III. OVERVIEW: REFUGEES' PATH OF FLIGHT TO AUSTRALIA

In the year 2000-01, 4,141 asylum seekers arrived by boat in Australia.¹ Nearly all of them were from Iraq, Iran and Afghanistan. Ongoing and severe human rights abuses in each of these countries prompted people to make the difficult decision to leave their homes. This section traces in general terms why they flee and the obstacles they encounter - including policies introduced by the government of Australia to block their movement. Subsequent sections detail each stage of the refugees' flight towards Australia, and the abuses they suffer.

Flight from persecution at home
Iraq: Displacement from Iraq is primarily the result of the Iraqi government's gross abuse of human rights throughout the past decade.² Uprisings after the Gulf War led to attacks on civilians and rebels in the Shi'a Muslim south and Kurdish north during 1991, which in turn propelled more than a million people to flee, including 350,000 into Iran. Saddam Hussein's regime has persecuted political opponents and ethnic minorities with extreme measures including forced relocation, arbitrary arrest and detention, torture, disappearance, summary execution, use of chemical weapons and the destruction of entire villages. Penalties for even minor criminal offences often violate international human rights standards. Iraqi refugees and asylum seekers interviewed by Human Rights Watch for this report included medical professionals who refused to perform amputations of ears as a criminal sentence, rebels arrested by Iraqi security forces for providing aid to starving people in southern Iraq, Kurdish families forced from their villages, and people of imputed political opinion, who faced arrest and torture when named by other torture victims during interrogations.³

Afghanistan: Refugees fleeing from Afghanistan have also endured cycles of violence and persecution for decades.⁴ After the Soviet Union withdrew its occupation forces in 1989, local warlords, Mujahidin⁵ troops and government forces vied for control of several regions, creating widespread civil conflict. The Taliban regime, which rose to power in 1995, indiscriminately killed and tortured civilians to maintain control of certain areas, targeted specific ethnic and religious groups, and conducted a full-scale assault on the fundamental rights and freedoms of women.⁶ Forced conscription of young men and boys prompted many, especially eldest sons, to join the ranks of refugees fleeing from Afghanistan. Mustafa, for example, is an unaccompanied Hazara boy now living in Sydney.⁷ He remembers the events leading up to his departure from Afghanistan, aged thirteen, in late September 2000:

My father was a landlord who got involved with the political party Hezb-i Wahdat. The Taliban abducted my older brother and they made threats about killing my other brothers and sister if my father did not submit weapons which they believed he was hiding. As he did not have any weapons, he offered money instead, but they did not accept this and dumped my brother's murdered body at the front door of our house. My father and I were in hiding in the mountains on this day, but we heard what had happened and returned to our village to bury the body. A few days later the Taliban repeated their demands and my father said to me: "I have to save you. I have to send you to Pakistan"... It was a friend of my father's who advised that I would not be safe from the Taliban in either Iran or Pakistan and suggested that I be sent to Australia.⁸

Iran: Refugees of varying religious persuasions, Christians, Jews, Zoroastrians, Bahais, Sabian Mandaeans, and Sunni Muslims have all suffered discrimination and persecution, and conversion from Islam is not tolerated.⁹ Many Iranian refugees, particularly those on the side of political reform, have been subjected to political violence including assassination, arbitrary arrest, unfair trial, and restrictions on freedoms of expression, association and assembly. The Iranian refugees interviewed by Human Rights Watch for this report feared religious persecution (though they asked for their religious groups not to be named, for fear of reprisals). A few fled Iran in fear of political persecution.¹⁰

No sanctuary in their regions of origin
Refugees from these countries of origin first flee to bordering countries - for example, Iraqis often flee to Iran and Afghans often flee to Pakistan. Life as a refugee in the first countries they reach (often called "countries of first asylum") is grueling, however, most fundamentally because refugees in countries like Iran and Pakistan are not accorded a legal status that allows them to reestablish their lives without fear of harassment by the police or other authorities. Some may be returned to their home countries where they fear persecution. That violates an accepted principle of customary international law never to return refugees to countries where their life or freedom would be in jeopardy because of a well-founded fear of persecution.¹¹ This norm of non-refoulement is set forth in Article 33 of the 1951 Convention Relating to the Status of Refugees (the Refugee Convention)¹² and is the cornerstone of refugee protection.
Because their personal security is at risk, these refugees should be prime candidates to apply through the offices of the United Nations High Commissioner for Refugees (UNHCR) for resettlement in a third country.

