Asylum Seekers - Outline of Issue

According to the UN, an asylum seeker is someone who is seeking international protection but
whose claim for refugee status has not yet been determined. These people cannot return to
their home country because of the environmental, political and social conditions that their
country may face. This is why people seek refuge in the nearest safe country, which is usually
more developed in terms of healthcare, infrastructure, and equality. Seeking asylum in Australia
is a major part of our history, dating back to 1945 when half a million displaced Europeans were
granted asylum. At present time, the majority of asylum seekers originate from Iraq, DRC,
Myanmar, and Syria, due to conflicts occuring in their region. 96-99% of asylum seekers arrive
by plane when they have a valid visa. However as Australia has a strict visa system, a
significant number of asylum seekers still arrive by boat. For example, 20 587 people arrived by
boat in 2013 according to the Parliament of Australia. Therefore, this shows that it is a
strenuous process for those attempting to enter Australia via plane because of the visa system,
so they enter by boat.
The current Australian immigration policy is to detain people entering or being in Australia
without a valid visa until those people can be returned to their home country or are granted
refugee status, and is the only country to do so. This policy is enforced by the Maritime Powers
Act 2013 (Cth) and is a contentious issue due to the idea that asylum seekers are being subject
to punitive measures which can damage their wellbeing and mental health. These punitive
measures include arbitrary arrest and detention, restriction of movement, and restricted access
to basic needs such as food, medical care and sanitation. Although without being explicitly
stated by the Australian government, these policies are designed to deter people from coming to
Australia. Since 2013 to 31 August 2021, 873 people seeking asylum on 38 vessels have been
returned to their country of departure, either with a very rudimentary assessment process, or no
refugee status assessment at all, according to Refugee Council Australia

In comparison to the current Australian immigration policy, previous policies did not enforce as
many restrictions as they do now. After the full abolishment of the White Australia Policy in
1970, a wide range of different ethnicities arrived in Australia. In particular, the Vietnamese boat
people were the first recorded instance of unapproved boat arrivals in 1976. However, out of
50000 Vietnamese refugees, only 2000 were unauthorised boat people. The sudden influx of
refugees was due to the Communist Party victory in Vietnam, indicating that it was unsafe for
them to stay in their country. This resulted in the first refugee policy and administrative
machinery to be created by the Fraser government in 1977. The policy aimed to respond to any
future immigration crisis in a controlled and organised approach. This new humanitarian
program allowed 108 641 Indochinese refugees to be resettled in Australia between April 1975
and June 1988.
As more refugees were granted asylum in Australia, and governments changed, the immigration
policy began to change as well. Mandatory detention was introduced in the 1990s by the
Keating government when Cambodian asylum seekers arrived in Australia. The introduction of
this process involved being placed in a holding facility while security and health checks were
performed.The Howard government extended the time they spent in mandatory detention in
1999 when Middle Eastern immigrants fled from oppressive regimes as a way to deter them
from travelling to Australia. However, 12000 Middle Eastern asylum seekers still managed to
reach Australia within 1999-2001. These conditions of course worsened after the September 11
attacks and the anti-Muslism ideology surrounding it. Although the immigration policy became
more liberal throughout the Rudd and Gillard governments, the state of affairs intensified again
through the Abbott government, and up to the Morrison government.

Legal Responses
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that
became effective in 1976, which responds to the issue of asylum seekers. As of June 2022, the
covenant has 173 parties, and includes the rights to life, freedom of religion, freedom of speech,
freedom of assembly, electoral rights and rights to due process and a fair trial. The main articles
that address asylum seekers include article 6, 7, 9, 10, and 17. These state that every human
being has the right to life, liberty and security of person. They shall not be subjected to torture,
arbitary detention nor unlawful interference with their privacy, family, or home. Furthermore, they
should have freedom of movement and a right to a nationality. This means Australia has an
obligation to protect the human rights of all asylum seekers who arrive in Australia, including the
right to not be arbitrarily detained - meaning asylum seekers are detained without due process
and without the legal protections of a fair trial. The covenant obliges governments to take
administrative, judicial, and legislative measures in order to uphold the rights stated in the treaty
and to provide an effective solution. This can be seen in the Australian Human Rights
Commission Act 1986, which enforces the ICCPR.

The 1951 Refugee Convention is a UN multilateral treaty that defines who a refugee is, and sets
out the rights of individuals who are granted asylum and the responsibilities of nations that grant
asylum. Furthermore, it defines who is ineligible to gain refugee status, such as war criminals,
and provides some visa-free travel for holders of refugee travel documents. As of 20 January
2020, there were 146 parties to the Convention. These parties are compelled to protect
refugees that exist within their territory. As such, signatory countries must abide by over 37
articles, including the obligation to: provide identity papers for refugees (Article 27), provide free
access to courts for refugees (Article 16), and not to discriminate against refugees (Article 3).
However, the primary obligation under the Convention is non-refoulement, which states that
refugees must not be expelled or returned to places where they would face persecution based
on one or more Convention grounds. Therefore, this convention attempts to ensure that nations
treat asylum fairly and within safe measures.

