Asylum seekers and the Refugee Convention

Harriet Spinks, Social Policy and Ian McCluskey, Law and Bills Digest

Key issue 
Increasing numbers of asylum seekers arriving by boat has led to stronger deterrence policies by both major parties, but many complex considerations remain.

Australia’s humanitarian program

Australia maintains a humanitarian program comprised of two parts. Under the offshore component, refugees and others in humanitarian need are resettled in Australia from overseas. Under the onshore component, people already in Australia may apply for protection and, if successful, be granted a permanent visa. The total number of visas granted annually under both components was steady at around 13,000 for many years, but in 2012–13 it was increased to 20,000.

Increasing numbers of asylum seekers arriving unauthorised by boat (irregular maritime arrivals, or IMAs) have led to much public and political debate concerning the make-up of the humanitarian program. In 2011–12, for the first time more visas were granted in the onshore component of the program than the offshore component.

Responding to irregular maritime arrivals

In 2012, 17,202 asylum seekers arrived in Australia by boat. While this number is low compared to many other countries, it is a significant increase from the 2,726 arrivals in 2009 and the 161 arrivals in 2008 (see Figure 1).

Figure 1: IMAs by calendar year 1979 to 2012 and financial year 1989–90 to 2012–13

Figure 1: IMAs by calendar year 1979 to 2012 and financial year 1989–90 to 2012–13


Source: Parliamentary Library, Canberra 2013.

The Coalition has consistently maintained that boat arrivals have increased due to Labor Government policy changes, which it argues encouraged people to attempt to reach Australia this way. These changes included winding back some of the deterrence measures created by the Howard Government, such as ending offshore processing (the ‘Pacific Solution’), and abolishing temporary protection visas (TPVs).

The first Rudd Government initially argued that numbers were increasing due to changes in ‘push factors’, such as increased global conflict, rather than ‘pull factors’, such as domestic policy changes. This argument was supported by the fact that Australia was not alone in seeing increasing numbers of arrivals. Arrivals increased across many destination countries in the same period. Labor recently acknowledged however, that it was slow to respond to increasing arrivals, and that an earlier return to tougher policies could have helped to reduce them.

In 2011, an attempt to transfer IMAs to Malaysia in exchange for resettling increased numbers of refugees out of Malaysia was prevented by the High Court, which found the arrangement was invalid. In 2012, following months of political deadlock, the Government created an expert panel on asylum seekers. This panel was charged with recommending policy measures to reduce the number of IMAs. The Government implemented a suite of measures in line with the panel’s recommendations which were aimed at removing incentives for asylum seekers to travel to Australia by boat. The most significant of these was the reinstitution of offshore processing in Nauru and Papua New Guinea (PNG) in August 2012.

In July 2013, the second Rudd Government announced that IMAs would not only be processed in Nauru and PNG, but they would also be resettled there (or in a third country) should their asylum claim be successful. No IMA arriving after 19 July 2013 would be settled in Australia.

Offshore processing has been strongly criticised by refugee and human rights advocates, as well as the Australian Greens. The primary concerns of these groups relate to the adequacy of facilities in Nauru and PNG where centres lack suitable accommodation, health care and recreational facilities. There are further concerns over the feasibility of resettling refugees in small developing nations. Additionally, it may take many years for people to be processed and resettled. Critics also argue that offshore processing places Australia in breach of its international obligations.

The Refugee Convention

Australia is a party to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which defines a refugee as a person who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.

The primary obligation under the Convention is that of non-refoulement—that is, refugees must not be expelled or returned to places where they would face persecution based on one or more Convention grounds. This covers both the refugee’s country of origin and third countries. Given practical difficulties in both the processing and settlement of refugees in Nauru and PNG and concerns over the rigour of their refugee status determination processes, it has been argued that offshore processing could amount to refoulement.

In addition, it has been argued that offshore processing may constitute a penalty in breach of Article 31 of the Convention, which prohibits imposing penalties based on a refugee’s mode of arrival. Similarly, it could amount to expulsion in breach of Article 32, which provides that refugees shall not be expelled save on grounds of national security or defence.

Future outlook

It is too early to say if arrangements with Nauru and PNG have had the desired effect of reducing arrivals, especially in light of growing humanitarian crises around the world. While the Labor Government pointed to the fact that arrivals in August 2013 were significantly lower than in July 2013, it is uncertain whether this was indicative of a long-term trend. What is certain, however, is that issues concerning asylum seekers arriving by boat will continue to be of significance to the new Parliament.

A legal challenge to offshore processing has commenced in the High Court, with lawyers for an Iranian asylum seeker on Manus Island seeking to have the declaration of PNG as an offshore processing country under the Migration Act set aside. The case will argue that offshore processing is unconstitutional and places Australia in breach of its international obligations. A decision in the plaintiff’s favour would have far-reaching implications for asylum policy in Australia.

While the Coalition supports offshore processing, it is sceptical about the prospects for permanent resettlement of successful asylum seekers in Nauru and PNG. It has been critical of the Labor Government for not putting in place measures to resolve the backlog of IMAs who arrived prior to the introduction of the new offshore processing arrangements.

Coalition policies for reducing IMAs include: ramping up border protection measures, reintroducing TPVs and turning back boats—‘where it is safe to do so’. The Coalition has indicated that under its leadership details of boat arrivals may not be made public, which would reduce the level of scrutiny in this contentious policy area. While many of these measures will not require legislative change, they are issues which will nonetheless need careful attention by the Parliament.

Further reading

J Phillips and H Spinks, Boat arrivals in Australia since 1976, Background note, Parliamentary Library, Canberra, updated 23 July 2013.

J Phillips, Asylum seekers and refugees: what are the facts?, Background note, Parliamentary Library, Canberra, updated 11 February 2013.

R de Boer, Health care for asylum seekers on Nauru and Manus Island, Background note, Parliamentary Library, Canberra, 28 June 2013.

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