The status of Australia’s compliance with the Refugee Convention

| June 4, 2015

In recent months, a situation which may amount to genocide with the Roingya in Myanmar has emerged. David Coleman says the status of Australia’s compliance with the Refugee Convention is in crisis.

A refugee is a person that cannot return to their home country because they face persecution in their home country. According to the United Nations High Commission for Refugees (UNHCR), there were 16.7 million refugees worldwide at the end of 2013, but it is currently estimated to be above 50 million because of the international political situation in countries such as Syria, Yemen and Afghanistan.

Over half of the registered refugees are children. For the first time since WWII, the number of refugees in the world has risen above 50 million. In recent months, a situation which may amount to genocide with an ethnic minority called the Roingya in Myanmar has emerged. Tony Abbott infamously said “nope, nope, nope” when asked if Australia would direct any resources to assisting Indonesia with the Roingya refugee application.

Australia is a signatory to the Refugees Convention which is the seminal element of international law regarding refugeesArticle 1A(2) of the Convention defines a refugee as “a person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

The Migration Act 1958 (Cth) incorporates in section 36(2) the grant of a protection visa to a ‘non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol’. Australia has an offshore and onshore refugee application processing procedure. In relation to applications lodged from outside of Australian territory, there is no right of appeal to the Refugee Review Tribunal or the Federal Court of Australia as there is in the case of an application which is made from within the territorial bounds of Australia. Our common law also does not impute rights from the Refguee Convention without the support of domestic legislation. As was made evident by the case of Al-Kateb v Godwin & Ors [2004] HCA 37, it is technically legal for the government to legislate that a stateless person may be detained indefinitely despite Australia’s accession to the Refugee Convention.

The status of Australia’s compliance with the Convention is plainly in crisis. Currently, Australia receives approximately 50,000 refugee applications per year and approves a quota of 13,705 people from these applications where the person has been assessed as a genuine refugee. However, a deal is under negotiation to increase the quota by 7,500 over four years in exchange for the reintroduction of temporary protection visas which allow a person to repatriated to their original country after the crisis from which they were fleeing has passed. Temporary protection visas are controversial because the traditional view of refugee status is that it entitles the recipient to permanent residency in the receiving country. This is based on the historical practice of Australia and the International Convention. There remain a large number of children in immigration detention, a state of affairs that has been in existence for a number of years now.  Currently the Commonwealth is also being sued in the New South Wales Supreme Court for negligence and failure to meet a statutory duty by plaintiffs that were present on the boat that broke up on the rocks on Christmas Island. There have been disputes with Indonesia over the flow of refugees through that country to Australia; it is a situation that must be remedied by the government.

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