Sunday, May 12, 2013

Refugee law according to George

Is Australia’s man-most-likely to become Attorney-General on September 15 wilfully dismissive of refugee law or shrewdly manipulative and ready to take on the humanitarians?

Recently on local ABC radio in Melbourne, Senator George Brandis made two very significant remarks that ring alarm bells for refugee advocates and human rights lawyers.   

When asked about the fate, under his hypothetical leadership, of 55 refugees indefinitely detained in Australia, he remarked:
“They have been assessed by ASIO to be a threat to national security and no nation has an obligation to accept people who are a risk to its own national security.  There is in fact a carve out from the refugee convention in relation to people who may be a threat to the security of the nation in which they are seeking refuge.”

Yes – Brandis is correct that Articles 1F and 33(2) of the Refugee Convention exclude people who are a danger to the community in which they seek refuge from being accepted as refugees in that country.  

However, the 55 men, women and children who have been in detention for three to four years because ASIO has assessed them as likely to prejudice Australia’s national security, have all passed through the filter of Article 1F and 33(2).


In order to be declared a ‘Refugee’ under the Refugee Convention, an asylum seeker must satisfy the decision-maker that there are not “reasonable grounds for regarding [them] as a danger to the security of the country in which [they are].”  Article 33(2)  

Asylum seekers also need to show they have not “committed a crime against peace, a war crime,… or a crime against humanity,… a serious non-political crime outside the country of refuge …or acts contrary to the purposes and principles of the United Nations.” Article 1F

Under Australia’s migration law, all Visa applicants also need to pass a character test to demonstrate they do not present a significant risk that [they] would represent a danger to the Australian community.

The 55 refugees who sit inside their rooms in detention centres in Sydney and Melbourne, without knowing if they will ever be released, have all passed these tests.  They have all satisfied authorities that they are not excluded from seeking refuge on the basis that they are a threat to Australia.

So why does ASIO have a right to effectively veto this decision and add an addition layer of assessment by subjecting the refugees to a security clearance? 

Brandis’ comments seem to suggest that his hypothetical government sees the ASIO test as part of the refugee test.  He is either dismissing the Refugee Convention and assessment process as inadequate, or confusing the ASIO test with the Convention tests.

Either way, the result is alarming.  In effect, Brandis’ comments create a new law (George’s law) that says if ASIO declares someone to be a threat, they cannot be afforded refugee status and protection under the Refugee Convention.

The problem with George’s law is that determinations of refugee status are contestable: people can appeal the decisions and can counter evidence against their claims of refugee status.

To date, non-citizens are forbidden from appealing ASIO’s findings.  A bill to change this is currently before the Senate.  However, although there is wide support for appeal rights, there is not wide support for the bill.

So George’s law on refugees says: ASIO’s findings determine whether you are a threat and this determines whether you are a refugee and there is no possibility of challenging this.

In fact he also said “they have got no-one to blame but themselves” but repeating this to people who have sought asylum and remained in detention hoping for refuge in Australia is, as Brandis himself said, heartless.

George’s law also prevents people from seeking asylum on Australia’s shores.  Brandis said “it is against the law to enter Australia without the authority of the Australian Government through its agencies.  People who want to claim refugee status can claim refugee status overseas".

The Refugee Convention that says that a refugee has the right to be free from penalties pertaining to the illegality of their entry to or presence within a country, if the refugee believes that there was cause for their illegal entry, and if they immediately declare their presence (Article 31).

George’s law effectively rips up many essential elements of the Refugee Convention and announces subservience to ASIO as judge and executioner for refugees. He is free to do this because the polls tell him he can.  It is still only the Greens and the conscience-driven ALP MPs who are prepared to back the rights of refugees in Australia.


George’s law ignores the reality of 46 million asylum seekers worldwide.  That is, that conflict produces refugees who seek new homelands.  George can’t make up a law to change this.

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