crossingborders
LEGAL & ETHICAL PERSPECTIVES Module Three. 27 May 2013 Image courtesy of http://www.greenleft.org.au/node/52724
In a Kafka-esque turn of events, the Australian parliament passed a legislation within the last fortnight, that excises the Australian mainland itself from its migration zone. It is legislation designed to “deter” asylum seeker boat arrivals.1 (In our last module, we discussed the amendments to the Migration Act 1958 which (i) saw the creation of excised offshore places – islands under Australian sovereignty which had been excised from the migration zone for the damning purpose of ‘limiting the ability of offshore entry persons to make valid visa applications’; and (ii) made offshore processing of offshore entry persons (OEPs) lawful.2 Whilst the Immigration Minister has discretionary powers to allow an OEP to make a valid visa application despite the Migration Act in “situations of emergency, hardship and overwhelming humanitarian need” where it would serve the public interest, there is no compulsion for the Minister to exercise this power. The very existence of this privilege ‘underlines Australia’s attitude that the grant of asylum – or even the opportunity to apply for asylum – is a humanitarian, essentially discretionary, act; rather than an act in accordance with its obligations under the Refugees Convention’.2
It is with disgust that we revise this chapter with news that things have gone from bad to worse. The new legislation will mean that even asylum seekers who reach the mainland can be processed at offshore facilities on Nauru and Papua New Guinea’s Manus Island.1 These are centers that the parliament has refused to allow media access or inspections by the Australian Human Rights Commission.1 The proposal to excise the mainland from the migration zone was put forward in 2006, when then Labor MP Chris Bowen described it as “a stain on our national character.”1 The excision zone is a remnant of the punitive Howard government.2 In the aftermath of Tampa in 2001, the parliament successfully legislated to excise areas under Australian sovereign territory from the migration zone.3 This was under the explicit intent of “limiting the ability of offshore entry persons to make valid visa applications”.2,3 Arrival on any of these excision zones meant the inability to apply for refugee status via the process availed by asylum seekers arriving on the mainland.2 People arriving on Christmas Island, Ashmore Island, the Cartier Islands and the Cocos Islands were subject to offshore processing.1 Until last Thursday, the Government’s policy of removing asylum seekers from the mainland and locking them up offshore was a direct infringement of Australian law.1 But the Government has changed the law to suit their policies.1 As immoral as it might be, the Federal Government has ensured it can no longer be subjected to judicial censure. Immigration Minister Brendan O’Connor justifies this legislation as a step to discourage asylum seekers from making perilous sea journeys to Australia.1 Widely condemned by human rights advocates as openly defying our human rights obligations, it is a baffling and desperate example of the xenophobia entrenched in our immigration policy.1
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Hui-Ling Yeoh & Nishani Nithianadan
index 4
Australia’s International Obligations
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Australia’s response
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Detention of Children
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Unaccompanied Minors
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Action & Further Reading
In this third installment of Crossing Borders’ education series, we aim to explore Australia’s legal and ethical obligations to asylum seekers and refugees. The events of the previous month show the crucial importance of understanding what our obligations are, to whom they are owed, and why we must uphold them.
Drawings on a school desk at Port Headland, June 2002e 3
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Module 3: Legal & Ethical Perspectives
[27 May 2013]
Hui-Ling Yeoh & Nishani Nithianadan
AUSTRALIA’S INTERNATIONAL OBLIGATIONS International Law International law encompasses a binding set of agreements countries make to each other.
International law governs the relationships between countries.4 It encompasses international conventions to which countries agree to be bound by and a range of 4
principles recognised and accepted as ‘law’ by these nations. Forms of agreement, for example, conventions, protocols and treaties are binding in international law. 4 However, unlike domestic law, there is no policing system that punishes countries that
However, there is no policing system that enforces this.
breach an international law. 4 Where there is a breach, the international community may agree to act through sanctions or military force, but this very rarely happens in practice. 4
State parties are trusted to uphold these obligations and their purposes in good faith.
State parties to any international law are obliged under the Vienna Convention to apply these articles and laws “in good faith” so that the purpose of the treaty is not rendered obsolete. 4
The Refugee Convention Non-refoulement - It is an important obligation under the 1951 Refugee Convention that refugees must not be returned to a country where they face persecution.
