Jenni Whelan UNSW Law School Human Rights Clinic

Presentation outline 1. Who are refugees and asylum seekers? 2. What is the global picture of refugees and asylum seekers and where does Australia fit within that? 3. What obligations has Australia undertaken regarding the treatment of asylum seekers and refugees? 4. What are some key issues and challenges faced by refugees and asylum seekers arising from current Australian law and policy?

Who are refugees and asylum seekers? The 1951 Refugee Convention defines a refugee as: “Any person 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/her nationality and is unable, or owing to such fear, is unwilling to avail himself or herself of the protection of that country.” An asylum seeker is a person who has sought protection as a refugee, but whose claim for refugee status has not yet been assessed.

What is the global picture of refugees and asylum seekers UNHCR: forcibly displaced people worldwide = 51.2 million. Of these 16.7 million are refugees. In ,200 persons per day left their homes seeking protection elsewhere within the borders of their countries or in other countries.

Where does Australia fit within the global picture? Since 2008 Australia has accepted between 13,507 and 20,019 of the 16 million plus refugees per year. Between , Australia received an average of 2,831 asylum seekers by boat each year. In 2012, Australia received 17,202 asylum seekers by boat, its highest annual number. This represented 1.47 per cent of the world’s asylum seekers.

What obligations has Australia undertaken regarding the treatment of asylum seekers and refugees? Universal Declaration of Human rights Refugee Convention International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Convention on the Rights of the Child Convention for the Rights of Persons with Disabilities

What obligations has Australia undertaken regarding the treatment of asylum seekers and refugees… Asylum seekers should not be penalised for arriving in a country without authorisation. People should not be returned to a country where their life or freedom would be threatened (‘refoulement’). Everyone has the right not to be subjected to arbitrary detention. Anyone who is detained has the right to challenge the legality of their detention in court. All persons who are detained should be treated with humanity and respect for their inherent dignity. No one should be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Everyone is entitled to respect for their human rights without discrimination.

What obligations has Australia undertaken regarding the treatment of asylum seekers and refugees… Everyone has the right to work, and to an adequate standard of living, including food, clothing and housing. Everyone is entitled to enjoy the highest attainable standard of mental and physical health. Everyone has the right to have their family protected from arbitrary or unlawful interference. Children should only be detained as a measure of last resort, and for the shortest appropriate period of time. In all actions concerning children, the best interests of the child should be a primary consideration (and in the case of their legal guardian, the primary consideration). Children who are unaccompanied and/or seeking asylum have a right to special protection and assistance.

Issues arising for Refugees and Asylum seekers from current Australian law and policy 1. Persons granted refugee status and living on the Australian mainland but who are detained indefinitely because of an adverse security assessment. 2. Asylum seekers who arrived by boat before the reintroduction of offshore processing who are entitled to have their claim for asylum processed in Australia. 1. Mandatory detention 2. The ‘no advantage’ policy 3. Asylum seeker children and families on Christmas Island awaiting transfer for offshore processing or who have been sent to Nauru. 1. Documented human rights breaches

Concluding questions Are we content that our maritime borders are now effectively closed to asylum seekers given the global displacement of people and the 16.7million plus refugees in the world? Why must we continue to punish those asylum seekers that have already arrived who are awaiting the outcome of their claims for protection (when there is no deterrent effect because asylum seekers who arrive since May 2013 are sent offshore?) How much long term damage are we willing to inflict on children and adults who have sought our protection to keep our borders sovereign and when does the human cost of stopping the boats become too expensive?