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Refugee & Asylum Seeker Law Research Guide: Australia

Statistics

The Refugee Council of Australia

Asylum Seeker Resource Centre Statistics - provides asylum seeker, refugee and detention statistics in Australia and around the world.

Australian Department of Immigration and Border Protection Statistics includes:

 Asylum Insight: Facts and Analysis provides up-to-date statistics on asylum seekers in Australia and internationally.

2015 Australian Parliamentary Library Research Paper by Janet Phillips - Asylum seekers and refugees: what are the facts?

Australian Human Rights CommissionFace the facts: Asylum Seekers and Refugees (not updated since 2014, but a very good statistical and introductory snapshot of the legal and political situation in Australia.

Australian Red Cross - Refugee and Asylum Seeker Facts

UNHCR Resettlement Handbook - Australia

Refugee Research Guides

The Refugee Review Tribunal has produced an excellent Guide to Refugee Law in Australia, which contains an analysis of the legal issues relevant to the assessment of protection visas, focusing particularly on the determination of refugee status in Australia. The Guide is regularly updated to reflect developments in the law.

Globalex  Guide to Researching the Legal Aspects of Asylum Seekers and Refugees in Australia, Canada, and the United Kingdom

Latest Refugee News

News feed from UNHCR

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Australia's Obligations under the Refugee Convention

Australia is a signatory to the 1951 Refugee Convention and the 1967 Protocol. This means that Australia has voluntarily committed to comply with their provisions in good faith and to take the necessary steps to give effect to those treaties under domestic law (Vienna Convention on the Law of Treaties, Article 26). Treaties are not adopted automatically into Australian law - they must be incorporated into domestic legislation. The Refugee Convention in its entirely has not been incorporated into domestic law - however, certain provisions of the treaty are reflected in domestic legislation. For instance, s 36(2)(a) of the Migration Act 1958 (Cth)  makes reference to the protection obligations under the Refugee Convention in defining the criteria for a 'protection visa' under that Act.

Even when treaties have not been directly incorporated by legislation, they are an indirect source of rights, and treaties ratified by Australia have relevance in the common law of Australia which is enforced by courts. The High Court of Australia has confirmed that legislative provisions should be interpreted by courts in a manner that ensures, as far as possible, that they are consistent with Australia's international obligations because 'Parliament, prima facie, intends to give effect to Australia's obligations under international law' (Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273, 287). The High Court also held in Teoh that ratification of a treaty raised a legitimate expectation that an executive decision-maker will act consistently with its terms (Teoh, 291).

In addition, it is almost certain that many of the principles in the Refugee Convention, such as the definition of refugee and the reception of non-refoulment, have the status of customary international law, which means that Australia cannot escape its obligations, whether or not the Convention is incorporated into Australian legislation (Greig D, 'The Protection of Refugees and Customary International Law' (1984) 8 Australian Yearbook of International Law 108, 128, 133-136.

Australian Refugee Legislation

In Australia, statutory law dealing with refugees is primarily a Federal matter because migration matters come under the Federal powers enumerated in the Constitution: s 51 (xix) regarding naturalisation and aliens, and s 51 (xxvii) regarding immigration and emigration. The principal Federal Act is the Migration Act 1958 (Cth), which is the legislative basis of all forms of migration and visa applications in Australia, including humanitarian assistance. 

The Department of Immigration and Border Protection administers the Migration Act and the immigration program. 

The immigration program has two components:

  • Humanitarian program
  • Migration program for skilled and family migrants

The humanitarian program has two components:

  • Offshore resettlement application - when people apply overseas for a protection visa, before arriving in Australia.
  • Onshore protection application - when people arrive onshore in Australia or its territories such as Christmas Island and seek asylum directly from the Australian government. Under the Migration Act, asylum seekers who arrive on the mainland without a valid visa must be held in immigration or community detention, or transferred to an off-shore processing facility.

See information about the department's Refugee and Humanitarian Program, including:

  

See also LEGENDcom (UniMelb staff & student access) - a database of Australian migration and citizenship legislation and policy documents from the Department of Immigration.

Australian Refugee Decisions & Cases

Refugee and Humanitarian Cases and Commentaries - very useful and up to date commentary, illustrated by significant cases. On the Lexis Advance online service, Immigration Law in Australia (UniMelb staff & students).

Precis, the Monthly Decisions Bulletin, is published on the Refugee Review Tribunal website. This summarises a selection of recently published Tribunal decisions and Country Advice, selected summaries of High Court, Federal Court and Federal Magistrates Court judgments and legislation updates. An email alert can be set up to this service.

The Australian Year Book of International Law contains annual summaries of refugee law cases in the HCA involving international issues. This is available:
  • in print in the Law Library
  • on open access on AustLII (AustLII in three years behind the print holdings)
  • on Hein Online  (the Hein collection is two years behind the print holdings) (UniMelb staff & students)

 

Refugee cases are heard in the following Australian courts and tribunal:

  • Refugee Review Tribunal - merits review
    • Decisions of the Tribunal are published on AustLII from 1993 - present.
    • The decisions of the Tribunal on the merits are final and cannot be challenged in any court. However, decisions are subject to judicial review. In addition, the High Court can hear these cases in its original jurisdiction under section 75 of the Constitution. (198C(7) of the Migration Act).
       
  •   Federal Magistrates Court - judicial review
    • Decisions of the Federal Magistrates Court are published on Austlii from 2000 - present.
  • Federal Court - judicial review
    • Decisions of the Federal Court are published on Austlii from 1977 - present.
  • High Court - judicial review
    • Decisions of the High Court are published on Austlii from 1903 - present.

A great place to start....

Australia and Refugees 1901-2002: An Annotated Chronology Based on Official Sources - from the Commonwealth Parliamentary Library Archives (open access). This Chronology provides an excellent overview of the history of government policy towards immigration and refugees law in Australia - from the White Australia policy through to 2003. Section 1 notes that "Australia did not have an explicit refugee policy, separate from its general immigration policy, until the late 1970s. Australia certainly received refugees prior to the 1970s but it was in response to the Indo-Chinese refugee crisis of the late 1970s and early 1980s that a comprehensive, ongoing, approach was adopted.

Refugee and Humanitarian Cases and Commentaries - a very useful and up to date introduction to the topic in the Lexis Advance online service, Immigration Law in Australia (UniMelb staff & students).

Halsbury's Laws of Australia  Title 77 - Citzenship and Migration on Lexis Advance is a good starting point for your research into Australian refugee law. Halsbury's provides up to date commentary and links to relevant caselaw and legislation.

To get there, scroll to this title in the alphabetical list, then click the + button which opens the menu - click on 3: Migration > E: Visas > VI: Visa Classes > F: Refugee and Humanitarian Visas. You can then browse to the relevant entry eg: 77-615 - Definition of 'Refugee'.

 

Books