Facts about Australia’s Refugee Policy

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Who’s who?

An asylum seeker is someone who is seeking protection as a refugee. The person’s refugee claim will be determined by an official – in other words, they might be a refugee, but we do not yet know because no one has heard and evaluated their claim.

A refugee is someone who has a well-founded fear of being persecuted for reasons of their race, religion, nationality, political opinion or social group, and who cannot return home without risking persecution. More than 140 countries, including Australia, have taken on obligations to protect refugees and people fleeing conflict or other serious human rights violations, by ratifying the United Nations’ 1951 Refugee Convention and 1967 Protocol. Each year, Australia accepts about 13,750 people through its Refugee and Humanitarian Program.

A migrant is someone who chooses to move to another country, usually for work, education or family reasons. Whereas refugees are compelled to leave their countries, migrants do so voluntarily. Countries have full discretion whether to admit someone as a migrant. Each year, Australia accepts about 190,000 migrants for permanent residence.

Are asylum seekers who arrive by boat ‘illegal’?

No. Under the Refugee Convention, entering a country without a visa must not be treated as illegal if a person is seeking asylum. This recognises that the very nature of refugee flight may make it dangerous or impossible to get a passport and visa. As the Refugee Council of Australia puts it, ‘Permitting asylum seekers to [enter] a country without travel documents is similar to allowing ambulance drivers to exceed the speed limit in an emergency – the action may ordinarily be illegal but, in order to protect lives at risk, an exception is made.’

Are they ‘queue jumpers’?

No. There is no queue. There is a common misconception that if refugees just waited in camps overseas, they eventually would be resettled. However, a refugee’s chance of resettlement depends not on how long they have been waiting, but on such factors as their vulnerability, UNHCR’s view of global resettlement needs, and the receiving community’s views. A refugee who arrives today with an acute resettlement need, such as extreme vulnerability due to sexual abuse, may be prioritised ahead of someone who has been waiting for 10 years. Refugees have no guarantee of resettlement – less than 1% of the world’s refugees are resettled annually.

What is Australia’s offshore processing policy?

Since 2012, successive Australian governments have held that no one who arrives by boat without a valid visa will be settled in Australia, regardless of whether he or she is owed protection under the Refugee Convention and regardless of any family or other ties here.

Asylum seekers arriving in Australia by boat are subject to ‘offshore processing’ in the Pacific nations of Nauru (for women, children and families) and Papua New Guinea’s Manus Island (single men). Australia has sent more than 4,000 men, women and children to Manus and Nauru.

These remote ‘offshore’ centres have been repeatedly condemned by United Nations bodies. UNHCR has described the situation on Nauru and Manus as ‘inhumane’.

The UN Committee Against Torture said that long confinement in harsh physical conditions – lacking privacy or relief from the tropical rain or heat – have combined with uncertainty about the future to create ‘serious physical and mental pain and suffering’ for asylum seekers. Since 2013, some asylum seekers and refugees held offshore have been raped or beaten, and eight men have died. Many others face permanent separation from their spouses and children in Australia.

Is offshore processing legal under Australian law?

The increasingly hard-line immigration policies of governments on both sides of politics have faced a series of legal challenges in Australia. One of the most notable was in 2015, when an asylum seeker challenged the Australian government’s authority to detain her in Nauru. This High Court case raised the prospect that Australia’s offshore processing policies might have been operating for almost three years without any constitutional power to do so. But before the case could be decided, a new law was rushed through parliament granting the government broad powers to take ‘any action’ in relation to regional processing arrangements, with retroactive effect from August 2012.

The Australian government has responded to other strong legal challenges by paying out settlements rather than letting matters be heard in court, where sensitive evidence might come to light. In 2017, the government paid $70 million, the largest of its kind in Australian history, to 1,905 current and former detainees on Manus Island.

Is offshore processing legal under international law?

Offshore processing breaches international human rights standards. UN experts have found that subjecting people to harsh conditions and prolonged uncertainty on Manus and Nauru amounts to cruel and degrading treatment, in violation of the Convention Against Torture. Other concerns include breaches of the right to family unity and of specific human rights standards for children. The UN Special Rapporteur on the Human Rights of Migrants said of Australia’s offshore processing arrangements: ‘Regarding human rights issues, the system cannot be salvaged’.

Under international law, Australia is responsible for upholding the human rights of asylum seekers it sends offshore. Moving refugees to other territories and bringing in private contractors to manage offshore centres does not change Australia’s international legal responsibilities. Governments cannot contract out of their obligations under international law, nor do in other countries what they are prohibited from doing at home.

What happens to those on Nauru and Manus found to be refugees?

