Refugees and Asylum Seekers

The following content draws upon, in part, the Joint Australian NGO Coalition's fact sheets prepared for the Universal Periodic Review.

Mandatory immigration detention

The Migration Act 1958 requires all unlawful non citizens (other than those in excised offshore zones) to be detained, regardless of circumstances, until they are granted a visa or removed from Australia. Australian law also fails to protect unlawful non-citizens against indefinite detention, as time limitations for immigration detention are not codified in Australian law (Migration Act 1958 (Cth), ss189(1), 189(2) and 196(1)).

Conditions in immigration detention facilities have serious implications for the human rights of asylum seekers. Detention, particularly when indefinite or prolonged, has a detrimental impact on the mental health of persons who have suffered torture and trauma. This impact is magnified by the limited access to legal counsel, interpreting services, communication facilities, physical and mental health services and social, cultural and religious support networks available to asylum seekers in detention. This is particularly the case for asylum seekers detained in offshore or remote facilities, whose isolation renders the delivery of appropriate services difficult. In light of this, the re-opening of Curtin detention facility, in one of Australia's most remote locations, is of great concern.

Offshore processing

Under the Migration Act 1958, a non-citizen who first enters Australia at an excised offshore place (including Christmas Island, Ashmore and Cartier Islands and the Cocos Islands) without legal authorisation is unable to submit a valid visa application unless the Minister for Immigration makes a personal intervention into the case. This process of ministerial intervention is non-compellable and non-reviewable. In addition, asylum seekers in offshore places are barred from the refugee status determination system that applies on the Australian mainland, instead undergoing a non-statutory process governed by guidelines which are not legally binding. They have no access to the Refugee Review Tribunal (a non-transparent review process is available) and very limited access to the Australian courts .

The Australian Government recently announced it is considering further offshore processing of asylum seekers in Timor Leste. Without further detail or clarification of this policy, it is unclear whether this policy will enhance protection capabilities in the region or be merely a deflection of Australia's protection obligations.

Children in immigration detention

While the Migration Act 1958 has been amended to affirm the principle that asylum seeker children should only be detained as a measure of last resort, and children are no longer detained in immigration detention centres, they nonetheless continue to be held in detention-like conditions in other immigration detention facilities.

Human rights issues relating to the detention of humanitarian minors have been examined in the Australian Human Rights Commission report, A Last Resort? National Inquiry into Children in Immigration Detention, however the Australian Government has not implemented the recommendations outlined in this report.

Health requirements exemption

Migrants to Australia must meet health requirements in order to be considered eligible for a visa. Some groups, including applications for onshore protection visas, are exempt from these health requirements. However, all offshore refugee and humanitarian applicants remain subject to health requirements. There are no justifiable grounds for the current differential treatment.

What the UN Human Rights Council recommended in the Universal Periodic Review

In January 2011 Australia was reviewed by the UN Human Rights Council during the Universal Periodic Review (or UPR) (a process whereby the human rights performance of all UN member states is reviewed by other states).  In June 2011 Australia provided its response to the 145 recommendations made by the Human Rights Council.

The Government has accepted over 90 per cent of the recommendations and has committed to incorporating the recommendations it has accepted into the National Human Rights Action Plan.

In relation to refugees and asylum seekers, the Human Rights Council made a number of relevant recommendations.  Australia has responded to these recommendations as set out in the following table.

Recommendation

Stance

Explanation

Engage with and implement the recommendations of international human rights bodies, including of the UNHCR, especially in relation to the rights of refugees and asylum seekers (recommendation 86.38).

Already reflected

Australia accepts the recommendation on the basis it is reflected in existing laws or policies and Australia will continue to take steps to achieve relevant outcomes.

Continue to work and coordinate with countries in the region to fight human trafficking, bearing in mind international human rights and humanitarian principles (recommendations 86.83, 86.85, 86.86 and 86.134).

Already reflected

Safeguard the rights of refugees and asylum seekers (recommendations 86.121 and 86.122).

