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پناهندگی

شنبه 29 مهر‌ماه سال 1391 ساعت 21:44

پناهگاه و پناهندگی

Asylum seekers and refugees


Who are asylum seekers and refugees?

An asylum seeker is a person who has fled their own country and applied for protection as a refugee.

According to the United Nations Convention relating to the Status of Refugees, as amended by its 1967 Protocol (the Refugee Convention), a refugee is a person who is outside their own country and is unable or unwilling to return due to a well-founded fear of being persecuted because of their:

  • race
  • religion
  • nationality
  • membership of a particular social group or
  • political opinion.

What are Australia’s human rights obligations towards asylum seekers and refugees?

Australia has obligations to protect the human rights of all asylum seekers and refugees who arrive in Australia, regardless of how or where they arrive and whether they arrive with or without a visa.

As a party to the Refugee Convention, Australia has agreed to ensure that people who meet the United Nations definition of refugee are not sent back to a country where their life or freedom would be threatened. This is known as the principle of non-refoulement.

Australia also has obligations not to return people who face a real risk of violation of certain human rights under the International Covenant on Civil and Political Rights, the Convention Against Torture and the Convention on the Rights of the Child. These obligations also apply to people who have not been found to be refugees.

In addition, while asylum seekers and refugees are in Australian territory (or otherwise subject to Australian law), the Australian Government has obligations under various international treaties to ensure that their human rights are respected and protected. These treaties include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention Against Torture and the Convention on the Rights of the Child. These rights include the right not to be arbitrarily detained.


Are asylum seekers and refugees subject to immigration detention in Australia?

There are currently thousands of asylum seekers as well as some recognised refugees, being held in immigration detention around Australia.

Under the Migration Act 1958 (Cth) (the Migration Act), asylum seekers who arrive on the Australian mainland without a valid visa must be held in immigration detention until they are granted a visa or removed from Australia. Under the Migration Act, asylum seekers who arrive without a valid visa in excised offshore places, such as Christmas Island and Ashmore Reef, may be held in immigration detention until they are granted a visa or removed from Australia. However, the policy of the Australian Government is that, despite this distinction in law, asylum seekers who arrive in excised offshore places (namely asylum seekers who arrive by boat) will also be subject to mandatory detention.

Immigration detention in Australia is indefinite – there is no limit in law or policy to the length of time for which a person may be detained. Some asylum seekers and refugees spend long periods of time in immigration detention waiting for their refugee claim to be assessed; waiting for the completion of health, identity and security checks; or awaiting removal from Australia if their refugee claim has been unsuccessful.

While the legal and policy framework for mandatory detention remains in place, there have been some positive developments in immigration detention policy in recent times. In October 2010, the Australian Government announced that it would begin to move a significant number of unaccompanied minors and families with children into community detention. In October 2011, the government announced that, following initial health, security and identity checks, increasing numbers of people in immigration detention facilities would be considered for placement in the community on bridging visas or in community detention. The Commission welcomed these developments and is monitoring progress towards their full implementation.

For further information see:


What does the Commission do to monitor conditions and treatment of people held in immigration detention?

While the majority of people currently held in immigration detention are asylum seekers, not all are. Other categories of people who are detained in Australia include: people who have overstayed their tourist, student or other temporary visa; people who have had their visa cancelled on character grounds and are awaiting deportation; people who are suspected of involvement with people smuggling; and non-nationals who are alleged to have been fishing in Australian territorial waters.

The Commission seeks to ensure the protection of the human rights of all people held in immigration detention. However, due to their specific vulnerabilities and the special protections accorded them under international law, the Commission has focused in its work on immigration detention upon the conditions and treatment of asylum seekers, refugees and children in general.

While in immigration detention, asylum seekers and refugees may have a variety of needs including torture and trauma counselling, access to family tracing services, interpreting and translation, health and mental health care, education and recreational activities.

The Commission has conducted national inquiries and annual inspections focusing on the conditions and treatment of people in immigration detention across Australia. The reports of these inquiries and inspections make recommendations to the Australian Government aimed at protecting the human rights of asylum seekers, refugees and others held in immigration detention, including:

For further information about the Commission’s visits to immigration detention facilities, click here. For photos taken during visits, click here.


What are the Commission's views about the ways in which asylum seekers’ claims are decided?

Asylum seekers who arrive on the mainland

Asylum seekers who arrive on the Australian mainland (or in any non-excised part of Australia) are assessed through the refugee status determination system that applies under the Migration Act.

Under this system, the Department of Immigration and Citizenship (DIAC) makes a primary assessment as to whether an applicant meets the criteria for refugee status. If a person is found to be a refugee, and satisfies health, identity and security requirements, they will be granted a protection visa. If an asylum seeker is refused a protection visa by DIAC, they have access to independent merits review by the Refugee Review Tribunal (RRT), or in some circumstances the Administrative Appeals Tribunal (AAT). In limited circumstances, they can seek judicial review of decisions made by the RRT or the AAT.

