Entries by category: Asylum Seekers


Asylum seekers arriving by boat

Asylum seekers who arrive in Australia by boat and their treatment by the federal government has attracted much attention recently.  The United Nations Refugee Agency (UNHCR) is seeking details from the Australian authorities about recent media reports of the Australian Navy forcing boats, presumed to be carrying asylum-seekers on their way to Australia, back into Indonesian territorial waters, as well as reports of plans to buy and provide vessels for future push-backs.

'UNHCR would be concerned by any policy or practice that involved pushing asylum-seeker boats back at sea without a proper consideration of individual needs for protection. Any such approach would raise significant issues and potentially place Australia in breach of its obligations under the Refugee Convention and other international law obligations.

As past experience has shown, such practices are also operationally difficult and potentially dangerous for all concerned.'

Source: 'UNHCR seeking details on reports of boats forced back from Australia', Briefing Notes, 10 January 2014.  For more details, see 'Towbacks may breach international law, UN refugee agency cautions Abbott', The Guardian Australia, 11 January 2014.

The UNHCR has produced a factsheet about refugees and asylum seekers in Australia, September 2013.

Three refugees who arrived by boat and have been refused permanent visas have had appeals lodged in the High Court.  If successful, this could have implications for other asylum seekers already in Australia wanting to make a claim for a permanent protection visa.  For more details, see 'High Court challenge could enable asylum seekers to stay in Australia' by Lenore Taylor, The Guardian Australia, 14 January 2014.

Our Research Guide Human Rights: HSC Legal Studies – asylum seekers and refugees has been updated to include recent developments.  This would be an interesting topic to follow while studying human rights issues in Australia.  


High Court decision about mandatory sentences for the offence of people smuggling

People smuggling is the only crime that attracts a mandatory sentence under Federal laws.  A recent High Court decision has upheld the right of the Federal government to set minimum sentences.  Section 233A(1) of the Migration Act 1958 (Cth) creates the offence of people smuggling with no mandatory minimum sentence; while section 233C(1) carries a mandatory minimum term of imprisonment of five years, with a minimum non-parole period of three years.  A person who smuggled a group of five or more unlawful non-citizens could be charged with either offence.

The High Court was asked to determine 'whether the provisions creating the offences, or the provision fixing a mandatory minimum term of imprisonment for the aggravated offence, was beyond legislative power'.  In a majority decision of six to one, the Court held that the provision was not beyond the legislative power of the Commonwealth Parliament and did not confer judicial power on prosecuting authorities.

See Magaming v The Queen [2013] HCA 40, 11 October 2013.  For a helpful summary see High Court's media release, 11 October 2013.


On 6 September 2010, a boat carrying 52 passengers and four crew members was intercepted near Ashmore reef.  Mr Magaming was one of the crew members.  The passengers on the boat were not Australian citizens and none had a lawful right to enter Australia.  Mr Magaming was charged with facilitating the bringing or coming to Australia of a group of at least five unlawful non-citizens contrary to s 233C(1) of the Migration Act 1958 (Cth). 

Mr Magaming pleaded guilty in the District Court of NSW and was sentenced to the mandatory minimum term of five years’ imprisonment with a non-parole period of three years.  He sought leave to appeal to the Court of Criminal appeal alleging that the provisions prescribing the mandatory minimum term of imprisonment was invalid.  He was granted leave to appeal, but the court dismissed his appeal concluding that the provision was valid.  Mr Magaming appealed to the High Court.

Mr Magaming contended that the prosecuting powers could choose between charging an offence that carried a mandatory minimum sentence and charging another offence that carried no mandatory sentence, and that the prosecuting authorities incorrectly exercised judicial power.  He also contended that prescribing a mandatory minimum sentence was incompatible with the institutional integrity of the courts and that it required a court to impose a sentence that was arbitrary.

The High Court dismissed this appeal.  The High Court held that although prosecuting authorities had a choice as to which offence to charge, that choice did not involve an exercise of judicial power or confer on prosecuting authorities an ability to determine the punishment to be imposed for the same conduct, even where one available offence prescribed a mandatory minimum sentence. The Court also held that the imposition of a mandatory minimum sentence was not inconsistent with the institutional integrity of the courts and did not involve the imposition of an arbitrary sentence.  Source: High Court media release, 11 October 2013.

See 'High Court upholds people smuggling mandatory sentence' by Oliver Milman, The Guardian Australia, 11 October 2013. 

