Chapter 1/Introduction: Refugees and International Law

Question 1

what is the name and structure of the government department responsible for refugees and people seeking asylum

Answer 1

currently: the Department of Home Affairs, which was created in December 2017 and incorporated a number of other departments, including the former Department of Immigration and Border Protection. (For ease of reference, we will simply refer to the Department’ and the ‘Immigration Minister’ (or the ‘Department’ and the to describe those with responsibility for refugees and people seeking asylum.)

Question 2

The 1951 Convention relating to the Status of Refugees (known as the Refugee Convention) is an international treaty - it was originally only drafted to apply to people who had been displaced as a result of events occurring before when?

Answer 2

Ist January 1951. Countries could also choose to limit the Convention’s application to refugees displaced by events within Europe, rather than more broadly.

Question 3

1967 Protocol relating to the Status of Refugees removed which restrictions from the Conventions?

Answer 3

temporal (time based) and geographical - meaning that refugees at any time or from any location are covered

Question 4

True or false: countries that ratify (become parties to) the 1967 Protocol agree to abide by the Refugee Convention as well.

Answer 4

TRUE

Question 5

Do states have to abide by obligations in international treaties (like the refugee convention and protocol)?

Answer 5

No, they are purely voluntary until they are incorporated into domestic law

Question 6

principle of ‘non-refoulement’ is one of the obligations of the refugee convention - what is it?

Answer 6

the requirement not to send refugees to a place where they fear persecution, or to a country that might send them to such a place

Question 7

affording refugees a certain legal status is one of the obligations of the refugee convention - what does that entail?

Answer 7

including access to employment, education and social security

Question 8

in the refugee convention, what does article 31(1) say about ‘illegal entry’ (entering without passport or visa)

Answer 8

‘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.

*all of the nations between the middle east and Australia (with the exception of Cambodia, which has a history of causing refugees to flee from turmoil itself) have not signed the refugee convention, meaning that if refugees were to seek asylum in those nations they would risk refoulement to their country of origin - therefore people passing through these nations are coming ‘directly’ to a nation which has ratified the refugee convention (highlighted in green in the image)

Question 9

What does it mean that Australian law has a ‘Dualist system’

Answer 9

That international law and domestic law operate on two parallel planes. Some countries, especially in Europe, have a ‘monist’ system, which means that international obligations automatically become part of domestic law.

Question 10

Australia’s international obligation to protect refugees was incorporated into domestic law by which law?

Answer 10

Migration Act 1958 (Cth), which is Australia’s national immigration legislation. Although the year of the Act is 1958, it has been amended many times since then. Notably, in 2014, Parliament passed legislation that removed most of the Act’s references to the Refugee Convention and the international obligations it prescribes.

Question 11

In which year were amendments inserted a new provision into the Migration Act (section 1970, which states that Australian officials may remove a person (including someone who fears persecution or other serious harm in their country of origin) from Australia without considering whether or not they are at risk of refoulement.

Answer 11

2014 - the section is 197C

Question 12

A secondary objective of the Refugee Convention is to facilitate responsibility ….?

Answer 12

…. sharing among the countries that are parties to it. This objective emphasises the need for international cooperation — not unilateral action by individual countries — to ensure that refugees’ rights are protected globally.

Question 13

is there any specialist international refugee court or tribunal that monitors whether countries respect or violate the Refugee Convention

Answer 13

No. However, the United Nations High Commissioner for Refugees (UNHCR) has supervisory responsibility in relation to the Refugee Convention. in accordance with article 35 of the Refugee Convention, countries agree to cooperate with UNHCR in carrying out this role.

Question 14

(a) Which article of the refugee convention defines a refugee? (b) and what is that definition

Answer 14

(a) article IA(2) of the Refugee Convention (b) a person who has a ‘well-founded fear of being persecuted for reasons of (1) race, (2) religion, (3) nationality, (4) membership of a particular social group or (5) political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’.

Question 15

What is the key point that indicates persecution?

Answer 15

that the government (of an individual’s country) is unable or unwilling to offer protection.

Question 16

a ‘well-founded’ fear of being persecuted means that their fear of persecution must:

Answer 16

not only be subjectively held, but also be objectively reasonable, having regard to conditions in their country of origin. Neither domestic nor international refugee law offers protection in anticipation of a purely speculative future event.

Question 17

(a) Which section of the (domestic law) Migration Act set out the elements that need to be satisfied for a person to demonstrate a real chance of persecution? + (b) and what are those elements?

Answer 17

(a) section 5J (b) - a threat to the person’s life or liberty -significant physical harassment of the person -significant physical ill-treatment of the person -significant economic hardship that threatens the person’s capacity to subsist -denial of access to basic services, where the denial threatens the person’s capacity to subsist • denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

Question 18

Which article of the refugee convention prohibits countries from removing them to places of danger (known as ‘refoulment’)

Answer 18

Article 33

Question 19

, the Convention provides that, at a minimum, refugees must receive the same standard of treatment as other non-citizens in the country. Which rights must be afforded on the same level as citizens of the country?