Resettlement is one of three "durable solutions" for refugees. The other two are local integration and voluntary repatriation. Resettlement involves transferring certain groups or individuals to third countries when the quality of protection proves insufficient for them in first countries of asylum. As such it is an invaluable system that operates to saves thousands of lives every year. Countries accepting resettled refugees are usually in the industrialized world, like Australia.¹³ Refugees fulfilling one of eight criteria may be referred for resettlement: refugees with legal and physical protection needs; survivors of violence and torture; refugees with certain medical needs; women at risk; refugees in need of family reunification; children and adolescents; elderly refugees; and refugees without prospects for local integration.¹⁴ The protracted, deteriorating situations for refugees in Iran, Jordan, Syria, or Pakistan, where access to any form of legal status has been removed from hundreds of thousands of refugees, mean that all these people at least qualify under at least the final resettlement criterion of lack of integration prospect.

However, the resettlement systems in Pakistan and Iran are not always accessible to refugees at risk, are fraught with delay, and only a tiny number of cases are actually referred. Refugees soon learn how unlikely an option it is. Less than 2 percent of the world's refugees are resettled in any given year.¹⁵ Eventually refugees may find conditions in these countries intolerable and choose to move again, this time out of their "regions of origin." A common first destination is Malaysia, where refugees from Islamic countries are given temporary permission to enter. From Malaysia, many refugees negotiate onward passage with people-smugglers, who often decide where to take them. A common intended destination is Australia, by way of Indonesia.

"Secondary movement" in search of "effective protection"
"Secondary movement" is any migration by a refugee beyond the country in which she was first a refugee, irrespective of her legal status, and irrespective of the time she spent in the first country to which she fled. In this context, it is movement from the Middle East or South Asia to a country in Southeast Asia, and then movement from Southeast Asia toward Australia, in many cases, a third or fourth movement.

"Secondary movement" ought to be a neutral term, but governments increasingly use it as if it were synonymous with "irregular movement," a term used by UNHCR to refer to those refugees who leave a country of first asylum, where they have obtained "effective protection," for economic or other non-compelling reasons. UNHCR Executive Committee (Excom)¹⁶ Conclusion No. 58¹⁷ states that all such "irregular movements" are inherently undesirable.

There is no basis in international law for using the mere fact of secondary movement as a presumptive bar to the right to seek asylum. The onward movement of refugees from the country where they first fled often reflects a serious failure of international protection there. Therefore, for example, an Afghan refugee moving on from Iran in search of protection elsewhere should not be treated differently from an asylum seeker arriving directly from a country of origin.

Australia's interpretation of "effective protection" poses a formidable challenge for refugees who are subject to it. Australia defines effective protection as existing in a country where "the person will not face a real chance of being persecuted in the third country or returned to a country where his or her life or freedom would be threatened for a Convention reason."¹⁸ Australia holds that it is unnecessary for the country in question to be a party to the Refugee Convention or for it to provide access to a secure legal status to refugees.

The Australian government agrees that the legal "right to reside, enter and re-enter," which most refugees previously staying in Iran or Pakistan, for example, do not have, may be one test of effective protection, but contends that "even informal temporary residence may afford a sufficient foundation for the application of the principle [of effective protection]" and that it is a question of "practical fact" more than "legal right."¹⁹ In other words, for the Iraqi, Afghan, and Iranian refugees interviewed for this report who left their regions of origin and headed toward Australia, the Australian government argues that their tolerated presence in other countries constituted "effective protection," regardless of whether they were accorded any legal status or other rights there.²⁰

The Australian government has stated, "Only where it is direct flight of a refugee from a country of origin or a country of first asylum when protection has broken down is irregular migration [meaning secondary movement] acceptable."²¹ But it has showed no sign that it considers the protection situations in Iran, Pakistan or any other Middle Eastern, South Asian or Southeast Asian country to have "broken down."

