Flynn, Martin; Kenny, Mary Anne --- "Comment: Mass migration: an Australian perspective" [2001] AltLawJl 69; (2001) 26(4) Alternative Law Journal 182

• COMMENT
• Mass migration: an Australian perspective
• Refoulement of asylum seekers
• Detention without judicial review
• Conclusion

COMMENT
Mass migration: an Australian perspective

MARY ANNE KENNY and MARTIN FLYNN^[*] contrast the Australian and Hong Kong experiences.

Hong Kong has an area of 1084 square kilometres and a population of 6.6 million. In 1989, over 48,000 Vietnamese were being held in detention camps. They had arrived by boat over the preceding 14 years and claimed protection under international law. Justice Litton traces the political and legal events that ensued.

Mass population movement of the order experienced by Hong Kong has never seriously threatened Australia. Between 1975 and 1981 a mere 2100 Vietnamese arrived in Australia by boat. Today, large numbers are fleeing war, social upheaval or bleak economic prospects in the former Yugoslavia, Iran, Iraq and Afghanistan. In 2000, European Union countries received 389,590 applications for protection while 2688 people arrived in Australia by boat. Relatively few choose Australia as a destination when Western Europe is so much closer. However, successive Australian governments have perceived and promoted a threat of having to grant asylum to large numbers of people especially those who might arrive by boat. As a result, the duty to protect refugees to be found in international law is now secondary to a domestic political imperative: controlling immigration. In this comment, we illustrate this development with two examples:

• refoulement (returning) of asylum seekers, and

• detention without judicial review.

Refoulement of asylum seekers

At international law Australia has assumed obligations to ensure that people who arrive in Australia and meet the definition of refugee are not sent back (refouled) to a place where they face persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (Article 33, Convention Relating to the Status of Refugees). The right to seek asylum or protection from persecution is a fundamental human right recognised in many international instruments.

Most who arrived by boat from Vietnam between 1975 and 1981 were granted immediate entry and permanent residence in Australia. However, during the 1980s Australia was to become an active participant in discussions that resulted in the Comprehensive Plan of Action (CPA) of 1989. The CPA was to be the mechanism for the relocation of the thousands of Vietnamese in camps throughout Asia, including Hong Kong.

The Migration Act 1958 (Cth) and Migration Regulations 1994 were amended in November 1994 so that those covered by the CPA would generally not have access to Australia’s protection. The Australian government argued that the CPA was designed to share the burden of refugees between developing nations in South East Asia and developed western countries. It claimed that the CPA would be undermined if the asylum seekers could ‘forum shop.’ The non-refoulement obligation does not apply to those denied refugee status in a country of first asylum. However, the strain of mass arrivals in countries such as Hong Kong, Indonesia and the Philippines often led to inadequate screening procedures.^[1] This meant that there was a real chance that some of the arrivals in Australia could well have had legitimate claims as refugees under the Convention definition, but they were returned under the policy of ‘country of first asylum’.

The amendments provided that the Peoples Republic of China (PRC) was a ‘safe third country’ and, as from that date, former residents of Vietnam who resided in the PRC prior to coming to Australia could no longer apply for a protection visa. They were immediately removed to the PRC. Many of the Sino-Vietnamese feared the discriminatory treatment they received in the PRC.^[2] Prior to the amendments, many Sino-Vietnamese had been granted protection visas. Chris Sidoti, the then Human Rights Commissioner, stated:

Amendment legislation was presumably a response to a perceived threat of mass movement to our shores by Sino-Vietnamese … The legislation forces us to draw one of two conclusions — either the Sino-Vietnamese recognised as refugees before [the amendments] were not entitled to that status (a very serious matter) or since then we have been deporting people who have legitimate claims.^[3]

The concept of a safe third country was taken further when amendments were made to the Migration Act in 1999 to provide that Australia does not owe protection obligations to a non-citizen who has not taken all possible steps to remain in any other country while enroute to Australia. If the non-citizen has resided in that other country for a period of at least seven days, he or she may be excluded from refugee status in Australia, provided that the Minister has declared that the other country is a safe third country.

This latest, far-reaching statutory incarnation of the concept of ‘countries of first asylum’ and ‘safe third countries’ marks Australia’s ignoble contribution to the growing phenomenon of ‘refugees in orbit’. Increasingly, refugees are pushed around the globe in search of asylum.

