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Home > Reports > Refugee Response Index (RRI) Australia Review – Pillar 1: Access to Asylum

Refugee Response Index (RRI) Australia Review – Pillar 1: Access to Asylum

This report presents interim findings from the application of the Refugee Response Index (RRI) to the Australia context, focusing on Pillar 1 of the RRI on ‘Access to Asylum’.

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About the RRI

The RRI is a civil society led initiative that was officially launched in 2022 to assess and monitor countries’ responses to refugees and asylum seekers in an independent and comprehensive manner. It covers each component of an adequate refugee response and can be used in any country context, regardless of size and contribution to the global refugee response. Without a global monitoring and data collection tool to thoroughly and independently assess how states contribute to refugee protection, well-evidenced policy and program design suffers. The RRI provides a baseline measure of country performance in support of the implementation of the Global Compact on Refugees and the commitments set forth in the 2016 New York Declaration, the Sustainable Development Goals, and international standards and best practices.

Developed over several years through extensive consultations with key actors in the international refugee protection regime, the RRI consists of six pillars which cover the main components of a multi-dimensional refugee response. It also includes cross-cutting indicators on gender, age, diversity, and conditions that enable a multi-stakeholder approach. In total, there are over 160 indicators that have been developed to measure a country’s response. More information and the guidebook detailing the RRI methodology and indicators can be found here.

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About the Australia RRI Review

The Refugee Council of Australia (RCOA) has been coordinating a review of Australia’s response to refugees and people seeking asylum using the RRI methodology. This review has been undertaken by a team of staff, interns and volunteers, with considerable input from key experts in the field. External verification of indicator assessment by international experts on refugee law and policy and support with applying methodology has been facilitated by DARA.[1]

While RCOA is in the process of completing the full implementation of the Index, the findings from Pillar 1 were deemed timely to share as a distinct piece of work. Pillar 1 covers access to asylum, including 37 indicators across four key components that look at the national policies, legislation and practices as well as cross-cutting themes (see Appendix A).

For more information about the Australia RRI review and how you can contribute, or to view the detailed indicator assessments for Pillar 1, contact: Dr Louise Olliff, Senior Policy Advisor, Refugee Council of Australia (louise.olliff [AT] refugeecouncil.org.au).

Pillar 1: Access to Asylum

The following summarises the findings against Pillar 1 indicators in both numerical and narrative form, including some of the evidence used to substantiate the assessment of indicators. This review is for the 2021 calendar year. It should be noted that 2021 was an anomalous year in many ways due to the COVID-19 pandemic. Where data or information was not available for the 2021 calendar year, the 2020-21 fiscal year was used in its place.

Overview

Current Australian national policies and legislation on access to asylum are incompatible with international commitments, do not protect the right to seek asylum, nor guarantee human rights and the principle of non-refoulement. Since 2001, Australia has enacted a series of interdiction policies to prevent asylum seekers from arriving in Australia in order to claim protection. Obstacles to seeking protection are imposed via unilateral and cooperative extraterritorial migration controls to keep refugees in their countries of origin and first asylum or impede them from reaching national territory.[2] Also, through highly controlled territorial borders whose entry systems are not protection-sensitive, officials prioritise visa cancellations and returns over protection claims and a fair refugee status determination (RSD) process.[3]  Deterrence policies expose asylum seekers to the risk of harm and refoulement, disregarding Article 33 of the Refugee Convention.

Component 1.1: Asylum seekers are not arbitrarily turned away

As a result of Australia’s geographical characteristics, asylum seekers may only enter the country by sea or air. In the 2021 calendar year, there were no confirmed cases of refoulement of people seeking asylum by sea.[4] The number of people seeking asylum returned at airports is unclear due to the lack of data collected and/or made available.[5] However, the decrease in cases of refoulement presented in 2021 compared to previous years can be attributed more to borders closure as a result of COVID-19 pandemic and the ‘effectiveness’ of deterrence strategies, than to policy improvement.[6] Indeed, since 2013, 873 people seeking asylum on 38 vessels have been forcibly returned to their country of departure, including Sri Lanka, Vietnam and Indonesia, either following an inadequate pre-screening procedure or having been deprived of any opportunity to an examination of protection claims. This figure includes 124 children.[7]

In 2013, the Australian Government established “Operation Sovereign Borders” (OSB), a military-led initiative aimed at preventing asylum seekers from arriving in Australian territory by sea.[8] The Government affirms that this border security operation is “combating people smuggling in our region, preventing people from risking their lives at sea” and is oriented to avoid “unlawful” access to Australian territory. The OSB emphasises that the only safe and lawful way to access Australia is with a valid visa.[9]

Australia’s boat “turn-backs” policy dictates that all ships are returned to their departure point, and asylum seekers are returned without refugee status determination or after a rudimentary assessment.[10] Current “shipboard processing” and “airport screening” as pre-screening procedures are not considered fair, transparent or effective RSD procedures compatible with international law standards, yet remain a dominant Australian Government policy. Regarding boat arrivals, protection claims are processed aboard government vessels at sea. “Shipboard processing”, aside from being rudimentary or non-existent, waives the safeguards that would otherwise be provided if an asylum seeker were processed in a land-based facility.[11] This includes the right to independent review by a tribunal or court.

