMA to provide
annual reports on offshore processing arrangements and refugee assessment
outcomes. These reports will be tabled in both Houses of
Parliament.[45]

8.3 The Bill does not, however, provide for any independent scrutiny of OPCs
by either the Commission or the Commonwealth Ombudsman.

8.4 The Commission believes that independent scrutiny of immigration
detention is an essential measure to guard against human rights abuses and to
help ensure accountability and transparency in the immigration detention
process.

8.5 The Commission submits that if the Bill is passed it is crucial that
explicit statutory safeguards are introduced to alleviate concerns about the
Bill’s impact on the human rights of asylum seekers.

Recommendation 5: In the event that the Bill is passed, the Commission
recommends that provision be made for independent scrutiny of OPCs by the
Commission and the Ombudsman to ensure that OPCs are subject to the same level
of independent scrutiny as immigration detention centres on the Australian
mainland.

9. RETROSPECTIVE APPLICATION

9.1 The Commission notes that the Bill is retrospective in application and
will apply to all unauthorised boat arrivals arriving in Australia on or after
the 13 April 2006.[46]

9.2 The Commission is of the view that a Bill that will result in the
abrogation of important review rights should not have retrospective application.

Recommendation 6: In the event that the Bill is passed, the Commission
recommends that the Bill should not have retrospective application.


[1] For further information about
the Commission’s functions and powers please see
http://www.hreoc.gov.au/about_the_commission/functions/index.html
[2] It is noted that DIMA has previously acknowledged that Australia’s
obligations to asylum seekers are engaged as soon as they enter Australia
territory. See, for example, the Senate Legal and
Constitutional Committee Report on the Inquiry into the Migration
Legislation Amendment (Further Border Protection Measures) Bill
2002
.
[3] Proposed section 5 F
defines a ‘designated unauthorised arrival’ as a person who becomes
an unlawful non-citizen because: the person entered Australia at an excised
offshore place after the excision time for that offshore place; or entered
Australia by sea on or after 13 April 2006. Proposed section 5F will not apply
to New Zealand citizens , permanent residents of Norfolk Island and persons
brought to Australia purely for Customs Act purposes. Proposed subsection 5F(6)
provides the Minister with a discretionary power to exempt a person or classes
of person from ‘designated unauthorised arrival status’. Proposed
section 5F(8) provides a person will be taken to have entered Australia by air
if the person has travelled to Australia by sea and entered the migration zone
by sea or by air. This covers situations where a person’s entry into the
migration zone entry occurs by air after being found on a detained ship or
rescued at sea.
[4] Explanatory
Memorandum, Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, para 1.
[5] Second Reading
Speech, Migration Amendment (Designated Unauthorised Arrivals) Bill
2006

