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Asylum seekers and refugees

Rights and Freedoms

1 Asylum seekers and refugees

2 Who are asylum seekers and refugees?

An asylum seeker is a person who has fled their own country and applied for protection as a refugee.

According to the United Nations Convention relating to the Status of Refugees, as amended by its 1967 Protocol (the Refugee 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:

  • race
  • religion
  • nationality
  • membership of a particular social group or
  • political opinion.

3 What are Australia’s human rights obligations towards asylum seekers and refugees?

Australia has 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.

As a party to the Refugees Convention, Australia has agreed to ensure that people who meet the United Nations definition of 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 International Covenant on Civil and Political Rights (ICCPR) , the Convention Against Torture (CAT) and the Convention on the Rights of the Child (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.

In addition, 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, the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture and the Convention on the Rights of the Child. These rights include the right not to be arbitrarily detained.

4 Are asylum seekers and refugees subject to immigration detention in Australia?

There are currently thousands of asylum seekers as well as some recognised refugees, being held in immigration detention around Australia. Several hundred asylum seekers who arrived in Australia are now also being detained in Nauru and on Manus Island in Papua New Guinea under third country processing arrangements.

Under the Migration Act 1958 (Cth) (the Migration Act), asylum seekers who arrive in Australia, whether on the mainland or an 'excised offshore place', without a valid visa must be held in immigration detention until they are granted a visa or removed from Australia.

Immigration detention in Australia is indefinite – there is no limit in law or policy to the length of time for which a person may be detained. Some asylum seekers and refugees 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 to otherwise be owed protection.

While the legal and policy framework for mandatory detention remains in place, substantial numbers of asylum seekers and refugees have been transferred out of closed immigration detention into the community since late 2010. In October 2010, the Australian Government announced that it would begin to move a significant number of unaccompanied minors and families with children into community detention. In November 2011, the government announced that, following initial health, security and identity checks, increasing numbers of people in closed immigration detention facilities would be considered for transfer into the community on bridging visas or placement in community detention.

On 21 November 2012 the Australian Government announced that some asylum seekers who are liable to transfer to a third country, having arrived to an ‘excised offshore place’ on or after 13 August 2012, would be released into the Australian community on bridging visas due to overcrowding across Australia’s immigration detention network and capacity constraints in the detention facilities established to accommodate asylum seekers in Nauru and Manus Island.

The Commission welcomes the increased use of community detention but remains concerned that thousands of people are still held in closed immigration detention facilities.

For further information see:

5 What does the Commission do to monitor conditions and treatment of people held in immigration detention?

While the majority of people currently held in immigration detention in Australia are asylum seekers, not all are. Other categories of people who are detained in Australia include: people who have overstayed their tourist, student or other temporary visa; people who have had their visa cancelled on character grounds and are awaiting deportation; people who are suspected of involvement with people smuggling; and non-nationals who are alleged to have been fishing in Australian territorial waters.

The Commission seeks to ensure the protection of the human rights of all people held in immigration detention. However, due to their specific vulnerabilities and the special protections accorded them under international law, the Commission has focused in its recent work on immigration detention upon the conditions and treatment of asylum seekers, refugees and children.

While in immigration detention, asylum seekers and refugees have a variety of needs, which may include torture and trauma counselling, access to family tracing services, access to legal and migration advice, interpreting and translation, health and mental health care, and access to education and recreational activities.

The Commission has conducted national inquiries and site inspections focusing on the conditions and treatment of people in immigration detention across Australia. The reports of these inquiries and inspections make recommendations to the Australian Government aimed at protecting the human rights of asylum seekers, refugees and others held in immigration detention.

For further information see:

For further information about the Commission’s visits to immigration detention facilities, click here. For photos taken during visits, click here.

6 How are asylum seekers’ claims decided?

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. This system is described below.

On 24 March 2012, asylum seekers who arrived in Australia by boat at an ‘excised offshore place’ (such as Christmas Island) also became eligible to have their claims processed under the system that applies under the Migration Act, if the Minister exercises personal discretion to allow them to submit a valid visa application. The exercise of the Minister’s personal discretion to allow this category of asylum seekers to submit a valid visa application is also sometimes referred to as the Minister ‘lifting the bar’. This is because under Australia’s excision regime (which was introduced in September 2001) asylum seekers who arrive at an ‘excised offshore place’ without a valid visa are barred from applying for a visa to remain in Australia unless the Minister personally intervenes to allow them to do so.

