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Asylum seekers and refugees

Who are asylum seekers and refugees?

An asylum seeker is someone who has fled their own country and applies to the government of another country for protection as a refugee.

According to the United Nations Convention and Protocol relating to the Status of Refugees (the Refugee Convention), a refugee is someone who is outside their own country and cannot return due to a well-founded fear of persecution because of their:

The term ‘asylum seekers’ refers to all people who apply for refugee protection, whether or not they are officially determined to be refugees.

To get a protection visa to live in Australia, asylum seekers must show that they satisfy the definition of refugee in the Refugee Convention and that Australia has an obligation to protect them.

What are the human rights of 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 definition of refugee under the Convention are not sent back to a country where their life or freedom would be threatened. This is known as the principle of non-refoulement.

In addition, Australia has obligations not to return people who face a real risk of violation of their human rights under the International Covenant on Civil and Political Rights (articles 6 and 7) and the Convention Against Torture (article 3), even if they do not meet the definition of refugee under the Refugee Convention. The Convention on the Rights of the Child also requires Australia to provide special protection and assistance to refugee children and children seeking asylum in Australia.

In addition, while asylum seekers and refugees are in Australian territory (or otherwise subject to Australia’s jurisdiction), 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, and the Convention Against Torture.

What does the Commission do to monitor conditions and treatment of asylum seekers in immigration detention?

Some asylum seekers are detained in immigration detention in 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 in excised offshore places such as Christmas Island may be detained. The current policy of the Australian Government is that all unauthorised boat arrivals in excised offshore places will be subject to mandatory detention on Christmas Island.

Some asylum seekers spend prolonged periods of time in immigration detention, either waiting for the outcome of their visa application or awaiting removal from Australia if their application has been unsuccessful.

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

The Commission has conducted national inquiries and annual inspections focusing on the treatment of asylum seekers and refugees in immigration detention in Australia. The reports of these inquiries and inspections make a number of recommendations aimed at protecting the human rights of asylum seekers and refugees in immigration detention.:

For further information about immigration detention and human rights, click here.

What are the Commission's views about the refugee status determination process in Australia?

Asylum seekers on the mainland

Asylum seekers who arrive on the Australian mainland (or in any non-excised part of Australia) and apply for protection 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 an asylum seeker is assessed by DIAC as not being a refugee and is therefore denied a protection visa, they can apply to have the merits of the DIAC decision reviewed by the Refugee Review Tribunal (RRT), an independent federal statutory body. If the RRT upholds DIAC’s decision, in limited circumstances an asylum seeker can appeal to the Federal Court. Asylum seekers can also appeal directly to the Minister for Immigration. However, the Minister’s powers to grant a visa are discretionary and non-compellable.

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

The Commission has also made a number of submissions about laws relating to various stages of the refugee status determination process, arguing that the human rights of asylum seekers and refugees should be protected throughout the process:

Asylum seekers 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.

These asylum seekers are not able to submit a valid visa application unless the Minister for Immigration exercises his or her personal discretion to allow an application to be submitted. They have no access to the Refugee Review Tribunal, and very limited access to the Australian courts.

Instead, their refugee claims are processed through a ‘non-statutory’ refugee status assessment process. This is an administrative process which is not governed by the Migration Act, but by policy guidelines that have been developed by DIAC.

The Commission has significant concerns about the non-statutory refugee status assessment process. These primarily relate to the lack of transparent and enforceable procedures for decision-making, and the failure to provide sufficient legal safeguards for asylum seekers.

In the Commission’s view, this two-tiered system for determining whether an asylum seeker is a refugee undermines Australia’s obligations under the Refugee Convention and jeopardises fundamental human rights.

The Commission has recommended that the Australian Government should repeal the provisions of the Migration Act relating to excised offshore places, and abandon the policy of processing some asylum claims through a non-statutory process. All unauthorised arrivals who make claims for asylum should have those claims assessed through the refugee status determination system that applies under the Migration Act.

For further information see:

What happens to people who are not determined 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 they exercise their personal discretion to issue a visa under section 417 of the Migration Act.

The Commission has raised concerns about the inadequacy of the section 417 Ministerial discretion as a mechanism to protect such people. In particular, the Minister’s discretionary power is non-compellable and non-reviewable. It is therefore an inadequate safeguard to protect people from refoulement.

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 into Parliament the Migration Amendment (Complementary Protection) Bill 2009 (Cth). Although the Commission welcomes the Government’s intention to introduce a system of complementary protection, it expressed some concerns about the scope of protection proposed by the Bill, in particular that the statutory complementary protection system will not apply to asylum seekers who arrive in excised offshore places such as Christmas Island.

For further information see:

What is the Commission doing to help increase community understanding about refugees and asylum seekers?

Some asylum seekers and refugees have been subjected to prejudice and misunderstanding in Australia.

The Commission has attempted 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 facing them in the Australian community.

For further information see: