'Assessing Refugee Protection Claims at Australian Airports: The Gap Between Law, Policy and Practice' by Regina Jefferies, Daniel Ghezelbash and Asher Hirsch in (2020) 44(1) Melbourne University Law Review comments
Australia’s current approach to processing individuals who arrive by air and raise protection claims at or before immigration clearance at Australian airports has not been previously explored. This article reveals a set of policy and procedural instructions, recently released by the Department of Home Affairs (DHA) under the Freedom of Information Act 1982 (Cth), which establishes the administrative process of ‘entry screening’. The article examines entry screening within the transnational framework governing Australia’s legal obligations towards individuals seeking international protection. While much scholarly and public attention has been directed towards policies such as offshore detention and interdiction at sea, the documents reveal that policies designed to deter ‘unauthorised mar time arrivals’ have similar manifestations — and consequences — for ‘unauthorised air arrivals’. The article then turns to an analysis of domestic law, arguing that the Migration Act 1958 (Cth) does not authorise the entry screening procedures and that the procedures contradict certain statutory guarantees and procedural fairness. The documents further indicate that DHA lacks accurate data on protection claims made in Australian airports. Finally, the article examines why the current practice of entry screening violates Australia’s international legal obligations of non-refoulement and non-penalisation.
Despite playing a key role in the development of the post-World War II international refugee law framework, in recent years Australian practice has openly challenged well-settled international legal norms through the use of policies meant to deter individuals from seeking protection in Australia. While much scholarly and public attention has been directed towards the Australian government’s attempts to create zones free of legal protections and judicial review through the use of externalisation policies such as offshore detention and interdiction at sea — essentially leveraging physical spaces away from the Australian mainland to effect policy objectives — information recently released by the De- partment of Home Affairs (‘DHA’) in response to requests under the Freedom of Information Act 1982 (Cth) (‘FOI Act’) reveals the creation and maintenance of similar zones on the Australian mainland.
A number of recent media reports concerning people seeking asylum at Australian airports demonstrate Australia’s approach to people seeking asylum by air. In February 2019, an Australian Broadcasting Corporation (‘ABC’) investigation found evidence that the Australian Border Force (‘ABF’) had turned back at least two young Saudi Arabian women at Sydney Airport after the women requested asylum. The ABC reported that one of the women, called Amal, arrived at Sydney Airport in November 2017 when ABF officials became suspicious that she intended to request asylum. After informing Amal that she would not be allowed to enter Australia, Amal made clear her intention to claim asylum to officials, which the ABF apparently denied. Amal was then transferred to an immigration detention centre, where she was not offered a lawyer, before being removed to South Korea (where she had boarded her flight to Australia).
In November of the same year, the Guardian Australia reported that two gay journalists from Saudi Arabia had been detained after seeking asylum at an Australian airport. The men fled Saudi Arabia, where homosexuality is illegal and punishable by death, after being outed as gay by Saudi state security. According to their Australian lawyer, the men had already cleared passport control on valid tourist visas before ABF officials in customs inspected their bags and phones and asked if they intended to apply for asylum. When the men indicated that they did intend to apply for asylum they were detained. They were released from detention on bridging visas in December 2019. These incidents do not appear to be isolated, though the DHA does not keep accurate data regarding the number of individuals who have raised protection claims at Australian airports.
The transnational framework governing Australia’s legal obligations towards individuals seeking international protection, like Amal and the men discussed above, consists of a complex web of legal sources including international law, domestic legislation, judicial decisions, administrative law, and executive power. International law provides the footing upon which the Australian domestic protection framework rests, however imperfectly. Australia’s ability to act is underpinned by the international legal norm of non-refoulement, which prohibits the return or removal of an individual to a place where they risk persecution or other serious harm, as well as by rule of law principles such as procedural fairness. While reflected in international treaties, the principle of non-refoulement also forms part of customary international law, and Australian domestic law. Yet successive federal governments have taken explicit steps to weaken the application of the obligation of non-refoulement, in part by framing full and effective implementation of the obligation as being at odds with state sovereignty.
Whether the Saudi cases represent a small segment of individuals removed from Australia after seeking asylum, or whether their stories form part of a larger pattern of behaviour is not known. The DHA has confirmed that although ‘referrals for persons seeking to engage Australia’s protection claims are in fact recorded’, the DHA’s record keeping procedures render it impossible to determine ‘the total number of persons raising protection claims at Australia’s borders.’ Until recently, little conclusive information was publicly available regarding the current entry screening procedures for individuals seeking protection at airports on the Australian mainland. This article brings those procedures to light, while analysing their domestic and international legal implications.
Part II of this article examines the entry screening procedures for individuals who seek protection before, or during, immigration clearance at an Australian airport. This Part defines key terms and explores the content and operation of the policy guidance and procedural instructions. This article does not address the procedures for individuals who seek protection after passing through immigration clearance, as those claims are subject to a different process. Part II concludes with an examination of the claimed statutory basis for the policy, as well as the legal protection framework within which the entry screening procedures are meant to operate. Part III then turns to an analysis of the various domestic legal and practical issues implicated by the entry screening process, as well as potential bases for challenging the policy and procedures. This Part explores the right to access to counsel and the right to visa application forms where a non-citizen is detained, as well as the lack of review of entry screening decisions, the validity of the entry screening process under the Migration Act 1958 (Cth) (‘Migration Act’) and the practical considerations that impede an individual’s ability to raise these claims while detained at an airport.
Part IV examines the international law implications of the entry screening procedures, including the interplay between the entry screening procedures and the obligation of non-refoulement as contained in various international refugee law and human rights treaties, as well as the prohibition on state penalisation of refugees and asylum seekers on account of their illegal entry or presence under international law. This Part seeks to initiate a deeper exploration of the international law implications of a policy that has not previously been the subject of scholarly consideration. Part V concludes that the entry screening procedures may be inconsistent with both domestic and international law.
As vividly demonstrated in the two Saudi cases, the entry screening procedures go beyond a simple inquiry into whether an individual is seeking protection. Rather, entry screening enables discretionary decision-making as to the strength and validity of a protection claim in a procedure lacking transparency and largely shielded from judicial review.