Australia’s ratification of the UNHCR Refugee Convention means that is bound by certain obligations to refugees. 4 The most important of these obligations is the principle 4
of non-refoulement, as stated under Article 33. This principle states that persons who are recognised as ‘refugees’ must not be returned or ‘refouled’ to a country where they face persecution for one of the Convention grounds. 4
The Australian Government has international obligations with respect to asylum seekers and refugees under the several treaties, to which it is a party including5: -
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International Covenant on Civil and Political Rights (ICCPR) International Covenant on Economic, Social and Cultural Rights (ICESCR) Convention on the Rights of the Child (CRC) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) Refugee Convention.
Module 3: Legal & Ethical Perspectives
[27 May 2013]
Hui-Ling Yeoh & Nishani Nithianadan
Domestic Law and International Obligations In some countries (eg. The Netherlands, France and Switzerland), international conventions are automatically incorporated into domestic law when it is ratified.4 In Australia, this is not the case. 4 The parliament must pass specific legislation that incorporates these international obligations. 4 The primary piece of domestic legislation for the Refugee Convention is the Migration Act (1958). 4 Although a country is bound to the convention once it ratifies it, it is also possible for countries to make “reservations” about certain articles, which means that they will not be bound by that particular article. 4 However, there are some articles from which countries may not make reservations. In the Refugee Convention, Article 1 (the definition of the term ‘refugee’) and Article 33 (non-refoulement) are prohibited from making reservations. 4
Australia passes specific legislation to incorporate its international obligations.
Australia’s obligations in context With regard to the offshore humanitarian program (UNHCR approved refugees waiting resettlement), Australia does not contravene its duties under the Refugee Convention when it chooses not to offer protection to a particular asylum seeker .4 However, this is very different for people who claim asylum once they arrive in Australia (onshore asylum seekers). 4 Under the Refugee Convention, Australia must determine whether the asylum seeker is a ‘refugee’, and if so, offer them protection.6 Although Australia is able to exercise its discretion regarding how refugee status is to be determined, it should take heed of UNHCR issued guidelines and international conventions which advise the minimum standards for providing a fair refugee status determination procedure.4
Nauru offshore processing center. Picture: Clint Deidenang
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Module 3: Legal & Ethical Perspectives
[27 May 2013]
Hui-Ling Yeoh & Nishani Nithianadan
AUSTRALIA’S RESPONSE TO ITS INTERNATIONAL OBLIGATIONS “Over the last decade, Australia has passed legislation to make it more difficult for asylum seekers to qualify for asylum as refugees under the Migration Act.”4
Refugee. Any person owing to well‐founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the
country of his/her nationality and is unable or, owing to such fear, is unwilling to avail himself/herself of the protection of that country…” -
1951 UN Refugee Convention6
The meaning of ‘persecution’ In 2001, the Federal Parliament introduced legislation that narrowed the definition of persecution so that it reasons for persecution only applied if:
By altering the meaning of ‘persecution’, Australian legislation restricts genuine refugees from claiming asylum. Refugees are not only denied due protection, they may be turned away, breaching the nonrefoulement obligation of the Refugee Convention.
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the reason is the essential and significant reason for the persecution, and the persecution involves serious harm to the person; and the persecution involves systematic and discriminatory conduct.4
While the definition of ‘refugee’ may not be changed, the Refugee Convention allows the meaning of ‘persecution’ to remain flexible to accommodate the above provisions, however, by the Vienna convention, signatories are still required to interpret each article and term “in good faith”. 4 Such a restrictive meaning for the definition of ‘persecution’ is inconsistent with the intention of the Refugee Convention. 4 It greatly magnifies the risk that a genuine refugee is returned to a country where they have a “well-founded fear of persecution”, that they may not receive the protection they are obliged to under the Convention. 4
Module 3: Legal & Ethical Perspectives
[27 May 2013]
Hui-Ling Yeoh & Nishani Nithianadan
Differential treatment of asylum seekers Australia also holds obligations to international laws that prohibit discrimination against categories or classes of asylum seekers, and that asylum seekers are not to be penalised for unauthorised arrival (Article 31). 4 However, Australia’s laws have overtly created, and then discriminated against, categories of asylum seekers based on the manner of the arrival in Australia or their method of application for asylum. 4
Australia’s humanitarian program and immigration policy overtly discriminates between and penalises categories of asylum seekers based on mode of arrival and method of application, breaching Article 31 of the Refugee Convention.