[6] The Government has
indicated that this Bill will be accompanied by measures to increase the
Government’s capacity to patrol Australia’s northern waters to
identify and locate any potential unauthorised arrivals. See DIMA Media Release, ‘Strengthened Border Controls
for Unauthorised Boat Arrivals’, 13 April 2006 available at http://www.minister.immi.gov.au/media_releases/media06/v06048.htm.
The recent Federal Budget provided that, in addition to the continuation of
operation RELEX II, Defence and Customs will receive funding of $95.6 million
over four years to enable Defence to operate two Huon Class Coastal Mine Hunters
to increase surveillance and patrolling of Australia’s high threat
maritime approaches and an additional $20.2 million to enable Customs to
increase the number of surveillance flights over high threat approaches to
Australia’s North. In addition, the Government has announced a $388.9
million plan to combat illegal foreign fishing in northern Australian waters.
See Joint Media Release by Minister for Defence and Minister for Justice and
Customs, Budget 2006-2007 ‘Protecting Australia’s Northern
Borders’, Tuesday 9 May 2006.
[7] See RRT Annual Report
2004-2005 available at
http://www.rrt.gov.au/publications/annrpts/0405/2_contacts.html. In 2004-2005
93% of claims lodged with the RRT . It is noted that over stayers can be given
temporary lawful status through the grant of a bridging visa: See DIMA Fact
Sheet no. 86 ‘Over stayers and People in breach of Visa Conditions’
Available online at http://www.immi.gov.au/facts/86overstayers.htm
[8] Immigration Detention
Facilities, Detention Statistics Summary, available at www.immi.gov.au/detention/facilities.htm
[9] Julie Macken, ‘Boat
policy hopes sink’, The Australian Financial Review, 8 May
2006
[10]Michael
Gordon, ‘Detainees to Leave Nauru’, Sydney Morning Herald, 13
October 2005; see also Michael Gordon, ‘Experts sent to evaluate Nauru
Detainees’, Sydney Morning Herald, 22 September
2005
[11] See Human Rights and
Equal Opportunity Commission (2004) Mental health of children in Immigration
Detention, in A Last Resort? National Inquiry into Children in Immigration
Detention
. pp357-454.Available at http://www.hreoc.gov.au/human_rights/children_detention_report/report/chap09.htm;
Amnesty International Australia. Fact Sheet: Health Conditions in Australia's
detention centres. Available at http://www.amnesty.org.au/resources/fact_sheets/health_conditions_in_australias_detention_centres_-_fact_sheet;
Mares S, Jureidini J.’Children and Families Referred from a Remote
Immigration Detention Centre’; Paper presented at National Summit
on Asylum Seeker Health Care. Sydney November 12, 2003. Available at http://www.psychology.org.au/members/current_issues/sarah_mares_paper.pdf;
Mares S, Newman L and Dudley M. (2002). ‘Seeking refuge, losing hope;
Parents and children in immigration detention’. Australasian Psychiatry 10: 91-96 ; Steel, Z.(2003) Psychiatric Harm and Long Term Detention:
Summary of Evidence.
Paper presented at National Summit on Asylum
Seeker Health Care. Sydney November 12, 2003. http://www.psychology.org.au/members/current_issues/zachary_steel_presentation.pdf ;
Steel Z, Momartin S, Bateman C, Hafshejani A, Silove D, Everson N, Roy K, Dudley
M, Newman L, Blick B, Mares S. 2004. ‘Psychiatric status of asylum-seeker
families held for a protracted period in a remote detention centre in
Australia’. Aust N Z J Public Health. 28:527-36.