Arrivals by air are subjected to a range of extraterritorial policies. Since the Australian Government does not provide a visa to seek asylum except in very specific circumstances (see below on 449 subclass visa), asylum seekers need to first apply for other valid visas (i.e., for tourism, education, or work related temporary or short-stay visas).[12] Even where a person fulfils all requirements and obtains a valid visa, these visas are subject to cancellation before departure or while a person is in transit if officials suspect the person intends to seek asylum in Australia.[13] Upon arrival, travellers are subjected to the “entry screening” process to identify individuals who may intend to apply for protection, with the subsequent risk of visa cancellation at the point of entry. If this is the case, asylum seekers face mandatory detention and removal. Section 197C of the Migration Act 1958 (Cth) provides that, in removing a person from Australia, “it is irrelevant whether Australia has non-refoulement obligations”.[14]  All airlines flying to Australia are required to check if their passengers have a valid visa by processing their data through the Advanced Passenger Processing System.[15] Carrier sanctions are contained in the Migration Act 1958 Sections 228 and 228B, making transporting a non-citizen to Australia without a valid visa a criminal offence.[16] There are no safeguards in place to identify and protect asylum seekers in case of carrier sanctions. These sanctions apply to carriers even when they transport a person with clear protection claims.[17]

Component 1.2: Asylum seekers are safe at the border

According to expert opinion[18] and official procedural guidelines[19] and irrespective of an asylum seeker’s mode of arrival, the State provision of social assistance (food, shelter, medical assistance) at the border is poor. Interpreting services are usually facilitated where requested, but are only required when “people do not have sufficient understanding of English”.[20]

Even though people have a legal right to information and to seek legal assistance, in practice the information provided to asylum seekers is deficient or inaccurate, there is no provision of free legal advice, and the opportunity to access consular officials or contact UNHCR representatives is only granted when requested.[21] For asylum seekers who are detained, Section 256 of the Migration Act (Cth) provides that an officer must provide facilities (such as a telephone) to access legal advice, but only on request of the detainee. Legal advice is generally not provided for free and the detainee is not supported to find a lawyer who may assist.[22]

Component 1.3: National legislation and policies do not impede the right to seek asylum

As detailed above, Australian legislation and policies privilege deterrence instead of protecting the right to seek asylum. Furthermore, there are very limited possibilities for people residing in another country to apply for refugee status or asylum in Australia. While procedures are somewhat effective, the process is restrictive due to cost, eligibility, and number of places available.

Specifically, the 449 subclass visa (Humanitarian Stay) allows asylum seekers to first enter Australia and then apply for a Refugee or other permanent visa. However, an invitation must be extended by the Minister to be eligible for this visa. In practice, this visa subclass was used to evacuate people from Afghanistan who worked closely with the Australian government or were at high risk following the Taliban takeover in 2021. Over 4,000 449 subclass visas were issued in 2021-22, but eligibility remains tightly restricted and applied only in very specific situations. The Subclass 202 (Special Humanitarian Program) visa allows people to apply for resettlement to Australia if they are outside their country of origin and face systemic human rights violations. Applicants are not required to have been found as a refugee by UNHCR. Demand for the SHP far outweighs available places, even before the impact of COVID-19 border closures. In 2019-20, there were 40,232 applications for visas under the SHP, and only 5,099 grants, representing a 789% over-subscribed demand for visas in the SHP. As processing places close family members as the top priority, in practice this visa is almost entirely for family reunion and inaccessible to most asylum seekers or refugees who do not have close family links in Australia.

The use of “irregular” entry to Australia is consistently used to penalise asylum seekers for refugee status determination (RSD) matters.[23]  Operation Sovereign Borders emphasises that the only safe and lawful way to access the country is with a valid visa.[24] People who arrive in Australia with a valid visa can apply for a Permanent Protection Visa (PPV, Subclass 866) and have their claim for protection assessed in Australia under a standard RSD process.[25] Those who arrived without a valid visa before 2014 have been barred from applying for a PPV, but can apply for temporary protection, either a Temporary Protection Visa (TPV Subclass 785) or a Safe Haven Enterprise Visa (SHEV Subclass 790), which last for three and five years respectively.[26]

