Letter to Pat Conaghan MP August 2020

Dear Mr Conaghan,

Thank you for your letter of 5^th August, in response to my letter of  27^th July. I am grateful to you for taking the time to reply.  

End off shore detention.

In your response, you repeatedly refer to the “illegal” actions of those seeking asylum in Australia, and assert that the government will decide who can be allowed to enter the country.

This is incorrect. Australia does not have the right to refuse entry to asylum seekers or refugees who enter Australia “ illegally” under international law. 

Australia is a signatory to the 1951 UN Convention Relating to the Status of Refugees, which it ratified in 1954. The Convention stipulates for refugees specific rights, including protection from penalties for illegal entry. As a signatory to the 1951 Convention, Australia is not permitted to treat refugees arriving illegally differently from those arriving legally. The 1951 Convention states:

The Convention further stipulates that, subject to specific exceptions, refugees should not be penalized for their illegal entry or stay. This recognizes that the seeking of asylum can require refugees to breach immigration rules. Prohibited penalties might include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum (introductory note, see further expression of provision under Article 31).

The Australian government’s treatment of asylum seekers and refugees who enter

End off shore detention.

Australia “illegally” is forbidden under other legal instruments. For example, the substantial non-criminal detention and associated harsh treatment of refugees transferred to Papua New Guinea and Nauru is in breach of Australia’s obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The UN Special Rapporteur on the human rights of migrants, on his official visit to Australia in November 2016, referred to asylum seekers and refugees in involuntary geographical and psychological confinement (although no longer in detention),determining that such treatment constituted cruel, inhuman and degrading treatment or punishment according to international human rights law standards.

Under Article 14 of the Universal Declaration of Human Rights “Everyone has the right to seek and to enjoy in other countries asylum from persecution”. Australia was one of eight nations involved in drafting the Universal Declaration of Human Rights.

You state that these refugee and asylum seekers have other options that do not require them to be resettled in Australia, and cite returning to their country of origin, settling in PNG or Nauru, or taking up the US offer of resettlement.

Manus detention camp was deplorable.

In relation to country of origin, refugees are protected from refoulement under international law (Article 33, Refugees Convention, Article 3, CAT). The principle of non-refoulement forms an essential protection under international human rights, refugee, humanitarian and customary law. It prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations. As the state party who transferred these individuals to PNG and Nauru, Australia is legally responsible for ensuring that recognised refugees DO NOT return to their country of origin, which includes refoulement by way of coercion.  There is ample evidence that points to the fact that refugees in PNG have been subjected to considerable coercion to persuade them to return to their country of origin. 

 As for residing permanently in PNG or Nauru, in order for local integration for

Justice for refugees

refugees to be an acceptable durable solution, conditions in these countries of asylum must meet minimum standards for local integration. As noted by UNHCR research, local integration as a durable solution typically combines three dimensions:

“Firstly, it is a legal process, whereby refugees attain a wider range of rights in the host state. Secondly, it is an economic process of establishing sustainable livelihoods and a standard of living comparable to the host community. Thirdly, it is a social and cultural process of adaptation and acceptance that enables the refugees to contribute to the social life of the host country and live without fear of discrimination”.

There is no evidence indicating that either Nauru or Papua New Guinea meets these minimum standards for local integration. On the contrary, the circumstances of refugees in these countries are of continuing concern to international human rights bodies.

In relation to resettlement in the US, certain refugees will not be eligible for US resettlement through a range of internal US resettlement criteria and procedures unrelated to an individual’s refugee status. There will evidently be a number who do not travel to the US for a range of reasons outside their control. These individuals remain Australia’s responsibility under international law.

Saturday demo in Coffs yesterday

More broadly, while the chance to rebuild their lives in the US is welcome, it is wholly absurd that another resettlement country has had to step in and provide international protection on Australia’s behalf when Australia has the capacity and legal obligation to do so. It also fails to uphold Australia’s part in international burden-sharing arrangements pertaining to refugee protection and resettlement worldwide. 

If any laws are being “circumvented” or “flouted”, it is these international laws, noted above, to which Australia is bound by its own ratification, which are being violated. Australia’s passage of national laws and policies in contravention of these instruments is not permissible under such treaties.

I note that Australia will not be filling their quota for resettlement this year due to COVID-19 and related processing and travel restrictions. Meanwhile, hundreds of genuine and recognised refugees remain offshore or are detained onshore; individuals that the international community universally regard as Australia’s responsibility. The solution is clear and is 7 years overdue. 

Yours sincerely,

M. Griffin

Valla Beach

Saturday demo in Coffs yesterday