The Refugee Policy in Australia and Human Services Law - Assignment Example

RUNNING HEAD: Developing a policy submission (Human Services Law) (the refugee policy in Australia) The Refugee Policy in Australia Student’s Name Institution’s Name Executive Summary Australia has been a great implementer on the International obligations of contracting nations to provide adequate opportunity for refugees and asylum seekers to be granted stay in the country. In the years of 2009 to 2010 Austral taking is had surpassed 750,000 mark in taking refugees and persons who need humanitarian assistance into their country. Australia has also issued visas approximately 9,236 offshore refugees and humanitarian visas and also 4,534 onshore visas. The current trend in the world shows that an increase in conflict would lead to more persons to seek refugee status and asylum and there is a great expectation that all states party to the Convention on the Status of Refugees 1951 to keep their obligations in giving this persons a place to stay. The tension in places such as Afghanistan, Iraq, Somalia, Democratic Republic of Congo, and Burma demonstrates that refugee crisis is at its all times highest. The countries in the world such as Kenya, Chad, Jordan, Syria and Iran are expected to receive an influx of persons needing assistance. This therefore should be an impetus on the Australian Government to implement better policies to cater for this situation through resettlement and offing of temporary habitation for these persons. The main contention on Australia’s policy on tackling Humanitarian issues falls on it creating arbitrary measures such as arbitrary detention, torture, cruelty, degrading treatment that falls short of inherent human rights under International law1. There needs to be a way in which a refugee can seek redress in the judicial system as regards detention laws. Children and persons with disabilities are also to be given special interest because Australia needs to make proper laws on how they can reunite with their families and tracing and that they can be detained for a short period of time. The offshore detention facilities moreover, has fell short in that it fails to identify and give the refugee the opportunity to be subjected to the determination process in acquisition of refugee status. The convention on the Refugee Status highlights the fact that it is a human right violation for a country, receiving state to provide travel documents. This issue then brings us to discuss the social welfare approach of refugee and asylum seekers as per the Swedish law. The approach clearly shows that it intends to act in good faith in keeping its international obligation to aid in the treatment of refugees rather than an arbitrary mode. The main precepts are that of equality and integration policies. The challenges however can be tackled by proper modes of implementation. The recommendations that are to be adopted seek to focus on the legislators, government and the judiciary to adopt better laws in tackling the refugee problem. The policy highlights that the legistlation on detention, issuance of visas and also handling of offshore asylum seekers should be key in the implementation on the refugee humanitarian programme. Table of Contents Executive Summary 2 Table of Contents 4 Target Group for the Policy 5 The Place of Australia’s Refugee Policy in International Law 5 The Purpose of the Submission 5 History and Background of the policy 6 Nature of the Problem 7 Objectives 9 The Key Issues on the Policy 10 The Implications of the policy 12 Recommendations 12 Conclusions 14 References 16 Target Group for the Policy The major Convention the seeks to protect refugee and Asylum seekers under International law are Geneva Convention Regarding to the Status of Refugees 1951 as also supplemented by the Hague Protocol Regarding to the Status of Refugees 1967. The main international organization that deals with the implementation of this statute is the Unite Nations High Commissioners for refugees (UNHCR) entitled to provide international protection of refugees, to seek a permanent solution for the problems of refugees, to coordinate international action in favour of refugees and also to promote the conclusion and ratification of international conventions for the protection of refugees and to supervise their application. The Place of Australia’s Refugee Policy in International Law The Purpose of the Submission The purpose of making this policy available for integration by the Australian Government is to; I. To provide a system in which there is a voluntary repatriation policy of refugees to their specific countries. This is to go in a great length is giving a more desirable outcome for both the individual and also the general Australian Public. II. A good way for integrating the refugees into the Australian society III. Provide good procedures in which Australia aid refugees through its offshore humanitarian programme. IV. A greater strengthening of Australia’s programme in terms of how it functions well with International agencies such as provision of visas and also access to medical care. V. To enable Australia to contribute to better International related policy on refugee and asylum seekers legislation both nationally and internationally. VI. To ensure that the law requiring mandatory detention of persons is scrapped. VII. Sufficient protection to be provided to asylum seekers who fail to meet the status of refugees in the country as long as they face the threat of persecution in their country. History and Background of the policy The protection of refugees was greatly necessitated based on the impact of the