Essay, Pages 5 (1043 words)
Only a person who can claim that they have a well-founded fear of persecution can claim asylum. The majority of asylum seekers come to the UK from four main countries. These are Afghanistan, Iraq, Somalia and Sri Lanka.
Different people see the asylum seekers in different situations. Some see them and immediately give them sympathy and say that they would do the same if they were in the same situation. Whilst others see them all as people who only come here for the money and this annoys them because in a way they are paying for them.
The tax they pay goes straight into asylum seekers pockets, this is a common thought amongst many people.
The asylum seekers are the outsiders as they are trying to join a major group of people (country trying to enter). The insiders are the general public of the country the asylum seekers are trying to enter. This is because they are trying to integrate into our society.
They are weaker in society because most have little knowledge of Europe and speak very harsh
Certain provisions of the Refugees Convention are incorporated in domestic law by means of the Migration Act 1958, which indicate how the law is interpreted in Australia. They are as follows.
To “enter Australia” means to enter the “migration zone”, namely land, seaports and piers. Persons in Australian waters, but outside these places, do not “enter Australia” for the purposes of the Act. Therefore, Australia considers that it does not have Refugee Convention obligations to these people.
The “migration zone” also includes “excised offshore places” — places that are part of Australia, but “excised” in the sense that asylum seekers are not able to apply for a protection visa in these places. Instead, they must undergo a Refugee Status Assessment, and on the basis of that assessment, the Minister may grant refugee status or not. The Minister’s decision is not appealable in the Australian courts. The reason for excising certain places is to curtail access to the courts.
The “excised places” include:
- the Territory of Christmas Island in the Indian Ocean
- the Territory of Ashmore and Cartier Islands in the Timor Sea
- the Territory of Cocos (Keeling) Islands in the Indian Ocean
- any other external territory and any island prescribed in the regulations.
See attachment 1 for a map showing the placed excised from Australia’s migration zone. All persons who enter Australia without a visa are “unlawful non-citizens” according to the Act.4 This does not amount to the commission of a crime, but is simply a statutory classification.
Everyone is entitled to come to a country to seek asylum. The Universal Declaration of Human Rights says that “[e]veryone has the right to seek and to enjoy in other countries asylum from persecution” (Article 14(1)).
The Refugees Convention similarly provides a right of asylum for refugees with a wellfounded fear of persecution. (Article 1A)
An officer must detain an “unlawful non-citizen”5 and persons who have not “entered Australia” but who are, nevertheless, in Australian waters (that is, they are in Australian waters but outside a seaport or a pier).
An officer may detain an unlawful non-citizen who is in an excised offshore place or is seeking to enter such a place.6 In this way, mandatory detention is not legally required in places such as Christmas Island, but is nevertheless practised by the Department of Immigration and Citizenship.
A detainee must be held until s/he is removed, deported or granted a visa. This is an indefinite detention because the time of detention depends upon the Minister’s issuing a decision — or not. Courts are not permitted to order the release of a detainee (by, for instance, issuing a writ of habeas corpus).7 This provision apparently conflicts with Article 9.1 of the ICCPR, which states that:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. …
It also apparently conflicts with Article 9.4 of the ICCPR, which states that: Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
The mandatory detention regime also appears to be in some tension with Article 31.1 of the Refugees Convention, which states that:
The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. It appears that, if children are subject to mandatory detention, Australia would breach Article 37 (b) of the Convention on the Rights of the Child, which states: No child shall be deprived of his or her liberty unlawfully or arbitrarily.
The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. As discussed at 3.2.1, the Australian Human Rights Commission has voiced concerns that children are still being detained in the Villawood Detention Centre and on Christmas Island. Notable High Court decisions relating to detention
In Al-Kateb v Godwin,8 the High Court held (4-3) that indefinite detention of unlawful noncitizens is permitted under the Commonwealth’s “naturalisation and aliens power” x.51(xix), provided the non-citizen is being held for the purpose of visa processing or removal/deportation from Australia.
In Re Woolley; Ex parte Applicants M276/2003,9 the High Court confirmed (7-0) that the result in Al-Kateb applies to all aliens, whether adults or children. There is no constitutional limitation on the immigration detention
The High Court also held in Behrooz v Secretary, DIMIA (6-1) that the conditions of immigration detention (even if poor or intolerable) are irrelevant to the question of whether the detention is lawful.10 It remains unlawful to escape from immigration detention, even if conditions are poor and intolerable (as, in that case, conditions at the former Woomera Detention Centre were said to