[12] ABC, The World Today,
‘UN Critical of Refugee Detention on Nauru’, 18 April
2006
[13] UN News Services,
‘UN agency will ask Australia to change offshore refuge processing
legislation’, 12 May 2006,
http://www.un.org/apps/news/story.asp?NewsID=18450&Cr=australia&Cr1=
[14] http://www.minister.immi.gov.au/media_releases/media05/v05123.htm
[15] Michael Gordon, ‘Detainees to Leave Nauru’, Sydney Morning
Herald,
13 October 2005
[16] See proposed section 494AA(1)(c
)
[17] Communication no. 560/1993
Human Rights Committee, 3 April
1997
[18] See, for example, C v
Australia, Communication no 900/1999, UN doc CCPR/C/76/D/900/1999, [10] where
the UNHRC noted that the ‘State party is under an obligation to avoid
similar violations in future’.
[19] See HREOC, Submission no.
35, Senate Legal and Constitutional Committee Inquiry into the Migration
Legislation Amendment (Further Border Protection Measures) Bill
2002
.
[20] Human Rights and
Equal Opportunity Commission (2004) Mental health of children in Immigration
Detention, in A Last Resort? National Inquiry into Children in Immigration
Detention
. Available at http://www.hreoc.gov.au/human_rights/children_detention_report/report/chap09.htm
[21] See the decisions of the Human Rights Committee (HRC) in GT v Australia, Communication No 706/1996, UN Doc CCPR/C/61/D/706/1996, 4 December 1997; C v Australia, Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999, 13
November 2002; Kindler v Canada, Communication No. 470/1991, UN Doc
CCPR/C/48/D/470/1991, 18 November 1993; Ng v Canada, Communication No.
469/1991, UN Doc CCPR/C/49/D/469/1991, 7 January 1994; Cox v Canada, Communication No. 539/1993, UN Doc CCPR/C/52/D/539/1993, 9 December
1994
[22] HREOC, A Last
Resort, National Inquiry into Children in Immigration Detention,
April 2004,
Para 6.6.4
[23] Mary Crock, Jane
McAdam, ‘Nauru is no place for Asylum Seekers’, The Australian, 15 May 2006.
[24] See: GT
v Australia
, Communication No 706/1996, UN Doc CCPR/C/61/D/706/1996; C v
Australia
Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999; Kindler
v Canada
, Communication No. 470/1991, UN Doc CCPR/C/48/D/470/1991; Ng v
Canada
, Communication No. 469/1991, UN Doc CCPR/C/49/D/469/1991; Cox v
Canada,
Communication No. 539/1993, UN Doc
CCPR/C/52/D/539/1993.
[25] Human
Rights Committee, General Comment 20, Article 7 (Forty-fourth session, 1992),
Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 30
(1994).
[26] ‘The
prohibition on refoulement applies only in respect of territories where the
refugee or asylum seeker would be at risk, not more generally. It does, however,
require a State proposing to remove a refuge or asylum seeker [to] undertake a
proper assessment as to whether the third country is indeed safe’. See E
Lauterpacht and D Bethlehem, ‘The scope and content of the principle of
non-refoulement: Opinion’ in E Feller, V Turk and F Nicholson (eds), 2003, Refugee Protection in International Law: UNHCR’s Global Consultations
on International Protection,
Cambridge University Press, p122, para
116
[27] UNHCR, 2001, Background
Paper no. 2 ‘The application of the ‘safe third country’
notion and its impact
on the management of flows and on the protection of
refugees’ available online at
http://www.unhcr.bg/global_consult/background_paper2_en.htm
[28] EXCOM no.8 ‘Determination of Refugee Status’ in Compilation of
Conclusions Adopted by the Executive Committee on the International Protection
of Refugees 1975-2004

