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Australian Refugee Foundation
Refugee Week

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Australia must stop returns following torture of asylum seeker

RCOA president Phil Glendenning has again pleaded with the Department of Immigration to halt forcible returns of asylum seekers to Afghanistan. Read more here.

Australia condemned as nations focus on global refugee crisis

NGOs working with displaced people around the world have singled out Australia for strong criticism as senior officials of governments and the UNHCR met to discuss responses to the largest displacement crisis in more than 65 years. Read more here.

Governments challenged to end neglect of African crises

Delegates from 94 nations including Australia have been challenged to end the global neglect of Africa's 15 million displaced people. Read more here.

Internal investigation inadequate response to sexual assault allegation

The Australian Government's response to serious allegations of sexual assault in immigration detention must be reviewed by an independent body. Read more here.

Australia urged to take more constructive response to global refugee crises

The crises in Syria, Iraq, Central African Republic and South Sudan and efforts to eliminate statelessness will dominate discussions at a key UNHCR meeting. Read more here.

New legislation strips away checks on Ministerial powers

The Federal Government's new legislation to change asylum and maritime powers laws is a comprehensive assault on Australia's obligations to protect victims of persecution. Read more here.

Punishment not protection for refugees sent to Cambodia

The agreement to be signed this week between Australia and Cambodia to resettle refugees from Nauru will leave refugees at further risk. Read more here.

Australia ignores UN call for action on statelessness

As the world commemorates the 60th anniversary of the 1954 Statelessness Convention, stateless people in Australia have little to celebrate. Read more here.

Refugee Welcome Zone initiative reaches its century

RCOA's Refugee Welcome Zone initiative has reached a milestone with more than 100 councils signing on. Read more here.

National Party's call for more refugee places a positive step

RCOA has backed calls by the Government's Coalition partner the National Party for an expanded Refugee and Humanitarian Program. Read more here.

Australian Parliament must reject cruel Temporary Protection Visas

RCOA has written to Federal cross-bench parliamentarians, urging them to reject the Abbott Government's renewed push to force refugees on to Temporary Protection Visas. Read more here.

Australia must step up to support Syrian refugees

News that the number of Syrian refugees has passed three million confirms that Australia's decision to cut its refugee program could not have come at a worse time, says RCOA. Read more here.

Grave fears for asylum seeker forcibly returned to Afghanistan

News that the Australian Government has forcibly repatriated an Afghan asylum seeker has been met with alarm by RCOA. Read more here.

No excuse for ongoing detention of children

Immigration Minister Scott Morrison has failed to offer an adequate justification for the ongoing detention of children on Christmas Island and Nauru, says RCOA. Read more here.

Efforts to return Syrian refugees unconscionable

RCOA is alarmed by media reports that Syrian asylum seekers detained on Manus Island are being pressured by Australian Government officials to return home. Read more here.

Government removes Refugee Council's core funding

The Australian Government has completely cut core funding to RCOA despite allocating $140,000 just two weeks ago in its 2014-15 Budget. Read more here.

Federal Budget summary 2014-15

RCOA has released a summary of refugee-related spending in the 2014-15 Federal Budget. Read more here.

 

'The police had machine guns and they were shooting at us.'

Actor, writer and director Tony Le Nguyen fled Vietnam with his family in the wake of the Vietnam war.

 

The Refugee Convention

The United Nations Convention Relating to the Status of Refugees (commonly known as the Refugee Convention) is the primary international legal document relating to refugee protection. It defines who is a refugee and outlines the rights of refugees and the legal obligations of states towards refugees and asylum seekers.

The Refugee Convention was adopted at a United Nations conference on 28 July 1951 and entered into force on 22 April 1954. The Refugee Convention was originally designed to respond to the needs of European refugees in the years following World War II. As such, it applied only to persons who had become refugees as a result of “events occurring before 1 January 1951”. The Convention also allowed signatories to limit their obligations to refugees originating from Europe alone.

In 1967, the Protocol Relating to the Status of Refugees removed the geographic and time limitations of the original Convention, broadening its scope to create capacity to respond to new refugee situations. The protocol entered into force on 4 October 1967.

Definition

The Refugee Convention defines a refugee as:

Any person who owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his/her nationality and is unable, or owing to such fear, is unwilling to avail himself/herself of the protection of that country.

In order for someone to be recognised as a refugee under the Convention, therefore, they must satisfy the following criteria:

  • The person must be outside their country of origin
  • The reason for their flight must be a fear of persecution
  • This fear of persecution must be well founded (ie. they must have experienced it or be likely to experience it if they return)
  • The persecution must be due to one or more of the five grounds listed in the definition
  • They must be unwilling or unable to seek the protection of their country

The definition also includes a qualifier which excludes any person who has committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime outside their country of refuge or any other act contrary to the purposes and principles of the United Nations.

Rights of refugees

The Refugee Convention also recognises that refugees hold certain rights. Some of these are universal human rights recognised in other human rights treaties such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, for example the rights to freedom of religion, work and education. The Refugee Convention outlines the degree level of rights recognition which should be accorded to refugees.

For instance, the Convention requires states parties to accord to refugees:

  • The same rights as citizens in relation to freedom of religion, intellectual property, access to courts and legal assistance, accessing elementary education, labour rights and social security.
  • Treatment which is as favourable as possible and at least as favourable as that accorded to foreign nationals, in relation to the acquisition of property, self-employment, practising as a professional, housing, accessing secondary and tertiary education.
  • Treatment which is at least as favourable as that accorded to foreign nationals with respect to freedom of association, wage-earning employment, freedom of movement

The Refugee Convention also recognises a number of rights which are specific to refugees.

Article 31: Refugees unlawfully in the country of refuge

Article 31 of the Refugee Convention prohibits states parties from imposing penalties on refugees who, when coming directly from a territory where their life or freedom was threatened, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and can show good cause for their illegal entry or presence.

This Article recognises that refugees have a lawful 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. As such, what otherwise be considered illegal actions (eg. entering a country without a visa) should not be treated as such 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 lawful right to do so if they are seeking asylum.   

Article 31 also prohibits states parties from restricting the freedom of movement of refugees who arrive without authorisation, with the exception of restrictions necessary for regularising their status. Furthermore, such restrictions should be applied only until their status in the country is regularised or they obtain admission into another country.

Articles 32 & 33: Expulsion and Non-refoulement

Article 32 of the Refugee Convention prohibits states parties from expelling a refugee who is lawfully in their territory, except on grounds of national security or public order.

Article 33 of the Refugee Convention outlines the principle of non-refoulement. According to this principle, states parties must not forcibly expel or return (refouler) a refugee to a situation where their life or freedom may be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. The principle of non-refoulement has become part of customary international law and is considered to be binding on all states, even those which have not signed the Refugee Convention.

States parties to the Refugee Convention

The Refugee Convention and its Protocol currently have 148 states parties. This includes two states (Madagascar, Saint Kitts and Nevis) which are party only to the 1951 Convention and three states (Cape Verde, United States of America, Venezuela) which are party only to the 1967 Protocol. All other states are parties to both instruments. A complete list of states parties to the Convention can be obtained through the United Nations’ Status of Treaties database, accessible through treaties.un.org

Australia was among the earliest states parties to the Refugee Convention, acceding to the treaty on 22 January 1954. Australia ratified the 1967 Protocol on 13 December 1973.

 

Last updated November 2011