Kathmandu School of Law Review

P-ISSN : 2091-2110, E-ISSN : 2773-8159, DOI : 10.46985, Publisher : Kathmandu School of Law, Nepal
Annual flagship journal of Kathmandu School of Law, Nepal

Volume 3, Issue Special, May 2013
Articles

The Transfer of Asylum Seekers in Australia to Third Countries: A Case Study of Sovereignty versus International Law

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  • Hugh S. Tuckfield
Hugh S. Tuckfield
Kathmandu School of Law
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Published 2013-05-31

How to Cite

Tuckfield, H. S. (2013). The Transfer of Asylum Seekers in Australia to Third Countries: A Case Study of Sovereignty versus International Law. Kathmandu School of Law Review, 3(Special), 187–196. Retrieved from https://kslreview.org/index.php/kslr/article/view/1005

Abstract

Asylum is an issue equally central to refugee law and human rights. Generally, they are protected under the 1951 Refugee Convention, but asylum cases are largely state regulated affair, subject to state legislations, policies and guidelines, which certainly do not preclude the applicability of international obligations directing the conduct of state towards the asylum seekers, which emanate from the recognized international human rights principles such as right to seek asylum and right against refoulement and right not to be arbitrarily detained. Contracting parties to international conventions such as the 1951 Refugee Convention, ICCPR, ISESCR, CAT, CRC, CEDAW and CERD among others acquire the responsibility to respect, protect and fulfill the obligations adducible in treatment of asylum seekers. In this regard, Australia was one of the earliest state parties to the 1951 Refugee Convention and is also a party to the relevant human rights treaties. However, it is determined to adhere to its conventional understanding of sovereignty and nationalism, at the cost of comprising the minimum protection of the rights of those who seek asylum in it.

