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Asylum seekers and refugees

Who are asylum seekers and refugees?

An asylum seeker is a person 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 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:

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.

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 apply even to people who do not meet the definition of refugee under the Refugee Convention.

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, the Convention Against Torture and the Convention on the Rights of the Child.

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

There are currently thousands of asylum seekers 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 may be detained. The policy of the Australian Government is that asylum seekers who arrive in excised offshore places will be subject to mandatory detention.

Some asylum seekers 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 in immigration detention, asylum seekers may have a variety of needs including 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 treatment of asylum seekers in immigration detention in Australia. The reports of these inquiries and inspections make recommendations to the Australian Government aimed at protecting the human rights of asylum seekers in immigration detention:

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

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

What are the Commission's views about the refugee assessment process?

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 and whether they should 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 not able to submit a valid visa application unless the Minister for Immigration exercises his or her personal discretion to allow them to submit an application.

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.

For further information see:

What happens to people who are not assessed as 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. 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?

While the Commission recognises the need for regional cooperation on issues relating to asylum seekers and refugees, the Commission has serious concerns 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 international human rights treaties.

Australia receives very few asylum seekers by international standards – in 2010, Australia received 8250 asylum claims, just two per cent of claims in major industrialised countries. In 2009-10, asylum seekers arriving in Australia by boat made up less than three per cent of Australia’s migration intake. 

Seeking asylum in Australia is not illegal – in fact, it is a basic human right. Regardless of how or where they arrive in Australia, all people are entitled to protection of their human rights, including the right to seek asylum.

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 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 facing them in the Australian community.

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: