The Honorable John Howard
MG 8
Parliament House
Canberra ACT 2600

Dear Prime Minister Howard:

Human Rights Watch and the U.S. Committee for Refugees are concerned by the ways in which the recent amendments to Australia’s Migration Act of 1958 (the “Migration Act”) and other Australian legislation will severely affect the human rights of asylum seekers and refugees. In particular, we are concerned that the new law prevents asylum seekers from accessing refugee determination procedures, narrows the definition of a refugee, broadens safe-third-country provisions, and increases detention of asylum seekers and refugees.

The recent amendments to Australian law seriously infringe upon the right of refugees not to be returned to a country where their lives or freedom are threatened (the principle of nonrefoulement). This principle is the cornerstone of international refugee protection and is enshrined in Article 33 of the Refugee Convention, which Australia has ratified. It is also a well-established principle of international customary law.

Accessing Determination Procedures and Refoulement

The Migration Amendment (Excision from Migration Zone) Act 2001 has designated Christmas Island, Ashmore Reef and Cartier Islands, the Cocos (Keeling) Islands, and Australian sea and resources installations as “excised offshore place[s]” deemed outside the country’s “migration zone.” Under the law, persons who enter these offshore places are defined as “offshore entry persons” and are unable to make visa applications, including requests for asylum, unless the minister exercises his discretion on their behalf. Asylum seekers who are not given authority to present their claims may be taken “to a place outside Australia” (pursuant to amendments to the Customs Act § 185(3A)), including to a country with a declaration in force regarding access to asylum procedures (pursuant to amendments to the Migration Act §198A).

Human Rights Watch and the U.S. Committee for Refugees were greatly disturbed by Australia’s decision on October 19, 2001 to return an Indonesian fishing vessel containing asylum seekers to international waters, in furtherance of the new law, after the vessel reached the “excised” Australian territory of Ashmore Reef. This and subsequent similar actions indicate that the unfettered discretion afforded to the minister in the new legislation can be exercised in a manner that raises serious refoulement concerns.

By permitting “offshore entry persons” to be excluded from Australia without access to asylum determinations, Australia undermines its obligation of nonrefoulement. The obligation of nonrefoulement must be upheld in all of Australia’s territories, regardless of whether such actions take place within or outside of the “migration zone.” Until the law is amended to conform to international standards, ministerial discretion must be exercised to ensure that each refugee arriving in Australia (whether inside or outside the “migration zone”) is protected from direct or indirect return to a place where his or her life or freedom would be threatened.

Implementing the newly passed legislation in a manner that upholds all international legal obligations will also require providing access to full, fair and efficient determination procedures to asylum seekers arriving in all parts of Australia’s territory so that refugees can be identified and afforded protection against any manner of refoulement. As you are aware, the Universal Declaration of Human Rights provides in Article 14 that “everyone has the right to seek and enjoy in other countries asylum from persecution.” This principle of international human rights is undermined, often together with the principle of nonrefoulement, when individuals are prevented from accessing fair and efficient asylum determination procedures.

Narrowing the Definition of a Refugee

The new legislation imposes limits on the definition of a refugee that contravene the text of the Refugee Convention, as well as the inclusive spirit in which the treaty was drafted. The definition of a refugee, as indicated by the Convention’s travaux préparatoires, was intended to cover a broad range of persons who could not obtain the protection they required from their countries of origin. There was never any intention to single out a special set of individuals as more deserving of protection than others. Unfortunately, this is precisely what the Australian amendments have done.

The Migration Legislation Amendment Bill (No. 6), § 91R, adopts a definition of persecution that is narrower than Australia’s treaty obligations under the Refugee Convention. The bill states that the Refugee Convention-based reasons for persecution do not apply “unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct.” This new three-step approach to defining persecution is geared to past experience of persecution and does not embrace the forward-looking nature of the “well-founded fear of being persecuted” standard contained in Article 1(A) of the Refugee Convention.

