Australia’s current refugee policies and obligations under international refugee law

The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (MMPLA) significantly changed how Australia treats asylum seekers, especially those who arrive by boat. The Migration Act 1958 (Cth) (Migration Act) as amended by the MMPLA introduced new key statutory changes, which included the removal of references to the 1951 Refugee Convention and its 1967 Protocol (Convention) from the Migration Act under section 36(2), a new statutory definition of “refugee” in section 5H, more stringent criteria for establishing “well-founded fear of persecution” in section 5J, and the re-introduction of Temporary Protection Visas (TPVs) under section 35A. The Australian government’s justification for enacting the changes resulted from a combination of significant global events and other factors. The article analyses how the new statutory changes impact Australia’s refugee protection obligations under the Convention.

Why was the amendment proposed?

During the influx of Indochinese refugees onto Australian shores in 1976, Prime Minister Fraser and Minister MacKellar affirmed that Australia must comply with its international obligations under the Convention. In 1989, the Keating government significantly changed the refugee policy to enforce mandatory detention of asylum seekers who arrived by boat. This was enacted in light of Chu Kheng Lim, which involved Cambodian nationals who came by boat into Australia and were detained without giving weight to its implications on Australia’s international refugee law obligations.

In 1999, the Howard government introduced the TPV as the only protection visa option for asylum seekers who arrive by boat without authorisation. In August 2001, the Norwegian cargo vessel, Tampa, attempted to enter Australian waters along with 433 asylum seekers, but the Australian government refused entry. Howard introduced a Refugee policy that prevented asylum seekers who arrived by boat from making a valid permanent protection visa application. He introduced offshore detention centres in Nauru and Manus Island under the “Pacific Solution”.

In 2007, the “Pacific Solution” was dismantled under the Rudd Labor government. During Gilliard’s government, the refugee policy had again changed, which re-introduced offshore processing in response to the growing number of asylum boat arrivals. In 2012, Gilliard appointed an Expert Panel on Asylum Seekers to seek recommendations on what measures the Australian Government should implement to stop asylum seekers from coming by sea. During the 2013 Federal election, Australia’s major political parties became obsessed with “stopping the boats” and “stopping the people smugglers.”

The impact of the new statutory changes on Australia’s obligations under the Convention.

The MMPLA removed most references to the Convention from the Migration Act and created a “new, independent, and self-contained” legislative framework. Also, it removed references to the Convention from the new statutory definition of a “refugee” within the Migration Act. The government expressed that there have been numerous broad and unintended interpretations of Australia’s refugee protection obligations under the Convention in judicial review cases.

Refugee advocates suggested that the amendment was carefully and judiciously worded to defend against any possible domestic legal challenge. To an extent, this shows how Australia  slowly departed from the principles of international law, as according to Article 31(1) of the Vienna Convention, “there can only be one true interpretation of a treaty.”

The insertion of section 5J into the Migration Act provided Australia’s “real chance test” in determining whether a person has a “well-founded fear of persecution” if returned to their original country. The government’s argument about the current test was in line with the decision in Chan Yee Kin, and the same threshold is currently applied in the determination of refugee status. The real chance threshold should satisfy the criteria applied in the principles of “internal relocation,” “effective state protection,” and “modification of behaviour.”

The Australian government intended to ensure that people who come by boat will not be granted a permanent protection visa. It was obvious that the reintroduction of TPV operated as a form of deterrence towards asylum seekers from coming to Australia “illegally”. Article 1C(5)–(6) of the Convention provided grounds for the cessation of refugee protection, which can be invoked when there is a “profound” change in circumstances in the refugee’s country of origin, such as political stability.

There is no question that Australia can invoke Article 1C to complement its TPV policy. Article 31(1) of the Convention provides that “contracting states shall not impose penalties on account of their illegal entry or presence.” When asylum seekers are intercepted by Australia during an entry attempt, they are automatically protected under Article 31 since the interception can be attributed to Australia.

Moving forward

Australia’s refugee policy within the Migration Act has evolved to what it is today as a result of the unfortunate convergence of various events and factors. The political environment has substantially contributed to the evolution of the refugee policy towards a more restrictive approach. There are some aspects of the key statutory changes that do not necessarily depart from Australia’s refugee protection obligations, such as the new criteria for “well-founded fear of persecution” in sections 5J(1)(c) and 5J(2). However, the removal of references to the Convention from the Migration Act under sections 36(2) and 5H, and the re-introduction of TPV under section 35A, potentially impact Australia’s obligations under the Convention.

The Australian government’s current refugee policy is focused on deterring asylum seekers from entering by boat and on stopping “people smugglers,” rather than legislating refugee policies that best uphold Australia’s obligations under the Convention and enable it to become a “good global citizen.”

The key statutory amendments discussed should be further scrutinised to ensure that Australia complies with its obligations under international law. It is now close to a decade since the amendment was enacted but the policy remains unchanged. With the global refugee crisis  and a Federal election coming up, it is time for the Australian government to re-visit its refugee policy.