Queue jumpers & numerical linking: the ‘good’ vs ‘bad’ refugee It is worth remembering that the claims of those who apply for protection following their arrival in Australia (ie via the onshore component of Australia’s migration program) are no less legitimate than the claims of those waiting to be resettled following granting of refugee status by the UNHCR; their fear of persecution just as debilitating, their claim to asylum no less valid.
Numerical linking of the ‘Onshore Arrivals’ intake and ‘Special Humanitarian Program’ (SHP) propagates myths about asylum seekers and refugees, popularising factitious moral statuses for categories of asylum seekers.
The idea that there is ‘bad’ refugee, who ‘queue jumps,’ comes from a policy quirk unique to Australia. This decision to link the capped places for ‘Onshore Arrivals’ with the ‘Special Humanitarian Program’ (designed for refugees to reconnect with family) is entirely at the behest of the Australian government and has no legal merit. The Australian government has created a policy whereby one place is deducted from the SHP for every onshore arrival processed and accepted. Australia is the only country to link its onshore and offshore programs. The notion that asylum seekers have access to reliable processing options with durable protection outcomes is a flawed one; for many, applying for resettlement via the UNHCR is not a viable option, hence the two legitimate streams of migration. In numerically linking the onshore and offshore programs, this a) creates tension between different refugee groups and b) popularises and propagates the myth that there is a “queue”, a “proper channel” that onshore asylum seekers evade and exploit at the expense of legitimate offshore resettlements.
Breakdown of Australia’s Humanitarian Program. Note: 8,000 places to be shared between ‘Onshore Arrivals’ and the ‘Special Humanitarian Program’. Figures for 2012-13 intake based on recommendations by the Houston Report.9 The Opposition led by Tony Abbott has vowed to reverse this increase back to 13,750 if elected.10
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Mandatory detention Mandatory detention is incompatible with the Refugee Convention and other legal instruments, which Australia has voluntarily signed.
“…even initially lawful detention becomes arbitrary and contrary to law if it is not subject to periodic review.” 12 Alfred de Zayas, International Committee of the Red Cross
With the introduction of the Migration Amendment Act 1992, it became mandatory to detain unauthorized arrivals; prior to this, arrivals were detained was permissible but not compulsory. The Migration Reform Act 1992, which commenced in September 1994, broadened the application of mandatory detention to all ‘unlawful non-citizens’ (ie. everyone without a valid visa) and removed the 273 day limit.11 Mandatory detention is incompatible with the International Covenant on Civil and Political Rights (ICCPR), which stipulates that ‘no one shall be subjected to arbitrary arrest or detention’ (article 9).5,12 Moreover the reality faced by many asylum seekers – years spent in detention with no certainty of release or a release date and the resulting mental trauma – breaches article 7, which states that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. 5,12 Mandatory detention also contravenes the Refugee Convention; specifically Article 31, which recognizes that persecuted persons may have little option but to enter a country unlawfully in order to seek asylum and thus prohibits countries from penalizing refugees ‘on account of their illegal entry’.13 *
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So far we’ve established that mandatory, indefinite and inhumane detention breaches Australia’s international obligations. However, the rulings by the High Court of Australia (HCA) listed below confirm that under Australian law, indefinite detention is lawful and that the conditions of detention are irrelevant.14 The specific law referred to is the Migration Act 1958 (Cth), Section 196, which states that:
‘An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:
removed from Australia under section 198 or 199; or
deported under section 200; or
granted a visa.
To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.’ 14
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Hui-Ling Yeoh & Nishani Nithianadan
LANDMARK CASES Al Masri (2002) The Federal Court of Australia (FCA) found that Mr Al Masri, a stateless failed asylum seeker in detention, must be released because the purpose of his detention was to effect a removal that was not foreseeable.14 Note that the FCA is below the HCA in the hierarchy of federal courts.
