New ‘excision’ law does not relieve Australia of its responsibilities

The Office of the United Nations High Commissioner for Refugees has reiterated its concerns about the treatment of asylum-seekers arriving by sea to Australia. According to new legislation, all asylum-seekers arriving by boat anywhere in Australia are now subject to transfer to Nauru or Papua New Guinea for processing and will only have their claims for refugee status assessed in Australia if the Minister for Immigration and Citizenship makes a personal decision to allow them to, on the basis of it being in the public interest to do so.

UNHCR's longstanding view is that under international law any excision of territory does not relieve Australia of its responsibilities to asylum-seekers.

"Under international law any excision of territory for a specific domestic purpose has no bearing on the obligation of a country to abide by its international treaty obligations which apply to all of its territory. This includes the 1951 Refugee Convention, to which Australia is a party," said Volker Türk, UNHCR's Director of International Protection.

"UNHCR's position has always been for all asylum-seekers arriving into Australian territory, by whatever means, and wherever, to be given access to a full and efficient refugee status determination process in Australia. This would be consistent with general practice, and in line with international refugee law," Türk emphasised.

"If asylum-seekers are transferred to another country, the legal responsibility for those asylum-seekers may in some circumstances be shared with that other country."

UNHCR has found serious shortcomings at the Nauru and PNG processing centres to which asylum-seekers have been transferred, including the reception conditions and delays in establishing legal frameworks for refugee status determination.

UNHCR also considers it imperative that the more than 18,000 asylum-seekers who have arrived by boat to Australia since 13 August 2012 be provided with a fair and effective asylum procedure, with due process, as soon as possible, and that any detention of asylum-seekers be strictly in accordance with Australia's refugee and human rights law obligations.

This applies whether the asylum-seeker has arrived in an excised place or not, and it applies whether they have subsequently been transferred to Nauru, Papua New Guinea or are in Australia.

Source: UNHCR.