Improving the Law Regarding Refugee Protection - Research Paper Example

Imрrоving thе lаw rеgаrding Rеfugее Рrоtесtiоn Your name: Institution name: Introduction In many countries an over many years, societies have welcomed weary, frightened strangers, the victims of violence and persecution (Arulanantham, 2008). This humanitarian tradition of protecting disadvantaged people often now played out on TVs across the world as large-scale persecution and civil war in different parts of the world produces millions and millions of asylum seekers and internally displaced individuals (UNHCR, 2006). Yet even as persons continue to flee from threats to their lives and freedoms, countries across the globe are, for many reasons, finding it difficult to reconcile their humanitarian impulses and their obligations with their domestic laws, needs and political realities (Crock, 2007). At the 21st century, protecting asylum seekers means maintaining solidarity with the people who are being threatened, while finding more answers to the problems that are confronting the international refugee system that has been created to protect asylum seekers across the world. The Australian refugee protection system is fraught with lengthy delays and expensive legal process. For asylum seekers, many of whom have undergone bad things before they arrived in Australia, it means years of living in uncertainty for most asylum seekers (Arulanantham, 2008). This has produced a system that ears an unnecessary financial and human cost. In recent years, several attempts have been made in Australia to reform the refugee system (Hathaway, 2007). If reforms to Australia’s asylum system are to serve interests of Australians as well as those of genuine asylum seekers in an effective manner, radical reforms will be needed, and this will include the introduction of safe third nation designations, and possible withdrawal by Australia of its accession to the 1951 UN Refugee Convention (UNHCR, 2006). Other measures that can be considered, such as placing yearly limit on the asylum seekers intake from other countries as well as establishing provision for temporary asylum seekers status in Australia in addition to permanent resettlement. Temporary Status for Asylum Seekers A temporary protection visa is a humanitarian visa that is given to asylum seekers who do not have valid visa and are found to be in need of protection. This type of visa was first introduced in 1991 and then abolished in 2008 (Arulanantham, 2008). Most recent discussion, the Australian government want to reintroduce the temporary protection visa for its asylum seekers who arrive into the country without visas- whether by plan or boat- and are found to be asylum seekers (Nicholson and Twomey, 2005). Temporary protection visa allows asylum seekers to stay in the country for not more than three years, after which the refugee status is reassessed (Crock, 2007). Those asylum seekers who are holder of TPV are allowed by the authority to work and have access to income support and Medicare. Asylum seekers are also able to receive trauma and torture counseling and assistance with finding jobs opportunities. In like manner, they would e good reason for requiring that all refugees should return to their countries of origin is circumstances in those countries improves within a reasonable period of time, and the asylum seekers will no longer feel at risk if they go back to their country of origin (Hathaway, 2007). For example, in 2000 western countries accepted thousands and thousands Kosovars refugees on the basis that this group of people were in danger from Serbian armed militia in Kosovo (Arulanantham, 2008). Later, an agreement was reached for the withdrawal of Serbian troops in Kosovo and UN peacekeepers were introduced into the region in order to maintain security, and in consequences (Gibney, 2003), many Kosovars who sought refuge in other countries had returned into their country. In the case of Australia, almost 90 per cent of 4000 Kosovars who sought refuge in the country returned home. In such circumstances, there is a strong case for Australian government to create TPV for asylum seekers fleeing from countries where the circumstances is occurring and may improve in future to the extent that the asylum seekers can safety return to their country of origins (Hathaway, 2007). Other nations such as Canada have such provisions in their immigrations laws and there are no good reasons why Australia should not reintroduce such a reform. Review of the UN Refugee Convention As the Prime Minister Kevin Rudd once said, the Australia should revisit its obligations on the UN Refugees Convention (Nicholson and Twomey, 2005). The UN refugee’s convention was established in response to the displacement of people that happened after the WWI and the refusal of many countries around the globe to take in Jewish asylum seekers running away from the Holocaust (UNHCR, 2006). Over the years, this convention