Monday, July 22, 2013

PNG asylum deal could be in breach of UN convention


Monday 22 July 2013 

A respected expert on international refugee law has told RN Breakfast that Australia doesn’t have an asylum problem, but a political problem, and refugees are paying the price, as James Bourne reports.

The Federal Government has continued to defend its decision to send all asylum seekers arriving by boat in Australia to Papua New Guinea. Under the regional agreement, Australia will bear the full cost of the plan—including the cost of genuine refugees being resettled.

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Image: Australian Prime Minister Kevin Rudd, (R) and Papua New Guinea's Prime Minister Peter O'Neill (L) talk to the media after announcing a policy on asylum seekers. (Aman Sharma/AFP/Getty Images)
Dr James Hathaway, an expert on international refugee law, told RN Breakfast that Kevin Rudd’s announcement on Friday was entirely unprecedented.
‘This plan is without question the most bizarre overreaction I have seen in more than 30 years of working on refugee law,’ said Dr Hathaway. ‘It just makes no sense.'
‘The only mandatory deportation to PNG is going to be so-called boat arrivals. Does the Prime Minister think that every refugee should arrive with a Qantas first class ticket in order to be real?'
Dr Hathaway, a professorial fellow at the University of Melbourne, suggested that the deal struck between Australia and Papua New Guinea was in breach of the the United Nations Convention relating to the Status of Refugees.
‘The convention itself says you can’t penalise refugees for arriving without authorisation,’ he said. ‘There is no visa that Australia or anybody else gives for a person to come and seek asylum.' 
‘To take people who are... coming and asking for asylum and dumping them into the hell hole of PNG is in my view both an illegal penalty and a discriminatory penalty, which puts Australia in breach of the convention on two points.’
The crisis Prime Minister Kevin Rudd says is addressed by the deal doesn't even exist, Dr Hathaway said. Compared to other developed countries, Australia’s intake of 30,000 refugees is ‘a totally average, absolutely manageable number’. 
‘What is really striking about this is that Australia, unlike any developed country that I know, has been attracting almost exclusively genuine refugees as boat arrivals,’ Dr Hathaway told RN.
‘It’s the boat people who seem to have attracted his ire. It’s the most extraordinarily bizarre singling out of the group that...ought to be the very group that we should care about the most,’ he said. 
‘So Australia does not have an asylum problem, it has a political problem, and refugees are being made to pay the price for Kevin Rudd wanting to appear, I think, more butch that Julia Gillard and more reactionary than Tony Abbott.’
‘The people who are so desperatewho so fear for their loss of life that they’re prepared to put their fate into the hands of smugglers and take a horrible boat journey to surviveare the very ones that Australia seems to want to punish.’
Dr Hathaway suggested that sending genuine refugees to Papua New Guinea was a reckless plan, despite the nation being a signatory to the Refugee Convention.
‘We’re talking about a country that ranks 168th in the world in terms of life expectancy, where more than half the country doesn’t have sanitation or clean water, one in two women in PNG have been raped, homosexuals can to jail for 14 years, this is where we’re going to send people who have done nothing wrong, other than have the courage to say that they don’t want to be persecuted for who they are in the country where they lived.'
The High Court’s 2011 ruling on the Gillard government’s proposed Malaysia Solution stated that an arrangement that doesn’t legally guarantee refugees the right to work, education and access to the courts breached obligations under the UN refugee convention. Despite these rights not being guaranteed by the PNG agreement, Australian Attorney General Mark Dreyfus has said that the arrangement ‘complies with our international obligations under the refugee convention’.
Dr Hathaway disagrees.
‘The word ‘rights’ doesn’t even appear in the agreement that the Prime Minister of Australia signed with the Prime Minister of PNG,’ he said. ‘That’s what makes it illegal.'
‘The government seems to think that its only obligation under the convention is to make sure that somebody at risk of being persecuted doesn’t get sent back to persecution.' 
‘That argument is what the government put to the High Court of Australia in the Malaysia case and the High Court quite explicitly rejected that argument.’

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