[29] Explanatory Memorandum, Migration Amendment (Designated Unauthorised
Arrivals) Bill 2006
, para
11.
[30] 2208 applications for
judicial review of RRT decisions were made. Eleven per cent of these cases were
remitted to the RRT for reconsideration. The Commission notes that The RRT
Annual Report 2004-2005 also states that detention cases comprised only 7 per
cent of lodgements in 2004-2005. 93 per cent are of
‘‘community’ cases, where the protection visa application was
made after lawful arrival on another kind of visa, and the applicant holds a
bridging or other visa providing lawful status during the course of the
review’. See RRT Annual Report 2004-2005 available at http://www.rrt.gov.au/publications/annrpts/0405/2_contacts.html.
[31] It is noted that in a speech on future changes in DIMA the Department Secretary
stated one of the goals of DIMA was to create ‘a more open and accountable
organisation’ and deal ‘more fairly and reasonably with
clients’. See Andrew Metcalfe, ’Implications of the Palmer Report
Future Changes’, IPPA Seminar, 25 November 2005, available at:http://www.immi.gov.au/media_releases/media05/ippa_speech.pdf
[32] The UNHCR have stated the phrase ‘coming directly’ in Article 31(1)
covers the situation of a person who enters the country in which asylum is
sought directly from the country of origin, ‘or from another country where
his protection, safety and security could not be assured’. ‘No
strict time limits can be applied to the concept of ‘coming
directly’ and each case must be judged on its merits’. See UNHCR Guidelines and Applicable Criteria and Standards Relating to the Detention of
Asylum Seekers,
para 4. The Commission notes that one of the justifications
for Migration Amendment (Excision from Migration Zone) (Consequential
Provisions Act) 2001
was that it would ‘provides for a hierarchy of
benefits depending on whether the applicant has been involved in secondary
movement, and where people made their application’ and ‘t [deter]
further movement from, or the bypassing of, other safe countries’ (See
DIMA, Fact Sheet no.71, ‘New Measures to strengthen border control’.
This Bill clearly applies to all unauthorised arrivals including asylum seekers
who ‘come directly’.
[33] See G Goodwin Gill,
‘Article 31 of the 1951 Convention Relating to the Status of Refugees:
non-penalisation, detention, and protection’ in E Feller, V Turk and F
Nicholson (eds), 2003, Refugee Protection in International Law: UNHCR’s
Global Consultations on International Protection,
Cambridge University
Press, p194.
[34] See Social
Security Commission in Case no. CIS 4439/98, 25 Nov. 1999 as cited in Ibid, p
204
[35] See G Goodwin Gill,
‘Article 31 of the 1951 Convention Relating to the Status of Refugees:
non-penalisation, detention, and protection’ in E Feller, V Turk and F
Nicholson (eds), 2003, Refugee Protection in International Law: UNHCR’s
Global Consultations on International Protection,
Cambridge University
Press, p219
[36] See further the
discussion in the Senate Legal and Constitutional Committee Report on Inquiry
into the Migration Legislation Amendment (Further Border Protection Measures)
Bill 2002
, p47-48
[37] Section 198A(1) currently enables an officer to take an ‘offshore entry
person’ to a ‘declared
country.
[38]Senate Legal and
Constitutional Committee Report on the Inquiry into the Migration Legislation
Amendment (Further Border Protection Measures) Bill 2002
, p
37
[39] The Commission has
previously made a similar observation in submissions to the Senate Legal and
Constitutional Committee Inquiry into the Migration Legislation Amendment
(Further Border Protection Measures) Bill 200
2o the See Senate Legal and
Constitutional Committee Report on the Inquiry into the Migration Legislation
Amendment (Further Border Protection Measures) Bill 2002
, p
34.
[40] The UNGA Resolution
55/74 of 12 February 2001 states the General Assembly: ‘Reaffirms that, as set
out in Article 14 of the Universal Declaration of Human Rights, everyone has the
right to seek and enjoy in other countries asylum from persecution, and calls
upon all States to refrain from taking measures that jeopardise the institution
of asylum, particularly by returning or expelling refugees or asylum seekers
contrary to international standards. Condemns all acts that pose a threat to the
personal security and well-being of refugees and asylum seekers, such as
refoulement’.
[41] Article
26 of the Vienna Convention on the Law of Treaties provides, 'every
treaty in force is binding upon the parties to it and must be performed by them
in good faith.'
[42] The preamble
to the Refugee Convention states: ‘Considering that the grant of asylum
may place unduly heavy burdens on certain countries, and that a satisfactory
solution of a problem of which the United Nations has recognized the
international- scope and nature cannot therefore be achieved without
international co-operation, Expressing the wish that all States, recognizing the
social and humanitarian nature of the problem of refugees, will do everything
within their power to prevent this problem from becoming a cause of tension
between States, Noting that the United Nations High Commissioner for Refugees is
charged with the task of supervising international conventions providing for the
protection of refugees, and recognizing that the effective co-ordination of
measures taken to deal with this problem will depend upon the co-operation of
States with the High
Commissioner’.
[43] UNHCR, ‘The State of the World's Refugees 2006 - Chapter 8 Looking to
the future: Need for greater responsibility-sharing’ available at
http://www.unhcr.org/cgi-bin/texis/vtx/publ/opendoc.htm?tbl=PUBL&page=h…
[44] UN News Centre, ‘Proposed new Australian border control measures raise
serious concerns’, 18 April 2006, available at: http://www.un.org/apps/news/story.asp?NewsID=18166&Cr=australia&Cr1=
[45] Proposed section 486R
[46] The
Commission notes that the Government’s intention that the Bill would have
retrospective application was announced on 13 April 2006. See DIMA Media
Release, ‘Strengthened Border Controls for Unauthorised Boat
Arrivals’, 13 April 2006 available at http://www.minister.immi.gov.au/media_releases/media06/v06048.htm.

 

Human Rights and Equal Opportunity Commission Website: Legal Information
Last
updated 26 May 2006.