I. SUMMARY

On August 27, 2001, Australia gained international attention when it refused to allow a Norwegian freighter to deliver 433 asylum seekers rescued at sea, most of them originally from Afghanistan, to Christmas Island, Australia, the closest place of safety. In September 2001 Australia enacted legislation with the explicit objective of stemming the unauthorized arrival of refugees from the Middle East and South Asia. The Australian government believes these refugees could and should have found protection closer to home. More broadly, its treatment of the relatively few refugees who have attempted to reach Australia since August 2001 is intended to serve as a powerful deterrent to others not to consider seeking asylum in Australia.

This report examines Australian refugee policy since Australia closed its coastal borders to asylum seekers in August 2001.

In research conducted during April and May 2002, Human Rights Watch interviewed dozens of refugees in Australia and in Indonesia about their reasons for leaving the countries they first reached after leaving their homes and for putting themselves at the mercy of people-smugglers to make the dangerous journey to Australia. Based on their accounts, Human Rights Watch disputes the Australian government's assumption that these individuals were generally able to enjoy effective protection in the countries where they first sought asylum, such as Iran and Pakistan, or that they were able to obtain effective protection in countries they passed through en route, like Indonesia and Malaysia.

Among the compelling reasons cited by refugees for leaving their own regions were serious risks of forced return to countries where their lives and freedom were endangered (refoulement); continuing threats from their original persecutors operating across borders; inability to acquire legal status, without which they ran the risk of harassment, arrest and detention; and discriminatory restrictions on their access to the labor market, housing, health care and education, which often threatened their daily subsistence. In some cases, protection closer to home, though initially adequate, broke down over time, forcing refugees to travel on in search of greater security.

Nor could these refugees enjoy effective protection in the countries they passed through en route to Australia, such as Malaysia and Indonesia. During the period in question, neither Southeast Asian state authorities nor the UN High Commissioner for Refugees (UNHCR) protected asylum seekers from the real risk of detention as illegal migrants under inhumane conditions. Even if UNHCR recognized their status, these refugees did not have a realistic prospect of local integration or resettlement from Indonesia to another country.

Human Rights Watch also found that, even refugees who were aware of the resettlement system that allows certain refugees to move legally to safer countries such as Australia had good reasons, including fear of approaching UNHCR offices watched by agents of their persecutors, for failing to apply. Others did apply for resettlement, but faced lengthy delays during which they remained at grave risk.

Under these circumstances, Australian policies intended to deter refugees from coming to Australia and instead contain them within their regions of origin or allowing them to come to Australia "by invitation only" are a partial abdication of its responsibilities under the Refugee Convention.

The second half of the report analyzes, according to international human rights standards, five deterrent measures introduced by the Australian government:

· The interception of boats containing asylum seekers;
· The forcible return of asylum seekers to Indonesia, without guarantees for their protection;
· The forcible transfer of asylum seekers to the Pacific island nations of Nauru and Papua New Guinea, where they are detained;
· A regime of mandatory detention on the Australian mainland and now on Christmas Island, an Australian territory in the Indian Ocean deemed to be outside the Australian "migration zone"; and
· The design of an elaborate Temporary Protection Visa regime, which affords limited rights to refugees.

All of these measures violate international human rights standards. The main human rights obligations that have been violated are freedom from inhuman and degrading treatment, freedom from arbitrary detention, the right to due process, and a refugee's right to travel documents. Australia has also disregarded the fundamental human rights principle of family unity.

When Australia forcibly returned asylum seekers to Indonesia without sufficient guarantees for their protection in October 2001, the government breached several of its obligations under both international human rights law and international maritime law. By subjecting asylum seekers to arbitrary detention on Pacific island states-Nauru and Papua New Guinea-and processing asylum claims there without sufficient guarantees of due process, such as access to independent legal advice, Australia further violated their rights. Moreover, by contracting for the management of the detention centers with the International Organization for Migration (IOM), an organization with no mandate to protect refugees, Australia has attempted to evade its own responsibilities as a state party to human rights treaties.

Australia's long-standing policy of mandatory detention applies to all asylum seekers entering the country without authorization. This blanket policy of indefinite and non-reviewable detention has been found to be "arbitrary" and therefore a violation of international human rights law. The government justifies this policy to the Australian public in part by pointing to the fact that majority of those detained have not come directly from their countries of origin, as if this necessarily makes them less than genuine refugees. Human Rights Watch findings suggest to the contrary that many of those labeled as "queue-jumpers" by the Australian government are in urgent need of protection and so should be treated no differently than other refugees.

Lastly, Australia's Temporary Protection Visa regime violates several core rights of recognized refugees, denying many of them any prospect of family reunification and condemning them to live in perpetual limbo.

Australia's punitive use of such measures to deter "secondary movement" of refugees beyond their own regions of origin sets a new and dangerous precedent which must not be followed by other states. A traditional leader in the refugee field (in 2001, Australia ranked third in the world in terms of numbers of refugees invited to resettle from overseas), Australia is now undermining the foundations of the international protection regime.

Methodology
This report is based on a Human Rights Watch mission to Australia and Indonesia in April and May 2002 and subsequent research, including correspondence with refugees in New Zealand and Nauru, as well as meetings with the Australian government, IOM Jakarta, and UNHCR in Canberra and Geneva. In Indonesia, interviews were conducted with refugees in Jakarta, Lombok, and the town of Cisawa. In Australia, they were conducted in Melbourne and Sydney, including inside Villawood Detention Centre. Human Rights Watch sought but was not granted permission to interview refugees detained at Australia's expense on Manus Island, Papua New Guinea. A total of fifty interviews were conducted with refugees of varying ages, genders, and nationalities, each in privacy and each lasting from one to three hours. The names of all refugees and agency staff have been changed or withheld to protect their privacy, security or positions. In the footnotes to this report, interviews with refugees and asylum seekers are numbered 1-50 with reference to the full interview notes held on file with Human Rights Watch.