The 1951 Refugee Convention is the central instrument in international law that pertains
to the status and treatment of refugees.
It's an international treaty which means that it's an agreement that different countries
have agreed voluntarily to be bound by and Australia is one of those countries.
The 1951 Convention was really a response to the displacement that had happened during
the Second World War.
So that instrument defined refugees as people who are outside their country with a well-founded
fear of persecution for one of five reasons, namely; nationality, political opinion, religion,
membership of a particular social group or their race.
Originally, that treaty said that you were only a refugee if you were fleeing events
that had occurred prior to the 1st of January, 1951.
However, in 1967, countries adopted a protocol to the 1951 Refugee Convention which essentially
removed that limitation.
By ratifying the Refugee Convention, Australia promises to abide by the obligations set out
there.
Perhaps the most important one is the principle of non-refoulement or non-return which is
contained in Article 33.
This means that Australia has promised not to send refugees back to places where they
fear persecution for reasons of their race, religion, nationality, political opinion or
their membership of a particular social group.
The Refugee Convention, as I mentioned, is a treaty.
But treaties don't have direct application in Australia unless they have been essentially
turned into part of our domestic law.
So some of the important obligations that Australia has are translated into our Migration
Act and Australia, through the Migration Act, undertakes to protect refugees in accordance
with the '51 Convention.
Another important element of the Refugee Convention
is contained in Article 31.
And that's the provision that says that countries will not penalise asylum seekers
when they are arriving in a country without documents in search of protection.
The reason for that of course is because the very nature of refugee flight might mean
that you simply don't have documentation with you when you need to flee.
But it also can be because a person for instance who is fighting against a particular
regime, won't be able to obtain a passport from that regime.
And the other point of course as well, is
that countries don't issue refugee visas outside their own territory.
So essentially, to be a refugee, you need to cross an international border and if you
then find your way to an Australian consulate if there is one in the place that you are,
you can't say, I need your protection Australia, right here, and be issued with a visa.
And it's very unlikely you'll qualify for a tourist visa or a work visa or similar kind
of visa, precisely because of the assumption that you're not really a tourist, that instead,
when you arrive in Australia, you'll seek asylum.
In addition to the principle of non-refoulement or non-return under the Refugee Convention,
Human Rights Law also contains protections against return.
Importantly, under the ICCPR, the International Covenant on Civil and Political Rights, and
also the Convention Against Torture, countries are prevented from returning people to a place
where they face a real risk of being tortured.
Further, under the ICCPR, countries are precluded from sending somebody back to a
place where they would be at risk of being killed or otherwise arbitrarily deprived of
their life.
Countries also can't return someone if they are going to be at risk of the death penalty
or if they might be exposed to cruel, inhumane or degrading treatment of punishment.
This is generally known as complimentary protection because it complements the non-refoulement
obligation in the Refugee Convention.
Of course, Refugee Law is part of broader
International Human Rights Law and that's important because although the Refugee Convention
stipulates particular rights that are owed to refugees, all refugees are of course human
beings and therefore have entitlements under the general Human Rights Treaties as well.
There are also a couple of regional refugee
instruments.
The first of these is the 1969 OAU Convention which applies in Africa.
In addition to picking up the refugee definition from the 1951 Convention, this treaty also
says that refugees are people who are fleeing such things as occupation by another country,
foreign aggression, events seriously disturbing the public order and so on.
There's also a Latin-American instrument known as the Cartagena Declaration from 1984.
Similarly, this applies to people fleeing foreign domination, aggression and serious
human rights violations.
So these definitions apply in those particular regions in addition to the 1951 Refugee Convention
definition.
Is anyone excluded from refugee protection?
Well under Article 1F of the Refugee Convention, there are grounds for excluding people who've
committed very serious crimes from refugee status.
These are crimes like war crimes, genocide, crimes against humanity, serious non-political
crimes committed outside the country prior to seeking asylum or acts that are contrary
to the purposes and principles of the UN.
So something like terrorism would definitely be encompassed within that framework.