The Commission raised some concerns about Australia’s refugee status determination system, as it applied to child asylum seekers, in the 2004 report of its national inquiry into children in immigration detention, A last resort?

The Commission has also made a number of submissions about Bills relating to various stages of the refugee status determination process:

Asylum seekers who arrive in excised offshore places

Asylum seekers who arrive in excised offshore places such as Christmas Island are barred from the refugee status determination system that applies under the Migration Act. Instead, their refugee claims are assessed through the Protection Obligations Determination process. These asylum seekers are only able to submit a valid visa application if the Minister for Immigration exercises his or her personal discretion to allow them to do so.

The Commission is opposed to the excision regime because it establishes a two-tiered system under which asylum seekers are treated differently based on their place and mode of arrival.

The Commission has recommended that the Australian Government repeal the provisions of the Migration Act relating to excised offshore places and abandon the policy of processing some asylum claims through a separate process. All people who make claims for asylum in Australia should have those claims assessed on the Australian mainland through the refugee status determination system that applies under the Migration Act.

Streamlining Australia’s refugee status determination processes

In November 2011, the Australian Government announced that it will be returning to a single system for processing asylum seekers’ claims. Under this approach, asylum seekers who arrive in excised offshore places will be subject to the same refugee status determination system that is prescribed by the Migration Act and is available on the mainland. While the Commission is concerned that the excision regime remains enshrined in the Migration Act, it welcomed the move towards a single system for processing asylum claims and is monitoring progress towards this policy’s implementation.

For further information see:


What happens to people who are not assessed to be refugees but still need protection?

In some cases, a person may not meet the Refugee Convention definition of a refugee, but may nevertheless face significant human rights abuses, such as torture, if returned to their country of origin.

Currently, the only avenue of protection for such people is to apply to the Minister for Immigration to request that the Minister exercise his or her personal discretion to issue a visa under section 417 of the Migration Act.

The Commission has raised concerns that the section 417 Ministerial discretion is not an adequate mechanism to protect people from refoulement (that is, return to a country where their life or freedom would be threatened). In particular, the Minister’s discretionary power is non-compellable and the Minister’s decisions are not reviewable. The Minister is also not obliged to give reasons for his or her decisions.

The Commission has recommended that the Australian Government adopt a legislated system of complementary protection to implement Australia’s non-refoulement obligations under the International Covenant on Civil and Political Rights, the Convention against Torture, and the Convention on the Rights of the Child.

In September 2009 the Australian Government introduced the Migration Amendment (Complementary Protection) Bill 2009 (Cth) into Parliament. While the Commission welcomed the Bill, it expressed some concerns about the scope of protection proposed by the Bill and recommended a number of amendments.

The Commission welcomed the introduction into Parliament of an amended version of the Bill, the Migration Amendment (Complementary Protection) Bill 2011 (Cth), in February 2011. While the Commission still had some concerns about the scope of protection proposed, the Commission expressed the view that the adoption of the Bill would be a positive first step in establishing a legislated complementary protection regime.

The Commission welcomed the passage of the Bill in September 2011 and looks forward to it receiving Royal Assent, after which the new system of complementary protection will be implemented.

For further information see:


What are the Commission’s views about sending asylum seekers to third countries?

The Commission recognises the need for regional cooperation in order to strengthen protection of the human rights of asylum seekers and refugees, while respecting the legitimate sovereign interests of affected States. However, the Commission has serious reservations about the Australian Government seeking to transfer asylum seekers to third countries. The Commission is concerned that third country transfer arrangements could lead to breaches of Australia’s obligations under the Refugee Convention and other international human rights treaties.

Australia receives very few asylum seekers by international standards. UNHCR statistics show that in 2010, Australia received 8250 asylum claims, just two per cent of all claims received by major industrialised countries. And, according to the Secretary of the Department of Immigration and Citizenship, asylum seekers arriving in Australia by boat in 2009-10 made up less than three per cent of Australia’s overall migration intake.

Seeking asylum in Australia, or elsewhere, is not illegal. In fact, it is a basic human right. All people are entitled to protection of their human rights, including the right to seek asylum, regardless of how or where they arrive in Australia, or in any other country.

In the Commission’s view, all people who make claims for asylum in Australia should have those claims assessed on the Australian mainland through the refugee status determination system that applies under the Migration Act.

For further information, see:


What does the Commission do to help increase community awareness about the human rights and circumstances of refugees and asylum seekers?

The Commission aims to provide clear and factual information to increase community awareness and understanding of the situation of asylum seekers and refugees and the human rights issues faced by them in Australia. The Commission has developed accessible, interactive and engaging web materials on human rights issues.

The Commission has undertaken a range of community projects aimed at increasing social inclusion and countering discrimination.

The Commission has also developed human rights resources for new arrivals in Australia and for young people enrolled in community language schools.

For further information see:

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