Human rights and refugees
Introduction
It has been argued that Australia has a proud tradition of sheltering refugees. Historically, religious persecution has been the biggest cause for the flow of those seeking refuge, fleeing repression and war. The current accepted definition of refugees is of persons who have escaped persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in their country of origin and are unable to gain its protection. Since the end of the Second World War, more than 620 000 refugees and displaced persons have been resettled in Australia, which further regularly contributes to the international agency responsible for refugees, the United Nations High Commissioner for Refugees (UNHCR). Australia is one of fewer than 20 countries that participate in resettlement programmes and one of only twelve countries that accept an annual refugee quota. Australia consistently offers the second or third highest number of places for refugee resettlement. In 2002-2003, Australia resettled 11 656 people, including 4062 refugees, the majority of whom were referred by UNHCR, and 7280 people resettled under Australia's Special Humanitarian Program. This chapter discusses Australia's ongoing refugee commitments with regard to international human rights conventions and standards. See image 1
Human rights standards
The consideration of human rights underlies much of the international response to the need for managing and protecting refugees. There has been much concern over the human rights abuses linked to current refugee flows, and the obstacles these abuses pose to obtaining voluntary repatriation for refugees to their countries of origin. Human rights efforts made to prevent the conditions forcing people to become refugees and to protect them in countries of asylum have aimed at enabling refugees to return home safely. Since the Second World War, these efforts have been made on a global scale with international instruments for protecting and establishing minimum rights standards for refugees and promoting freedom of speech, religious and political beliefs. These have included the Convention on the Status of Refugees (Refugees Convention) (1951) and its revised Protocol (1967), and the Convention Relating to the Status of Stateless Persons (1951). Australia was one of the first of 138 countries to sign the Refugee Convention and its Protocol. The UNHCR has since held primary responsibility for the protection of refugees on an international scale.
Refugees Convention
The Refugees Convention is based on the core principle of 'non-refoulement' ('refoule' meaning 'return') which is the view that refugees should not be expelled or returned to the country of persecution where their life or freedom would be threatened on account of race, religion, nationality or membership of a particular social group or political opinion. Human rights instruments that deal with the possibility of torture, cruel, inhumane or degrading treatment for refugees returning to their countries of origin have incorporated this principle. These include the Convention against Torture, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. The Convention has sought to reconcile the conflicting issues of a lack of protection for refugees in their countries of origin, with that of the right of other states to determine who may enter and remain in their territory and to ensure that it not be abused by those with no right or need of protection.
Agenda for Protection
Australia has signed the UNHCR Agenda for Protection (2002) which aims to assist international partner governments and non-government organisations (NGOs) to improve the level of protection offered to asylum seekers and refugees. Improvements have been sought in the implementation of the Refugees Convention and its protection to refugees within broader migration movements, and in the equitable sharing of responsibilities to receive and protect refugees by member countries. Further protection for the needs of refugee women and refugee children has been also sought. Australia has adopted these aims in its approach to the following:
- Improving registration and documentation of refugees
- Tackling the root causes of refugee movements
- Assisting global efforts to combat people smuggling
- Devising solutions to long-term refugee issues
Australia's approach to refugees
Humanitarian Programme
The Humanitarian Programme targets refugees and others who have faced serious human rights abuses. It implements an offshore resettlement programme which assists those in humanitarian need for whom resettlement in another country is the only option. Since 2004, the annual target set by the Humanitarian Programme has increased from 12 000 new places to 13 000 places with a 50 per cent increase in the refugee component from 4000 to 6000 places. Changes in the needs of global resettlement have shifted the programme's regional focus from South-East Asia and Central America to the former Yugoslavia, the Middle East, South-West Asia and Africa. Under the offshore resettlement programme, a permanent visa may be given to refugees under such categories as In-Country Special Humanitarian (for those subject to gross violation of human rights in their home country, and whose application for asylum has been supported by an Australian citizen or resident). A temporary visa may be granted to refugees who have bypassed or abandoned protection in a safe country of first asylum and for whom it is deemed appropriate to enter Australia. An onshore protection programme applies to those already in Australia who arrived on temporary visas or illegally and who seek asylum. A protection visa is granted to those meeting refugee requirements set by the Refugees Convention and by Australian legislation.
Border protection and people smugglers
Australia has sought to combine an appropriate humanitarian approach to refugees and asylum seekers with an attempt to maintain the integrity of its borders and migration programmes. Australia's border protection policies aim to deter unlawful migrants—those who arrive in Australia without a visa or whose visa expires—and to deport unlawful migrants unless they are accepted as refugees.
People smuggling
People smuggling has become a global criminal enterprise estimated by the International Organisation for Migration (IOM) to be worth $US10 billion a year. It is further estimated that four million people are smuggled across international borders each year. The majority of those smuggled to Australia are recent Middle Eastern and South-East Asian asylum seekers who have illegally landed in Australia. The increased number of these arrivals has resulted in policy changes regarding refugees to deter future arrivals. Those arriving by boat or other means without official classification as refugees are no longer granted refugee status on arrival. Many of these asylum seekers are turned away due to the excision of some parts of Australia from the official migration zone. Such excised areas include Christmas Island, Manus Island, Melville Island, Cocos Islands, Ashmore and Cartier Islands, and Nauru. Arrivals landing outside the migration zone have been transferred to offshore processing centres where their claims for asylum are assessed. In 2001, such facilities were established on Nauru and in Papua New Guinea to combat increasing numbers of unauthorised arrivals and the influence of criminal organisations involved in people smuggling. Australia has addressed this issue more broadly by disrupting people-smuggling operations overseas and by supporting UNHCR efforts to reduce the flow of people seeking to leave their homelands.
Immigration detention
Since 1994, unlawful migrants and asylum seekers without visas or who have overstayed visas have been subject to mandatory immigration detention while a determination is made as to whether they may enter Australia or be deported. This has aimed at ensuring that health, identity and security checks are conducted and that asylum seekers are given access to appropriate services for the processing of visa applications. Immigration detention for administrative purposes is constitutionally valid and consistent with Australia's international obligations. The approach, however, has been criticised by human rights organisations such as Amnesty International, who argue for better, economically more viable and humane ways of handling asylum seekers, and the UN Human Rights Committee, which in its review of Australia's human rights record suggested that it may be in breach of the International Covenant on Civil and Political Rights (ICCPR). Debates in Australia are ongoing about the length of time that detainees are kept in detention and the effect this has on mental health. Such effects are argued to include evidence of trauma, self-harm and the need for psychological help by certain detainees over long periods.
Regional agreements
Australia has engaged in regional cooperation arrangements with other countries as a means to deter illegal movement of people. Agreements have been signed with Indonesia, Malaysia, Thailand and Brunei, and negotiations have been made with other governments with diplomatic, legislative, police and intelligence cooperation. Assistance in direct military involvement and border controls has also been implemented. Other initiatives have included international summits on the issue of people smuggling, aid to countries of origin for refugees in the Middle East and South West Asia, and reforms to ensure protection is available to those in countries where they first seek asylum. In 2002, Australia and Indonesia engaged in the Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime (the Bali Process). The Bali Process sought to raise awareness of the risks posed by the services of people smugglers and of the need to protect victims of trafficking. Further, Australian customs services and law enforcement officials, including the Australian Federal Police, have been based at overseas posts in the United States, Belgium, Japan, Thailand, China and Indonesia (including the regional Joint Cooperative Law Enforcement Centre in Jakarta), to assist the customs and law enforcement agencies in these countries to address people-smuggling and refugee movement issues, acknowledging the importance of effective border management for the maintenance of the international system of protection.
