Who is a refugee?
An asylum seeker is someone who makes a claim for asylum (legal and physical protection) in a state apart from his or her own. The terms refugee and asylum seeker are often used interchangeably because most refugees are at some point asylum seekers. People move from asylum seeker status to refugee status once the state accepts their claim of asylum.
The 1951 Convention Relating to the Status of Refugees defines a refugee as someone who:
"owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country..."
This means that someone is defined as a refugee if they are outside their home country because they fear punishment or harassment, for the reasons listed above, and cannot be protected by their government.
To learn more about the difference between asylum seeker, refugee, migrant and displaced person, click
here.
Why are they put in detention?
Within Australia
According to the Australian Migration Act, 1958, all persons within Australian borders must be detained if they do not possess either a valid visa or Australian citizenship.
Seeking asylum is not illegal, however Australia’s visa system is complex and makes it hard for refugees to apply successfully. Legal assistance and advice is not automatically made available to asylum seekers detained in detention, unless they ask for it. Apart from often having poor English language skills, most asylum seekers are not familiar with Australian law. They do not know they have the right to ask, how to ask, or that it is in their best interest to ask for legal assistance. They have little or no knowledge of the consequences of failing to ask, and migration officers have no obligations to inform them of any consequences.
Australias obligations to the United Nations (UN)
Australia became a signatory to the Convention and Protocol Relating to the Status of Refugees in 1954 and 1973 respectively. Australia is therefore obligated to provide protection to both asylum seekers and refugees. Although Australia’s conditions for granting refugee status are in line with UN conditions in many ways, there are a number of areas where Australia has been criticised by the international community. Organisations such as Amnesty International, Oxfam and the UN have criticised Australia for deviating from the criteria, both directly and indirectly, by not upholding the spirit of the treaty.
Australia does this by having mandatory detention, discriminating between different groups of asylum seekers (this violates Article 31), and manipulating the definitions within the convention and protocol. These documents stipulate that a country must not change the definition of ‘refugee’. However, as of 2001, Australia altered the legal definition of ‘persecution’, resulting in fewer asylum seekers classified as refugees (this violates Articles 26 and 31).
Australia has also exploited UN protocol by liberally interpreting its guidelines in the development of legislature around the process for determining refugee status. (The process is not outlined by the UN).
To read the Convention, go to
http://www.ohchr.org/english/law/refugees.htm
To read the Protocol, go to
http://www.ohchr.org/english/law/protocolrefugees.htm
Who decides?
The Department of Immigration sets the limits on the number of people who can be accepted into Australia as refugees. Although the decision is reported to parliament, it is not determined by any laws. Australia’s quota has remained between approximately 12,000 and 13,000 people for the last 10 years.
Where do the asylum seekers go?
While in Australia, detainees are placed in a variety of facilities. The main facilities include Immigration Detention Centres (Villawood, Maribyrnong and Perth); an Immigration Detention Facility (Baxter); an Immigration Reception and Processing Centre (Christmas Island); or a Residential Housing Project (Port Augusta). Detainees can also be held in other places such as correctional facilities, watch houses, hotels, apartments, foster care and community hospitals.
The number of people detained, including details on the number of men, women and children in detention is updated weekly and can be viewed at
http://www.immi.gov.au/detention/facilities
Can Australia send people back if their request is rejected?
According to UN policy asylum seekers whose petitions are rejected can be sent back to their own country. However, if there is war or conflict there, the UN strongly urges nations not to send people back. In Australia, this means that people remain in detention centres if their claim is rejected and they cannot be sent home. They can, however, appeal the decision made about them. They remain in detention while this is going on.
Is it a just Australia ?
The issue of refugees and asylum seekers in detention centres is not restricted to Australia—although Australia’s policy on refugees and asylum seekers has, according to Macolm Fraser, been internationally criticised.
How do I know this
Australian Broadcasting Commission 2001,
Geraldine Doogue Interviews James Jupp on Radio National’s Life Matters Program, 4 September,
http://www.abc.net.au/rn/talks/lm/stories/s356981.htm
Australian Lawyers for Human Rights,
http://www.alhr.asn.au/refugeekit/downloads/chapte...
Department of Immigration and Multicultural and Indigenous Affairs,
http://www.immi.gov.au/statistics/index.htm
Fraser M 2002, 'The big lies of ‘border protection'',
The Age, March 27,
http://www.theage.com.au/cgi-bin/common/popupPrint...
The Refugee Council of Australia,
http://www.refugeecouncil.org.au/html/facts_and_st...
Office of the United Nations High Commissioner for Human Rights,
1967 Protocol Relating to the Status of Refugees,
http://www.ohchr.org/english/law/protocolrefugees.htm
Office of the United Nations High Commissioner for Human Rights,
1951 Convention Relating to the Status of Refugees,
http://www.ohchr.org/english/law/refugees.htm