Al-Kateb (2004) Born to Palestinian parents in Kuwait, Al-Kateb was a stateless person who arrived in Australia by boat in Dec 2000. The High Court ruled that Section 196 of the Migration Act was unequivocal (see above). Conclusion: indefinite detention of a stateless person is legal. ‘The Court found that the Australian Parliament had created clear legislation allowing for lifelong detention of people seeking asylum’;
The cases of Al-Kateb and Behrooz led to the High Court’s respective rulings that in accordance with Australian law, indefinite detention is lawful and that the conditions of detention are irrelevant14
detaining Mr Al-Kateb for his whole life did not qualify as a Constitutional error. 14
Behrooz (2004) HCA ruled that the harsh and inhumane conditions of detention did not render the detention unlawful.14,15
Plaintiffs M61 and M69 (2010) In the case of two Sri Lankan asylum seekers detained on Christmas Island, who as applicants in an excised territory could not access the full refugee determination system had they arrived on the mainland, the HCA found that ‘there had been an error of law and that the two men had been denied procedural fairness…In effect the High Court was saying that the refugee determination system as applied to one whole category of people (those in excised territories) was flawed.’14 In response to the HCA ruling, the government granted failed asylum seekers arriving in excised territories access to judicial review where procedural fairness has been denied; however, no moves were made to grant access to the mainland status determination process and Refugee Review Tribunal.14
‘Malaysia Arrangement’ (2011) (Recap from Module 2: the Gillard government’s Malaysia Arrangement proposed sending 800 OEPs to Malaysia in exchange for resettling 4000 refugees from Malaysia.) In a rare judicial intervention into foreign affairs, an area in which the courts usually defer to the executive, the HCA ruled that Australia could not deport asylum seekers to a country such as Malaysia, which had no legal safeguards ensuring their safety.16,17 The government’s response – proposing legislative changes to nullify the HCA’s decision and allow deportation – revealed its
The High Court struck down Labor’s Malaysian Arrangement proposal, arguing it to be jurisdictionally invalid
brazen contempt for the rule of law and the authority of the HCA.16 Whilst the government was unable to implement its Malaysian solution, it has since successfully amended the Migration Act to facilitate the re-commencement of asylum seeker processing on Nauru and Manus Island.18 9
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Hui-Ling Yeoh & Nishani Nithianadan
(Previously Section 198A(3) allowed the Immigration Minister to nominate a country for offshore processing provided the country offered protection to asylum seekers/refugees pending their status determination/resettlement and upheld human rights standards in doing so.18 This was the grounds on which the HCA found the found the Malaysia Arrangement to be jurisdictionally invalid.18) The Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012 removed Section 198A and instead empowers the Immigration Minister to designate a country as a ‘regional processing country’ so long as it is in the national interest.18,19 Whilst certain ‘assurances’ are sought from the country in question (ie they must respect the principle of non-refoulement), these assurances are neither necessary nor legally binding.19 The new legislation ‘[strips] back the capacity for judicial review of [the designation of a country for offshore processing] and eliminate[s] many of the grounds for legal challenges’ by asylum seekers.20
“Deterrence” – cruelty in the guise of compassion In recent years, policies and legislative changes such as that described above to circumvent the High Court ruling, have been made by the Australian government in the name of ‘deterring the boats’. This is in spite of the lack of evidence to suggest deterrence is effective; overseas evidence demonstrates deterrence policies do not decrease deaths. In the Australian context, the relationship between deterrence and irregular maritime arrivals has not been robustly tested.
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It would be easy to believe that the only refugees who arrive in Australia are the ones that come by boat – so fervent the political resolve to “deter” these asylum seekers appears to be. Political parties have changed over our contemporary history, but one thing doesn’t seem to – that successive governments seem determined to steel their resolve against “irregular maritime arrivals”. In the Howard era, deterrence was justified as a method of protecting Australia from an invasion of undesirables. The tone changed dramatically with the Labor Government in 2010, but deterrence was still upheld, dressed in the new clothes, purporting to protect asylum seekers from risking their lives on perilous sea journeys. It is in the name of “deterrence” that punitive policies continue to be legislated. Examples include the re-establishment of offshore processing centers in late 2012, and most recently, the excision of the mainland itself from Australia’s migration zone – a policy intentionally designed to exclude one specific category of asylum seekers: onshore arrivals who come by boat. Punishing people fleeing the most unimaginable atrocities in order to enforce a deterrence policy that has not been demonstrated to work, betrays an absurd and dangerous logic.