In August 2012, the Australian Government reinstated offshore processing arrangements or “regional processing centres” in the Republic of Nauru and on Manus Island in Papua New Guinea. From that date to December 2021, 4,183 people were sent for offshore processing and effectively detained until their refugee claims were decided.[27] Furthermore, in July 2013 the Government enacted a policy according to which “illegal maritime arrivals” are either turned back or involuntarily transferred to an offshore processing facility to have their refugee status assessed, with an additional permanent ban on resettlement to Australia, even if a person is recognised as a refugee.[28]

Component 1.4: Detention practices concerning asylum seekers

Under the Migration Act 1958, Section 189 (Cth), all non-citizens who are in Australia without a valid visa must be detained.[29] This includes any person regardless of their special circumstances.[30] A person arriving in Australian territory without a visa, who have had their visa cancelled, or have overstayed their visa[31] is subject to indeterminate and unreviewable mandatory detention.[32] The Australian detention policy is not aligned with UNHCR detention guidelines.[33] Immigration detention in the Australian context does not respect the right to seek asylum; provide oversight regarding the rights to liberty, security and free movement; is automatic and arbitrary; discriminatory; indefinite[34]; and practically unreviewable.[35]

People are detained until they receive a valid visa or depart the country, whichever happens first. This means asylum seekers can be held in detention indefinitely, and there are extremely limited legal remedies to review or appeal the detention decision.[36] As at 31 December 2021, the average period of time for people held in detention facilities was 689 days.[37] Australian detention based solely on migration status has been found arbitrary, cruel and inhumane.[38] In December 2021, there were 289 people in detention who arrived “unlawfully” by air or boat within the larger population of 1,489 people held in immigration detention.[39]

Component: Cross-cutting issues

According to official procedural guidelines, there are some formal considerations to provide special consideration when dealing with some cross-cutting groups,[40] such as minors[41] and trafficking victims.[42] However, in practice, these mechanisms do not guarantee special protection needs, as the mode of arrival is the primary basis for restricting access to formal asylum systems irrespective of vulnerabilities.[43]

[1] RCOA: Paula Cruz Manrique (Pillar 1 Lead), Louise Olliff, Asher Hirsch, Sahar Okhovat, Rebecca Eckard, Aníbal Gonzalez. Experts consulted include: Regina Jeffries, Daniel Ghezelbash, Hannah Dickinson, Scott Cosgriff, UNHCR Canberra, Australian Red Cross, Human Rights Law Centre, Asylum Seeker Resource Centre. Verification: Brian Gorlick, Augusto Lopez-Claros, Alesia O’Connor.

[2] According to Hirsch (2017), whereas unilateral measures include “visa requirements, carrier sanctions, airline liaison officers, surveillance technologies, interception at sea, and the excising of Australian territory”; cooperative measures refer to “agreements with its regional neighbours to deter, detain, and deport would-be asylum-seekers” (p. 49). Hirsch, A. (2017). The Borders Beyond the Border: Australia’s Extraterritorial Migration Controls.

[3] Expert opinion – Regina Jeffries (University of New South Wales, Western Washington University), May 2022

[4] Prior to 2021, the last reported boat turnback was January 2020. See Appendix 1: Boat turnback September 2013 -December 2020.

[5] Refugee Council of Australia. (2021). Submission to the United Nations Special Rapporteur on the human rights of migrants.

[6] Expert opinion – Sahar Okhovat (Refugee Council of Australia), April 2022

[7] Refugee Council of Australia. (2021). Submission to the United Nations Special Rapporteur on the human rights of migrants.

[8] Dastyari, A. & Ghezelbash, D (2020). Asylum at the Sea. The Legality of Shipboard Refugee Status Determination Procedures.

[9] Australian Government. (2021). Operation Sovereign Borders.

[10] Refugee Council of Australia. (2021). Submission to the United Nations Special Rapporteur on the human rights of migrants.

[11] Dastyari, A. & Ghezelbash, D (2020). Asylum at the Sea. The Legality of Shipboard Refugee Status Determination Procedures.

[12] Jefferies, R. (2021). Comparative perspectives on airport asylum procedures before and during the COVID-19 pandemic.

[13] Jefferies, R., Ghezelbash, D. & Hirsch, A. (2020). Assessing Protection Claims at Airports. Developing procedures to meet international and domestic obligations (Policy Brief 9).

[14] Relevance of Australia’s non-refoulement obligations to removal of unlawful non-citizens under section 198

[15] Australian Border Force (2020). Air Standard operating procedures. Managing claims for protection.

[16] Hirsch, A. (2016). To stop boat deaths, abolish carrier sanctions and let asylum seekers travel by plane.

[17] Hirsch, A. (2017). The Borders Beyond the Border: Australia’s Extraterritorial Migration Controls.