Earlier proceedings

Karim v R; Magaming v R; and others [2013] NSWCCA 23, 15 February 2013

We have added this case to the LIAC Crime Library - Magaming v The Queen


Indefinite detention of refugees by Australia - response of the UN

A UN watchdog has called on Australia to release 46 refugees being held in indefinite detention, labelling it 'cruel and arbitrary'. The UN Human Rights Committee has slammed Australia's treatment of the group, saying the country broke global human rights rules by denying the group a chance to challenge their detention. In a review of complaints from the refugees - 42 Sri Lankan Tamils, three Rohingya Muslims from Myanmar and a Kuwaiti - the committee said the detention was arbitrary and broke the International Covenant on Civil and Political Rights. 'Australia's indefinite detention of 46 recognised refugees on security grounds amounted to cruel, inhuman and degrading treatment, inflicting serious psychological harm on them' the committee said in a statement.

Media responses

Other media responses to Australia's Government plans on managing refugees

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Boat arrivals and people smugglers to be stopped

Prime Minister Kevin Rudd has announced the Labor party's tough new stance against asylum seekers arriving in Australia by boat, as well as indicating a crackdown against people smugglers - those responsible for boat arrivals in Australia.  In 2012, the total number of people who arrived in Australia by boat was 17,202.  This year, the number of boats has not abated and in recent weeks, a number of people who boarded boats to come to Australia have died before arriving.  This is a highly-emotive and politically-charged issue and the population of Australia is sharply divided on the subject of asylum seekers arriving by boat.

The announcement concerning asylum seekers, made on 19 July, is called the Australia and Papua New Guinea Regional Settlement Arrangement.  Prime Minister Rudd announced:

'As of today asylum seekers who come here by boat without a visa will never be settled in Australia.  Under the new arrangement signed with Papua New Guinea today – the Regional Settlement Arrangement - unauthorised arrivals will be sent to Papua New Guinea for assessment and if found to be a refugee will be settled there.  Arriving in Australia by boat will no longer mean settlement in Australia.  Australians have had enough of seeing people drowning in the waters to our north.  Our country has had enough of people smugglers exploiting asylum seekers and seeing them drown on the high seas.'  See media release.

Transcript of the joint press conference on 19 July 2013 – Prime Minister of Australia, Prime Minister of Papua New Guinea, Minister for Immigration, Attorney-General will give you more detailed information about this new arrangement and Prime Minister Rudd's intention to review the United Nations Convention on Refugees.

Response of the media:

Statistics on boat arrivals

Targeting people smugglers

The Minister for Home Affairs and Justice, Jason Clare, announced that the Australian Federal Police will pay rewards of up to $200,000 for information leading to the arrest and conviction of people organising people smuggling ventures to Australia. 

'There are criminals in Australia that are part of international people smuggling syndicates. These syndicates stretch from Australia to Indonesia and to places like Malaysia, Pakistan, Iran and Iraq.  Australian based people smugglers help to organise passengers, collect payments and transfer money overseas.  These people are peddling in misery and death. We need to shut this market down. That’s why we are putting a bounty on their heads.'  See media release.

For more information about asylum seekers and refugees and Australia’s response to their plight, see our Research Guide HSC Legal Studies: Human Rights – Asylum seekers and refugees.  You will find helpful information under the tab 'Human Rights in Australia'.  Note that you can use the tabs along the top of the guide to find information on a range of human rights topics and issues.


High Court decision - ASIO and refugee protection visa

The High Court, in a majority decision on 5 October 2012, ruled invalid a regulation that prevented the issue of a protection visa to a refugee with an adverse security finding made against them by ASIO. This meant that the refusal of the visa based on that regulation was a decision ‘not made according to law’.

The plaintiff, identified as ‘M47’, is a Sri Lankan national who arrived in Australia in December 2009, and has been held in detention since that time. He was granted refugee status on the basis of a ‘well-founded fear of persecution’ on the basis of his race or political opinion. He was however refused a protection visa because ASIO had assessed him as a risk to national security. A clause within the Migration Regulations 1994 (Cth) has a criterion for providing a visa (called ‘public interest criterion 4002’), which requires that the applicant has not had an assessment made that they are a risk to security under the Australian Security Intelligence Organisation Act 1979 (Cth).

Here are some newspaper articles which discuss the case, before and after the decision:

Freedom or a life without liberty?’ by Michael Gordon, SMH, 5 /10/2012

High Court rules ASIO powers on refugee decisions are invalid’ by Michael Gordon, SMH, 5/10/2012 

A media release by the Australian Human Rights Commission has welcomed the decision and called for an immediate reconsideration of more than 50 other refugees in the same situation.

The High Court has provided a summary of the case and the full decision is also available on AustLII.

Listen to the ABC Law Report on the High Court decision, or read the transcript of the program, broadcast on Tuesday 9 October, 2012.

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