Australia is a signatory to the 1951 Convention relating to the Status of Refugees. The articles of the convention contain the basic rights, freedoms and living conditions that Australia is obliged to give asylum seekers who are subsequently granted refugee status. The Convention was used, some 60 years ago, as the template for resettling the vast numbers of displaced and stateless persons in Europe as a consequence of WW2. The International Court of Justice has sole jurisdiction to adjudicate any dispute between parties to the 1951 Convention.
It would be impractical and prohibitive for a refugee protection application to be processed and determined by an international court of law. The Australian Parliament has enacted the Australian Migration Act, 1958. In some respects it has similar goals to the Refugee Convention. The UNHCR accepts that the way the Australian Government is able to comply with its obligations in respect of the Refugee Convention is to use the Australian Migration Act as the means to process on-shore protection applications.
Article 1A(2) of the Refugee Convention as amended by the 1967 Refugee Protocol states:
For the purposes of the present Convention the term "refugee" shall apply to any person who: "owing to well grounded 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 or, owning to such fear is unwilling to avail himself of the protection of that country; or who not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear is unwilling to return to it."
An asylum seeker is not required to substantiate any claim of persecution. The act of making such a claim fully complies with the article 1(A)2 definition of a refugee and is sufficient reason to apply for refugee status. However, it is patently untenable that a signatory to the Refugee Convention is obliged to guilelessly accept and accept without demur, a multitude of persons using a hypothetical fear of persecution as a way to supposedly establish their refugee bona fides. Disingenuous claims of persecution will always be made when Australia processes protection applications from persons purporting to be refugees. The use of misrepresentation by quasi-refugees is understandable and is not unexpected when permanent residency, family reunion and generous welfare benefits are granted as entitlements to successful applicants.
The relationship between boat people and people smugglers is a mutual connivance shrouded in secrecy but entered into willingly and without regard to moral or legal precepts by the participants. To portray boat people as frightened and disorientated people fearing acts of evil and persecution in their country of nationality is fanciful. Australia will remain a prime and preferred destination over other countries of first asylum that are in closer proximity to the asylum seekers country of origin. These countries are simply bypassed, by journeying around or flying over them, because of the greater munificence available in Australia than say Afghanistan. Although Afghanistan is a signatory to the Refugee Convention, Afghanis make up an inordinate percentage of boat people illegally entering Australia from the embarkation ports of Indonesia.
The vast majority of Australia's migration problems occur because it is a party to the Refugee Convention. The Convention is nearly 60 years old. It was never revised as world refugee circumstances changed. It was written to ensure the smooth transition of refugees from war torn Europe into the safe havens offered at that time by the USA, Canada, Australia, New Zealand, Israel and other places of asylum. The Convention is inviolate and Australia is honour bound and legally obliged to abide by its covenants. Any deviation from the Convention through the use of the Australia Migration Act is subject to appeal to the High Court of Australia, as the court of last resort. The High Court must uphold any protection application when the applicant conforms to the provisions of article 1(A)2 of the Refugee Convention.
Unless and until Australia repudiates the 1951 Refugee Convention and repeals section 36 and Sub-division AL from the Australian Migration Act the people smuggler boats will continue to come with greater frequency and with ever increasing passenger capacities. Should Australia excise the Refugee Convention and those parts of the Migration Act that support or reinforces the Refugee Convention then no asylum seekers will have any legal entitlement to enter Australia. The archaic articles of the Refugee Convention will have no standing before any Australian Court. More importantly people smugglers will have no basis upon which they can conspire to sell permanent residency to non Australians.
Should the foregoing occur Australia could introduce a humanitarian refugee intake that is sourced from amongst the refugees already processed by the UNHCR agency in the refugee camps in Africa and from camps in South East Asia. This intake could be proportionally increased as the existing wasteful expenditure on housing and processing bogus refugees abates.
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