Refugees who face ongoing persecution, the risk of refoulement or any other threat to their lives in their countries of first asylum are not "effectively protected," and their secondary movements from countries where they face these risks should not in any way affect their claims to asylum.

Moreover, when Iraqi or Afghan refugees reach Pakistan or Iran, for example, they seldom have access to a legal status, and this leaves them open to numerous other human rights abuses. The absence of individual refugee status determination, through full and fair procedures, or the absence of prima facie²² recognition in the alternative, amounts to unpredictable and therefore ineffective protection. Moreover, any state that violates the basic civil and political rights of refugees, such as the rights to freedom from arbitrary deprivation of liberty or property, should not be classed as offering effective protection. Even during a temporary stay, protection from refoulement without the means to subsist is not true protection.²³

Effective protection does not remain static over time: non-refoulement may be sufficient protection on the first day that an Afghan woman reaches Iran, but no longer suffices after many years of continued presence there. Without the prospect of local integration - that is, without a framework in which a refugee can enjoy basic rights such as the right to work and education - a refugee's international protection becomes ineffective over time.²⁴ Where a state permanently denies a refugee access to any form of legal status, it violates its Refugee Convention obligations,²⁵ even if it refrains from refoulement. For longstanding refugees, such a state cannot be said to offer effective protection. The basis for this position is the guidance of UNHCR in a number of public statements and Executive Committee Conclusions,²⁶ which in turn are based upon a full reading of the Refugee Convention rather than one that focuses only on non-refoulement (Article 33). For example, UNHCR stated in 1994, "To survive in the country of asylum, the refugee...needs to have some means of subsistence, as well as shelter, health care and other basic necessities...Beyond what is required for immediate survival, refugees need respect for the other fundamental human rights to which all individuals are entitled without discrimination."²⁷

Interception and expulsion by Australia
Engaging in "secondary movement" unwittingly transforms an Iranian, Afghan or Iraqi refugee into a less-than-legitimate refugee in the eyes of Australian immigration authorities. The first obstacle that the Australian government puts in the path of those who move beyond Malaysia or Indonesia and attempt to reach Australian shores by boat is interception. Today, an unauthorized asylum seekers on boats intercepted by the Australian authorities could be either summarily returned to Indonesia or, depending on the seaworthiness of the vessel, disembarked and transferred to the Pacific island states of Nauru or Papua New Guinea. But these two island nations are losing patience with Australia's policy of detention on their territory, so Australia is more likely to place such asylum seekers in detention on its own territory of Christmas Island or simply return the boats to Indonesian waters.

Australia's current policy²⁸ of intercepting asylum seekers began on August 27, 2001, when the government prevented the MV Tampa, a Norwegian freighter, from disembarking 433 asylum seekers rescued from a dangerously overloaded and damaged vessel. The Master of the Tampa wanted to bring the asylum seekers, many of whom needed urgent medical attention, to Christmas Island, Australia as the closest "place of safety."²⁹ The ship was refused entry, and the rescuees were transferred onto the Australian ship, HMAS Manoora, to be expelled from Australian territorial waters.³⁰ On September 7, 2001, a further 200 asylum seekers, mostly Iraqis, were placed on the Manoora when the Aceng, a "suspected illegal entry vessel" ("SIEV"), was intercepted. While the Manoora was at sea, a habeas corpus petition challenging the detention of the asylum seekers failed. ³¹

In late September 2001, the Australian parliament quickly passed seven bills³² relating to refugees including The Border Protection Act,³³ which validated the Tampa policies and enacted new powers of interception/interdiction³⁴ at sea. This package of legislation came into force on September 27 and introduced a dramatic innovation when it "excised" certain outlying territories from the Australian "migration zone."³⁵ Refugees who reach these excised places can no longer make asylum claims in Australia. Instead, they are likely to be transferred elsewhere and must apply to enter Australia or other third countries by resettlement.³⁶ At the time of writing, the government was planning to excise additional large portions of the Australian coastline.³⁷ Both the present and proposed "excisions" erect serious obstacles to the right to seek asylum in Australia.