Second World War and the conference of 195 provided the convention on refugees. The Convention however leaves the contracting state, Australia the opportunity to determine who is to be considered as a refugee It is contended that since 2001 when the Tampa was turned away in late 2001 there are no more boat arrivals in Australia. The Prime Minister, John Howard, prior to the 2004 election recommitted that new tough measures be introduced such as border protection through patrols at sea, excision of the territory from the migration zone and off shore processing2. There was also the creation of detention of person who arrive to Australia without proper authorization and the provision of temporary protection visas if they are recognized as refugees. This therefore marked Australia as having an immoral perception towards refugees and even to immigrants. Australia’s hard-line and restrictive asylum policies and practices seek to show that Australia is not taking its stand on International percepts on International Refugee law. Australia is a signatory of the 1951 Convention on the Status of Refugees, but so far it can be stated that it has only led to the detriment on how refugees are treated under international human rights law. The Swiss conseil d’Etat in 1995 annulled a national referendum intended to revise the Swiss Constitution on the grounds that the proposed revision would call into question article 33 of the Geneva Convention Regarding the Status of Refugees 1951, at which the article had already acquired the status of ius cogens3. This in considering the standing of Australia on the International setting fails to consider that refugee law is of great importance in International law. The instance that Australia had accepted its obligation under international law created a legitimate expectation 4under it administration law that the terms of the Convention Regarding the Status of Refugees would be accepted. Australia also created in its constitution that when there is a conflict between a statute and a treaty, statute law prevails. Nature of the Problem Australia through its policies on detention of asylum seekers has created a bad picture in the global communities on its ability to take its obligations to protect Refugees and asylum seeker. In the ‘protest rally for refugees’ on the 15th of November, as quoted by Mervin Luck “the international community as well as the United Nations and millions of the Australian people is alarmed by how they treat asylum seekers. Further it has been contended that such treatment is irreconcilable with Christian teaching for instance that of neighborliness and protection of the person. One would seek to claim that it is in the interest of the public to be protected from intruders but this would be going back on their international obligations (Burmester & Reye, 2001). The other major problem that is faced by the Australia’s government is failing to accept that asylum seekers and any other refugee have rights that are protected under international law. The Refugee Convention provides that a person has the right to seek asylum in a country that is bound by the convention, they are not to be returned to the country where they are likely to face persecution, and right not to be discriminated based on their status as refugees and also the access to travel documents. The lack of Australia’s failure to observe these critical rights under international law shows their detrimental policies aimed at placing a refugee at a disadvantage. Any refugee is not supposed to be penalized based on the manner of their arrival into any country they want to seek refuge. The detention practices on the Australian policy seek to provide a basis of serious human rights violation because detention can be considered a basis of penalty. It can be contended that the international convention fails to completely highlight the duties of a contracting state to protect the general rights of asylum seekers and refugees under the international setting, however this should not be the basis of Australia in creating bad laws. International law, in its own way as stated by Ian Brownlie5, that it is difficult for international law to be enforced, based on the fact that it only governs relationships of countries and it is also supposed to consider the sovereignty of any given state. The conventions that bind Australia in the legal aspects all seek to provide for better treatment of the Rights of Refugee and asylum seekers. There is usually a contention in its enforcement, because as regards municipal law the police can handle the breach, but there are no police powers to check whether an international obligation has been considered or implemented. Australia took its steps to ratify the Refugee Convention on the 22nd January 1954 and its Protocol on the 13th of December 1973. Essentially, Australia is bound by certain obligations international law towards people who meet the criteria of being regarded as refugees. Australia has also through its obligation created the Migration Act of 1958 that incorporates international obligations under its domestic laws as contrasted to other countries that a ratification automatically results into the obligations becoming law6. It can be stated that Australia’s policies are not to be considered to be accorded as one of good faith in their treaty obligation. The clause of international law also prohibits any given country from making reservation on the term refugee and Article 33 of the Refugee Convention of 1951. Objectives 1) To provide a more and broad provision of human rights governed by international law treaties and conventions so that refugee rights are not limited. 