Australian Migration Law Amendments: Deciding What it Means to be a Refugee

On December 5th the Migration and Maritime Powers Legislation Amendment (Resolving the Aslum Legacy Caseload) Bill 2014 (the Bill) passed through the senate. This has significant impacts on refugee law in Australia as the Bill increases Australia’s capacity to dodge its obligations under International Law.

No references to the Refugees Convention or its Protocol

Despite still being a signatory to the 1951 UN Refugees Convention and its 1967 Protocol, Australia now makes no mention to either in the Migration Act 1958 (the Act). This means that Australia has taken it into its own hands to decide what it means to be a refugee. It also means that, should the Convention ever be amended or updated, Australia would not need to respond to these changes. The Convention had previously provided the basis for Australian refugee law.

A definition of refugee codified within the Migration Act

Where previously the Act referred to the Convention for the definition of what a refugee is, this is now codified in the Act itself.

S 5H (1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it

This text is more or less the same as the convention, but in subsequent passages many clear and destructive distinctions can be found.

A codified meaning of ‘well-founded fear of persecution’

The recent amendments have codified what it means to have a fear of persecution that is “well-founded”.

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c) the real chance of persecution relates to all areas of a receiving country.

(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

The significant departure from the Convention definition lies in the “real chance” concept. Where before it was taken that any chance was significant enough to grant an asylum seeker refugee status, now that chance must be determined as real. This theoretically means that if someone is deemed to have a 30% chance of being executed upon return, they may still be sent back.

The second, and perhaps even more damning, part of this definition lies in item (1)(c) – that a person must prove they have a real chance of being persecuted in all areas of the country from which they seek asylum. This means that if you are living and being persecuted in one country, you need to prove that you would be persecuted in absolutely all other areas of that country. Hypothetically, the Australian government might expect that if you were being persecuted in Morocco, you should go and pitch a tent in the Sahara and carry out your life where you would be free from persecution because nobody might follow you there. The implications of this concept are dangerous as it allows Australia to choose not to afford protection to many people who would otherwise meet the Convention.

Requirement to modify behaviour

The Bill also specifies that a person’s fear of persecution is not well-founded if they could have modified that behaviour in order to circumvent their own persecution. While that sounds absolutely atrocious, there is a list of exclusions that prevent it from being as terrible as it could have been.

(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b) conceal an innate or immutable characteristic of the person; or

(c) without limiting paragraph (a) or (b), require the person to do any of the following:

(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii) conceal his or her true race, ethnicity, nationality or country of origin;

(iii) alter his or her political beliefs or conceal his or her true political beliefs;

(iv) conceal a physical, psychological or intellectual disability;

(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

That does leave many factors included though, such as an activity that a person performs, even their employment. The example of Hazara truck drivers or female schoolteachers at risk of the Taliban comes to mind. But where can the lines be drawn with regards to employment? If you have limited employment options and need to subsist and to provide for your family, could you be reasonably expected to leave your employment if it is the factor causing your persecution?

An amendment that sees asylum seekers and refugees repatriated, disregarding non-refoulement obligations under international law

Perhaps the most shocking part of this Bill is a clear legislative breach of the principle of non-refoulement. According to the Bill, an Immigration officer must remove an unlawful non-citizen under section 198 of the Act, even if doing so violates non-refoulement obligations. This directly violates customary International law under which all states are bound. Australia has completely desecrated the principle that the UNHCR describes as “cornerstone of asylum and of international refugee law”.

The Australian Minister for Immigration and Border Protection Scott Morrison says that these amendments make Australia’s borders stronger. I say that they make Australia a far less progressive and inclusive society. I feel like we are heading towards an almost dystopian landscape in this country where only the human rights of citizens are acknowledged and the world’s most vulnerable people are turned back to torture. All to protect what exactly? Australia’s borders? Australia’s people? Or political power?

Further reading:

Briefing on the Asylum Legacy Caseload Bill 2014

Senate Committee Report, 2014

New law gives Morrison unprecedented control over asylum seekers

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, counter-terrorism

UNHCR statement: Migration and Maritime Powers Legislation

RACS Fact Sheet – Asylum Legacy Caseload Bill October 2014

Proposed amendments to legislation signal radical shift in
Australian refugee law

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