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References

  1. Unauthorised maritime arrival’ is the new term proposed by in Ahani v Canada, Legal Consequences of the Construction of a Wall in the Occupied Territory, 1951 Refugee Convention, Vienna convention on the Law of Treaties, Snyder, Goodwin-gill, Migration Act 1958 (Australia), Migration Amendment (Unauthorised Maritime Arrivals and Other Measures Bill 2012 (Australia) to replace the existing term in the Migration Act 1958 of ‘offshore entry person’ to apply to those persons if they entered Australia by sea at an excised offshore place at any time after the excision time for that place or at any other place at any time on or after commencement date, and became an unlawful non-citizen because of that entry.
  2. G. Goodwin-Gill, The Refugee in International Law (2nd edn, Oxford University Press 1996) 172173.
  3. Australia is arguably in breach of the Vienna Convention as regards the duties and obligation under the 1951 Convention, ICCPR, ICESCR, CAT and CRC. Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 arts 26, 31.
  4. Nationalism is initially observed as a unifying force that subsequently develops into a clamour for international independence then aggressive imperialism. Nationalism is a product of political, economic, social and intellectual factors at a certain stage in history, a condition of the mind, a feeling, or sentiment of a group of people living in a well defined geographical area, speaking a common language, possessing a literature in which the aspirations of the nation have been expressed, attached to common traditions, common customs, venerating its own laws, and in some cases having a common religion. See Louis L Snyder, Chapter II, ‘The Concept of Nationalism’ in Synder, The Meaning of Nationalism (Rutgers University Press 1954) 196-197.
  5. Ibid.
  6. Article 31 of the 1951 Convention provides that asylum-seekers should not be penalized or exposed to unfavourable treatment solely because their presence in the country is considered unlawful.
  7. Article 3 of the 1951 Convention prohibits against discrimination of refugees on the grounds of ‘race, religion and country of origin’. Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (1951 Refugee Convention) art 31.
  8. Australia has ratified (with some reservations) all the major international human rights treaties relevant to the rights of asylum seekers and thus has obligations to respect, protect and fulfill the human rights of asylum seekers. Australia has ratified the following conventions: International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR); International Covenant on Economic, Social and Cultural Rights (entered into force 3 January 1976) 999 UNTS 3 (ICESCR); Convention against Torture, and Other Cruel, Inhuman, Degrading Treatment or Punishment (entered into force 26 June 1987) 1465 UNTS 85 (CAT); Convention on Elimination of Racial Discrimination (entered into force 4 January 1969) 660 UNTS 195; Convention on Elimination of Discrimination against Women (entered into force 3 September 1981) 1249 UNTS 13 (CEDAW); Convention on Rights of the Child (entered into force 2 September 1990) 1577 UNTS.
  9. The first principle relevant in the context of asylum seekers being transferred to third countries is that Australia’s human rights obligations extend to acts done outside its territory. This was the decision of International Court of Justice (ICJ) in its advisory opinion in the Israel Wall case. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory) [2004] ICJ Rep 136 (the Israel Wall Case). The second principle relevant to asylum seekers is that States are obliged to treat people it has transferred to third countries and has effective control over, in a manner consistent with the human rights obligations it has agreed to be bound by. See (decisions of the European Court of Human Rights) Banković v Belgium et al [GC] no. 52207/99, [2001] ECHR 890 and Al-Skeini v United Kingdom [GC] no. 55721/07, [2011] ECHR 1093. The third principle holds that where there is alleged serious threats to physical security, a state is to exercise due diligence to determine whether the requisite level of risk exists. See Ahani v Canada, Communication No.1051/2002, UN Doc CCPR/C/80/D/1051/2002 (2004) 10.7. The fourth principle is that States have a responsibility to implement their treaty obligations in good faith. This principle obliges states, to not by act or mission or combinations thereof to render the fulfilment of treaty obligations obsolete, or defeat the object and purpose of a treaty. Vienna Convention on the Law of Treaties (n 4) arts 26, 31.
  10. See Israel Wall Case (n 9); request and summary of the advisory opinion of 9 July 2004.
  11. Professor Ben Saul submission to the Senate Legal and Constitutional Affairs Committee inquiry into the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 (4 December 2012).
  12. ICCPR (n 8) arts 6 ,7.
  13. CAT (n 8) art 3.
  14. CRC (n 8).
  15. Such as the Ministers discretion to exempt classes of persons from offshore processing under s.
  16. AE of the Migration Act or to allow protections visas to be issued under s.46. See Department of Immigration & Citizenship Departmental, Guidelines for Assessment of Persons Prior to Transfer pursuant to section 198AD(2) f the Migration Act (October 2012) (the DIAC Guidelines) < http://www.immi.gov.au/visas/humanitarian/_pdf/s198ad-2-guidelines.pdf> accessed 1 April 2013.
  17. Article 3(a) of the ICCPR provides that States Parties are to ensure that any person whose rights or freedoms enshrined in the Covenant are violated has available to them an effective remedy and any person claiming that remedy have the right determined by an appropriate authority. ICCPR (n 8) art 3.
  18. Complaint mechanisms are provided for in the Optional Protocol to the Convention on the Rights of the Child, to which Australia has not acceded. See UN Human Rights Council, Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (adopted on 14 July 2011) UN Doc. A/HRC/RES/17/18 <http://www.refworld.org/docid/4e72fbb12.html> , accessed 21 April 2013.
  19. MA (Migration) Bill (Australia) sch 1, item 8; See also Commonwealth, House of Representatives (Parliamentary Debates) 31 October 2012, 8 (Chris Bowen, Minister for Immigration and Citizenship).
  20. Where detention complies with national law, the 1951 Convention and international human rights law and satisfies the test of reasonableness and is proportional to the objectives to be achieved and on a non-discriminatory basis, it is considered to be lawful and not arbitrary.
  21. Migration Act 1958 (Cth), s 196.
  22. This is to be compared to 25% to 35% of non-irregular maritime arrivals being granted protection visas. See Report of the Expert Panel on Asylum Seekers (August 2012) table 15 (finally determined rates for key IMA caseloads in Australia) 98.
  23. There have been eight deaths in detention centres, six of which have been attributed to suicide.
  24. See, for example ‘UNHCR urges Australia to review policy of detaining asylum seekers’ (Media Release, 1 February 2002) < www.un.org/apps/news/story.asp?NewsID=2785& > accessed 1 May 2013; ‘Changes to Australian detention arrangements’ (Media Release, 19 April 2010) <http://unhcr.org.au/unhcr/index.php?option=com_content&view=
  25. rticle&id=175&catid=35&Itemid=63>, accessed 6 February 2013; United Nations Human Rights Committee, Concluding Observations of the Human Rights Committee: Australia UN Doc CCPR/C/AUS/CO/5 (2009) para 23; United Nations Committee on Economic, Social and Cultural Rights, Concluding observations of the Committee on Economic, Social and Cultural Rights: Australia UN Doc E/C.12/AUS/CO/4 (2009), para 25; A Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, ‘Mission to Australia’ UN Doc A/HRC/14/30/ Add.4 (2010) 21-24; United Nations Human Rights Council, ‘Report of the Working Group on the Universal Periodic Review: Australia (2011)’ paras 28, 42, 49,78,86.123,86.127,86.131 and 86.132
  26. < www.ohchr.org/EN/ HRBodies/UPR/PAGES/AUSession10.aspx>, accessed 6 February 2013; United Nations Commission on Human Rights, Report of the Working Group on Arbitrary Detention: Visit to Australia (2002) UN Doc E/CN.4/2003/8/Add.2 executive summary; United Nations Committee on the Rights of the Child, Concluding Observations: Australia (2005) UN Doc CRC/C/15/Add.268 para 62.
  27. The introduction of the ‘no advantage test’ contemplates a time frame for the processing of protection claims that is assessed against and consistent with the period a refugee might face had she or he been assessed by the UNHCR ‘within the regional processing arrangement’.
  28. The no-advantage test has raised concerns among a range of relevant Non-Government Organisations (NGOs), the Australian Human Rights Commission (AHRC) and the UNHCR. The UNHCR has explained that the time it takes for resettlement referrals by the UNHCR in South East Asia or elsewhere ‘may not be a suitable comparator for the period that a Convention State whose protection obligations are engaged should use.’ It has further explained that it is difficult to identify such a period with any accuracy, given that there is no ‘average’ time for resettlement, and due to the fact that the UNHCR seeks to resettle people on the basis of need and special categories of vulnerability, rather than on the basis of a ‘time spent’ formulation. See: Australian Human Rights Commission Human, ‘rights issues raised by the transfer of asylum seekers to third countries’ (AHRC Paper, October 2012 <http://www.humanrights.gov.au/human_rights/immigration/transfer_third_countries.html> accessed 1 May 2013.
  29. In October 2012, seven families, including four children, comprised the first 19 asylum seekers flown from Christmas Island to Manus Island under an agreement the Australian Government signed with the PNG Government in September 2012. See MOU Relating to the Transfer and Assessment of Persons in PNG, and Related Issues (with PNG), 19 August 2011.
  30. CRC (n 8) art 37(b)
  31. Ibid art 3.
  32. ICCPR (n 8) arts 17, 23.
  33. CRC (n 8) art 37(c).
  34. Ibid art 37(d) article 37(d).
  35. See CRC (n 8) arts 24, 26, 27, 29, 30.