has been designed to ensure no country in the world ever turns its back against vulnerable groups who are escaping persecution (Nicholson and Twomey, 2005). The important feature about the UN Refugee Convention is that it defines a certain group of individuals as “refugees” and requires countries that have ratified this convention to give such people certain basic rights (Hathaway, 2007). A “refugee” is an individual outside his or her own country who fears being persecuted of their nationality, race, and membership of a particular political opinion or social group (Crock, 2007). This is a difficult definition to satisfy a person who is a refugee (Gibney, 2003). For instance, an individual may fear being persecuted because they are victims of generalized violence and not because of ground listed under the refugee convention (Gibney, 2003). Nor can we define persons who are escaping poverty or natural disasters and “refugees” (UNHCR, 2006). The fact that many persons are suffering hardship do not fall within the refugee convention definition, and the refugee convention priorities refugees who come under the territory of a country or jurisdiction, has led some refugees activists to argued that the UN Refugee convention is no longer relevant (Gibney, 2003). These people argued that the definition of a refugee is Eurocentric because of its origin (UNHCR, 2006), and that it does not account for the reasons individuals are forced to migrate; and that it leaves out many individuals such as those who are trapped in their home countries. Some of these arguments are sound, they are individuals across the globe that do not satisfy the definition of a “refugee” but are in need of protection (Arulanantham, 2008). In addition, most international flights into Australia come from countries that are democratic where asylum seekers could apply for refugee status and where these people were expected to do so according to the international rules (Hathaway, 2007). To continue on to make refugee claim somewhere else is considered “asylum shopping” because it entails asylum seekers trying to get to nations that offer the most generous benefits (Gibney, 2003). Such actions means, people are more concerned about getting to countries such as Australia where they can enjoy better life rather than reaching safety since asylum seekers chose not to make a claim of refugee status in the first safe country they managed to reach. Asylum Seekers Queue For many years, questions have been asked whether Australia simply makes it too easy to make a refugee claim for asylum seekers (Hathaway, 2007). It can be recalled that when Australia started accepting refugees at the beginning of WWI, the country did not see itself as a nation of first asylum but rather as one that could make a contribution by resettling those people who had sought refuge in other countries. The decision to discontinue resettlement of asylum seekers from Indonesia neither breaches any international law nor changes the character of the country’s resettlement system (Hathaway, 2007). Refugees’ resettlement is a voluntary humanitarian act, and not a legal obligation (UNHCR, 2006). This has always involved the country to choose which asylum seeker it wants to grant refugees status from many millions and millions of people who need protections around the world (Gibney, 2003). The country has direct obligations to asylum seekers who just turn up-like those asylum seekers who come into the country by boat. In terms of international law, it should be noted that resettlement of Asylum seekers is a discretionary act by a nation; there is not treaty obligation on Australia to provide resettlement of asylum seekers. As a result of this, the country move to ban asylum seekers waiting in Indonesia does not goes against the UN Refugee Convention (Arulanantham, 2008). Yet, this contradicts the international practices of other nations such as the U.S and the position of the UNHCR. No other nation requires refugees to seek resettlement from the first country they are able to reach (UNHCR, 2006). The UNHCR also does not allow such people to apply for resettlement only near the place of the originating persecution or conflict (Crock, 2007). There are good reasons for this. In some situations, it may be dangerous for some asylum seekers to stay in a country near their country of origin. For instance, it is dangerous for Afghan asylum seekers to stay in Pakistan because the Taliban still have influence in some areas in Pakistan. There is also an aspect of resettlement that must be considered when the government’s announcement is accessed. When the Asylum seekers are granted resettlement visa, it selects those individuals who have been approved by the UNHCR. As a result of this, the government is required to be directed by the priorities that have been set by the UNHCR, and this should include its own local priorities (Gibney, 2003). When the UNHCR decides who to be resettled, it focuses