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Module 3: Legal & Ethical Perspectives
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Hui-Ling Yeoh & Nishani Nithianadan
DETENTION OF CHILDREN In 2004, the National Inquiry into Children in Immigration Detention’s released its report, A last resort?, describing: Over 2000 children detained in remote immigration detention centers for lengthy periods of time from 1999 to 2002; An average length of detention for a child in immigration detention (at the end of 2003) of 1 yr, 8 months and 11 days Detention of children on Nauru and Manus Island post-September 2001
Despite the transfer of some children into community detention, many children remain in low security immigration detention facilities, including 30 children currently on Manus Island.
A detention system ‘fundamentally inconsistent with the Convention on the Rights of the Child’ which detained children as a first and only resort Children detained for long periods at high risk of grave mental harm such as clinical depression, post-traumatic stress disorder & developmental delays Failure to provide sufficient protection from physical & mental violence, adequate healthcare and appropriate care for children with disabilities, and adequate access to education and recreational facilities22,23
In the wake of this, the Migration Act was amended in 2005 to affirm ‘as a principle’ that a minor should only be detained as a last resort.23 (Obviously a compelling piece of legislation.) This was followed by the Australian government’s announcement in 2010 that it would move a large number of unaccompanied minors and families with children into community detention.23 Although progress has been made and children may no longer be held in high security immigration detention centers, they ‘continue to be subject to mandatory detention, there remains no specified limit to the time for which a child may be detained, and there remains no access to judicial review of the detention of children’.22 It is alarming that as of February 2013, there were 30 children detained on Manus Island, which was only recently denounced by Paris Aristotle of the PM’s Expert Panel on Asylum Seekers as failing to meet safeguards.24 Legal experts such as Honourable Catherine Branson QC argue that the watered-down principle contained in the Migration Act has not prevented the detention of children, and highlights the need for legislative change.22 As at 28 February 2013, 1062 children were in immigration detention in addition to the 946 children in the community under residence determination.25
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UNACCOMPANIED MINORS Any unaccompanied minor arriving by boat is liable to be transferred to offshore processing centers.
Unaccompanied minors who arrive in Australia by boat after 13 August 2012 remain liable to be transferred to offshore processing centers for legal processing.26 As of March 2013, it appears that no unaccompanied children have been transferred to Nauru or Manus Island.26 However, an immigration policy such as this excuses the breaching Australia’s obligation under the UN Convention of the Rights of the Child (CRC).26 The UNHCR asserts that children seeking asylum should not be detained, and that this ‘is particularly important in the case of unaccompanied children.’27 Children seeking asylum have a spectrum of needs ranging for day-to-day care, to advocacy, to psychological support and monitoring.28 And this is especially compounded when the minor is unaccompanied.27,28 Such children are particularly vulnerable, and it seems logical that the UNHCR should recommend that effective guardianship to be an important priority in ensuring the protection of unaccompanied children.28
Australian law appoints the Minister of Immigration and Citizenship as legal guardian of unaccompanied minors. This role inherently poses several conflicts of interest, since the Minister is both guardian and jailer.