Australia negotiated agreements with New Zealand, Nauru, and later Papua New Guinea, to take intercepted asylum seekers. During September and early October, intercepted arrivals were detained on the excised territory of Christmas Island or on board Australian naval ships until they were taken to Nauru or Papua New Guinea and confined in camps run by the International Organization for Migration (IOM).

The interception policy was to be used for an even harsher purpose, however. Under "Operation Relex," two boats that arrived in late October were intercepted, detained, and then returned to Indonesian waters against the will of those on board. Indonesia was notified, but no specific reception arrangements were made and no agreement was in place guaranteeing the protection of the intercepted refugees from refoulement.³⁸ The last boat from Indonesia to be disembarked onto an excised territory arrived at Ashmore Island on November 8, 2001, with 160 people on board. They were transferred from there to Christmas Island and then to Nauru and Papua New Guinea. In December 2001, two further boats were forcibly returned to Indonesian waters. In total, twelve "suspected illegal entry vessels" were intercepted by Australia between September 7 and December 16, 2001. One boat that, unfortunately, was not intercepted was "SIEV X" which sank with great loss of life on October 19, 2001, just beyond Indonesian waters. On November 8, 2001, two female asylum seekers died in the course of an interception operation near Ashmore Reef by the Royal Australian Navy and Australian Customs. At the time of writing, the deaths are the subject of a coronial inquest by the West Australian Coroner.

Because of these deterrent actions, as of August 2002, no unauthorized boats of asylum seekers had arrived in Australia's "migration zone" - that is, in territory that has not been excised - for a full year.³⁹ Refugees living in Indonesia inform Human Rights Watch that there are no more than a handful of new arrivals from the Middle East or South Asia⁴⁰ and that people-smugglers no longer look to Australia as a feasible "asylum country." There has been a 54 percent drop in the number of asylum seekers arriving in Australia in the past year, with only 3,284 people, mostly air arrivals, lodging applications.⁴¹ This compares, for example, to a 7 percent fall in asylum applications in Europe between January and June 2002.⁴²

Under this so-called "Pacific Solution" or "Offshore Strategy," Australia used third states and inter-governmental organizations as its agents, and in so doing, shirked its own responsibilities to refugees. At the same time, all of Australia's actions implicitly recognized that its protection obligations had been triggered by the entry of asylum seekers into its territorial waters.⁴³

Conclusion
Australia's interception policy and the "Pacific Solution" is a pernicious expression of the Australian government's view that the most fitting way to deal with refugees whom, it argues, should have sought protection elsewhere is simply to send them elsewhere. Yet many of the refugees making secondary movements to Australia were unable to find and enjoy effective protection in their countries of first asylum in the Middle East and South Asia, nor in the transit countries of Southeast Asia through which they had passed.

Every refugee or asylum seeker should be given the opportunity to rebut a presumption that they have already found effective protection before being penalized or denied access to asylum procedures in the state where they ultimately arrive. Australia's policy almost never affords them this opportunity because it is based on certain assumptions about who "secondary movers" are and why they move. In reporting their accounts in the following sections, Human Rights Watch challenges those assumptions.

1 Australian Department of Immigration (DIMIA) statistics - see DIMIA Factsheet 73.

2 See Human Rights Watch reports, including: Human Rights Watch/MENA, "Iraq's Brutal Decrees: Amputation, Branding and the Death Penalty," A Human Rights Watch Report, vol. 7 no.3, June 1995; Bureaucracy of Repression: The Iraqi Government in Its Own Words, (New York: Human Rights Watch, February 1994); "Endless Torment: The March 1991 Uprising in Iraq and its Aftermath," June 1992.

3 See, e.g., Human Rights Watch interviews, Nos. 1, 2, 3, 8, 28 and 29 (On file at Human Rights Watch). See also: Human Rights Watch, World Report, (New York: Human Rights Watch, 2001) and Human Rights Watch, World Report, (New York: Human Rights Watch, 2002).