on the need of individuals for protection, and also priorities those individuals who are at great risk of returning to their home countries, persecution or arbitrary detention. In addition, the UNHCR also prioritize vulnerable asylum seekers with needs and wants that cannot e med in the asylum nation. This will include people with serious health issues, survivors of violence and torture, girls and women, and some adolescents and children. Australia’s resettlement decision for resettlement is much difference. The country has looked for both “global and regional priorities” for the resettlement of asylum seekers humanitarian grounds (Hathaway, 2007). Therefore, it is highly questionable if resettlement of asylum seekers from Indonesia is banned. The country priorities in refugee policy have been directed at the country’s boarder control (Meissner, 2006). However, much emphasis has been on burden-sharing. Australia has been among nations that agreed establishment of Regional Co-operation Framework (Bali process in 2011). One of the ideas this framework emphases is the orderly migration pathways for asylum seekers and resettlement both outside and within the region (Goodwin-Gill, 2006). If Australia does not want to establish a wider regional framework between nations in the Southeast Asia, while a total ban on resettlement of refugees from Indonesia, one of the country ‘s most important regional asylum partners, seems contrary to this. Whatever the motivation for government’s announcement, it has illustrated that resettlement of refugees in not a purely humanitarian method (UNHCR, 2006). It is also a technique that allows the Australian government to select asylum seekers based on social and political factors such as electoral interests and foreign policy (Goodwin-Gill, 2006). As a result, the government announcement has been called into questions as the rationale of the asylum seekers resettlement program as one that provides a place to those people who need more protection. But instead, asylum seekers resettlement has been increasingly been used as a tool for border control, foreign policy and domestic political interests. If so, the Australian government cannot justify its policy as a reflection of humanitarianism, openness and fairness. Overhaul of Refugee Determination System For many years there have been serious inaccuracies on public comments on the Australian refugee determination system, often apparently it has been motivated by hostility to asylum seekers claimants (UNHCR, 2006). This does not support reasoned discussion about the important refugee policy issues. Asylum seekers are among the most mistreated and vulnerable individuals in the society and are easy targets for attack, as foreigners in foreign nations (Crock, 2007). Not all claimants are refugees- but even those individuals who are not in this category often have good reasons for having left their home countries. Many factors have been seen to contribute to existing issues in the refugee determinant system: individual that have been caught up in the problem should not be blamed. The problem may be found outside the refugee determinant system (Hathaway, 2007). For instance, citizens may e drawn into making wild claims because of the failure in Australia’s refugee’s determinant system to provide platform for employees whose labor the country wants. The controversy over the Australia Immigration Minister’s decision not to intervene to prevent some unsuccessful asylum seekers from being deported from Australia highlights the importance for reform in refugee’s determinant system (Goodwin-Gill, 2006). For a long time, the Refugee Council of Australia (RCOA) have reported that asylum seekers cases have been rejected in the Ministerial intervention process include individuals who had suffered violence, torture , mental illness and trafficking. In February 2008, former Minister for Immigration and Citizenship, Senator Evans Chris, stated that the current refugee status determinant system need to be reviewed, this view is also shared by RCOA (Schuck, 2006), Mr Power stated. Such a review of refugee status determinant system should undergo a long term overhaul. Refugee Council of Australia (RCOA) has been encouraging the Australian government to bring together an NGO working group to work with the ministry on examining refugees status determination system reform options (Schuck, 2006). One long held concern that is being raised by RCOA has been for individuals who have humanitarian protection needs which are covered by global conventions other than the UN Refugee Convention (Goodwin-Gill, 2006). At the moment, Refugee Review Tribunal and Department of Immigration do not have enough power to act on such refugees cases, even when people need to be protected is apparent. The Australia’s refugee status determinant system, which has been modified many times, is neither efficient nor just (UNHCR, 2006). The Australia’s model of restriction and