Prior to 24 March 2012, asylum seekers who arrived at an ‘excised offshore place’ by boat had their claims for protection assessed under a non-statutory process with fewer procedural safeguards than apply under the system set out in the Migration Act.

The Commission welcomed the return to a single statutory system for processing asylum seekers’ claims in March 2012 but remains opposed to the continuation of the excision regime.

For asylum seekers who have their claims processed in Australia under the system that is set out in the Migration Act, the Department of Immigration and Citizenship (DIAC) will make a primary assessment as to whether the asylum seeker is a refugee against the criteria set out in the Refugees 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 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. And in some exceptional circumstances they can seek Ministerial intervention to allow them to remain in Australia on other humanitarian or compassionate grounds.

In August 2012, the Australian Government introduced third country processing arrangements. Under those arrangements, asylum seekers who have arrived in Australia by boat on or after 13 August 2012 must be transferred to a ‘regional processing country’ as soon as is reasonably practicable unless the Minister exercises his discretion to exempt them from transfer.

For asylum seekers who arrived by boat on or after 13 August 2012, the Australian Government has said the principle of ‘no advantage’ applies regardless of whether they are taken to a regional processing country or given Ministerial exemption and remain in Australia. The Australian Government has said this means that even if those people are assessed 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 government has said it expects this waiting period may be in the order of five years.

For further information on the regional processing arrangements, see the Commission’s submission to the Parliamentary Joint Committee on Human Rights’ Examination of the Migration (Regional Processing) package of legislation (January 2013).

7 What are the Commission’s views about Australia sending asylum seekers to third countries?

Seeking asylum in Australia, or elsewhere, is not illegal. In fact, it is a basic human right. All people are entitled to protection of their human rights, including the right to seek asylum, regardless of how or where they arrive in Australia, or in any other country.

In the Commission’s view, all people who make claims for asylum in Australia should have those claims assessed on the Australian mainland through the refugee status determination and complementary protection system that applies under the Migration Act.

Following the release of the report by the Expert Panel on Asylum Seekers on 13 August 2012, the Government passed amendments to the Migration Act, followed by legislative instruments designating Nauru and Papua New Guinea as ‘regional processing countries’. Following these changes, asylum seekers who have arrived in an ‘excised offshore place’ by boat on or after 13 August 2012 are liable to be transferred to a third country for processing of their claims for protection. A Bill to amend the Migration Act to extend this liability to all asylum seekers who arrive by boat, even if they reach the mainland, was introduced into Parliament in November 2012.

In September 2012 the Australian Government commenced transferring asylum seekers who have arrived in Australia by boat to Nauru. In November 2012, it commenced transferring asylum seekers to Manus Island in Papua New Guinea (PNG). Those transferees’ claims for protection will be processed under the laws of those third countries. A large number of people who arrived in Australia by boat since 13 August 2012 remain in immigration detention in Australia.

The regional processing regime has been established by the Australian Government with the aim of implementing the principle of ‘no advantage’. That is, asylum seekers who come to Australia by boat will gain no benefit through doing so, as compared with if they waited elsewhere to have their claims assessed and a durable solution provided if they are found to be refugees. The Australian Government has said it expects this waiting period to be in the order of five years. This will apply even after an asylum seeker is determined under Australian, Nauruan or PNG law to be a refugee.

The Commission holds serious concerns that the regional processing regime creates a significant risk that Australia may breach its human rights obligations. In particular, the regime risks violation of core human rights principles, such as the prohibition on arbitrary detention, the right to claim asylum and the rights of children and the family.

The Commission made a detailed submission on the regional processing regime to the Parliamentary Joint Committee on Human Rights. It can be accessed here. For further information, see:

8 What does the Commission do to help increase community awareness about the human rights and circumstances of refugees and asylum seekers?

The Commission aims to provide clear,factual information to improve community awareness and understanding of the situation of asylum seekers and refugees in Australia. In particular, the Commission aims to highlight the human rights issues involved in the treatment of asylum seekers and refugees .

The Commission has developed interactive web materials on a range of human rights issues, including those affecting asylum seekers and refugees.

The Commission has undertaken a range of community projects aimed at increasing social inclusion and countering discrimination.

The Commission has also developed human rights resources for new arrivals in Australia and for young people enrolled in community language schools.

For further information see:

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