Australia’s Immigration (Guardianship of Children) Act 1946 (Cth) appoints the Minister of Immigration and Citizenship as the legal guardian of unaccompanied children who arrive in Australia seeking asylum.26 Conflicts of interest are inherent in this appointment, for the Minister is required to be both “guardian” and jailer, guardian and decision maker.28 It is unrealistic to expect that due regard can be given to such inherently contradictory functions.28 In practice, the Minister delegates this responsibility to Department’s Managers and Deputy Managers in each detention facilities, and also to State and Territory child protection authorities.26 This, however, does nothing to resolve the conflict of interest, since these authorities have the same responsibilities – and conflicts.28
This conflict of interest make it impossible for the Minister to make decisions purely for the “bests interests” of the child, as entitled by the Federal Court of Australia and the UN Convention of the Rights of the Child. 12
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It is widely upheld, by the CRC, the Federal Court of Australia and by the Department of Immigration, that “the best interests of the child will be [the legal guardian’s] basic concern.”29 In other words, for any decision made on behalf of the unaccompanied child, the best interests of that child must not only be a primary consideration, it must be the primary consideration.26 As things stand currently, no guardian is delegated to have the child’s best interests as their sole and unambiguous responsibility.28
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This means that there is no designated individual who:28 -
ensures the proper representation of the child during the refugee status determination procedures advocates for the child in legal, welfare or other issues protects the child against abuse or neglect oversees the care and management of the child
Even the Department formally acknowledged in December 2002 that the best interests of unaccompanied children entails that they are not detained in facilities.30 It is even harder to accept that transferring and processing unaccompanied children to third countries (eg. Nauru or Papua New Guinea) can be in their “best interests”.26 This is in light of the sad reality that children are vulnerable to sexual, physical and psychological abuse, and particularly so in the confines of detention facilities.28 Transfers of unaccompanied children to third countries pose several concerns.30 Firstly, the Minister’s guardianship of such children ceases when they are transferred to a third country.26 Secondly, there are ambiguous guardianship arrangements, if any, on Nauru or Manus Island.26
Unaccompanied minors are particularly vulnerable.
The Department of Immigration recognises that detainment of children in facilities (let alone transfer to a third country) do not constitute their “best interests”. The minor ceases to have any legal guardianship once transferred to a third country like Nauru or Papua New Guinea.
For unaccompanied minors who have been determined to be refugees and released to the community, the situation is very much the same.28 Abroad, countries like Canada and in Europe, have legislation that designates a specific guardian to fulfill this role, without conflict of interest.28 It is clear that the current Australian system is entrenched with flaws that fail to truly uphold the bests interests and human rights of unaccompanied minors.28
The current Australian system does not uphold the best interests or human rights of unaccompanied minors.
“It is vitally important that we learn from Australia’s failure to provide constructive support to…young people falling between the cracks of society – neither functionally literate in their own language or in English, not accepted by their own community and excluded from the mainstream…What we have to guard against is creating new fodder for sociologists with each new wave of unaccompanied minors.”28
- Refugee Council of Australia
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action & resources Get your tickets fast to Peace Palette’s screening (6pm, June 19 @ Kino Cinemas) of the Academy Award nominated film War Witch. War Witch is a compelling film about a 12 year-old girl in a war torn community & her engrossing account of being a child soldier http://www.facebook.com/events/528279833901390/ Less than a week to get your expressions of interest in for CB & AIME’s Refugee English Tutoring Program! The program will involve teaching a refugee for 1hr/wk. Email hkab5@student.monash.edu with any questions http://www.facebook.com/events/157770677733379/ Catch Four Corner’s investigation into the actualisation of the ‘No Advantage’ policy at http://www.abc.net.au/4corners/stories/2013/04/29/3745276.htm Signed the petition? Get on board Crossing Borders’ campaign against mandatory detention and voice your objections as a health science student http://www.facebook.com/events/370220396420766/ Mark Refugee Week (16th-22nd June) in your calendars. This year’s theme is Restoring Hope and will kick off with the annual World Refugee Day rally. Details of other events can be found here http://www.refugeeweek.org.au/events/vic.php
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“In Kafka’s Australia, chilling bureaucratic violence against asylum seekers breaks them down slowly.” Check out Waleed Aly’s article ‘Defeated in a cruel game’ http://m.theage.com.au/opinion/politics/defeated-in-a-cruel-game-20121018-27ttk.html Read Greg Weeks’ (Lecturer of Law at UNSW) commentary on the Malaysian solution and its aftermath http://ukconstitutionallaw.org/2011/09/03/greg-weeks-attacking-the-high-court-acomment-on-the-malaysian-solution-case-and-its-aftermath/ Still trying to grapple with the legalspeak? Look no further than http://www.alhr.asn.au/refugeekit/chapter_2.html and http://www.legalanswers.sl.nsw.gov.au/guides/refugees/index.html for wonderfully clear explanations. If you are unfamiliar with The Conversation, it is our great pleasure to introduce you https://theconversation.com/columns/asylum-seeker-expert-panel-20
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references 1. 2. 3. 4. 5.
