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Urgent Interventions

Press Release: OMCT expresses its deep concern at the recent new Australian immigration law and at the lowering of international refugee law standards

Press Release

The World Organisation Against Torture (OMCT) expresses its deep concern at the recent new Australian immigration law aiming at narrowing the definition of a refugee, restricting the role of the Courts in determining the rights of asylum seekers, and imposing lengthy prison terms on those harboring asylum seekers. OMCT strongly condemns this ongoing campaign designed to weaken the Refugee Convention, at a time when protection may be more important than ever before, in light of the current political context. Given the level of racism and xenophobia against refugees and asylum seekers which needs to be tackled worldwide, the recent Durban World Conference Against Racism reaffirmed the necessity of eliminating racial discrimination against migrants, refugees and asylum seekers, notably in relation to issues such as access to justice, and the fact that their treatment was to be in accordance with international human rights instruments, free from racism, racial discrimination, xenophobia and related intolerance.

Australia has a non-revisable mandatory detention policy for unauthorized arrivals of asylum seekers. Mandatory immigration detention results in physical, emotional and social neglect and therefore deprives detained asylum seekers, and in particular children, of development opportunities. The system, which in some cases has resulted in women and children being detained for several years, has been a constant source of concern for OMCT. Australia has six immigration detention centers – three in remote locations (Woomera, Port Healand and Derby) and three in capital cities (Villawood in Sydney, Mribrynong in Melbourne and one at Perth Airport). OMCT frequently expressed its grave concern over the location of detention facilities for asylum seekers and immigrants, and at the security measures and living conditions at these facilities.

OMCT recalls that recently, the United Nations Human Rights Committee expressed its concern about the fact “that the mandatory detention under the Migration Act of “unlawful non-citizens”, including asylum seekers, raises questions of compliance with article 9, paragraph 1 of the International Covenant on Civil and Political Rights, which provides that no person shall be subjected to arbitrary detention”.

In general, OMCT condemns the treatment of asylum seekers by Australia and calls for a change of policy. However, among the outcomes of the new immigration legislation adopted last week in Australia is a narrowing of the commonly accepted and legal interpretation of the definition of a refugee. The new immigration law remains discriminatory, repressive, unworkable and in contradiction with international standards and law. The law mainly limits access to Australia’s legal system to those applying for refugee status. Moreover, the lack of independent review of the detention decision remains extremely worrying. The mandatory detention framework fails, in this respect, to create an administrative decision upon which such a review must be based. Furthermore, there is no limit on detention provided for in the Migration Act.

OMCT urges the Government to respect standards set in all comparable democratic countries, where asylum seekers are detained with reasonable time limits on their detention to allow for initial checks on identity, health and character and then released into the community pending final determination of their status. These limits are especially important in the case of children and those who are survivors of torture.

At a time when the UNHCR is strengthening its position on the treatment and reception of children, and calling to particular attention to be paid to the situation of asylum-seeking minors, OMCT is further concerned at the systematic incarceration of children in immigration detention facilities in Australia. OMCT highlights the obligation of Australia, under the Convention on the Rights of the child, to respect, promote and protect the rights of all children, including those seeking asylum, to education, health, and to leisure, recreation and culture. The mandatory detention activates a passive process of withholding of care. According to OMCT, this constitutes neglect, which, given the total denial of access to both legal assistance and health care services to detained asylum seekers, and particularly children, amounts to ill-treatment.

Mandatory detention is further in breach with the CRC which establishes that deprivation of liberty shall be used as a measure of last resort and for the shortest possible time, in line with article 37 of the Convention. Furthermore, detention denies asylum seekers access to social justice policies inherent in the welfare state that are usually available to Australians. As far as discrimination is concerned, OMCT recalls the need to respect the principle of non-discrimination enshrined in article 2 of the CRC giving the State responsibility to respect, promote and protect the rights of any child who find himself/herself under its jurisdiction. Non-discrimination means that detained minors seeking asylum should not be treated differently from children elsewhere in Australia.

The detention of child asylum seekers may impede their ability to contact a lawyer, thereby increasing the child’s vulnerability to “refoulement” – a violation of Article 33 of the 1951 Convention, the corner-stone of international refugee law. The UNHCR’s Executive Committee has called upon States to observe and respect the rights and principles of international human rights and humanitarian law, including the right of children and adolescents to life, liberty, security of the person and freedom from torture or other forms of cruel, inhuman or degrading treatment or punishment.

Australia’s declaration of its latest measures to keep asylum seekers away from its shores, at the UNHCR Global Consultations on International protection, is a new source of concern for OMCT. The International Secretariat of OMCT deplores the lack of strong political reaction and condemns from the whole international community and fears a significant lowering of international standards. At a time when the need to protect refugees is probably at its greatest, Australia has taken a major step backwards in its commitment to refugee protection and human rights.

Believing that these particularly grave and sensitive concerns deserve to be treated with the highest degree of priority this year, given that it is the 50th anniversary of the 1951 Refugee Convention, OMCT requests Australia to guarantee the respect of human rights and the fundamental freedoms throughout the country, in accordance with national laws and international human rights standards.

For further information, please contact:
Elsa Le Pennec
The World Organisation Against Torture (OMCT)
Tel: +41.22.809.49.39
Fax: +41.22.809.49.29
Email: omct@omct.org