[18] Qualitative online survey (‘Access to Borders and Asylum’) conducted by RRI Australia team (May 2022)

[19] Department of Home Affairs (2019). Individualised Assessments Procedural Instruction (Maritime arrivals). Australian Border Force (2020). Air Standard operating procedures. Managing claims for protection.

[20] Australian Border Force (2020). Air Standard operating procedures. Managing claims for protection.

[21] Qualitative online survey (‘Access to Borders and Asylum’) conducted by RRI Australia team (May 2022).

[22] Jefferies, R., Ghezelbash, D. & Hirsch, A. (2020). Assessing Protection Claims at Airports. Developing procedures to meet international and domestic obligations (Policy Brief 9).

[23] Claims of national security are occasionally used not to refuse the assessment or entry to the Australian territory, but to deny the visa grant under an assessment that fails to provide genuine and effective judicial review of adverse security assessments (Saul, 2013). For instance, a person can be found to be a refugee, but their visa is denied due to national security reasons. In these cases, if asylum seekers are found to be a refugee, they remain in indefinite detention. They cannot be removed from Australia, but still, as considered a threat to national security, they would not be granted a visa.

[24] Australian Government. (2021). Operation Sovereign Borders.

[25] https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/protection-866

[26] Department of Home Affairs (2019). Individualised Assessments Procedural Instruction (Maritime arrivals).

[27] RCOA (2022). Offshore processing statistics.

[28] RCOA (2022). Offshore processing statistics.

[29] Detention of unlawful non-citizens.

[30] There are no specific provisions in order to exclude people from detention, it applies to everyone arriving without a valid visa. Women, children, people with disabilities and people with non-confirming genders and sexualities have all been made subject to mandatory detention and offshore processing, and have not been given access to the Australian asylum system (RCOA, 2022a). Due to the existence of specific visa framework for people who are victims of trafficking, it is possible but less likely that trafficking victims would be detained in the Australian context (Lina García-Daza, 2022)

[31] Kaldor Centre. (2021b). Immigration Detention in Australia. Factsheet.

[32] Australian Human Rights Commission (2004). Australia’s Immigration Detention Policy and Practice.

[33] UNHCR (2012). Detention Guidelines on the applicable criteria and standards relating to the detention of asylum-seekers and alternatives to detention.

[34] The Commonwealth Ombudsman has expressed concerns about delays in the case progression of people in long term detention, including delays in administrative processes. Commonwealth Ombudsman (2021: 19).

[35] Stubbs, M. (2006). Arbitrary Detention in Australia: Detention of Unlawful Non-Citizens under the Migration Act 1958 (Cth) [2006] AUYrBkIntLaw 9; (2006) 25 Australian Yearbook of International Law 273; Australian Human Rights Commission (2004). Australia’s Immigration Detention Policy and Practice; Kaldor Centre. (2021b). Immigration Detention in Australia. Factsheet.

[36] The Australian High Court ruled that keeping illegal non-citizens until they get a visa or can be deported from Australia is constitutionally permissible (Kaldor Centre, 2021b: 3).

[37] DHA & ABF (2021). Immigration detention statistics 31-december-2021

[38] FJ et. al. v. Australia No, 2233, (2016). United Nations Human Rights Committee. CCPR/C/116/D/2233/2013; FKAG et al. v. Australia No. 2094, (2013). United Nations Human Rights Committee. CCPR/C/108/D/2094/2011.

[39] DHA & ABF (2021). Immigration detention statistics 31-december-2021

[40] Cross-cutting groups take into account gender, age, sexual identity and other forms of diversity such as sexual minorities, ethnic/religious minorities and trafficking victims.

[41] The Department of Home Affairs establishes special instructions to applicable to the immigration clearance of people less than 18 years old under de Migration Act 1958 for travellers both air and sea ports (DHA, 2018). For instance, it is provided that when officers are dealing with unaccompanied minors they may fall under the Minister’s legal guardianship under the Immigration (Guardianship of Children) Act 1946 (the IGOC Act), they should contact UHM and Guardianship sections.

[42] With regards to trafficking victims, there are screening mechanisms to identify and address specific vulnerabilities (for example, the Human Trafficking Visa Framework (HTVF) allows victims of trafficking to remain in Australia lawfully and access supports, including legal support to apply for a protection visa where applicable). However, there are some gaps and limitations, including the requirement that HTVF cases can only be referred by the Australian Federal Police, and that the crime that led to a person being recognised as a victim of trafficking took place in Australia. Research by the Australian Institute of Criminology suggests that only 1 in 5 victims of trafficking in Australia are identified through existing processes and that wider referral mechanisms are needed to enable screening, identification and referral to appropriate supports.

[43] Qualitative online survey (Borders and Access to Asylum) conducted by RRI Australia team (May 2022).

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