4 See Human Rights Watch reports, including: Human Rights Watch, "Humanity Denied: Systematic Violations of Women's Rights in Afghanistan," A Human Rights Watch Report, vol. 13, no. 5 (C), October 2001; Asia Watch, "Towards a Political Settlement in Afghanistan: The Need to Protect Human Rights," A Human Rights Watch Report, vol. 18 no.3 (C), August 2001; The Forgotten War: Human Rights Abuses and Violations of the Laws of War Since the Soviet Withdrawal, (New York: Human Rights Watch, February 1991).

5 The "Mujahidin" is an umbrella term used to describe a number of different groups, mainly composed of ex-Afghan army troops and rural militias who took up arms against the Soviet Union in the 1980s and many of whom continued to fight against the Taliban in the 1990s.

6 The UNHCR "risk profile" for persons fleeing Afghanistan in the period dealt with in this report, included: those affiliated with the former communist regime; people promoting secular government in Afghanistan; persons of a certain professional profile; ethnic and religious minorities; and women of a specific profile - in other words, those failing to conform with Taliban law. See UNHCR Caswaname Legal Unit, "Afghanistan - Profiles of Groups at risk," April 2001.

7 Of the Afghans arriving in Australia in 2001, the majority were ethnic Hazara. The Hazara are a Shi'a Muslim minority long persecuted in Afghanistan, both by the Taliban and previously by some of those who formed the Northern Alliance and who now hold power.

8 Human Rights Watch interview, No. 41, Sydney, April 21, 2002. See also Human Rights Watch, "Massacres of Hazara in Afghanistan," A Human Rights Watch Report, vol. 13, no. 1 (c), February 2001.

9 See Human Rights Watch reports, including Human Rights Watch, "Stifling Dissent: "The Human Rights Consequences of Inter-Factional Struggle in Iran," A Human Rights Watch Report, vol. 13 no. 3 (E), May 2001; Human Rights Watch, "Religious and Ethnic Minorities Discrimination in Law and Practice," A Human Rights Watch Report, vol. 9 no. 7 (E), September 1997; Human Rights Watch, "Leaving Human Rights Behind', A Human Rights Watch Report, vol. 9 no. 2 (E), May 1997; Human Rights Watch/Asia, "Power Versus Choice: Human Rights and Parliamentary Elections in the Islamic Republic of Iran," A Human Rights Watch Report, vol. 8 no.1 (E), March 1996; Guardians of Thought: Limits on Freedom of Expression in Iran, (New York: Human Rights Watch, August 1993).

10 One refugee interviewed by Human Rights Watch, for example, was a medical laboratory worker who feared political persecution after stumbling across secret information about the death of Seyyed Ahmad Khomeini, the Ayatolah's son, in 1996. Human Rights Watch interview, No. 45, Sydney, April 27, 2002.

11 The norm of non-refoulement is customary international law. International customary law is defined as the general and consistent practice of states followed by them out of a sense of legal obligation.

12 Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 150, as amended by Protocol Relating to the Status of Refugees, January 31, 1967, 606 UNTS 267. (Hereafter "the Refugee Convention.")

13 The eighteen governments who accept varying size quotas of refugees for resettlement are: Argentina, Australia, Benin, Brazil, Burkina Faso, Canada, Chile, Denmark, Finland, Iceland, the Netherlands, New Zealand, Norway, Spain, Sweden, Switzerland, and the United States of America.

14 See UNHCR, "Resettlement Handbook," July 2002, Chapter 4.

15 In 2001, a global total of 33,100 refugees were resettled under UNHCR auspices. UNHCR, "Resettlement Handbook," July 2002, Annex 5: Resettlement Statistics.

16 The Executive Committee ("Excom") is UNHCR's governing body. Since 1975, Excom has passed a series of "Conclusions" at its annual meetings. The Conclusions are intended to guide states in their treatment of refugees and asylum seekers and in their interpretation of existing international refugee law. While the Conclusions are not legally binding, they do constitute a body of soft international refugee law and Excom member states, including Australia, are obliged to abide by them.

17 UNHCR Excom Conclusion No. 58 (XL) - 1989.

18 See definition of "effective protection" in DIMIA, "Principle of Non-Refoulement (Article 33): An Australian Perspective, A Contribution to the UNHCR Global Consultations," December 2001, p.13.