The Migration Legislation Amendment Bill (No. 6) § 91S also requires that one member of a family hold a well-founded fear of persecution on Refugee Convention grounds before any other member of his family can be recognized to hold a well-founded fear of persecution for membership in a particular family grouping. In practice, this double-requirement undermines the right of each asylum-seeker to have his or her application considered on its own terms. For example, if a male member of a family presents his application first (and it is denied) and later his wife applies based on membership in a family unit, her family-based fear might be sufficient to satisfy Article 1(A) of the Convention, but his earlier denial could be used by an adjudicator to deny her application.

These alterations of the definition of a refugee contained in Australia’s legislation, we believe, must be amended or at the very least interpreted in a manner that complies with the full scope of the refugee definition and consequent Refugee Convention obligations. The legislation’s narrowing of the definition is a breach of Australia’s treaty obligations, and unless broadened through amendment or interpretation, could result in the refoulement of refugees.

Safe Third Country Provisions

The Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 amends the Migration Regulations of 1994, which list the categories of individuals who may apply for visas, including refugees. As a result of the amendments, these Migration Regulations now contain, in Schedule 1, Part 4, a requirement that an asylum seeker applying for a visa has not resided “for a continuous period of at least 7 days, in a country in which the applicant could have sought and obtained effective protection: (a) of the country; or (b) through the offices of the United Nations High Commissioner for Refugees located in that country.” These requirements may be waived if the minister is satisfied that it is in the public interest to do so.

These provisions are based on the false premise that international law requires asylum seekers to lodge an asylum application in the first country they reach. In fact, the Refugee Convention does not specify where an asylum application should be made. In addition, the new requirements make no allowance for refugees sur place, whose reasons for applying for asylum are based on circumstances that arise well after such a “continuous period of at least 7 days.” Since these measures limit an individual’s right to seek asylum in violation of principles of international human rights and Australia’s Refugee Convention obligations, they should be deleted from the law.

Detention

The Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 § 189 allows potentially indefinite detention of all non-citizens and asylum seekers whom an officer “reasonably suspects” are “seeking to enter an excised offshore place.” Section 494AA of the Migration Act is amended to place a strict bar on judicial review when such detention occurs outside the “migration zone.” Unless safeguards are put in place, detention under the amended Migration Act will violate the fundamental norm against prolonged arbitrary and unlawful detention --- which applies to all non-citizens, including refugees and asylum seekers.

The right to liberty and security of person is guaranteed under the 1966 International Covenant on Civil and Political Rights (ICCPR), to which Australia is a party. Article 9 of the ICCPR provides that everyone “has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.” To ensure freedom from arbitrary detention, Article 9 further requires that detention must be examined for its lawfulness by an impartial adjudicator. The U.N. Human Rights Committee has expressly stated that the guarantees of Article 9 apply to aliens. In July 2000 the committee specifically urged Australia to reconsider its mandatory detention policy for unauthorized arrivals, including asylum seekers, and to inform all detainees of their legal rights, including their right to seek legal counsel.

UNHCR guidelines on the detention of asylum seekers also stipulate that as a general rule asylum seekers should not be detained and minimal procedural safeguards must be guaranteed. These include the right to an automatic independent judicial review of all decisions to detain followed by periodic reviews of the necessity to continue to detain, and the right of all asylum seekers to be informed of their right to legal counsel and to be provided free legal assistance where possible.

The recent legislation seriously contravenes Australia’s obligations to non-citizens, refugees and asylum seekers under international human rights and refugee law. As provided for in Article 2 of the ICCPR, the obligation to respect and ensure rights to all persons, including all non-citizens, applies throughout Australia’s territory and to all persons subject to Australia’s jurisdiction. We urge Australia, as we have already urged the U.S. government in similar circumstances, to amend its new legislation or at a minimum to implement it in a manner that fully upholds fundamental norms of international human rights and refugee law.

Sincerely,

Kenneth Roth
Executive Director
Human Rights Watch

Bill Frelick
Director
U.S. Committee for Refugees

cc: Philip Ruddock MP
Kim Beazley MP