Detention without judicial review

The Migration Act provides that a non-citizen who arrives by boat must be detained until their application for a protection visa is determined (s.189). The Act explicitly states that a court cannot release such a person from detention (s.196(3)). Recent experience suggests that the vast majority of detainee applications for protection are ultimately successful. Of the 3197 persons in detention on 1 January 2000, 80% were granted protection visas and released during 2000.^[4] This will be some comfort to the 2023 people in detention at 1 January 2001. However, 378 of them have already been in detention for 6 to 12 months and a further 361 have been in detention for one year or longer.

In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1993) 110 ALR 97, the High Court upheld the constitutional validity of those provisions of the Migration Act that authorised detention of asylum seekers. Three points should be noted about the decision.

First, the High Court found that the detention of the asylum seeker authorised by the Act did not go beyond what was reasonably capable of being necessary for the purposes of dealing with the application for protection. Great weight was placed on the fact that the Act permitted an asylum seeker to unilaterally terminate detention by asking to be removed, that is, abandoning the application for protection (s.198(1)). If the Act had authorised detention in circumstances that were beyond what was reasonably necessary, the Act would be punitive and contravene Chapter III of the Constitution on judicial power. It would not be surprising if the High Court were asked to revisit Chu Kheng Lim in an appropriate case. Such a case may well involve a child. The Migration Regulations enable the release of a detained child where it is in the best interests of the child. However, the child’s parents must remain in detention. As it is rarely in the best interests of a child to be separated from his or her parents, almost all children remain in detention with their parents. At 1 January 2001, 40 children have been in detention for one year or longer. The factor that weighed heavily in Chu Kheng Lim is missing because a child is not in a position to make a request to terminate detention.

Second, although the Migration Act purports to prevent the release of a detainee by a court, the effect of Chu Kheng Lim is that it remains open to a court to review the lawfulness of detention. This could occur by way of an application to the Federal Court for a writ of habeas corpus. The decision of the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1996] UKPC 5; [1997] AC 97 (summarised in Justice Litton’s article) makes clear that a court would expect strict adherence to the statutory requirements for detention of asylum seekers. For example, the Federal Court might question whether the extensive role now played by private contractors is compatible with the provision of the Migration Act requiring a detainee to be ‘held by, or on behalf of, an officer’ (see s.5 definition of ‘immigration detention’).

Third, the Human Rights Committee (HRC) established under the International Covenant on Civil and Political Rights (ICCPR) found that the Migration Act scheme for compulsory detention in place in 1994 was a violation of Article 9 of the ICCPR.^[5] Article 9 prohibits arbitrary detention and guarantees judicial review of the lawfulness of detention. The HRC was of the view that the decision to detain: (a) should be made only after consideration of the individual circumstances of an asylum seeker; and (b) must be open to review ‘on the merits’ by a court. Contrary to the claims of the Australian government, amendments to the Migration Act have not addressed the failings identified by the HRC.

Conclusion

It is unlikely that Australia will ever face a mass influx of the order experienced by Hong Kong or currently being experienced in Europe. Our geographic isolation remains the dominant reason why the risk of mass ‘invasion’ of Australia is minimal. More to the point, if there was war, serious turmoil or famine in our region, it is fanciful to think that desperate men and women would be deterred by the prospect of refoulement or detention. The recent unauthorised boat arrivals have seen the government focus on their method of arrival and use of people smugglers. The government has labelled asylum seekers as ‘illegal immigrants’ or ‘queue jumpers’. They are seen as people who have come to exploit Australian resources rather than people who may be in need of protection.

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^[*] Mary Anne Kenny teaches law and clinical practice at Murdoch University.

email: [e-mail]

Martin Flynn teaches law at the University of Western Australia.

email: [e-mail]

^[1] See Taylor, Savitri, Australia’s ‘Safe Third Country’ Provisions: Their Impact on Australia’s Fulfilment of Its Non-Refoulement Obligations[1996] UTasLawRw 9; , (1996) 15 University of Tasmania Law Review 196.

^[2] See for example Wu Yu Fang and 117 Others v Minister for Immigration and Ethnic Affairs [1996] HCA 49; (1996) 135 ALR 353.

^[3] Sidoti, Chris, Keynote Address, Retreating from the Refugee Convention, NT University, Feb 1997 (conference proceedings).

^[4] All Australian detention statistics in this article are from Flood, Philip, ‘Report of Inquiry into Immigration Detention Procedures’, February 2000.

^[5] A (name deleted) v Australia, Communication No. 560/1993, Human Rights Committee, 59th session, 24 March–11 April 1997, UN Doc CCPR/C/59/D/560/1993 dated 30 April 1997; See Poynder, N., ‘A (name deleted) v Australia: A Milestone for Asylum Seekers’[1997] AUJlHRights 21; , (1997) 4 Australian Journal of Human Rights 155.