19 Ibid.

20 The Australian courts have been gradually lowering the threshold of what is considered effective protection in a previous country. In MIMA v Thiyagarajah (1997-8) 80 FCR 453, an Australian court held that an individual who had already been granted refugee status in France had obtained "effective protection." This fairly high standard has been weakened to such an extent that, in Patto v Minister for Immigration and Multicultural Affairs (2000) FCA 1554, the court found that it was acceptable to return a person to a country that was not party to the Refugee Convention provided that it "can be expected, nevertheless, to afford the person claiming asylum effective protection against threats to his life or freedom for a Convention reason." See Penelope Mathew, "Safe for Whom? The Safe Third Country Concept Finds a Home in Australia," in Susan Kneesone ed., The Refugee Convention at Fifty (2002).

21 DIMIA, "Irregular Migration - Implications, Practical Dilemmas and Responses for APC States."

22 When refugees flee in large numbers to neighboring countries, particularly in less developed regions of the world, it is not usually possible to ascertain whether every person involved in the influx actually meets the criteria for refugee status. Low-income countries frequently do not have the logistical, administrative, or financial capacity to undertake individual status determinations. Instead, there is a general assumption that when conditions are objectively dangerous in a country of origin, refugees are recognized on a `prima facie' basis, without the need for further proof, and are afforded protection accordingly. See, e.g. Excom Conclusion No. 22, Protection of Asylum-Seekers in Situations of Large-Scale Influx (XXXII) - 1981 (noting that persons who "owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part of, or the whole of their country of origin or nationality are compelled to seek refuge outside that country" are asylum-seekers who must be "fully protected," and "the fundamental principle of non-refoulement including non-rejection at the frontier-must be scrupulously observed.").

23 See United Kingdom Court of Appeal decision in R.v. Secretary of State for Social Security, ex parte B and the Joint Council for the Welfare of Immigrants (21 June 1996) 4 AER 385, which found that if an asylum seeker were "left destitute, starving and at risk of grave illness and even death because he could find no one to provide him with the bare necessities of life" then the U.K. government "would almost certainly put itself in breach of the European Convention on Human Rights and of the Geneva [Refugee] Convention..."

24 Excom Conclusion No. 58 (XL) - 1989 refers not only to protection against refoulement in the country of first asylum, but also to whether the refugee was treated "in accordance with recognized basic human standards until a durable solution is found there." The meaning of "recognized basic human standards" however is not defined, and there is no reference to a situation in which the prospect of legal integration is specifically prohibited by national law. At a minimum, these "recognized basic human standards" might refer only to threats to life, liberty and security of the person. An expansive interpretation, on the other hand, might include the rights to work, education, religious freedom, access to courts and freedom of movement.

25 The applicability of certain rights in the Refugee Convention has been read according to a sliding scale, in which certain rights apply to all refugees by virtue of their "simple presence," additional rights to those with "lawful presence," and a further subset to those who are "staying lawfully." See Guy S. Goodwin-Gill, The Refugee in International Law, 2^nd ed. (Oxford, 1996), p.307ff.

26 See e.g. UNHCR Excom Conclusion No.15, para k.

27 UNHCR, "Note on International Protection," September 7, 1994, at para 9.

28 Prior to the Tampa incident, when unauthorized boat arrivals were intercepted, passengers were given a "screening interview" to determine whether they were asylum seekers. Those "screened out" - in other words, those considered not to be asylum seekers by Australian Department of Immigration (DIMIA) Compliance Officers - were sent to "separation detention" in Port Hedland, Curtin or Woomera detention centers on the Australian mainland. Those in separation detention were not provided with lawyers or informed of their rights, so the odds were stacked against their ever applying for asylum. Meanwhile, those "screened in," after receiving basic medical checks and care, were sent to a detention center on mainland Australia for the full duration of the processing of their asylum application; the government provided them with a free legal adviser to assist with making the application. The last unauthorized boat arrivals to be handled in this way were a group of 359 people who arrived at Christmas Island on August 22, 2001.

29 See International Convention on Maritime Search and Rescue (Hamburg, April 27, 1979), of which Australia is a signatory: definition of "rescue" contained in its 1998 amendments (London, May 18, 1998).