Answer 19

the right of access to the courts and legal assistance, the right to elementary education, the right to social security, public relief and assistance, and the right to practise one’s religion

Question 20

A permanent protection visa allows a refugee to….?

Answer 20

….remain in Australia permanently. If a refugee is granted a permanent protection visa, they are entitled to the rights accorded to permanent residents

Question 21

Which rights do permanent residents NOT have that citizens DO have?

Answer 21

Firstly, most cannot vote in Australian government elections. Secondly, whereas citizens can freely leave and reenter Australia, permanent residents must ensure they have a visa with a valid travel authority if they want to travel overseas and return to Australia. Permanent residents are entitled to apply for citizenship after four years of residence in Australia.

Question 22

Historically, Australia granted all refugees permanent protection visas. More recently, however, refugees who arrive by boat; or who claim asylum at the airport before clearing immigration, have only been eligible for….

Answer 22

temporary protection.

Question 23

The idea of giving refugees only temporary, rather than permanent, protection in Australia was first proposed by Pauline Hanson’s One Nation party in 1998, At the time, Philip Ruddock, Immigration Minister in the Howard Coalition government….

Answer 23

….categorically rejected the idea: “Can you imagine what temporary entry would mean for them? It would mean that people would never know whether they were able to remain here. There would be uncertainty particularly in terms of the attention given to learning English, and in addressing the torture and trauma so they are healed from some of the tremendous physical and psychological wounds they have suffered. So, I regard One Nation’s approach as being highly unconscionable in a way that most thinking people would clearly reject.” However, in October 1999, the Howard government introduced Temporary Protection Visas (TPVs) for asylum seekers who had arrived by boat on the basis that they had turned up uninvited, without a visa, and were jumping the so-called ‘Queue’

Question 24

As a result of amendments to the Migration Act in 2014, people with temporary protection are barred from….

Answer 24

ever making a valid application for permanent protection. By contrast, under the Howard Coalition government, 90 per cent of the 11 000 TPV holders were eventually granted permanent visas. The remaining 10 per cent (about 1000 refugees) were ultimately granted permanent protection visas by the Rudd Labor government when it abolished TPVs in 2008. (which were re-introduced in the 2014 amendments to be valid for up to three years)

Question 25

What does SHEV, the new type of visa created in the 2014 amendments to the Migration Act standfor/entail?

Answer 25

Safe Haven Enterprise Visas (SHEV), valid for up to five years. Unlike TPVs, SHEVs provide refugees with a pathway to permanent residency by letting them apply for other permanent visas (other than a protection visa) if certain conditions are met.

Question 26

To be eligible, a SHEV holder must be…

Answer 26

employed in a designated regional area* (without accessing certain social security benefits) and/or engaged in full-time study in a designated regional area for at least three-and-a-half years. *‘regional area’ is super inconsistent - apparently all of TAS and SA (including Hobart and Adelaide) are classified as regional. cardmakers note: ‘libs are bad at policy y’all’

Question 27

SHEV-holders who meet the requirements for a permanent visa are not automatically granted it, they must also…

Answer 27

also demonstrate their eligibility for other kinds of visas, such as skills-based or family visas. In reality, permanent residence may be unattainable for many, including those with particular vulnerabilities who cannot work or study, and those who cannot afford visa fees or visa sponsors.

Question 28

Scott Morrison, who was the Immigration Minister who introduced SHEVs, conceded that…

Answer 28

they were not designed to provide a long-term solution tor most refugees. Observing that the threshold for a permanent visa was very high, his message to SHEV-holders seeking to apply for one was, ‘good luck to them if they choose to do that and if they achieve it.’ cardmakers note: ‘what. a. WANKER!’

Question 29

refugees who have been granted TPV or SHEV formally have same study and work rights as those with permanent protection visas, but…

Answer 29

dont have access to government financial assistance for tertiary education and have to pay international student fees (which are much much more than what domestic students have to pay)

Question 30

TPV and SHEV holders DO have access to the following government services:

Answer 30

Medicare, Job-seeker, Social security benefits, short-term counselling for torture and trauma, and language training Since they are classified as ‘temporary residents’ under the Social Security Act of 1991, they ‘do not qualify for any other social security payments’ outside of ‘Special Benefit’ payments (financial assistance to people in severe financial need due to circumstances outside their control) as well as family assistance and related payments Eligibility for housing and access to primary and secondary education differs from state to state, but in the case of housing is often more limited for refugees with a TPV or SHEV

Question 31

TPVs and SHEVs are part of a suite of policies designed to…

Answer 31

…deter people from seeking asylum by boat

Question 32

Unlike refugees on permanent protection visas, TPV or SHEV holders…

Answer 32

… are required to have their refugee status reassessed every few years (anxiety inducing) and also don’t provide rights for family reunion or rights to travel outside of Australia (without specific permission from the Immigration Minister)

Question 33

A 2006 Senate inquiry into the TPVs found that…

Answer 33

…there was ‘little real evidence’ of the deterrent value of TPVs, noting ‘a considerable cost in terms of human suffering’

Question 34

Because of the non-family reunion policy of TPVs, it was found that many more…

Answer 34

….women and children risked their lives seeking asylum by boat to be reunited with their husbands cardmakers note: ‘libs are bad at policy and also heartless’

Question 35

Psychological studies show that refugees who are only granted temporary protection have….

