IARLJ – MEXICO CITY CONFERENCE 2006
INTERPLAY BETWEEN ASYLUM LAW AND IMMIGRATION LAW
1 At the IARLJ Conference 2002 held in New Zealand Dr Mary Crock of the
University of Sydney expressed the view that Australia had the harshest detention
practices and the least articulated rights regime of the five countries studied by her.
The other countries studied by her were New Zealand, the United Kingdom, Canada
and the United States of America.
2 Nothing that has happened in Australia since 2002 will have provided a basis
for a reconsideration by Dr Crock of her view.
3 The Australian Government has maintained, and indeed has recently sought to
strengthen, measures intended to both control and discourage irregular migration.
Those who seek to assert a claim to asylum in Australia are not exempt from these
4 The Migration Act 1958 (Cth) continues to require the detention of ‘unlawful
non citizens’ (s 189); ie persons who are not Australian citizens and who do not hold
Australian visas (s 14). Section 196 of the Act provides that an unlawful non-citizen
detained under s 189 must be kept in immigration detention until he or she is:
(a) removed from Australia;
(b) deported; or
(c) granted a visa.
5 In 2003 the Full Court of the Federal Court of Australia held that the power to
detain under s 196, being a power intended to facilitate removal from Australia, was
subject to an implied limitation that the period of mandatory detention does not
extend to a time when there is no real likelihood in the reasonably foreseeable future
of the detained person being removed from Australia (see Minister for Immigration v
Al Masri (2003) FCR 54). However, in Al Kateb v Goodwin (2004) 208 ALR 124 the
High Court of Australia, in a majority decision, held that the words of s 196 were so
clear that no implied limitation could be read into them. The majority of the Court
also held that, so construed, the section did not contravene the Australian
Constitution. As a consequence the High Court determined that a stateless person
who had unsuccessfully claimed asylum in Australia, and could not be deported from
Australia, could be held in immigration detention indefinitely.
6 Part 2 Division 12A of the Migration Act, which was inserted into the Act in
1999, permits Australian authorities to board and search ships in Australian waters or
in Australia’s contiguous zone and where a threatened contravention of the Act is
reasonably suspected or the ship is without apparent nationality, on the high seas. Hot
pursuit is also authorised. The division also allows foreign aircraft over Australia to
be required to land.
7 Wide powers to search to compel persons to answer questions, and of arrest,
are given to Australian authorities by Division 12A of the Act (s 245A – 245H).
8 Section 245F of the Act provides that, to the maximum extent that the
Australian Constitution allows, any restraint on the liberty of any person found on the
ship or aircraft that results from the detention of the ship or aircraft is not unlawful,
and proceedings may not be instituted against the Commonwealth of Australia or the
relevant officer, or any person assisting the officer, in detaining the ship or aircraft.
9 Section 245F also authorises an officer who detains a ship or aircraft to detain
any person found on the ship or aircraft and cause them to be brought to Australia, or
alternatively, to be taken to a place outside Australia. The use of necessary and
reasonable force is authorised subject to the qualification that the officer must not do
anything likely to cause a person grievous bodily harm unless the officer believes that
it is necessary to do the thing to protect life or prevent serious injury, or to allow a
fleeing person to be arrested.
10 In 2001 Australia acted to excise certain of its offshore territories from
Australia’s migration zone (see the Migration Amendment (Excision from Migration
Zone) Act 2001 (Cth). The effect of this measure is to deem Australian islands to the
north and west of the Australian mainland not to be part of Australia for immigration
purposes. As a consequence individuals who reach these islands fall outside the
scheme established by the Migration Act for the assessment of applications for visas.
Australia has not argued that the excise of these island territories relieves Australia of
its international obligations under the Refugee Convention. However, the statutory
excision prevents asylum seekers who are affected from accessing the procedural
protections which are ordinarily available to a person who claims asylum in Australia.
Such persons are ordinarily taken to Pacific Islands to have their claim to be refugees
assessed by UNHCR or by Australian officials.
11 The substantive provisions of the Migration Act do not differentiate between
child and adult asylum seekers. In 2004 the Australian Human Rights and Equal
Opportunity Commission published a report entitled ‘A Last Resort?’ following a
national enquiry into children in immigration detention. The report found that
Australia’s immigration detention policy had failed to protect the mental health of
children, failed to provide adequate health care and education to children and failed to
protect unaccompanied children and those with disabilities.
12 The Australian Government moved in June 2005 to alter the Migration Act
and procedures under the Act particularly so far as they impact on children. Section
4AA of the Act now records that the Australian Parliament affirms as a principle that
a minor shall only be detained as a measure of last resort. Additionally the Act now
gives the Minister, acting personally, a non-compellable power to grant a visa to a
person in detention (s 195A). The intention of this amendment was to allow the
Minister to specify alternative arrangements which would allow families with children
to live in the community under community detention arrangements. It was also
intended to allow the conditional release from detention of failed asylum seekers who
are unable to be removed to another country.
13 A Bill was introduced into the Australian Parliament during the course of 2006
which would have denied all persons arriving in Australia by boat without a visa the
right to apply for any visa, including a protection visa, within Australia (see
Migration Amendment (Designated Unauthorised Arrivals) Bill 2006). The proposed
law would have applied equally to those apprehended on route to Australia and those
who made landfall on mainland Australia. The Bill appeared to be a response to
Indonesian anger at the grant of refugee status to 42 people from the Indonesian
province of West Papua. It was proposed that the Minister would have a non-
reviewable power to admit boat people to the refugee determination system
established by the Migration Act. It seemed clear that the underlying policy behind
the Bill was to move all unauthorised boat arrivals to offshore centres to have their
claims for asylum processed there.
14 When it became apparent that a number of Government members of
Parliament would not support the Bill, the Bill was withdrawn to prevent its defeat in
15 It is beyond dispute that many who have subsequently been found to be
entitled to protection under the Refugee Convention have been intercepted and been
subject to mandatory detention under the regime outlined above. The Human Rights
Council of Australia reported in December 2002 that 736 of 1515 asylum seekers who
had been held in off-shore facilities were ultimately recognised as refugees. Of those
736 individuals, 526 were granted entry to a country of asylum and, as at December
2002, 210 remained in the off-shore facilities with no country willing to accept them.