30 See Dr Michael White, QC, Executive Director, Centre for Maritime Law, "M.V.Tampa and Christmas Island Incident," BIMCO Review, London, October 2001.

31 Victorian Council for Civil Liberties Inc. v the Minister for Immigration and Multicultural Affairs & Others, No. V899 of 2001. Vadarlis v. Minister & Others No. V900 of 2001.

32 Migration Amendment (Excision from Migration Zone) Act No.127 2001; Migration Amendment (Excision from Migration Zone)(Consequential Provisions) Act No.128 2001; Migration Legislation Amendment (Judicial Review) Act No.134 2001; Migration Legislation Amendment Act (No.1) No.129 2001; Migration Legislation Amendment Act (No.6) No.206 2001; and Border Protection (Validation and Enforcement Powers) Act No.126 2001. For fuller summary of the new legislative regime, see Penelope Mathew, "Refugee Protection in the Wake of the Tampa," 96 American Journal of International Law, July 2002.

33 Border Protection Act (Validation and Enforcement Powers) Act 2001.

34 "Interception" includes any actions - including visa requirements or document checks in international airports - which prevent a migrant or refugee from entering a territory, whereas "interdiction," most commonly used in the U.S. context, is a specific form of interception that prevents a vessel transporting alien migrants or refugees from reaching a state's shores. For this report, however, the term "interception" will be used to describe both legal and physical actions, including interdiction. It should be noted that the Tampa incident and subsequent "push-backs" at sea have been only a cruder extension of the Australian government's long-standing bureaucratic policy of interception involving visa requirements, airport document checks and carrier sanctions. UNHCR has defined "interception" as "encompassing all measures applied by a State, outside its national territory, in order to prevent, interrupt or stop the movement of persons without the required documentation crossing international borders by land, air or sea, and making their way to the country of prospective destination." UNHCR, "Interception of Asylum-Seekers and Refugees: The International Framework and Recommendations for a Comprehensive Approach," June 9, 2000, para. 10, EC/50/SC/CRP.17.

35 The Migration Act 1958 original reference, in Section 5, defines to "enter Australia" as to "enter the migration zone" and this in turn is defined as "(a) land that is part of a State or Territory at mean low water; and (b) sea within the limits of both a State or a Territory and a port; and (c) piers, or similar structures, any part of which is connected to such land or to ground under such sea; but does not include sea within the limits of a State or Territory but not in a port."

36 The "excised offshore places" were Christmas Island, Ashmore and Cartier Islands, Cocos (Keeling) Islands, any sea or resources installation and any other territory to be named by future regulations pursuant to this Section 5(1) of the Migration Act. See Migration Amendment (Excision from Migration Zone) Act 2001.

37 After failing to introduce it as a regulation, the government introduced the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 with regard to excising a further 5000km (3000 miles) of northern coastline and islands (all the way from Exmouth in Western Australia to the Coral Sea in Queensland). A spokesman for DIMIA said they "could not rule out" excising Tasmania. See "Warning of new refugee boats on way" The Australian, June 10, 2002.

38 See note 11.

39 A tiny number of asylum seekers have reached Australia's excised territories, for example, a boat from Sri Lanka that arrived in the Cocos Islands on December 19, 2001.

40 This information contradicts statements made by the Australian Immigration Minister, Philip Ruddock, on June 23, 2002, that there are around 1,000 unregistered persons, apart from those in the care of IOM or UNHCR, in Indonesia, "who are simply washing around in Indonesia at the moment looking at smuggling opportunities." See "Asylum seekers waiting in Indonesia, says Ruddock," Agence France-Presse, June 24, 2002.

41 This report does not examine the deterrent treatment of asylum seekers arriving without authorization by air, who, if they claim asylum at the airport when they arrive, are denied access to any social welfare support while living in the community and pursuing their application.

42 UNHCR Statistics, Population Data Unit/PGDS, August 7, 2002.

43 See Human Rights Watch interview with DIMIA (Offshore Management), May 2002. Human Rights Watch: "In which country are these people seeking asylum?" DIMIA: "You are asking the wrong question. Better to ask whose protection obligations have been engaged, and it is clearly Australia's - Australia is the country whose protection obligations have been engaged."