Australia has been the object of criticism by the United Nations Human Rights Commission [HRC] for quite some time. And after the most recent spat with the HRC, it seems that Australia will continue to fight an uphill battle on its immigration policies. Currently, Australia is sending migrant refugees to Papua New Guinea [PNG]–with whom it has a deal to conduct such transfers in exchange for funding–and, arguably, evading its international legal obligations.
Having ratified the 1951 Convention on the Status of Refugees, Australia is obligated to expeditiously process the refugees, accord them an appropriate status, grant them access to the courts, and grant many other protections. There is a serious question as to whether Australia can provide such protections by outsourcing its immigration processing to PNG–a county that has very little resources and notedly poor facilities.
What’s more is that the Refugee Convention is not the only international treaty that binds Australia to ensure protections for the refugees. Pursuant to the International Convention on Civil and Political Rights–to which Australia is a party–Australia is obligated to maintain clean and healthy facilities for the refugees. And under international human rights law the refugees have a right to be free from indefinite and unjustifiable detention. It appears that Australia has suspended, these rights, if not done away with completely.
In addition, it is impossible for Australia to lawfully deflect its responsibility to the refugees onto another country (i.e. PNG) so long as the refugees arrived in Australia first en route from their countries of origin. Under the Refugee Convention, there is a duty of non-refoulment which prevents a receiving state from expelling refugees to a place from which they fled for fear of persecution, or to a place where their human rights would be violated. Making out a cognizable claim, however, has proven very difficult for many migrants; and this is not Australia’s first dance.
For years, Australia has been under U.N. scrutiny for its allegedly discriminatory and violative immigration procedures. Among other claims, the U.N. has argued that Australia has violated refugees’ rights to be granted asylum, to healthy living conditions, against indefinite detention, and many, many more. The problem is this, however: Under international law, immigration is an area that is typically left to the Sovereign. Therefore, so long as there is a colorable national security concern that stems from the influx of refugees or “aliens,” there is at the same time a high probability that a Court will find in favor of the Sovereign, unless the detention and treatment of refugees or aliens is arbitrary and capricious.
Australia, like others, has resorted to an argument that it has serious national security concerns stemming from the mass-influx of refugees and illegal migrants. It has cited the fact that it bears a disproportionate burden in comparison to other countries because of its presence as a sole industrialized country among many poor countries. Moreover, it has argued that its agreement with PNG is a lawful and necessary measure, and it cites its funding to PNG as evidence of its continuing commitment to refugees.
Yet, with all that said the questions still loom: Is Australia being disingenuous? Are its actions lawful? Isn’t it avoiding responsibility? Is it really that much of a national security threat to process a few refugees?
Let me hear your arguments. For or Against.
Image Source: The Shovel News