Answer 35

….much higher rate of mental illness, anxiety, depression and PTSD when compared to those with permanent protection visas - even when both groups were fleeing comparable situations

Question 36

The negative effects of TPVs on children was documented in a 2004 Human Rights and Equal Opportunity Commission (now Australian Human Rights Commission) - was found that…

Answer 36

…their ability to participate fully in education in Australia was affected: Iraqi refugee Jalal said: “We lie to our children and we tell them that we will get the permanent visa and that they have to study and not worry about anything. Yet, they still don’t feel settled because of our unknown future. Recently, a teacher asked one of my children about his hopes and wishes for the future in Australia. My son told her that he doesn’t wish for anything because he only lives temporarily in Australia. She was shocked, and reassured him that he’d stay in Australia and no one would take him away. My son then told her that we are on temporary visas and that after three years well be sent back to our country. The teacher wanted him to concentrate on his studies and not worry about these things, so she said that the school will stand by him and wont let anyone send him away. We live the fear of the temporary visa every day.”

Question 37

In international law and practice, temporary protection is…

Answer 37

…accepted as a short-term emergency mechanism to be used in ‘mass-influx’ situations that overwhelm normal asylum processes and holders of such a visa normally retain the right to apply for permanent protection

Question 38

If a person arrives in Australia and applies for asylum on entry (when their visa does not state this) they are…

Answer 38

…usually given a TPV, just as if they had arrived by boat

Question 39

Most other democratic nations grant refugees permanent protection visas….

Answer 39

…either straight away (once refugee status has been confirmed) or on renewal of the temporary permit

Question 40

Australia’s temporary protection regime is unlawful and in violation of the refugee convention because…

Answer 40

… it discriminates based on a refugees method of arrival (as most who arrive without a visa arrive by boat, not plane)

Question 41

Australia’s temporary protection regime is bureaucratically inefficient because…

Answer 41

… it demands a full reassessment of the protection claim at the expiry of temporary visa period. This violates article 1C of the Refugee convention - which puts the onus on the government to show why refugee status is being revoked, rather than the refugee demonstrating ongoing need

Question 42

Australia’s temporary protection regime violates articles 17 and 23 of the International Covenant on Civil and Political Rights (ICCPR) by ….

Answer 42

infringing on the right to family unity and the right to be free from arbitrary interference with family life

Question 43

Article 1C of the Refugee Convention provides that refugee status ends if….

Answer 43

…the circumstances causing the person to be a refugee have ceased to exist - this is constituted only by fundamental, stable and durable change which ‘remove the causes of the refugee’s fear of persecution and offer the guarantee of safety on return’

Question 44

Which article of the Refugee Convention states that countries should facilitate the assimilation* and naturalisation of refugees

Answer 44

Article 34 ‘assimilation’ is defined in the text as ‘integration of refugees into the country of refuge’ and ‘naturalisation’ is defined as ‘conferring nationality or citizenship on refugees’

Question 45

Article 1F of the Refugee Convention states that a person cannot be granted refuge if…

Answer 45

… there are serious reasons for considering that they have committed a crime against peace, a war crime or a crime against humanity; or have committed a serious non-political crime outside of the country of refuge prior to admission to the country as a refugee or have been guilty of acts contrary to the purposes and principles of the United Nations

Question 46

Why does article 1F of the Refugee Convention not sit comfortably with contemporary human rights law?

Answer 46

Because it allows people to be removed to a place where they may face risk of persecution

Question 47

under article 33(2) of the Refugee Convention, the principle of non-refoulement is not extended to…

Answer 47

… ‘a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country’

Question 48

The core international human rights treaties are…

Answer 48

… the ICCPR (international covenant on civil and political rights) and the ICESCR (International Covenant on Economic, Social and Cultural Rights) Together these set out universal rights pertaining to all people, buttressed by specialist treaties relating to particular groups (such as women, children and people with disabilities)

Question 49

The fundamental notion underpinning human rights law is that rights are derived from….

Answer 49

… the inherent dignity of every person

Question 50

Unlike the definition provided in the Refugee Convention, the principle of non-refoulment under human rights law…

Answer 50

…does not require the illtreatment to be linked to particular characteristics of the individual - it applies generally - this is known as ‘complimentary protection’ as it compliments the refugee convention

Question 51

Complimentary protection stems from which treaties?

Answer 51

articles 6 and 7 of the ICCPR (international covenant on civil and political rights), its Second Optional Protocol, and article 3 of the CAT (Convention against Torture), and articles 6 and 37 of the Convention on the Rights of the Child.

Australia has ratified all of these treaties