Is Australia in Breach of its International Obligation?

This essay will purport to elaborate on the following points:

In recent years Australia has developed a somewhat dubious reputation internationally in its dealings with refugee claimants.

In comparison with other developed nations, Australia sees a relatively insignificant amount of asylum seekers arriving on its doorstep yet it has devised a steadfast program for processing these claimants offshore in a deplorable attempt to deter future asylum seekers and avoid the jurisdictional consequences of its international obligations.

While, theoretically, Australia has incorporated international obligations for providing due process and care to potential refugees pertinent to the Convention relating to the Status of Refugees 1951 within its Migration Act 1958 , in effect the executive and legislature seem to spend their time devising tricky ways to get around such laws. The concept of regional processing has epitomised this and has come under fire both domestically and internationally from human rights and non government organisations.

The issue of refugee reception and the Australian law first became predominant following the Tampa Affair of 2001, in which a boat load of predominantly Afghani asylum seekers were left floating at sea while the Australian government frantically crafted agreements with surrounding pacific countries for the reception of these claimants who had reached their territorial  waters. This was the starting point for the Pacific Solution introduced by the Howard government and catalyst for regional processing.

Although the concept of offshore processing was undoubtedly equivocal, both the judiciary and the Australian public appeared to tolerate these programs until the proposal of the Malaysia Solution 2011. Introduced by the Gillard government as an alternative to the Pacific Solution, this bill would allow for 800 asylum seekers to be moved outside Australia’s jurisdiction without first having had their claims heard. Fearing gross violations of international law, and indeed contravention of domestic law, a case was brought before the High Court which would alter the direction of refugee law in Australia and encourage greater reception of international standards.

The case of Plaintiff M70/2011 v Minister for immigration and Citizenship (2011) involved the legality of moving refugee claimants abroad to a third country, Malaysia, a country which was not a party to the Refugee Convention and which had a questionable human rights record. The accusation was that, to remove these asylum seekers before having had their claims processed would be a contravention of the imperative principal of ‘non-refoulement’.  Principally the case fell upon determination of s193A of the Migration Act which allowed the Minister to make a declaration for moving claimants offshore where it was in the best interests of the public. Ultimately, the court decided that the Ministers declaration was ineffective as it was subject to s198(3) which required that the third country conform to international human rights standards and that moving the claimant to Malaysia would put Australia in breach of both its domestic laws and its international obligations.

This case was a major turning point as it pointed Australian refugee law in a more humanitarian direction and pulled it into line with its obligations under the Refugee Convention. However, there are still questionable practices taking place with Australia’s regional processing schemes, including Nauru and Christmas Island where potential refugees have little access to administrative decision making. It is arguable that these programs also put in Australia in potential contravention of its international obligations towards asylum seekers.

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Mary Crock and Laurie Berg, Immigration, Refugees and Forced Migration: Law,

Policy and Practice in Australia (Federation Press, 2011)

Angus Francis, ‘Bringing Protection Home: Healing the Schism between International Obligations and National Safeguards Created by Extraterritorial Processing’ (2008) 20 International Journal of Refugee Law 273

Michelle Foster, ‘Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another State’ (2007) Michigan Journal of International Law 223.

Sasha Lowes, ‘The legality of extraterritorial processing of asylum claims: The judgement of the High Court of Australia in the ‘Malaysian Solution’ case’ (2012)12 Human Rights Law Review 1

Tamara Wood and Jane McAdam, ‘Australian Asylum Policy All at Sea: An Analysis of Plaintiff M70/2011 v Minister for Immigration and Citizenship and the Malaysia-Australia Arrangement’ (2012) 61 International and Comparative Law Quarterly 274

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