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Barlow K. Parliament excises mainland from migration zone. ABC news. 17 May 2013 [cited 19 May 2013]. Available from: http://www.abc.net.au/news/2013-05-16/parliament-excises-mainland-from-migration-zone/4693940 Ariyawansa S. Most anywhere but here: Australia, Offshore Processing and “Safe Third Countries” [dissertation]. [Melbourne]: Monash University; 2001. Australia. Parliament. Migration Amendment (Excision from Migration Zone) Act 2001. Canberra: Department of Immigration and Citizenship; 2001 Sep 27. Act No. 127 ALHR. Australian Lawyers For Human Rights Refugee Law Kit 2004 [monograph on the internet]. 30 November 2004; [cited 22 May 2013]. Available from: http://www.alhr.asn.au/refugeekit/downloads/chapter_1.pdf International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999UNTS 171 (entered into force 23 March 1976) (ICCPR). At http://www2.ohchr.org/english/law/ccpr.htm (viewed 25 March 2013); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICESCR). At http://www2.ohchr.org/english/law/cescr.htm (viewed 25 March 2013); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (CRC). At http://www2.ohchr.org/english/law/crc.htm (viewed 25 March 2013); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (CAT). At http://www2.ohchr.org/english/law/cat.htm (viewed 25 March 2013); Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (Refugee Convention). At http://www.unhcr.org/3b66c2aa10.html (viewed 25 March 2013). UNHCR. Convention and Protocol relating to the Status of Refugees.Geneva. [monograph on the internet] UNHCR; December 2010 [cited 22 May 2013]. Available from: http://www.unhcr.org/3b66c2aa10.pdf News. Two suspected asylum seeker boats intercepted as Nauru’s Supreme Court debates offshore processing. 24 April 2013 [cited 22 May 2013]. Available from: http://www.news.com.au/national-news/asylum-seekers-on-nauru-in-legal-row-in-the-pacificisland-nations-supreme-court/story-fncynjr2-1226628828820#ixzz2TyqF5VoM Refugee Council of Australia. Link between the onshore and offshore programs [homepage on the Internet]. Aus: RCA; [updated 2012 May, cited 2013 Mar 4]. Available from: http://www.refugeecouncil.org.au/f/as-link.php Australian Government – Department of Immigration and Citizenship. Australia’s Humanitarian Program 2013-14 and beyond. [media release on the Internet]. December 2012; [cited 22 May 2013]. Available from: http://www.immi.gov.au/media/publications/pdf/humanitarian-program-information-paper-2013-14.pdf Brendan O’Connor – Minister for Immigration and Citizenship. Abbott’s plan will lure more people onto boats. [media release on the internet]. Canberra:Australian Parliament 15 February 2013 [cited 22 May 2013] Available"from:http://www.minister.immi.gov.au/media/bo/2013/bo193479.htm Refugee Council of Australia. Hot Topics 77: Refugees [internet]. Sydney, New South Wales: State Library of New South Wales; 2011. Chapter 5, Australian Laws. [cited 2013 May 21]. Available from: http://www.legalanswers.sl.nsw.gov.au/guides/refugees/australian_laws.html Zayas A. Human rights and indefinite detention. International Review of the Red Cross. 2005 Mar 1;87(857);15-38. doi:10.1017/S181638310018117. Australian Human Rights Commission. Australia’s Human Rights Obligations [homepage on the internet]. AUS: AHRC; [updated 13 May 2004; cited 21 May 2013] Available from: http://www.humanrights.gov.au/publications/4-australias-human-rights-obligations Refugee Council of Australia. Hot Topics 77: Refugees [internet]. Sydney, New South Wales: State Library of New South Wales; 2011. Chapter 6, Landmark cases in Australia. [cited 2013 May 21]. Available from: http://www.legalanswers.sl.nsw.gov.au/guides/refugees/case_law.html Wikipedia. Mandatory detention in Australia [internet]. 2004 [updated 2013 May 23; cited 2013 May 21]. Available from: http://en.wikipedia.org/wiki/Mandatory_detention_in_Australia O’Connor P. Australian government rushes to circumvent High Court refugee ruling. World Socialist Web Site [internet]. 2011 Sep 13 [cited 2013 May 21]; Available from: http://www.wsws.org/en/articles/2011/09/aust-s13.html Refugee Council of Australia. Timeline of major events in the history of Australia's Refugee and Humanitarian Program [internet]. 2012 [updated 2012 May; cited 2013 Apr 22]. Available from: http://www.refugeecouncil.org.au/f/rhp-time.php Penovic, T. Expert Panel on Asylum Seekers’ Report (2): Changes to Migration Act sideline human rights. 2012 Aug 17 [cited 2013 May 21]. In: Castan Centre for Human Rights Law Blog [internet]. Melbourne: Castan Centre for Human Rights Law. 2010 Nov. [about 4 screens]. Available from: http://castancentre.com/2012/08/17/expert-panel-on-asylum-seekers-report-2-changes-tomigration-act-sideline-human-rights/
Crossing Borders.