deterrence has fed a culture of disbelief and a general climate, with negative implications for all asylum seekers, refugees and migrants. Fairness has been for a long time been compromised in the Australia’s overarching desire to reduce the numbers of asylum seekers applications (UNHCR, 2006). This strategy has not worked even its own terms, therefore the Australian government should be advised to continue to develop Australian model of refugee and asylum seekers protection that is anchored in humanitarian principles of effectiveness, fairness and respect for the human rights as entrenched in the UN Refugee Convention. There is hope the Australia should not follow the UK’s lead in this area of policy and law on refugees and asylum seekers. A lot of changes have been introduced in the UK asylum system over the years in the context of widespread misinformation, sensational media reporting and a marked politicization of the problem (Arulanantham, 2008). Widely reported issues in the UK refugee status system include asylum seekers being unfairly screened into a fast-track process, where the affected asylum seekers are unable to present their cases well and properly (UNHCR, 2006), detained individual who are unable to present their asylum cases properly, poor quality first-instance decision making process and inadequate legal aid (Schuck, 2006). Many government critics charged that more concerns about controlling asylum seekers numbers have taken priority over deciding who needs resettlement and protection (Goodwin-Gill, 2006), and have contributed to resettlement institutional bias against asylum seekers. Conclusion Changing the way in which Australia deals with asylum seekers who arrive in Australia and make refugee claim is both controversial and complicated and there is clearly a lack of confidence among the public in the present system (Crock, 2007). The Australia refugee system has been open to widespread abuse, extremely costly, unfair to genuine asylum seekers waiting to come to Australia, and constrained by international and domestic legal obligations that are ill fitted to current realities. Correcting the many problems related to the refugee status determination system has posed immense challenges to the Australian government given the array of organizations and individuals that oppose virtually every attempt to reform it that involves restricting access or reducing opportunities for failed asylum seeker claimant to prolong their stay in Australia (Goodwin-Gill, 2006). While there is still strong support in Australia for accepting genuine asylum seekers, it is equally clear that most Australians believe that the current refugee status determinant system is not working properly and should undergo a major overhaul (Crock, 2007). The number of asylum seekers attempting to enter Australia is likely to increase in the future. The International Organization for Migration estimates that in 2010 there were approximately 200 million migrants and that is likely to increase to 400 million by 2050. Irregular migration should be stopped because it exerts a heavy human toll and undermines the rule of law on the migrants themselves (Meissner, 2006). In the circumstances, Australia should put its house in order sooner than later and take necessary steps to ensure that, while they continue to accept genuine refugees and asylum seekers for resettlement. Australians are proud of their international and regional reputation as a leader in refugee and asylum seekers protection. The country’s refugee status determinant system is far from perfect, but in considering changes, the country would do well in safeguarding the core elements that contribute to its success, and that is envied across the globe (Meissner, 2006). Among those core elements is a commitment to treating refuge claimants with dignity and respect and to providing a fair and open process that determines whether or not asylum seekers need protection. References Arulanantham, A. (2008). 'Restructured safe havens: A proposal for reform of the refugee protection system', Human Rights Quarterly, vol. 22, no. 1. Crock, M. (2007). Immigration and refugee law in Australia, Sydney: Federation Press. Hathaway, J. (2007). 'A reconsideration of the underlying premise of refugee law, Harvard International Law Journal, vol. 31, no. 3. Gibney, M. (2003).'Liberal democratic states and responsibilities to refugees', American Political Science Journal, vol. 93, no. 1. Goodwin-Gill, G. (2006). The refugee in international law, Oxford: Clarenden Press. Schuck, P. (2006). 'Refugee burden-sharing: a modest proposal', Yale Journal of International Law, vol. 22, no. 243.. Meissner, D. (2006). 'Managing migration flows', Foreign Policy, no. 86, Spring. Nicholson, F and Twomey, P. (2005). Refugee rights and realities: evolving international concepts and regimes. Cambridge: CUP. UNHCR. (2006). The state of the world's refugees: in search of solutions, OUP, Oxford. Read More