By AZADEH DASTYARI
Prime minister Kevin Rudd has indicated that he would like to revisit Australia’s obligations under the United Nations Convention Relating to the Status of Refugees.
We are yet to learn what this may mean, but it is important to clarify some misconceptions about the convention in the lead-up to his announcement.
The convention was drafted as a response to the displacement of millions of people by World War Two and the refusal of many nations to take in Jewish refugees escaping the Holocaust. It is designed to ensure no country ever turns its back again on vulnerable groups who need to escape persecution. Australia ratified the convention in 1954.
The most important feature of the convention is that it defines a particular group of people as “refugees” and obliges countries who have signed the convention to give such individuals certain rights. A “refugee” is a person outside of their own country who fears persecution because of their race, nationality, membership of a particular social group or political opinion.
This is a difficult definition to satisfy. For example, if a person fears persecution because they are victims of generalised violence and not because of one of the listed grounds under the convention, they are not a refugee. Nor can we label people who are escaping natural disasters or poverty as “refugees”.
It is important to note that the term “asylum seeker” does not exist under the convention but is a politically expedient label given to people who are seeking recognition of their refugee status. Many asylum seekers (90% of those who have come to Australia in recent years by boat) are in fact refugees and have rights under the convention, regardless of whether or not Australia has processed their claim or recognised their refugee status.
What is interesting about the convention is that it obliges nations to provide certain rights to refugees who are in a nation’s “jurisdiction” (that is under the control or power of a country), or in a nation’s territory.
The convention does not oblige a country to go out and find refugees to bring back and resettle. This means that while there may be very strong moral reasons for Australia to resettle refugees from refugee camps in places like Africa or south east Asia, Australia only owes a legal obligation to refugees who reach its territory by boat or plane.
The convention gives a range of rights to refugees according to their connection to the receiving country. For example, refugees who are simply in the “jurisdiction” of a country but not within its territory, such as refugees on the high seas whose boat may be boarded by Australian authorities, have the right not be returned to persecution.
Refugees receive greater rights as they become more attached to a nation. For example, refugees who are in the territory of a country cannot be punished because of the way they travelled. Once the status of refugees within a country becomes regularised, for example, through the grant of a visa, they gain additional rights including the right not to be expelled from the country except in cases where they are a threat to the national security or public order of the country.