The Migration Act 1958 (Commonwealth) forms the legislative basis for all forms of migration
and visa applications in Australia, including humanitarian assistance. The Act replaced the
Immigration Restriction Act 1901, which had formed the foundation of the White Australia policy,
therefore removing many discriminatory practices. This piece of legislation was amended in
1989 to create The Migration Reform Act 1992, which came into effect on 1 September 1994.
This amendment aimed to enforce a mandatory detention policy which detained all arrivals
without a valid visa while their claims to be in Australia are being processed. In 2001, the
Howard government further amended the act through the Migration Legislation Amendment
(Excision from the Migration Zone) (Consequential Provisions) Act 2001, also known as the
Pacific Solution. This allowed asylum seekers to be taken to declared countries such as Nauru
and Papua New Guinea. Through this amendment, it became a major influence on how asylum
seekers are treated when seeking asylum in Australia. Furthermore, the act saw major changes
in 2014 through the introduction of a “character test”. Under section 501 of the Migration Act
1958, the minister for foreign affairs can cancel/refuse a person’s visa if they have a substantial
criminal record that meets certain criterias, such as if the person has been sentenced to a term
of imprisonment of more than 12 months. This criteria also extends to whether the person has,
in Australia or a foreign country committed serious crimes, such as genocide, trafficking, and
war crimes. All of these reforms of The Migration Act 1958 are designed to respond to asylum
seekers in an organised manner, that both protect citizens of Australia and those attempting to
enter the country.

The issue of asylum seekers is further established in the case of MZZHL v Commonwealth of
Australia - [2021], in which “MZZHL”, the 26-year-old Iraqi asylum seeker held a bridging visa
which expired. Therefore, the Migration Act defines him as an “unlawful non-citizen”, and must
be detained in immigration detention then removed from Australia as soon as practicable.
However, MZZHL could not return to Iraq as authorities were searching for him, leading him to
believe he would be in danger if he returned. As a result, the government ceased efforts to
remove him, but also didn’t pursuit any other willing countries that would accept him. This may
seem lawful, however, section 197C of the Migration Act says that, for the purposes of removing
a non-citizen from Australia, Australia’s non-refoulement obligations are “irrelevant”. This led to
the Commonwealth to accept that MZZHL was unlawfully detained because they failed to take
active steps in removing him. This result allowed section 197C to be amended, which changed
Australia’s non‑refoulement obligations in relation to removal of unlawful non‑citizens, as well as
allowing the detainee to be compensated $350,000 in damages.

Legal Responses Evaluation

The international legal responses to the issue of asylum seekers have limited effectiveness due
to the lack of enforceability and poor protection of individual rights. This can be seen particularly
in the international responses, for example the ICCPR and the 1951 Refugee Convention are
not directly enforceable because Australia is a sovereign state, meaning it administers its own
government and is not subject to or dependent on another power, and as such, is not under any
legal obligation to follow this agreement. However, domestic laws such as The Australian
Human Rights Commission Act 1986 support these international responses which increase their
enforceability to an extent due to the Australia government following the rule of law on the vast
majority of occasions. Despite this, they have been proven ineffective in protecting individual
rights as seen in A v Australia (HRC, 1997), where a Cambodian asylum seeker alleged the
Australian government had breached his right to liberty by arbitrarily detaining him for four
years.
Domestically, the Migration Act 1958 is ineffective in protecting the individual rights seen in the
Australian Human Rights Commission Act 1986 which gives effect to Australia’s human rights
obligations. It fails to abide by the rights displayed in this act, such as the right to not be
arbitrarily detained, as well as the right to seek asylum. However, it is highly enforceable as it is
domestic legislation and $2.9 billion is invested into border protection a year, as of 2019-2020.
On the other hand, MZZHL v Cth 2021 was effective in protecting the individual rights, as the
defendant was paid $350,000 in compensation. It is also highly enforceable now that the
Migration Act 1958 has been amended to change Australia’s non-refoulement obligations.
Non-Legal responses -
Amnesty International is an international non-governmental organisation (NGO) that focuses on
protecting human rights, particularly asylum seekers. According to Amnesty, the organisation
promotes the safety and wellbeing of asylum seekers by campaigning for the Australian
Government to raise the refugee and humanitarian intake, implement solutions that help more
people find a safe place to live, and to end offshore detention. Furthermore, they congregate
evidence by investigating certain human rights crises, which gives them insight into the
situations of vulnerable people attempting to enter Australia. Overall, their role is to put pressure
on governments to uphold the rights of asylum seekers. This is achieved through petitions,
which they openly have available to sign on their website. For example, Amnesty conducted
research that showed that 72% of Australians support either maintaining or increasing
Australia’s humanitarian intake, and that the majority of Australians support refugees being able
to settle here in Australia. These statistics have been used to influence the government in
creating laws and regulations to help asylum seekers escape any dangers they may face and
arrive safely in Australia without the fear of persecution.