Already reflected

Honour all obligations under Articles 31 and 33 of the UN Refugee Convention relating to the Status of Refugees providing them access to Australian refugee law (recommendation 86.122).

Accepted

The Australian Government is committed to providing protection to refugees consistent with its international obligations.

Ensure asylum seekers’ claims are processed in accordance with the UN Refugee Convention and that they are detained only when strictly necessary (recommendation 86.123).

Accepted

Australian Government policy is that asylum seekers are only placed in immigration detention if they fall within the following groups: unauthorised arrivals (for health, identity and security checks); unlawful non-citizens presenting unacceptable risks to the community; and unlawful non-citizens repeatedly refusing to comply with visa conditions.

Increase efforts to prosecute trafficking offenders, including employers and labour recruiters who subject migrant workers to debt bondage and involuntary servitude (recommendation 86.87).

Accepted

The Australian Government is reviewing its people trafficking and slavery offences to ensure that law enforcement has the best tools available to investigate and prosecute perpetrators.

Strengthen Australia’s commitment to the Bali process as the principal mechanism in the region which deals with people smuggling and trafficking (recommendation 86.84).

Accepted

Australia is committed to the Bali Process as the principal forum on people smuggling and trafficking in the region.

Review Australia’s mandatory detention regime of asylum seekers, limiting detention to the shortest time reasonably necessary (recommendation 86.127).

Accepted

Mandatory detention is based on unauthorised arrival and not on individuals seeking asylum. Indefinite or otherwise arbitrary detention is not acceptable and the length and conditions of detention are subject to regular review.

Observe the principle of non-refoulement (recommendations 86.124 and 86.125)

Accepted

The Australian Government does not forcibly return persons where to do so would breach non-refoulement obligations under the Refugees Convention or relevant international human rights treaties.

Ensure no one is extradited to a State where there is a danger that a death penalty may be imposed (recommendation 86.34).

Accepted

The Australian Government considers that provisions of the Extradition Act 1988, regarding surrender where the offence for which extradition is sought is punishable by the death penalty, are consistent with Australia’s international obligations.

Address the issue of children in immigration detention in a comprehensive manner (recommendation 86.128).

Accepted

Since October 2010, the Australian Government has relocated significant numbers of unaccompanied minors and vulnerable family groups from immigration detention facilities into community-based accommodation, while their immigration status is resolved. In limited circumstances, children may still be accommodated in low-security facilities within the immigration detention network. The Government aims to relocate half of all children in immigration detention facilities to community-based accommodation by the end of June 2011.

Ensure that no children are held in detention on the basis of their migratory status and that special protection and assistance is provided to unaccompanied children (recommendation 86.129).

Accepted-in-part

Consider alternatives to the detention of irregular migrants and asylum seekers, limit the length of detentions, ensure access to legal and health assistance and uphold Australia’s obligations under the Vienna Convention on Consular Relations (recommendation 86.131).

Accepted-in-part

All persons in immigration detention have the right to request and receive consular access at any time without delay, and have access to appropriate health care commensurate with care available to the broader Australian community.

Revise punitive provisions of the Migration Act including mandatory detention (recommendation 86.126).

Rejected

The Australian Government considers mandatory detention an essential component of strong border control, which manages risks to the community.  Mandatory detention is based on unauthorised arrival and not on individuals seeking asylum. Immigration detention policy and the operation of detention facilities in Australia is subject to close scrutiny from both domestic and international bodies.

Do not detain migrants other than in exceptional cases, limit this detention to six months and bring detention conditions into line with international human rights standards (recommendation 86.132).

Rejected

Ensure all irregular migrants have equal access to and protection under Australian law (recommendation 86.133).

Rejected

There is some differentiation in the treatment of persons who arrive, or remain, in an irregular manner. Consistent with Australia’s international obligations, all refugee determinations are assessed against the Refugees Convention through a process that provides procedural fairness and access to independent merits and judicial review.