Oxfam has joined with other NGOs from our Asia Pacific region in a joint statement on the Australian Government’s announcement that it intends to subvert the recent ruling by the High Court on the treatment of asylum seekers.
The Asia Pacific Refugee Rights Network (APRRN) is deeply disappointed by the Australian government’s announcement that it intends to seek passage of legislation overturning the ruling by the High Court of Australia in the case of Plaintiff M70/2011 v Minister for Immigration and Citizenship. The High Court held that it is unlawful under Australia’s existing domestic immigration legislation to transfer asylum seekers to another country unless there are legally-enforceable safeguards guaranteeing fair status determination and effective protection for those transferred. The ruling prevents the Australian government from proceeding with the transfer to Malaysia of up to 800 asylum seekers arriving in Australia by boat as contemplated by the Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement. APRRN urges the Australian Parliament to refrain from passing amendments to existing legislation which will enable implementation of this or other offshore processing arrangements.
APRRN has consistently opposed the transfer to other states of asylum seekers who have entered Australia’s territory or jurisdiction and thus engaged its international obligations. This practice not only undermines protection outcomes for refugees but sends a clear message to the region that Australia does not respect the binding nature of its international human rights obligations towards asylum seekers and refugees. In an environment where most countries in the region are not party to the Refugee Convention, such actions by Australia seriously undermine the potential for regional cooperation on refugee protection.
The High Court ruling provides an opportunity for Australia to embark on a new approach to addressing regional protection issues through constructive engagement with other countries in the Asia-Pacific region. The development through the Bali Process in March this year of the first in-principle regional agreement to act collectively on refugee protection provides a springboard from which this process can begin. The agreement included acknowledgement of the importance of providing access to consistent refugee status determination procedures and working towards securing durable solutions for refugees, including voluntary repatriation, in-country solutions and resettlement.
Given that most states in the region are not party to the Refugee Convention and lack legal and administrative frameworks for refugee protection, the fact that protection issues were even acknowledged in the March agreement represents a significant breakthrough. While we have yet to see concrete outcomes emerge from the agreement, it is clear that dialogue on refugee protection issues among Asia-Pacific states is increasing and opportunities for positive engagement do exist. Australia and Indonesia, as co-chairs of the Bali Process, are well-placed to build on these opportunities and work towards the development of a sustainable regional protection framework in the Asia-Pacific.
The March agreement stipulated that arrangements to address irregular movement should aim to “undermine the people smuggling model”, an aim repeatedly emphasised by the governments of Australia and Malaysia in relation to the transfer deal. This “people smuggling model” exists because of the fear and uncertainty faced by refugees and asylum seekers residing in Asia, stemming from their lack of legal status and untenable living conditions. The key to undermining the “people smuggling model”, therefore, lies in resolving this uncertainty. This can only be achieved if the Malaysian and other governments in the region implement reforms aimed at broadening protection space and building lasting security for refugees and asylum seekers residing in Asia.
In the short term, these reforms should include granting legal status to refugees and asylum seekers, affording right of stay and protection against arrest, detention and deportation; and providing adequate support to ensure that the basic needs of refugees and asylum seekers are met, through acknowledging their right to work, providing educational opportunities and ensuring access to health care services. In the longer term, governments across the region should also look to developing sound legal and administrative frameworks for status determination and protection and exploring opportunities to provide durable solutions for refugees.
Australia, as a party to the Refugee Convention and a nation with well-established systems for refugee status determination and a strong settlement support sector, is well-positioned to support the implementation of these reforms. Australia can also make a key contribution to providing durable solutions through progressively increasing its resettlement quota and lobbying other resettlement states to consider the needs of refugees residing in Asia. As the third largest resettlement state in the world and the Chair of UNHCR’s Working Group on Resettlement for 2011-12, Australia is in a strong position to argue the case for increased resettlement out of Asia.
APRRN calls on each government in the Asia-Pacific region to develop, in collaboration with civil society, a national action plan detailing the progressive steps they will take towards improving refugee protection standards and enhancing engagement with other states on protection issues. In states which have not yet signed the Refugee Convention, initial steps could include granting legal status and permission to work to refugees and asylum seekers. In states with well-established systems for reception, status determination and protection, steps should be taken to reform practices (such as Australia’s policy of indefinite mandatory detention) which undermine protection principles.
To facilitate these and other reforms, APRRN supports the proposal to establish a support office to advance the development of the Asia-Pacific Regional Cooperation Framework. The functions of this office could include facilitating the sharing of information, resources and expertise; providing operational and technical support with refugee status determination, case management and resettlement; providing training, capacity-building and mentoring opportunities; and providing a channel for ongoing dialogue on protection issues.
The development of a constructive and sustainable regional protection framework is essential to resolving the complex protection challenges in the Asia-Pacific region. The members of APRRN stand ready to support governments across the region in achieving this crucial objective.
Organisations signed on to the above statement:
The National Human Rights Society (HAKAM)
Chin Human Rights Organization
UNSW Migrant and Refuge Rights Project
Thai Committee for Refugees Foundation (TCR)
Health Equity Initiatives
New Zealand National Refugee Network
Canadian Migration Institute
Lawyers for Liberty
The Arakan Project
Refugee Council of Australia
Health Equity Initiatives
Dr Savitri Taylor
Barbara Harrell Bond (OBE)