The United Nations High Commissioner for Refugees is a UN agency designed to protect the
rights of refugees, forcibly displaced communities, and stateless people, and to assist in their
voluntary repatriation, integration or resettlement to other countries. It protects over 20 million
refugees and holds a budget of $8.6 billion as of 2020. Some of their methods include
promoting or providing legal and physical protection, and minimising the threat of violence
against refugees and asylum seekers, as well as providing food, water, and shelter. They do this
through collaborating with governments, NGOs, UN agencies, community-based organisations,
and universities. As a result, they have assisted with major refugee situations in Jordan, in
which 4,000 refugees were resettled in 2021, which was a 250% increase from the previous
year. Furthermore, the UNHCR promoted complementary pathways including educational
opportunities, family reunification, humanitarian corridor programmes or work visas. Therefore,
this eases pressure on governments of developing countries as they don’t need to finance the
resettlement of those seeking asylum. Through the support of NGOs, community-based
organisations and governments, it has allowed the UNHCR to assist refugees independent of
their location consistently, and has shown limited bias towards the geographical distribution of
funds.

Refugee Action Collective (RAC), are a group of activists concerned with asylum seeker rights
who operate in Melbourne, Australia. The group was set up in 2000 by a range of activists in
response to the former Howard Government's policies toward the mandatory detention of
refugees and the issuing of temporary protection visas. They demand the government provide
permanent protection and not discriminate against refugees on the basis of their documentation,
as well as to provide a fair and speedy assessment of asylum claims so they are guaranteed
timely settlement in Australia. They have organised protests and vigils around concerns they
deem inhumane by the Australian Government in relation to asylum seekers. For example in
2002, the group broke out 35 detainees from the Woomera Detention Centre in South Australia
after 1000 protesters gathered at the gates to voice their opposition to the mandatory detention
of refugees. In 2009, RAC began to focus on the Rudd-Gillard Government's position on Tamil
asylum seekers following the government's decision to freeze processing of all claims by asylum
seekers from Afghanistan and Sri Lanka. They demonstrated this through rallies and vigils,
protests, speakouts, stalls, forums, networking, and submissions to the government. This was
not entirely effective because the policy was further toughened by the Rudd Government in
2013 in response to a rise in boat arrivals.

The Refugee Council of Australia is a NSW based not-for-profit organisation that advocates for
refugee rights, and criticises the amount of support that the Australian Government provides to
job-seeking refugees. To achieve these goals, the RCOA undertakes extensive research into
the issues affecting refugees and asylum seekers, such as: unaffordable housing,
unemployment, and language and communication barriers. This includes seeking information
from people with refugee backgrounds and agencies to identify previously stated gaps and
challenges. Furthermore, they conduct evaluations of key statistics and models to calculate the
most effective policies on issues relating to asylum seekers. Through this, they are able to
compare their policies to the Australian government’s, and identify policies that aren’t working
efficiently, and then make recommendations in order to make amends. For example in 2022, the
RCOA outlined three major issues that require the attention of the Australian government.
These include finding solutions to people stuck in offshore detention, ending temporary
protection, and reinstating Australia’s Refugee and Humanitarian program. Furthermore, the
RCOA encourages participation in writing letters to local MPs in order to achieve humane
refugee policy reform. Therefore this organisation places pressure on the Australian government
to create policies that align with the morals and ethics of the council and other organisations
alike.

Non-Legal Responses Evaluation

These non-legal responses to asylum seekers are highly effective in terms of resource efficiency
and meeting the needs of society. This can be observed with Amnesty International, as their
work is done through their volunteer networks and individual members. Therefore they get an
excellent return from their effort as 71% of their income came from donations and their
contributions to the protection of human rights totalled $5.8 million. They also meet the needs of
society to a high extent, as seen in RAC. The majority of society believes that safety, protection,
and the ability to live free from persecution is a requirement. Therefore, they meet the needs of
society by taking action as seen in their Woomera Detention Centre operation. Furthermore, the
RAC formulates their own plans collectively, with all members contributing, regardless of race,
gender, religion, class, or financial status. This allows issues to be heard from different
backgrounds. Being a collaborative organisation that works with a number of groups to achieve
common goals greatly increases the chances that their work will meet the needs that society
deems important, including safety, protection, and freedom from prosecution.
The UNHCR is highly effective in its resource efficiency as they have the capacity to respond to
a new emergency affecting up to 500 000 people and can mobilise over 300 trained personnel
within 72 hours. Furthermore, they are 85% financed by individual governments, which shows
that they are able to utilise their resources efficiently without being privatised by corporations.
Their effectiveness is further shown when meeting the needs of society, as they are essential in
assisting asylum seekers. For example, they assisted approximately 113 000 Afghan refugees
in Pakistan and Iran to voluntarily return to Afghanistan. The RCOA is also highly effective with
resources, as their campaigns are funded by individuals, and as a result they were able to
resettle 152 refugees from immigration detention in Australia to Canada in 2021. Moreover, they
meet the needs of society by publishing statistics to assist the public in their knowledge of
asylum seekers. This is seen in their website, where it states that 4,183 people have been
placed in offshore detention since 2012. Therefore, these non-legal responses are highly
effective in their response to asylum seekers due to their high resource efficiency and capacity
to meet the needs of society.

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