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Issue #1782      June 21, 2017

Seeking asylum is not a crime

Facts: Australians are misinformed when it comes to some basic facts on refugees and asylum seekers. Most people think it’s a crime to come by boat without a visa seeking protection and most think there’s an official queue refugees and asylum seekers can join to be resettled.

Photo: Anna Pha.

A 2015 Red Cross survey of 1,000 people 18+ across Australia found the public do not really know the scale of the issue nor the realities refugees and asylum seekers face. The quiz-style survey questions included facts based on the most recent data from the United Nations High Commissioner for Refugees. “It’s not a crime to come to Australia by boat without a visa and ask for protection – yet almost seven out of 10 people think it is,” noted the Australian Red Cross. “Everyone has the right to seek asylum from persecution in other countries, and it’s not illegal to cross boundaries without documents or passports to do so. People have been fleeing persecution for centuries; think the fall of the Roman Empire, World War I, the Vietnam War.

The survey found that even though there is no official queue for people coming to Australia seeking asylum, more than six in ten people think there is. The UN system does not work on a queue system, there is no orderly line: It is a discretionary process and there is no guarantee that if a refugee waits for a period of time they will be resettled.

There are around 65 million displaced people, refugees and asylum seekers, in the world today.

Asylum seekers who arrive in Australia by boat are neither engaging in illegal activity, nor are they immigrants.

The UN Refugee Convention (to which Australia is a signatory) recognises that refugees have a right to enter a country for the purposes of seeking asylum, regardless of how they arrive or whether they hold valid travel or identity documents. The Convention stipulates that what would usually be considered as illegal actions (e.g. entering a country without a visa) should not be treated as illegal if a person is seeking asylum. This means that it is incorrect to refer to asylum seekers who arrive without authorisation as “illegal”, as they in fact have a right to enter Australia to seek asylum.

In line with our obligations under the Convention, Australian law also permits unauthorised entry into Australia for the purposes of seeking asylum. Asylum seekers do not break any Australian laws simply by arriving on boats or without authorisation.

Australian and international law make these allowances because it is not always safe or practicable for asylum seekers to obtain travel documents or travel through authorised channels. Refugees are, by definition, persons fleeing persecution and in most cases are being persecuted by their own government.

It is often too dangerous for refugees to apply for a passport or exit visa or approach an Australian Embassy for a visa, as such actions could put their lives, and the lives of their families, at risk. Refugees may also be forced to flee with little notice due to rapidly deteriorating situations and do not have time to apply for travel documents or arrange travel through authorised channels.

It is also incorrect to refer to asylum seekers as migrants. A migrant is someone who chooses to leave their country to seek a better life. They make a conscious choice to leave and they can return whenever they like. Refugees are forced to leave their country and cannot return unless the situation that forced them to leave improves. Some are forced to flee with no warning; significant numbers of them have suffered torture and trauma. The concerns of refugees are human rights and safety, not economic advantage.

Furthermore, applying for protection onshore is not a means of “jumping the queue” or bypassing the “proper” process of applying for protection. In fact, applying onshore is the standard procedure for seeking protection. According to the definition in the UN Refugee Convention, refugees are persons who are outside their country of origin. This means that you cannot apply for refugee status if you are inside your own country. In order to be recognised as a refugee, you must leave your country and apply for refugee status onshore in another country. Every refugee in the world – including those who Australia resettles from overseas – has, at some point, entered another country to seek asylum.

All human beings have a right to seek and enjoy in other countries asylum from persecution, which makes refugee protection a universal and global responsibility. As a signatory to the UN Refugee Convention and as a member of the international community, Australia shares in this responsibility. There is no reason why Australia should be exempt from receiving and processing onshore asylum claims while expecting other nations to fulfil this responsibility. As a developed nation with well-established systems for refugee status determination and strong settlement support infrastructure, Australia is well-placed to play a leading role in refugee protection, both within our region and at a global level.

Refugee flows are primarily affected by war, unrest, violence and human rights abuses. Most people do not wish to leave their homes, families, friends and everything they know and hold dear. They do so as a last resort, to escape persecution and find safety and security for themselves and their families.

Penalising desperate and vulnerable people – who have committed no crime and are in need of protection and assistance – is in itself a crime. Policies which inflict serious harm on asylum seekers or deliberately impede access to effective protection are not acceptable ways of addressing the problem. Policies based on deterrence also fail to address the root cause of the problem, as they do nothing to resolve the conditions which force refugees to flee their homes and undertake risky journeys in the first place, conditions Australia in its support for US-led conflicts, has helped create.

The majority of asylum seekers who have reached Australia by boat have been found to be genuine refugees. Between 70 and 90 percent have typically been found to be refugees.

Australia is one of few nations in the world which imposes mandatory detention on asylum seekers who arrive without visas. In North America and many European nations, most asylum seekers – regardless of how they arrive in the country – are allowed to live in the community while their applications are processed. Only those individuals deemed to be a high security risk are detained.

Compared to other refugee-hosting countries, Australia receives a very small number of asylum applications. The overwhelming majority of the world’s refugees are situated in the developing world in countries neighbouring their own.

The majority of the world’s refugees do eventually return home. This is the most durable solution for the largest number of refugees, both in terms of what is feasible and what is desired by the refugees themselves. UNHCR participates in the voluntary repatriation of thousands of refugees each year, assisting people to return home once conditions in refugee-producing countries have improved and people are no longer at risk of persecution.

For many refugees, however, this is not possible.

Economic status has no bearing on refugee status. A refugee is someone who has a well founded fear of being persecuted because of their race, religion, nationality, membership of a particular social group or political opinion. It makes no difference whether a refugee is rich or poor – the point is that they are at risk of, or have experienced, persecution. Many refugees who come to Australia are educated middle-class people, whose education, profession or political opinions have drawn them to the attention of the authorities and resulted in their persecution.

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