On 6 July 2010 Opposition Leader Tony Abbott announced “further measures to increase the integrity of our assessment process to give Australians greater confidence that those who benefit from our protection are genuine refugees”:
We will do this by putting an end to Labor's tick and flick approach where decisions are made on a 'balance of probabilities' rather than hard evidence of a person's identity.
A Coalition Government will make a presumption against granting refugee status to any applicant who is believed to have deliberately discarded their identity documentation prior to presenting themselves to Australian authorities.
Determination of whether or not an asylum seeker “deliberately discarded” his/her documentation will simply rest on an assessor making “a reasonable determination that an applicant for asylum has discarded their identity documentation deliberately”.
The UN Convention on the Status of Refugees has something to say about that. It is quite straightforward. Article 27 of the Convention states:
The Contracting States shall issue identity papers to any refugee in their territory who does not possess a valid travel document.
That is of course why it is so important to those taking a “tough” line on asylum seekers to prevent them from making a landfall in Australia, and why Ashmore Reef and Christmas Island were excised from the migration zone.
Unfortunately for the Opposition, which seems to have in mind returning people without documents to their country of origin, the Refugee Convention has something to say about that as well. Article 33(1) provides:
No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
The Coalition seems to be planning to rely on its newly declared policy that there will be a presumption against granting refugee status to anyone arriving without documentation, if they are thought to have disposed of their documents, to provide a basis for refusing entry and returning applicants to their country of origin.
The Coalition’s problem is that, under the Convention, the sole determinant of refugee status is a well founded fear of persecution. There is no requirement to be in possession of identity or travel documents, and once an applicant for refugee status arrives in the jurisdiction of a Contracting State, he/she is entitled to have his/her claims assessed on the merits of the case, and to be issued with identity papers if they have none.
They are also entitled to full access to the Australian courts (Article 16(1)).
There is a presumption against incarceration. The handbook Refugee Protection: A Guide to International Refugee Law, a guide produced jointly by the International Parliamentary Union and the UN High Commissioner for Refugees to mark the 50th anniversary of the 1951 Convention, states (pp. 80-81):
UNHCR’s Executive Committee has expressed concern that large numbers of refugees and asylum-seekers in different areas of the world are currently the subject of detention or similar restrictive measures by reason of their illegal entry or presence in a country in search of asylum, pending resolution of their situation. The Committee is of the opinion that, in view of the hardship which it involves, detention should normally be avoided. If necessary, detention may be resorted to for specific purposes including to verify identity and to determine the elements on which the claim to refugee status or asylum is based.
Detaining asylum-seekers is considered lawful and not arbitrary if it complies with national law, the Refugee Convention and international law. Detention must be exercised in a non-discriminatory manner and must be subject to judicial or administrative review to ensure that it continues to be necessary, with the possibility of release when there are no grounds for continued detention.
The above are the reasons why the Coalition places such an emphasis on ensuring that no-one actually reaches Australian jurisdiction, even if this requires relying on fictions like excising Ashmore Reef and Christmas Island from the “migration zone”, and why the Government is not far behind them in a race to the bottom, which has little regard for our obligations under the Convention we willingly signed and used to respect, or for other relevant branches of international law.