2) To ensure that the Australian Justice System are given the power to determine whether an individual’s detention is arbitrary, unreasonable, or unnecessary and also giving them power to compel the government to release the detainees. 3) To ensure that the Australian Human Rights Commission supports and oversees those Human Rights is upheld through creation of various remedies to be accessed by the refugee. 4) To compel the government to change the legislation to provide for the treatment of refugees in a good way and also to ensure that proper detention laws are created. 5) To highlight the benefits of adopting a more socialist approach in how refugees and asylum seekers are to be treated in considering the approach undertaken by the Swedish Government. The Key Issues on the Policy The main aspect of implementing policies likened to that of Sweden is that there needs to be an impact on the Australian country on ethnic percepts making it to be a multi-ethnic one. This has been made possible through the Swedish individuals, organizations, public agencies and to an extent public pressure to provide a proper platform to tackle refugee problem. The major players in creating policies would be driven by the fact that refugees are not just aliens but are of great value to the social, economic and political viability of the country. It is important that there is a general acceptance that they are people with rights to protection. Taking Swedish perception on refugee law, the Australian Government should consider the immigration policy adopted in the mid-1970s based on these objectives; equality, freedom of cultural choice and cooperation and solidarity. This would be important in making Australia to take a standing on its detention policies. The importance of equality in immigration policies is that they are to be given an equal footing as regards opportunities, rights and obligations as the rest of the population. This would be important in enabling Australia too efficiently to carry its offshore and onshore humanitarian programmes. The refugee should also be given the choice as to what extent to embrace the Australian cultural identity. There is a need to view that refugees are to be given the opportunity to be fully employed and right to work. This generally would boost the Australia’s manpower in different fields. This is based on the principles of residence and domicile rather than considering the rights of a person based on birth (ius soli). This social approach will go a great length is simplifying the documentation process in issuing permits, equality treatment and also oversee the cultural reunification process. Challenges A more social approach to the refugee program would open up Australia to other vices that are involved in integrating people from foreign places. There is a risk that smuggling of people will be on the rise if polices are based on social approach. However this problem can be tackled by better making available good agreements with various agencies to ensure that smuggling of immigrants, refugees and asylum seekers does not take place. There will be no proper deterrence measures on how Australia tackles the Refugee menace. The fact that Australia uses, two policies that of onshore and offshore components in its, humanitarian program, hence there would be a more relaxed approach and hence an influx of refugees into the country. The amount that needs to be spent in implementing a social welfare system would be great in that there would be an urgent need to compensate the refugees during their stay. The global economic trouble and a constant threat of recession would impact negatively on how the financial status of the community will affect the implementation of the policy. The Implications of the policy The implication of adopting this policy is that there would be an impact experienced based on the social inclusion in acquisition of refugee status and integration into the Australian community will be more liberal7. There will also be a boost in the equality concept as they will be accorded equal status of treatment as compared to those given prior to adoption of this policy. Recommendations There needs to be a proper construction on the law of refugee in Australia so that it reflects the obligation of the Australia government in being at par with International treaty law. This would be important because the Australian Government and legislators as a prima facie presumption that the parliament should not tend to act in breach of its international obligations and give it a consonant meaning. The law in Australia should be made clear as regards its provision on refugee law and should not be ambiguous in its construction. The convention should be looked up as an instrument intended to bring harmony in its interpretation and implementation. Australia should consider changing its standards of how a refugee or an asylum seeker is to be treated based on the minimum standard of treatment for refugees in its state. Their basic rights as being refugees ought to be protected. The courts and the legislators in creating the law should be guided by the following principles in interpretation of international principles; I. The court is to give a purposive construction to the Convention taken as a whole8 II. Cautious use will be made of travaux preparatoires III. The courts are to ensure that the decision made in different contracting states are kept in line with each other IV. There should not be a creation of domestic remedies that seek to undermine the proper working of the Convention Australia in its change of policy must seek to demonstrate its ability to keep its