Module 3: Legal & Ethical Perspectives
[27 May 2013]
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19. Parliament of Australia. House of Representatives. Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012. Canberra: Parliament of Australia: 2012 Aug 15 20. Merritt C, Wilson L. New offshore processing regime bars appeal on asylum. The Australian [internet]. 2012 Aug 18 [cited 2013 May 20]; Available from: http://www.theaustralian.com.au/national-affairs/new-offshore-processing-regime-bars-appeal-onasylum/story-fn59niix-1226452971340 21. Pickering S. There’s no evidence that asylum seeker deterrence policy works. The Conversation [internet]. 2012 Jul 24 [cited 2013 May 21]; Available from: https://theconversation.com/theres-no-evidence-that-asylum-seeker-deterrence-policy-works-8367 22. Branson, C. President Speech: Mandatory immigration detention of children in Australia: how far have we come and where to from here? Sydney: Australian Human Rights Commission; 2010 Nov 18 23. Australian Human Rights Commission. Immigration detention and human rights [homepage on the internet]. AUS: AHRC; [updated 13 May 2004; cited 21 May 2013] Available from: http://www.humanrights.gov.au/publications/immigration-detention-andhuman-rights#4 24. Safeguards not met on Manus Island. Australian Broadcasting Corporation. In: Lateline [television program transcript on the internet]. Sydney: ABC; 2013 Apr 4 [cited 2013 May 20]. Available from: http://www.abc.net.au/lateline/content/2013/s3730221.htm 25. Department of Immigration and Citizenship, Australian Government. Immigration Detention Statistics Summary. Canberra: Department of Immigration and Citizenship: 2013 Feb 28 26. Australian Human Rights Commission. Human Rights issues raised by the third country processing regime [homepage on the internet]. AUS: AHRC; [updated 2013; cited 19 May 2013] Available from: https://www.humanrights.gov.au/publications/humanrights-issues-raised-third-country-processing-regime#Heading130 27. UNHCR, Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (UNHCR UAM Guidelines), Geneva, 1997, para 7.6. 28. Refugee Council of Australia. 2002 RCOA Submission to the Human rights and equal opportunity commission’s inquiry to children in immigration detention. 2002; RCOA: NSW [cited 19 May 2013] Available from: http://www.refugeecouncil.org.au/r/sub/0204Children-Detention.pdf 29. X v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 524 and X v Minister for Immigration and Multicultural Affairs [2000] FCA 704; DIMIA, Submission 185, pg 43; Migration Series Instruction 357, Procedures for Unaccompanied Wards in Immigration Detention Facilities (MSI 357), 2 Septemeber 2002, paras 2.2.3-2.2.5; MSI 370, paras 2.2.3-2.2.5 30. Australian Human Rights Commission. Australia’s Immigration Detention Policy and Practice [homepage on the internet]. AUS: AHRC; [updated 13 May 2004; cited 19 May 2013] Available from: https://www.humanrights.gov.au/publications/6-australiasimmigration-detention-policy-and-practice
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Crossing Borders.
Module 3: Legal & Ethical Perspectives
[27 May 2013]
Hui-Ling Yeoh & Nishani Nithianadan