The majority of the approximately 1,750 asylum seekers still held on Manus and Nauru have been found to be refugees, but most are still waiting for a sustainable situation.

Australia has been trying to empty both offshore centres for years. In 2014, Australia signed a deal with Cambodia to take refugees from Nauru. By January 2018 only seven refugees had gone to Cambodia, of which just three remained there. The Australian government rejected the offers of successive New Zealand governments to resettle 150 refugees per year from Manus and Nauru. A September 2016 deal between Australian Prime Minister Turnbull and former US President Obama to resettle up to 1,250 refugees in the US has moved slowly under the Trump presidency. As of early March 2018, some 224 refugees (139 from Nauru, 85 from PNG) had been accepted and moved to the US.

The Australian government has said those who do not accept US resettlement will be sent to Nauru and provided a 20-year visa to stay on the island or can return to their country of origin.

UNHCR has urged Australia that the best solution is to accept its international legal responsibilities and allow refugees to be brought from Manus and Nauru to Australia.

What happens when Australia turns back boats?

As the government does not release details of ‘on water’ operations, little information is publicly available about the conduct of turnback operations.

More than 30 boats carrying some 800 people have been intercepted under Operation Sovereign Borders, an initiative introduced by the government in September 2013. Boats are intercepted and the passengers forcibly removed from Australian waters. In some cases, Australia works with the country of departure to return those on board, either by plane or via an at-sea transfer, such as with Sri Lanka and Vietnam.

Australian government policy is to turn back boats carrying asylum seekers ‘where it is safe to do so’. However, senior naval officials involved with Australian turnback operations have stated that these are inherently risky endeavours. There have been many risks to the life and safety of passengers, crew and Australian personnel, including where people have gone overboard, or vessels have run aground after being turned around.

Are turnbacks legal?

Under the principle of non-refoulement, it is unlawful to send refugees to any country where their life or freedom would be threatened on account of their race, religion, political opinion, nationality or social group, or where they would be at risk of torture or other serious harm.

Australia would be at risk of breaching international law if it turned back boats without assessing whether people on board have a claim for asylum or will be sent back to danger. In some cases, Australian officials undertake brief screening interviews with passengers at sea. However, assessments at sea are unlikely to provide a fair and adequate process to allow people to express a need for protection, and UN officials have voiced oncerns about Australia’s on-water processes. Further, it is not known whether screening takes place for every person intercepted by Australia.

Several people who have been turned back by Australia have reportedly been detained and/or suffered violence by state authorities upon return. Others have subsequently fled their country a second time and been granted refugee status by UNHCR. This suggests that Australia fails to adequately identify whether people are in need of protection, in breach of international law.

Do ‘tough’ border protection policies save lives?

Home Affairs Minister Peter Dutton has argued that 1,200 drownings occurred in the years before Operation Sovereign Borders, and no deaths at sea have been recorded since it began.

Yet the UN Special Rapporteur on Extrajudicial Killings, Agnes Callamard, warned in October 2017 that Australia’s turnback practices ‘may intentionally put lives at risk’. These risks arise in the course of turnback operations and after return. The Australian government does not monitor what happens to people it has returned, but reports from other sources suggests that some people have been turned back to danger.

Deterrence tactics – such as turning back boats, offshore processing and temporary protection – take no account of the underlying human rights violations that prompt asylum seekers to make dangerous sea journeys in the first place. They punish one group to deter another, which is contrary to human rights law.

While endorsing the need for countries to save lives and prevent exploitation by people smugglers, UNHCR chief Filippo Grandi said of Australia’s policies, ‘There is a fundamental contradiction in saving people at sea, only to mistreat and neglect them on land.’

Australia in the context of the global asylum challenge

Australia receives a very small number of the world’s asylum seekers, both in absolute terms and when considered in relation to other countries.

In 2013, the year the most asylum seekers arrived in Australia by boat, the number was 20,587 people. Yet, this represented only 1.7% of the world’s asylum seekers that year.

In 2015-16, Australia accepted additional Syrian and Iraqi refugees, bringing our refugee intake to 17,555 for the year. In comparison, Turkey hosts 3 million refugees, Pakistan 1.4 million, and Lebanon, Iran and Uganda about 1 million refugees each.

The numbers of asylum seekers coming to Australia are very small compared to Australia’s annual intake of 190,000 migrants through its skilled and family migration schemes. Many more temporary migrants entered the country in 2016, including over 350,000 on student visas, about 150,000 as temporary skilled workers and 150,000 as working holiday makers.

In 2016, more than 65 million people worldwide were forcibly displaced from their homes – the most since the Second World War. This figure includes 22.5 million refugees, as well as millions of asylum seekers, stateless people and internally displaced persons (people who have fled their homes but stayed within their country).