international obligation by cutting or ending the link in taking numerical statistics in its onshore protection program and the offshore Refugee and Humanitarian program to show to the world that it provides for refugee and asylum seekers better habitation that cannot be found anywhere else There needs to be an expansion on the Australia offshore resettlement program in order to offer additional places for persons who are vulnerable refugees within the region around Asia Pacific. There should also be an initiative by the government to encourage other states to increase their commitment in the international standing to also commit in providing resettlement of refugees and also undertake a global approach of resettlement. The refugee policy in Australia should also be capable of providing clear exceptions on persons who are disabled for instance; The health requirement should not be too rigid so that it is detrimental to persons under the offshore component of the humanitarian program who seek to be reunited with their families. A proper treatment on disabled persons in the Humanitarian program. The Australian Government should also seek to adopt best practices in procedures of asylum seekers for instance in adopting a good approach in its immigration detention. The issue of mandatory detention would be said to be a little bit arbitrary. There also needs to be reconciliation on the Refugee Convention or Protocol to effectively provide proper criteria for determination of refugee status. This is based on the fact that International law vests the Australian Government, legislators and the judiciary absolute discretion in terms of how they frame and interpret Australian laws to effectively meet the international obligations (Human Rights and Equal Opportunities Commission, 1998). Conclusions In adopting a policy that seeks to reflect the international perceptions on how to handle the issues of refugees and asylum seekers is important. The Convention of the Status of Refugees 1951 and its protocol must be implemented in the domestic law in a way that reflects good faith and good international practices. The critiques on the treatment of refugees by way of detention through their onshore and offshore humanitarian programmes are considered harsh. It is important and crucial that policy makers should be able to adopt the concept of equality in getting a new way rather than detention of the asylum seekers and refugees. It is contended that at times various aspects of human rights are not taken into account as highlighted at Article 33 of the Refugee Convention (Mares , 2002). The implementers of this policy such as the government, International aid agencies and even the legislators, must seek to reconcile best practices of refugee and asylum seekers protection. Integration is also a key policy in seeking to put a refugee in the level of a citizen. Issuing of travel visas being a fundamental right of a refugee should also be issued. It can be seen from the objectives of this policy that it is important for the Australian Government to put pressure on the International Community to provide the basis of determining refugee status in a way that it does not challenge the sovereignty of the receiving country. Adoption of the social welfare approach taken by Sweden would be of great importance especially based on the fact that there is a real likelihood of an increase in the number of Asylum Seekers and refugees from conflicting countries. There is to be a general change in how the government’s view their arrival as an opportunity rather than a threat. However, the challenges brought by this new policy such as financial difficulties, smuggling of persons and even a threat to sovereignty can be averted based on proper and constant management of the Authorities mandated to manage the Humanitarian program. References Australian Government,Department of Immigration and Multicultural and Indeginous. (2005). Refugee and Humanitarian Issues. Sydney: Commonwealth of Australia. Brownlie, I. (2003). Principles of Public International Law (6th Ed.). London: Oxford University Press. Buck, T. (2011). International Child Law (2nd Edition ed.). Routledge: Candevish Publishing. Burmester , H., & Reye, S. (2001). The Place of Customary International Law in Australia Law. Sydney: Australian Year Book of International Law. Dixon, M., McCorquodale, R., & Williams, S. (2011). Cases & Materials on International Law (5th Ed.). Hampshire: Oxford University Press. Human Rights and Equal Opportunities Commission. (1998). Those Who’ve Come Across the Seas. Retrieved May 14, 2012, from /http:// www .hreoc.g ov.au/pd f/hum an _ri g ht s/as ylum_seekers/h5_2_2.pdf. J.H.C, M. (2005). The Conflict of Laws (6th ed.). London: Sweet & Maxwell. Mares , P. (2002). Boderline. Sydney: UNSW Press. Rothwell, D., Stuart , K., Akhartkhavari, A., & Ruth , D. (2010). International Law. Sydney: Cambridge University Press. Ruddock, L. P. (1998). Australia's Immigration Policies - An International Perspective. Sydney: Victorian Press Club. Sainsbury, D. (2006, July 25). Immigrants' social rights in comparative perspective. Journal of European Social Policy. Silove, D., & Steel, Z. (2001). The mental health implications of detaining asylum seekers. Medical Journal of Australia, 175(11), 569-599. Valenta, M., & Bunar, N. (2010, September 10). State Assisted Integration: Refugee Integration Policies in Scandinavian Welfare States. Journal of Refugee Studies, 23(4). Wendy , L. (2004). Judicial Discretion and Human Rights. Melbourne Journal of International Law, 108. Wrench, J. (2007). Diversity Management and Discrimination. Aldershot: Ashgate. Read More